Retroactive Probation Action Tossed by Court

     PASADENA, Calif. (CN) – It was wrong to retroactively revoke a convicted perjurer’s probation and to imprison him for supposed violations, the Ninth Circuit ruled Thursday.
     Peter Pocklington built a billion-dollar financial empire in Canada and was one of the country’s most famous businessmen before his riches ran out in 2008, the decision notes.
     Having amassed more than $19 million in liabilities that year, Pocklington filed for bankruptcy and moved to Indian Wells, Calif.
     Although he still controlled two storage units containing almost $10,000 of his wife’s property, Pocklington certified in his bankruptcy petition that he did not hold or control property owned by another person.
     Pocklington was charged with two counts of bankruptcy fraud but avoided the charges by pleading guilty to the lesser charge of perjury, and he was sentenced to a two-year term of probation in 2010.
     With four months of that term left 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, but a federal judge did not hold a hearing on the topic until five days after Pocklington’s probation had expired.
     At that hearing, the court ordered a 90-day retroactive probation extension. Then, almost a year later, it revoked Pocklington’s probation and sentenced him to six months in prison followed by two years of supervised release.
     The federal appeals court reversed the court’s judgment Thursday, saying the Violent Crime Control and Law Enforcement Act of 1994 “provides easy-to-follow instructions” if the government suspects wrongdoing and wants to extend a probation period.
     Those instructions say “get a warrant or summons before the probation expires.”
     “When Congress used the words ‘warrant or summons,’ it meant them,” Judge Margaret McKeown wrote for a three-person panel. “Close enough doesn’t fly under the statute.”
     The “central issue” of Pocklington’s appeal is whether the requirements for extending probation under the statute are jurisdictional.
     “We conclude that the plain language limiting the ‘power of the court’ sets out a jurisdictional rule,” McKeowen said. “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.”
     McKeowen added that the probation office was “crystal clear about the absence of anything resembling probable cause,” and the district court’s response to the office “has none of the indicia of a warrant.”
     In the absence of a warrant or summons, she said, the order revoking Pocklington’s probation and his subsequent sentence must be vacated.
     Brent Romeny, Pocklington’s attorney with Blumenthal Law, said his client’s “probation should never have been violated in the first place.”
     “If anyone was in a position to know if he had violated his probation, it would be his assigned probation officer,” Romeny said in an email. “But she was of the strong opinion that he had not violated his probation. Why Pocklington was put through this ordeal is, I believe, the result of an overzealous civil attorney who was bound and determined to somehow or someway cause Pocklington grief.”
     Prosecutors did not return a request for comment.

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