Friday, July 3, 2015
Ninth Circuit Quashes Ex-NHL Owner Pocklington’s Jail Sentence
By KENNETH OFGANG, Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday overturned a six-month jail sentence imposed on Canadian-entrepreneur-turned-California-desert-dweller Peter Pocklington, saying the court had no jurisdiction over him because his probation term had expired.
Pocklington’s probation term could not be extended, the court said, because the government failed to meet a jurisdictional requirement that a warrant or summons be obtained prior to the date that probation was set to expire.
Pocklington was reputedly one of Canada’s wealthiest citizens, owning sports teams, car dealerships, and companies in various aspects of agriculture and food service. But he remains known—and in many quarters reviled—as the man who, as owner of the Edmonton Oilers, traded hockey great Wayne Gretzky to the Los Angeles Kings.
Pocklington built a billion-dollar financial empire in Canada and was one of the country’s most famous businessmen before business reversals forced him to sell the Oilers and other holdings seven years ago. He left the country, moved to Indian Wells, and filed for bankruptcy, listing $3,000 in assets and $19.7 billion in liabilities.
Prosecutors later charged him with bankruptcy fraud, saying he failed to disclose his control of two storage units containing almost $10,000 of his wife’s property, or that he had about $9,300 in two bank accounts. He pled guilty to a reduced charge of perjury and was placed on probation for two years, effective Oct. 27, 2010.
In June 2012, probation officers received a letter from Pocklington’s creditors alleging that he had failed to disclose two ownership interests, positions on four corporate boards, and millions of dollars in assets and income.
The probation office requested to extend Pocklington’s probation 90 days to investigate the alleged violations. Although he was still on probation at the time of the request, U.S. District Judge Virginia Phillips of the Central District of California did not hold a hearing on the request until Oct. 31, five days after Pocklington’s probation had expired.
Phillips ordered that the period of probation be extended 90 days from the Oct. 26 expiration date. Almost a year later, she revoked probation and sentenced Pocklington to six months in prison followed by two years of supervised release.
Failure to Comply
But Judge M. Margaret McKeown said the government failed to comply with the “easy-to-follow instructions” in the Violent Crime Control and Law Enforcement Act of 1994. Those instructions say “get a warrant or summons before the probation expires,” McKeown explained.
When Congress used the words ‘warrant or summons,’ it meant them,” the judge wrote. “Close enough doesn’t fly under the statute.”
In this file photo, Peter Pocklington, former owner of the Edmonton Oilers NHL hockey team, leaves the U.S. District Court in Riverside.
The government argued that the plain-error standard applied, because Pocklington didn’t raise the argument in the lower court, and that the district court’s scheduling of a show-cause hearing instead of issuing a warrant or summons did not rise to the level of plain error.
But McKeown said the defendant didn’t have to raise the issue below because it is jurisdictional, and that Supreme Court precedent says the court cannot “create equitable exceptions to jurisdictional requirements.”
The statute says that “[t]he power of the court to revoke a sentence of probation for violation of a condition of probation…extends beyond the expiration of the term of probation… if, prior to its expiration, a warrant or summons has been issued on the basis of an allegation of such a violation.”
The appellate jurist wrote:
“We conclude that the plain language limiting the ‘power of the court’ sets out a jurisdictional rule. Because the government did not comply with the statute’s strictures, the district court did not have the power to extend retroactively and later revoke Pocklington’s probation.”
Absence of Probable Cause
McKeown added that the probation office, in issuing a “request” for an extension of probation so it could investigate the allegations, was “crystal clear about the absence of anything resembling probable cause,” and had no authority to issue a warrant even if probable cause existed. And the scheduling memo the district court prepared in response to the probation office “has none of the indicia of a warrant,” the judge said.
Senior Judge Andrew J. Kleinfeld and Judge Milan D. Smith Jr. joined in the opinion.
The case, United States v. Pocklington, 13-50461, was argued in the Ninth Circuit by Becky Walker James of James & Stewart LLP, for the defendant and Assistant U.S. Attorney Joseph B. Widman for the government.
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