# United States v. Bazzano > Court of Appeals for the Third Circuit · June 17, 1983 · 712 F.2d 826 URL: https://www.frixlaw.com/law-library/cases/8917371 ## Case - **Full name:** United States v. John BAZZANO, Jr. a/k/a "Johnny", a/k/a "J", Joseph De Marco a/k/a "Joe", Joseph Charles Yimin a/k/a "Bull", Charles Patrick Kellington a/k/a "Chuck", Francis Dattalo a/k/a "Frank", a/k/a "Hob", Attilio Policastro a/k/a "Flat Top", Primo Victor Mollica a/k/a "XG", John Franklin Matz a/k/a "Jack", a/k/a "Mayor", David Rankin Guffey a/k/a "Chief", a/k/a "Clairton Chief", John Regis Ward a/k/a "JP", a/k/a "Ward", Peter Paul Orsini a/k/a "Pete", a/k/a "Pete Orsi", Dominic Paul Serapiglia a/k/a "Wilson Constable", Thomas C. Poljak a/k/a "Eliz Chief", George B. Hines a/k/a "Eliz Constable". Appeal of Primo Mollica - **Court:** Court of Appeals for the Third Circuit - **Decided:** June 17, 1983 - **Citations:** 712 F.2d 826 - **Precedential status:** Published - **Opinion:** Dissent by Adams - **Judges:** Adams, Affirmance, Aldi, Aldisert, Becker, Garth, Gibbons, Higginbotham, Hunter, III, Opinions, Seitz, Sert, Sloviter, Sur, Weis - **Cited by:** 71 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8917371 ## How later opinions describe it (automated extraction) - holding that 18 U.S.C. § 3653 , by providing that probation revocation hearings would occur “[a]s speedily as possible after arrest,” impliedly allowed for hearings outside of the statute’s five-year period - holding that where hearing on probation violation held during term of probation, District Court properly revoked term of probation after the term expired - holding that the court could revoke probation after termination of the revocation period if formal revocation proceedings were commenced - noting that the "differing grounds on which these various votes for remand are rested cannot be reconciled so as to yield a majority vote for a remand with consistent instructions to the district court” - stating that Workman “greatly overstates” the deterrent effect of the rule ## Opinion text ADAMS, Circuit Judge, dissenting from the judgment of affirmance. I join Judge Garth’s opinion except for part III, which promulgates a supervisory rule regarding use immunity and postponement of probation revocation hearings. I would vacate and remand, not on the basis of the supervisory rule, but to enable Mollica to testify if he so elects. I. When Mollica’s counsel moved for postponement of the probation revocation hearing, the district court was concerned that postponement beyond the five year probationary period might imperil its jurisdiction over Mollica. As a result, the district court insisted on going forward. This Court today makes clear that the concern of the district court was not well founded. If the district court had the benefit of this Court’s reasoning on the jurisdictional *850 issue, it might have exercised its discretion to postpone the revocation hearing pending further proceedings on the state charges. Had there been a postponement, Mollica might have chosen to testify when the hearing was held; indeed Mollica’s counsel represented to this Court at oral argument that Mollica would have testified. When a district court’s exercise of discretion is predicated on a misapprehension of the law, the appropriate course for an appellate court is to resolve the legal question and remand the matter so that the district court can proceed in light of the clarification. This course is especially appropriate when, as in this case, the right of the probationer to testify appears to have been compromised by the district court’s uncertainty. Although the district court did not deny Mollica the right to testify, it needlessly burdened the exercise of that right. Since the district court’s decision, the state criminal charges against Mollica have been dismissed. Thus, the issue before the district court, whether to postpone the revocation hearing while the state proceedings were pending or grant Mollica use immunity, would not be present on remand. Chief Judge Seitz contends that the district court on remand must necessarily hold the hearing without granting immunity. Even if this view is correct, it does not follow that remand is unwarranted. Fairness and caution support a decision to remand because Mollica may now choose to testify at the probation revocation hearing, even in the absence of immunity, inasmuch as the state criminal charges have been dropped and might not be revivable. II. The proposed supervisory rule requires— without exception — that a district court postpone probation revocation proceedings or grant use immunity to probationers who wish to testify, but are unwilling to do so in the absence of a postponement. The rule is based upon Judge Garth’s conception of the “better practice”; it is not dictated by precedent, statute, or constitutional provision. This rule, as I see it, is deficient on three grounds: (a) it is unduly vague and provides insufficient guidance for district courts; (b) it sweeps too broadly and represents a rigid approach in an area better left to the discretion of district judges and probation officials; and (c) it constitutes an improvident use of this Court’s supervisory power. A. Although the supervisory rule purports to prescribe a definitive procedure for district courts to follow, its contours are obscure and incomplete. Judge Garth makes clear that revocation proceedings should be postponed, but he sets no time limits on the postponement. In the case at hand, he would apply the postponement rule, even though charges are no longer pending against Mollica and the revival of any previous charges is speculative. Judge Garth’s proposal might well constrain a district court for the entire period of the statute of limitations. Mollica’s hearing, for example, could be delayed for at least two years from the date he allegedly committed the offense and possibly much longer. 1 In a case involving murder or voluntary manslaughter, postponement could be indefinite. 2 The proposed supervisory rule is phrased in such a way as to suggest that postponement during the pendency of criminal charges would be the norm and use immunity, the exception. Judge Garth does not *851 explain why this preference exists, but he requires that the district court “articulate on the record the reasons for” choosing one course over another. No reason for this requirement is advanced, but presumably the rationale is to facilitate appellate review. Judge Garth thus implies that the district court’s discretion to choose postponement rather than use immunity is limited in some way. Yet there is no hint as to what those limitations might be. If, instead of propounding a rule, Judge Garth had merely enumerated various factors that could inform the district court’s exercise of discretion, the failure to articulate a rationale would be less objectionable. But when we take it upon ourselves to ordain that the district court adhere to what we consider the “better practice” or face reversal, it is incumbent upon us to delineate that practice with some precision. B. Even assuming that the rule could be more precisely crafted, its rigid application would create an unsatisfactory choice for district courts and prosecutors contemplating probation revocation proceedings: they must grant use immunity or postpone the proceedings. Yet there might well be exceptional circumstances in which the Government can demonstrate a compelling need to avoid postponement, but in which a grant of immunity would be unacceptable. The rule would also have unfortunate consequences in the ordinary probation revocation case in which use immunity is granted. The probationer’s testimony will often have little effect on the outcome of a revocation proceeding; the use immunity requirement might do no more than burden the state in subsequent criminal trials with “the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled [immunized] testimony.” Kastigar v. United States, 406 U.S. 441, 460 , 92 S.Ct. 1653, 1664 , 32 L.Ed.2d 212 (1972). In cases involving judicially created use immunity for defense witnesses, we require that the defendant show that the proffered testimony is both clearly exculpatory and essential to his case. Government of Virgin Islands v. Smith, 615 F.2d 964, 972 (3d Cir. 1980). Even Smith may have expanded judicial power too far. The Supreme Court has recently declared that “[n]o court has authority to immunize a witness.” Pillsbury Co. v. Conboy,-U.S.-,-, 103 S.Ct. 608, 616 , 74 L.Ed.2d 430 (1983). Although this statement appears in the context of a discussion of defense witness immunity pursuant to statute, the Court may have meant to express the view that the judiciary lacks even the nonstatutory power to immunize a witness. If the district court lacks the authority to immunize a witness, it is questionable whether it possesses the power to immunize probationers. Probation revocation proceedings do not require special treatment. Immunity seems no more necessary than it does when a defendant faces multiple prosecutions, perhaps in both federal and state court, for crimes arising out of the same or a related incident. To be sure, probation revocation proceedings involve a lower standard of proof and more relaxed rules of evidence and procedure than do parallel criminal trials, 3 and probationers consequently may feel compelled to testify. However, these procedural differences do not justify a blanket supervisory rule, and Judge Garth does not so suggest. The district court should have the discretion to postpone revocation hearings without being required to grant use immunity. An appellate court cannot anticipate all the problems that might arise in individual cases. Because of the difficulties associated with the sole alternative to postponement, use immunity, the district court may be forced to postpone many hearings it believes for good reason should be held promptly. *852 C. Assuming that the proposed rule could be made sufficiently precise and flexible, I do not agree that the promulgation of such a rule constitutes an appropriate exercise of our supervisory power. Unlike the rules of practice in federal courts, this supervisory rule has not been promulgated under the exacting procedures established by the Judicial Conference of the United States pursuant to 28 U.S.C. § 331 (1976). 4 Nor was the rule published in proposed form, subjected to comment and criticism, reported to elected public officials for modification or disapproval, or consolidated in an accessible format. Deviation from the carefully delineated path established for the adoption of the federal rules should occur only in limited circumstances. These procedures and the policy favoring uniformity among the federal circuits make the analogy to state supervisory rules inapposite. See slip op. at 23. Although this Court has promulgated supervisory rules on a number of occasions, they generally address matters peculiarly within the province of the judiciary. 5 A survey of the case law indicates that such rules are relatively narrow in compass and relate primarily to the regulation of practices followed by judges, the admissibility of evidence, the supervision of grand juries, and the conduct of counsel in court. See Schwartz, supra note 4, at 509-12. 6 By contrast, the rule proposed today has a direct impact on the prerogatives of another branch of the federal government as well as on the prerogatives of the states. While such incursions are not unprecedented, this Court, as a matter of general policy, has rarely taken such a drastic step in the absence of a constitutional mandate. 7 It is apparent that encroachments of the kind advanced by Judge Garth should be based on more than notions of what constitutes the “better practice.” A proper regard for our limited role would counsel that no rule issue in the absence of a showing that the rule is needed. There is no evidence, nor any reason to believe, that the absence of a special rule created significant problems in this case. 8 Had it not been for the jurisdictional issue which the Court resolves today, the probation officer undoubtedly would have followed its usual policy and awaited the disposition of the pending state criminal charges before seeking a revocation hearing. If the probation officials had sought an earlier hearing, the district court most likely would have denied the request. Only a misunderstanding about the district court’s jurisdiction, and not the absence of a supervisory rule, prevented the postponement of Mollica’s hearing while state proceedings were pending. Thus, the proposed rule may well be a solution to a nonexistent problem. A supervisory rule governing the timing of revocation hearings might be legitimate; *853 although no federal guidelines address the issue, the subject is arguably within the traditional competence of the courts. See Schwartz, supra note 4, at 539-40. Nonetheless, the absence of political accountability, the lack of procedural safeguards, the intrusion on prosecutorial discretion, and the superfluity of a rule absent a showing of need, all suggest circumspection in the exercise of an appellate court’s supervisory power. If some guidance for district courts is advisable, we would do better, I believe, to set forth the considerations that should inform the exercise of discretion by district judges. III. Despite the fact that nine judges of this Court would remand, the opinion announcing the judgment of the court proceeds on the theory that we must affirm the judgment of the district court because no single justification for remanding commands a majority. I disagree with both the abstract proposition and its applicability here. Ordinarily, a judgment represents the agreement of a majority of the members of a court that it is appropriate to dispose of a case in a particular way. It is by no means essential that a rationale supporting a valid judgment also enjoy the majority’s favor. Indeed it is not uncommon for a reversal or a remand to be based on a variety of grounds, none of which has sufficient support to become binding precedent. See, e.g., Wolman v. Walter, 433 U.S. 229 , 97 S.Ct. 2593 , 58 L.Ed.2d 714 (1977); Tilton v. Richardson, 403 U.S. 672 , 91 S.Ct. 2091 , 29 L.Ed.2d 790 (1971). While such decisions may frustrate a court’s role of providing guidance for lower courts and thus constitute an abdication of its responsibility to those “depending on it for direction,” Note, Plurality Decisions and Judicial Decisionmaking, 94 Harv.L.Rev. 1127, 1128 (1981), the absence of a consensus rationale does not invalidate the court’s judgment as to a particular result. To hold otherwise would require all appellate courts to affirm when a majority supports a contrary disposition. In the present case, the district court could not invoke the exclusionary rule on remand or grant use immunity, since a majority of this Court rejects both options. But three judges (Adams, Hunter, and Becker) would remand to ensure that Mollica’s right to testify was not compromised by the lower court’s erroneous concern regarding its jurisdiction, 9 and I do not believe that a majority of this Court has foreclosed that option. Indeed the only disposition that appears inconsistent with the various opinions is an affirmance. It is scant consolation to Mollica that nine judges of this Court have concluded that his rights may have been violated in a proceeding which imposed a five year sentence. JAMES HUNTER, III, and BECKER, Circuit Judges, join in this dissent. . Mollica was charged under 18 Pa.Cons.Stat. Ann. §§ 5512, 5514, & 903(a)(1) (Purdon 1973). At the time he was charged, the applicable statute of limitations was two years, 42 Pa. Cons.Stat.Ann. § 5552 (Purdon 1981), but the time during which the state charges were pending would have been excluded from this period (id. § 5554). Pennsylvania has recently amended § 5552 to extend the limitations period for such charges to five years. Act No. 1982-122, S.B. No. 563, 2 Pa.Legisl.Service 1982, 587 (Purdon). We express no view as to whether this amendment is applicable to Mollica. Even before the 1982 amendment, many offenses had five year limitations periods. . See, e.g-, 42 Pa.Cons.Stat.Ann. § 5551 (Purdon 1981) (unlimited period for prosecution of murder or voluntary manslaughter). . For example, we hold today that the exclusionary rule does not apply in probation revocation proceedings. . The process by which federal court rules are adopted is summarized in Schwartz, The Exercise of Supervisory Power by the Third Circuit Court of Appeals, 27 Vill.L.Rev. 506, 539-40 (1982). . See generally Note, A Separation of Powers Approach to the Supervisory Power of the Federal Courts, 34 Stan.L.Rev. 427 (1982); Note, The Supervisory Power of the Federal Courts, 76 Harv.L.Rev. 1656 (1963). . See Schwartz, supra note 4, at 509 n. 15 and 527-51. . Cf. Government of Virgin Islands v. Smith, 615 F.2d 964 (3d Cir.1980) (requiring judicially created immunity, under certain conditions, to vindicate constitutional right to fair trial); United States v. Herman, 589 F.2d 1191, 1204 (3d Cir.1978) (“a case might be made that the court has inherent authority to effectuate the defendant’s compulsory process right by conferring a judicially fashioned immunity upon a witness whose testimony is essential to an effective defense”), cert. denied, 441 U.S. 913 , 99 S.Ct. 2014 , 60 L.Ed.2d 386 (1979); United States v. Inmon, 568 F.2d 326, 333 (3d Cir.1977) (defendant given limited use immunity because he “may not be required, as the cost of litigating what he and his counsel believe to be a valid fifth amendment double jeopardy claim, to waive the fifth amendment privilege against self-incrimination in a later trial”). . See United States v. Hasting-U.S.-, -, 103 S.Ct. 1974, 1978 , 76 L.Ed.2d 96 (1983) (supervisory rule inappropriate when the error to which the rule is addressed is harmless). . Although, on remand, Mollica would again face the dilemma of whether to testify, he might now decide for strategic reasons that he should. He might no longer care about giving evidence to the state If he believes that the state charges will not be reinstated or will carry relatively little sanction. Alternatively, Mollica might be so concerned with the federal probation revocation proceedings that he might want to testify in the hopes of exculpating himself. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8917371. Public record. Not legal advice.