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
How later courts described this case
- 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”
Written by the judges who cited it.
The opinion
SUR PETITION FOR REHEARING
GARTH, Circuit Judge.
The petition for rehearing filed by appellant, Primo V. Mollica, in the above entitled case having been submitted to the judges who participated in the decision of this court, and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied.
ADAMS, Circuit Judge, Statement Sur Petition for Rehearing:
The petition for rehearing filed in this case confirms a number of propositions that *854 make remand appropriate. Mollica now makes it quite clear that if there were a remand he would testify without a grant of immunity at a probation revocation hearing and that his testimony would demonstrate that the conditions of his probation had not been violated. Despite these statements, Mollica must now begin a five year term of imprisonment as a result of having asserted a constitutional claim before the district court. Since this seems manifestly unfair and, indeed, inconsistent with the federal courts’ role in protecting constitutional rights, I vote for rehearing.
There is another reason why rehearing is in order. Even though a majority of the judges sitting in banc believes that Mollica should have an opportunity to be heard, the judgment compelling revocation of probation comes about because no single rationale for remand can command a majority. Such a result appears inconsistent with the approach taken by the Supreme Court of the United States in the recently decided Guardians Association v. Civil Service Commission of the City of New York,-U.S. -, 103 S.Ct. 3221 , 77 L.Ed.2d 866 (1983).
Circuit Judge JAMES HUNTER, III and Judge BECKER join in this statement.