Petition — Mollica v. United States

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Court, U.S,

No. 83- OCT 14 1983

ALEXANDER L. STEVAg,

CLERK

gn the

Supreme Court of the Limited States

October Term, 1983

PRIMO MOLLICA, Petitioner,

UNITED STATES, Respondent.

PETITION For A WRIT OF CERTIORARI

To THE UNITED STATES COURT OF APPEALS

October. 1983

For THE THIRD CIRCUIT

JULIAN N. EULE

Charles Klein Law Building

1719 North Broad Street

Philadelphia, Pennsylvania 19122

(215) 787-8975

Counsel of Record for Petitioner

VINCENT C. MUROVICH, JR.

MUROVICH., REALE, FOSSEE & FERRY

100 Smithfield Street

Pittsburgh, Pennsylvania 15222

(412) 281-7222

Rosert L. POTTER

TITUS MARCUS & SHAPIRA

624 Oliver Building

Pittsburgh, Pennsylvania 15222

(412) 471-3490

Counsel for Petitioner

QUESTIONS PRESENTED

Petitioner’s probation was revoked and a prison sen-

tence imposed. A three-judge court of appeals panel unani-

mously vacated and remanded, but the ten active judges of

the Circuit granted rehearing in banc. Although nine of the

judges concluded that remand was necessary to protect

probationer’s rights, the in banc court felt constrained to

affirm the probation revocation in the absence of a single

rationale commanding a majority of those voting.

(1) Did the court of appeais’ per curiam judgment of

affirmance properly reflect the rule of decision represented

by the five filed opinions of the judges?

(a) Where nine of ten judges agree that the trial

court’s judgment is wrong, can an affirmance be justi-

fied by the absence of a majority rationale?

(b) Do the five filed opinions of the judges, in fact,

reveal a majority rationale for remand?

(2) Does an appellate court’s affirmance of a judgment

imposing a five-year prison sentence notwithstanding the

conclusion of nine of the ten judges that further proceed-

ings were required to protect defendant’s rights violate due

process and civilized standards of procedure?

TABLE OF CONTENTS

Page

Uke beg cult ds eews pee tee eww l

a An a Pe A l

NS i nk ac dint oh eieno'w ne» oie on

Reason tor Granting the Writ... ... 2.220.507 -.0... 10

THE JN BANC DECISION OF T,

POWER OF SUPERVISION ...............-. 10

[a] Vacating a Convici on Does Not Demand a

Single Ratio Decidendi So Long As the

Judges Are United in Their View That the

Trial Court Committed Reversible Error ..... 11

[b] The Five Filed Opinions of the Judges Below

Contain a Common Denominator for

gat Se RS Nae A eee 15

NT eb pee be eee apuee 18

Appendix A (Opinions and Judgments of the Court

a oy ak auc hin ale bane sade ome 8, A-1

Appendix B (List of United States Supreme Court

Decisions Reversing Criminal Convictions or

Sentences in the Absence of a Majority Rationale

ES I, Sa a ene eee B-1

TABLE OF AUTHORITIES

CASES

Ashwander v. TVA, 297 U.S. 288 (1936) ............ 16

Connecticut vy. Johnson, —— U.S. —~, 103 §.Ct.

eee OO OR ee 2S De ee ere 14

Estate of Wilson vy. Aiken Industries, Inc., 477 Pa.

34, 383 A.2d 808, cert. denied, 439 U.S. 877,

vacated on rehearing, 482 Pa. 625, 394 A.2d 497

SRE oe Oe oe ane RE OA REA 16, 17

Furman y. Georgia, 408 U.S. 238 (1972)............ 15

Guardians Ass'n. v. Civil Service Comm’n., ——

U.S. —_, 103 S.Ct. 3221, 77 L.Ed.2d

SE OES ci. k ss oes eae k Reni wea peens una Kees 9

McNabb vy. United States, 318 U.S. 332 (1943) ....... 10

Moore v. City of East Cleveland, 431 U.S. 494

SUT Ca Sou ch Suny cate cuit ad ores aaa 14

Thermtron Products, Inc. v. Hermansdorfer,

Ee SI PANO TED ceo cek ches eaveduneewutewes 10

Welsh v. United States, 398 U.S. 333 (1970)......... 14

BOOKS AND ARTICLES

P. Carrington, D. Meador & M. Rosenberg, Justice

PE EEO PINs 65.8 5 bc cng dev iaees ap aeecwher 12

C, Deco, Ceiver Twist (1912)... 2. ie viecescoseees 17

J. Ram, The Science of Legal Judgment (1871) ...... 11

iil

J. Davis & W. Reynolds, Juridicial Cripples:

Plurality Opinions in the Supreme Court,

RL ce nS bn ba ke wee be kale ve 12

Comment, 4 Suggestion for the Prevention of

No-Clear Majority Decisions, 46 Tex. L. Rev. 370

EE peice ce kL Sok + ad phdaes RO ae ake 13

Comment, Supreme Court No-Clear Majority

Decisions, 24 U. Chic. L. Rev. 99 (1956).......... 13

Note, Plurality Decistons and Judicial Decision-

making, 94 Harv. L. Rev. 1127 (1981) ........... 13

Note, Zhe Precedential Value of Supreme Court

Plurality Decisions, 80 Colum. L. Rev. 756

SLI ey . Sas bikes eae Vs ve ek sé ceete tenses 11

No. 83-

gn the

Supreme Court of the Wnited States

October Term, 1983

PRIMO MOLLICA, Pet/tioner,

Vv.

UNITED STATES, R

PETITION For A Wriy OF CERTIORARI

To Tue UNiteD States/CourRT OF APPEALS

For THE THIRD CIRCUIT

Primo Mollica respectfully petitions this Court to

issue a writ of certiorari to review the judgment of the

United States Court of Appeals for the Third Circuit

entered in this proceeding on June 17, 1983.

OPINIONS BELOW

The opinion of the court of appeals sitting in banc

(A.1) is reported at 712 F.2d 826. No opinion was rendered

by the district court.

JURISDICTION

The judgment of the court of appeals sitting in banc

was entered on June 17, 1983 (A.61). A timely petition for

rehearing was denied on July 20. 1983 (A.58). On Septem-

ber 6. 1983. Justice Brennan extended the time within

which to file a petition for a writ of certiorari to and

including October 18. 1983 (Application No. A-161). Juris-

diction of this Court to review the judgment in question is

conferred by 28 U.S.C. §1254(1).

STATEMENT OF THE CASE

On March 5, 1976, Primo Mollica. the petitioner,

pleaded guilty in federal! district court to violations of 18

U.S.C. §1955 (conducting an illegal gambling business), 18

U.S.C. $1511 (conspiracy to obstruct law enforcement with

intent to facilitate an illegal gambling business) and 18

U.S.C. §§1961-1963 (RICO). On May 11, 1976, Mollica

was sentenced to five years’ imprisonment and fined

$15.000. Imposition of sentence, however. was suspended

and petitioner was placed on a five-year term of probation.

One of the conditions of this probation required Mollica to

refrain from violating any state law.

On February 18, 1981, Pittsburgh police officers con-

ducted a search of a residence belonging to one Donna

Stagno. During the course of this search the police seized

evidence allegedly implicating Mollica in a bookmaking

operation. The following day, petitioner was charged by

Pennsylvania authorities with operation of a lottery. book-

making and conspiracy.

(a) The Revocation Proceedings.

On April 27. 1981, federal probation officials peti-

tioned the United States District Court for the Western

District of Pennsylvania to revoke Mollica’s probation,

alleging a violation of the probationary conditions (viola-

tion of state law).! A hearing on the petition was set for

May 8. 1981. two days before the five-year term of proba-

tion was due to expire.

At the hearing, petitioner sought (i) suppression of the

evidence seized by the Pittsburgh police and (ii) postpone-

ment of the probation proceedings until after the disposi-

tion of the state charges—or, in the alternative, the grant of

use immunity so that he could testify freely in the federal

proceedings. Both requests were denied, the former on the

ground that the exclusionary rule was inapplicable to pro-

bation revocation proceedings, and the latter because of

the trial judge’s concern that postponement could result in

his loss of jurisdiction by virtue of the five-year maximum

probationary period prescribed by 18 U.S.C. §3651.? Asa

consequence of the court’s refusal either to postpone the

hearing or to confer use immunity, Mollica chose not to

testify at the revocation hearing. The bookmaking material

seized by the Pittsburgh police was received in evidence,

and on that basis the district court found that Mollica had

violated the Pennsylvania lottery and bookmaking stat-

utes, revoked his probation and imposed a five-year term

of imprisonment.’ An appeal followed.

'Federal officials also charged Mollica with failure to notify his

probation officer immediately of any change in his residence, but that

charge was subsequently dismissed by the district judge (A.5 n.1).

?Although counsel for Mollica suggested to the court that the com-

mencement of the federal proceeding tolled the fanning of the five-year

period. the Assistant U.S. Attorney disagreed and the judge, stating his

belief that the jurisdictional defect was not waivable, rejected the sug-

gestion.

3Although the hearing was conducted prior to the expiration of the

five-year probationary term, the revocation order was issued on May 18,

1981, eight days after the expiration.

(b) The Court of Appeals—Three Judge Panel.

A three judge panel of the Third Circuit (Judges Gib-

bons, Weis and Garth) heard oral argument on February 4,

1982. Although petitioner raised a number of issues, cen-

tral to his appeal were: (i) the propriety of the trial judge’s

refusal to grant either a postponement of the federal pro-

ceedings pending resolution of the state trial or use immu-

nity to enable Mollica to testify freely at the revocation

hearing: and (ii) the applicability of the exclusionary rule

to probation revocation proceedings.

On May 12, 1982. the panel filed its opinion. By a 2-1

vote it rejected the applicability of the exclusionary rule,

but all three judges agreed to the adoption of a supervisory

rule requiring that, in the absence of a request by a proba-

uioner or a showing of compelling need by the Govern-

ment, probation revocation proceedings should await the

resolution of ihe criminal charges upon which those pro-

ceeding are based. If, however. the revocation proceedings

had to be held prior to the disposition of the criminal

charges, the defendant would have to be given use

immunity.

In its May 12. 1982 judgment, the court concluded,

however, that because its approach represented a new posi-

tion by the circuit, the ruling would be applied prospec-

tively only and could not, therefore, serve as a basis for

reversal of Mollica’s revocation. Appellant quickly moved

for rehearing on this determination and the three judges

vacated their May 12 opinion. On July 7, 1982, the three

judges unanimously voted to remand with directions to

either postpone Mollica’s probation revocation hearing

until after the state criminal trial or to grant him use

immunity.

On August 10, 1982 the Third Circuit granted rehear-

ing in banc.4

On August 13, 1982, following the grant of the peti-

tions for in banc rehearing in the Third Circuit but prior to

reargument, the Court of Common Pleas of Allegheny

County, Pennsylvania granted petitioner’s motion to sup-

press the fruits of the Pittsburgh police’s search and dis-

missed the State’s charges against him.*

(d) The In Banc Decision.

In its in banc decision issued June 17, 1983, the Third

Circuit was severely fragmented, filing six different opin-

ions. Although all ten judges concluded that the trial judge

committed error and nine felt that the error required

remand, they were unable to agree on the instructions to be

given to the district judge as to the manner in which he

was to proceed. On this basis, the Court affirmed.

Although petitioner is respectfully aware of the admo-

nition in Supreme Court Rule 21.1(g) that the statement of

the case be concise, counsel believes it to be critical to an

understanding of this petition that the positions of each of

the ten judges be understood. To this end, a breakdown of

the voting is required:

*Both parties petitioned for the in banc rehearing, the Govern-

ment on the postponement/use immunity issue which it had lost 3-0,

and the petitioner on the exclusionary issue which he had lost 2-1.

SPetitioner filed a Supplemental Appendix with the in banc court

prior to reargument to inform it of this development (A.5).

(i) Four judges (Gibbons,® Aldisert,’ Garth,’ and

Weis’) voted to remand so that the district court could

either postpone the revocation hearing until after the

completion of the state criminal trial on the substan-

tive charge giving rise to the petition for revocation or

in the alternative. confer use immunity on the proba-

tioner so that he could freely testify in the federal

proceedings. [This position is hereinafter referred to as

the postponement/use immunity view.]

(ii) Three judges (Adams, Hunter, and Becker'®)

believed that petitioner's right to testify was compro-

mised by the district court’s erroneous fear of losing

jurisdiction and voted to remand to enable defendant

to testify now that the state criminal charges have ,

been dismissed.

(111i) Two judges (Sloviter'' and Higginbotham'?)

voted to remand for a suppression hearing consistent

with their view that the exclusionary rule is applicable

to probation revocation proceedings. Two judges who

“Judge Gibbons capressed his views in a dissenting opinion (A.42-

47).

"Judge Aldisert joined Judge Gibbons’ dissent.

‘Judge Garth expressed his views in a dissenting opinion (A.7-30).

"Although Judge Weis’ name does not appear on any of the opin-

ions of the individual judges. a footnote in the per curiam reveals his

vote (4.6 n.2). (See also 4.20, where Judge Garth notes that Judge Weis

has joined with him on the tssue in question.)

Judge Adams filed a dissent in which Judges Hunter and Becker

joined (4.49-57),

'! Judge Sloviter expressed her views in an opinion concurring in

the result (4.48).

'2Judge Higginbotham joined none of the individual opinions

filed but his vote is revealed in a footnote to the per curiam (A.6 n.4).

voted to remand on the postponement/use immunity

issue (Gibbons and Aldisert) also voted for a remand

for a suppression hearing.''

(iv) One judge (Seitz'*), although concluding that

the failure to grant postponement “clearly is inconsis-

tent with a sound exercise of discretion,” believed that

because the state criminal charges had been dismissed,

“remand would be wholly ineffectual in affording Mol-

lica the remedy to which his is entitled, a proper exer-

cise of the district court’s discretion concerning

whether to postpone his probation revocation hearing

or grant him use immunity.” (A.41). For this reason,

Chief Judge Seitz voted to affirm.

Faced with what they viewed as a division which

“cannot be reconciled so as to yield a majority vote for a

remand with consistent instructions to the district court as

to the manner in which it is to proceed,” and believing that

the absence of such a majority precluded reversal (A.6-7),

the judges filed a per curiam affirmance.

Seven dissents were filed from the per curiam deci-

sion:

(1) Three judges (Adams, Hunter and Becker)

opposed the judgment on the ground that affirmance

was “[i]ndeed the only disposition that appears incon-

sistent with the various opinions...”’ (A.57).

(ii) Two judges (Garth and Weis'‘), although

agreeing that the lack of a majority view mandated a

'3See Judge Gibbons’ dissenting opinion (A.42-47).

'4Chief Seitz’s opinion concurring in the result appears at A.30-42.

'SJudge Weis’ view on this is somewhat unclear, see n.9, supra, but

is clarified somewhat in his subsequent vote on the sur petition for

rehearing (A.60).

judgment of affirmance (A.19-20), dissented from the

judgment on the postponement/use immunity issue

(A.25, 30).

(it) Two judges (Gibbons and Aldisert), although

believing the judgment “technically correct.” dis-

sented from the affirmance on both the postpone-

ment/use immunity and exclusionary rule issues

(A.42).

(iv) An eighth judge (Sloviter) enigmatically con-

cluded her opinion by stating: “I would remand for

the purpose of directing the district court to hold a

suppression hearing. Since a majority of the court has

not accepted that position, | vote to affirm.” (A.48).'*

(e) The Sur Petition for Rehearing.

Petitioner immediately filed for rehearing of the in

banc ruling, arguing that:

(i) In view of the individual views of the judges,

the judgment was unsupportable (Petition for Rehear-

ing at 12-15).

(11) In view of the dismissal of the state charges,

petitioner intended to tesufy without immunity on

remand (thus, the district judge would not be left

without direction) and postponement was no longer

needed (Petition for Rehearing at 10).

On July 20, 1983, the Third Circuit, by a vote of 6-4,

denied the petition for rehearing (A.58-60). The majority

wrote no opinion. Judge Adams, joined by Judges Hunter

and Becker, voted to rehear on the ground that the court's

disposition was: (i) manifestly unfair and inconsistent with

‘Whether Judge Higginbotham voted to affirm, like Judge

Sloviter, or dissented on the exclusionary rule issue like Judges Gibbons

or Aldisert. is not apparent from the decisions filed.

the federal courts’ role in protecting constitutional rights;

and (ii) inconsistent with the approach taken by the

Supreme Court in Guardians Ass'n. v. Civil Service

Comm 'n., __— U.S. , 103 S.Ct. 3221, 77 L.Ed.2d 866

(1983). Judge Weis voted to rehear because he believed

that petitioner's willingness to testify had brought about a

significant change in the posture of the case (A.60).

REASON FOR GRANTING THE WRIT

THE IN BANC DECISION OF THE COURT OF

APPEALS HAS SO FAR DEPARTED FROM THE

ACCEPTED AND USUAL COURSE OF PROCEED-

INGS AS TO CALL FOR AN EXERCISE OF THIS

COURT'S POWER OF SUPERVISION

Despite the fact that nine of its ten judges believed

remand necessary for the protection of petitioner's rights,

the United States Court of Appeals for the Third Circuit

issued a judgment affirming on the ground that no single

justification for remanding commanded a majority of the

Court. This disposition rested upon both an erroneous

abstract jurisprudentia! proposition (see [a]. infra) and an

unsupportable factual assumption (see [b]. infra). It

ignored the settled practice of this Court in its issuance of

plurality decisions and misconceived the proper role of an

appellate court in reviewing criminal convictions.

The primary responsibility for the proper functioning

of the federal judiciary rests on this Court. See Thermtron

Products, Inc. v. Hermansdorfer, 423 U.S. 336 (1976)

(reversing judgment of district judge who remanded prop-

erly removed case to state court because of crowded condi-

tion of his docket). Where, as here, the ruling sought to be

reviewed involves the administration of criminal justice,

this responsibility takes on added weight. McNabb vy.

United States, 318 U.S. 332. 340 (1943). This Court's

acknowledged “duty to [maintain] civilized standards of

procedure.” id. at 340, precludes the imposition of a five-

year prison sentence on such a record. A writ of certiorari

should be granted to correct the Third Circuit's unprece-

dented departure from the accepted course of appellate

conduct.

[a] Vacating a Criminal Conviction Does Not Demand a

Su.gle Ratio Decidendi So Long As the Judges Are

United In Their View That the Trial Court Committed

Reversible Error.

In its per curiam opinion the court of appeals recog-

nized that “a majority vote’ was necessary to reverse the

judgment of the district court (A.7). Although a majority of

the court favored reversal, three separate rationales for

reversing existed, none of which allegedly commanded a

majority vote (hut see [b]. infra). This, concluded the per

curiam, precluded reversal. Such a determination com-

ports with neither history, logic nor contemporary prac-

tice.

The ultimate step taken by a court is its judgment.

The statement of the reasons for its decision is its rationale

or opinion. When, in any case, separate rationales are

given, they may form a single judgment notwithstanding

that each opinion is grounded on a different reason. The

difference in reason, however, is not a difference in result.

J. Ram, The Science of Legal Judgment 53 (1871). The

issue placed before the Third Circuit concerned whether

the trial judge had erred in his conducting of the probation

revocation proceedings. All ten judges concluded that error

had been committed (although one, Chief Judge Seitz, con-

cluded that the error was not correctable). The lack of a

supporting majority rationale did not impair the effect of

the court's collective judgment. See N ote, The Precedential

Value of Supreme Court Plurality Decisions, 80 Colum. L.

Rev. 756, 758 (1980).

An appellate court performs two functions. It resolves

the particular controversies that come before it, and it

provides guidance for lower courts in deciding similar

cases in the future. A court's judgment serves the former

function. Its opinion serves the latter. See J. Davis and W.

Reynolds, Juridicial Cripples: Plurality Opinions in the

Supreme Court, 1974 Duke L.J. 59, 62. While spirited

debate might be expected as to which function is abstractly

of greater import, the appropriate resolution of any tension

between the two goals appears self-evident when a person's

liberty is at issue. At stake in a criminal case is our interest

in the dignity of the individual and the maintenance of a

free socicty. In overseeing trial court proceedings, appellate

courts serve as symbols of the respect our legal system

accords to the individual. They provide visible assurance “

to the accused and society that the criminal law is being

administered fairly and lawfully. Appeals symbolize delib-

erative, personalized consideration. In order that appeals

be conducted in ways to insure that the reality is consistent

with the symbolism, the distinguished authors of a major

study of the appellate process remind us that the correct-

ness of a trial judge’s action must serve as the reviewing

court’s primary concern:

The central purpose of a criminal appeal is to insure

that the trial court decision was reached fairly and

accurately. The lack of precise uniformity in doctrinal

application, though not unimportant, is relatively of

less concern. The appellate court’s mission is to pro-

vide assurance that the defendant was convicted and

sentenced on adequate evidence and without prejudi-

cial error at trial or in the preliminary proceedings. /n

short, the chief function of a criminal appeal is to see

that appellant was not done an injustice.

P. Carrington, D. Meador & M. Rosenberg, Justice on

Appeal 58 (1976) (emphasis supplied.)

In the instant case, all of the judges concluded that

petitioner had been done an injustice. Nine of the ten

concluded that remand was needed to cure the prejudice.

An affirmance under such circumstances demonstrates a

misunderstanding of an appellate court’s role. While a

reversal might have frustrated the court’s role of providing

guidance for lower courts (but see [b], infra), the contrary

result is inconsistent with the court's primary duty to pro-

tect against imprisonment resulting from manifestly unfair

trial proceedings. As Judges Adams, Hunter and Becker

noted in their dissent below, “[i]t is scant consolation to

Mollica that nine judges... have concluded that his rights

may have been violated in a proceeding which imposed a

five year sentence” (A.57).

In resolving its dilemma, the Third Circuit had only

to look to this Court for guidance. Counsel has examined

every criminal decision of this Court from 1970 to the

present. /n no case was a conviction affirmed in the face of

a majority determination that reversible error or errors

had been committed. Quite to the contrary, this Court has,

without exception, reversed in the light of such a majority,

despite the absence of a majority rationale.

Defining a “true” plurality decision as one with at

least “two distinct rationales that will justify the result

reached in a case, neither of which commands a majority,”

Note, Plurality Decisions and Judicial Decisionmaking, 94

Harv. L. Rev. 1127, 1130 (1981), one finds that between

1970 and 1980, this Court handed down 74 “true” plural-

ity decisions. /d. at 1130 n. 20. (See also the listing of these

decisions in 94 Harv. L. Rev. at 1147.) A survey of these

recent so-called “‘no-clear majority” decisions (Comment,

Supreme Court No-Clear Majority Decisions, 24 U. Chic.

L. Rev. 99 (1956); Comment, A Suggestion for the Preven-

tion of No-Clear Majority Decisions, 46 Tex. L. Rev. 370

(1968) ) reveals nearly two dozen instances of criminal

convictions or sentences vacated in the absence of a major-

ity rationale.'’ Implicitly contained therein is the message

which the court of appeals failed to hear—affirmance of a

judgment of conviction is not properly premised on the

lack of a uniting ratio decidendi where a majority of the

court finds reversible error. The contrary conclusion below

is without precedent and calls for exercise of this Court's

supervisory power.

A compilation of the decisions (with citation and vote) appears in

Appendix B. Illustrative of these cases are Welsh v. United States, 398

U.S. 333 (1970): Moore v. Cuy of Kast Cleveland, 43\ U.S, 494 (1977),

and Connecticut v. Johnson, —— US. —— , 103 §.Ct. 969, 74 L.Ed.2d

823 (1983).

In Welsh, petitioner was convicted of refusing to submit to induc-

tion into the Armed Forces despite his claim for conscientious objector

status under §6(j) of the Universal Military Training and Service Act.

Four justices construed §6(j) to cxempt petitioner from military service.

A fifth rejected such a construction but concluded that §6(j) read

without the plurality’s construction ran afoul of the First Amendment

(Opinion of Harlan. J.. concurring in the result). The conviction was

vacated 5-3.

In Moore, petitioner was convicted of a criminal violation of a

housing ordinance. Four justices concluded that the ordinance violated

defendant's substantive due process rights. A fifth concluded that it

constituted a taking of property without due process and without just

compensation (Opinion of Stevens, J.. concurring in the result). The

conviction was set aside by a 5-4 vote.

In Johnson, petitioner was convicted following a jury trial in the

Connecticut Superior Court. The Connecticut Supreme Court reversed

on the basis of an erroneous jury instruction. This Court affirmed 5-4.

Four justices held that the error in instructions was so basic that it could

never be treated as harmless error. A fifth found that the case did not

raise a federal question but joined in the judgment allowing the Con-

necticut high court's reversal to stand (Opinion of Stevens, J., concur-

ring in the judgment).

[b] The Five Filed Opinions of the Judges Below Contain a

Common Denominator for Remand.

The opinions filed below reflect and engender no small

amount of confusion. A per curiam judgment of affirmance

is filed with seven judges dissenting (Adams, Hunter, Beck-

er. Aldisert, Gibbons, Garth and Weis). An eighth judge

believes remand necessary but votes to affirm “[s]ince a

majority of the court has not accepted [her] position”

(siostter).'* A ninth judge joins no opinion but expresses

his view only through a footnote in the per curiam (Higgin-

botham) (A.6 n.4). Finally, the tenth judge (Seitz) finds

probationer “entitled” to a remedy but concludes that the

dismissal of the state charges renders all remedies “wholly

ineffectual” (A.41).

A per curiam is designed to reflect the highest com-

mon denominator of majority opinion. See, e.g., Furman

v. Georgia, 408 U.S. 238 (1972). The one filed below does

not. “Indeed,” as Judge Adams notes in his dissent, “the

only disposition [clearly] inconsistent with the various

opinions is an affirmance”™ (A.57). The court of appeals,

however, sought to justify this dispesition by the absence

of a “necessary” majority rationale to reverse. Not only

was such a rationale not necessary (see [a], supra) but it

was present in the opinions of at least seven judges voting

to remand in order to give Mollica the opportunity to

testify.

Judges Adams, Becker and Hunter “would remand to

ensure that probationer’s right to testify was not compro-

mised by the lower court’s erroneous concern regarding its

'*Under such a theory, opinions would never contain dissents.

jurisdiction” (A.57).'* Judge Garth (joined by Judges

Aldisert, Gibbons and Weis) does not toreclose that

option. It is true that he expresses concern that no purpose

would likely be served by such a remand “because in the

almost certain event that Mollica chose not to testify” the

issue Of postponement/use immunity would again con-

front the district judge (A.25 n.5). But Mollica is willing to

testify. That representation was made at oral argument

(A.49) and reaffirmed in the sur petition for rehearing

(A.59, 60). The district court will not be left on remand

without direction. Judge Garth would afford relief that

Mollica neither needs nor desires in view of the interven-

ing dismissal of the state charges against him. “The judi-

cial power does not extend to the determination of abstract

questions,” Ashwander v. TVA, 297 U.S. 288. 324 (1936).

Legal principles should be tailored to the issues actually

before the court. Although four judges may believe that

probationer is entitled to use immunity, his willingness to

forego that protection in no way ought to preclude his

opportunity to testify upon remand. Such a resolution

comports with the view of seven judges that Mollica

should have an opportunity to be heard.

The decision below is, in a number of respects, remi-

niscent of the disposition in Estate of Wilson vy. Aiken

Industries, Inc., 477 Pa. 34, 383 A.2d 808 (1978). A Penn-

sylvania trial court had concluded that defendant violated

contractual and fiduciary duties and awarded plaintiff

damages. Three judges of the Supreme Court of Pennsyl-

_ vania wished to reverse the finding of liability. Three

others voted to affirm on liability but would have vacated

the damages award. The court, finding itself “equally

‘Judge Weis joined this group in his statement for rehearing

£4.60).

divided,” affirmed. The losing party sought certiorari,

alleging a deprivation of federal due process. The due pro-

cess issue, however, had not been raised below, leaving this

Court with no federal question. Certiorari was denied. 439

U.S. 877 (1978). Justice Blackmun’s concurrence in this

denial is instructive here. Agreeing that no federal issue

was presented, he nonetheless described the holding below

as “strange,” id. at 877. “inexplicable” to many laymen if

not to some lawyers, /d. at 878, and noted that:

“when a State’s highest court unanimously agrees that

a judgment is wrong but nevertheless affirms that

judgment... I am left with substantial discomfort.”

Id. at 879 (emphasis in original).

Justice Blackmun’s acknowledgment of the inability,

of the United States Supreme Court to cure the state

court's error did not prevent his exhortation to the state to

correct this “obviously, and concededly, unjust result.” /d.

at 879-880.?°

In the instant case the responsibility to correct

ihis even greater injustice, resulting in a five year prison

sentence, rests on the shoulders of this Court. If it does not

act, “there will be,” as Justice Blackmun concluded in

Estate of Wilson, “new recruits to be added to those mem-

bers of the public who already are inclined to agree with

Mr. Bumble’s well-known remark.”’?! 439 U.S. at 880.

The Supreme Court of Pennsylvania subsequently entertained an

application for reargument filed out of time and entered an order

remanding for a new trial on damages. 482 Pa. 625, 394 A.2d 497

(1978)

"If the law supposes that,’ said Mr. Bumble, *... the law is a

ass—a idiot. C. Dickens, Oliver Twist 377 (1912).

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment of the United States Court of Appeals

for the Third Circuit entered in this proceeding on June 17,

1983.72

Respectfully submitted,

JULIAN N. EULe

Counsel for Petitioner

October. 1983

“Petitioner believes that this case is appropriate for summary dis-

position and requests that. as an alternative to setting the case for

briefing and argument. the Court summarily vacate the judgment

entered below and remand with instructions to reverse and permit

further proceedings at which petitioner will have an opportunity to

testify.

A-|

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 81-1936

UNITED STATES OF AMERICA

JOHN BAZZANO, JR. a/k/a “JOHNNY”, a/k/a “J”; JO-

SEPH DE MARCO a/k/a “JOE”; JOSEPH

CHARLES YIMIN a/k/a “BULL”; CHARLES PAT-

RICK KELLINGTON a/k/a “CHUCK”; FRANCIS

DATTALO a/k/a “FRANK”, a/k/a “HOB”; ATTILIO

POLICASTRO a’‘k/a “FLAT TOP”; PRIMO VIC-

TOR 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”

Primo Mollica, Appellant

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

(Criminal No. 75-00192-07)

Argued February 4, 1982

Before: GIBBONS, WEIS and GARTH, Circuit Judges

Opinion Filed May 12, 1982, Vacated June 17, 1982

A-2

Opinion Re-filed July 7, 1982, Vacated August 10, 1982

Petition for Rehearing Granted August 10, 1982

Reargued In Banc: November 8, 1982

Before: SEITZ, Chief Judge,

ALDISERT, ADAMS, GIBBONS, HUNTER, WEIS, GARTH,

HIGGINBOTHAM, SLOVITER and BECKER, Circuit Judges

(Opinion Filed: June 17, 1983)

Virnicent ©. Murovich, Jr.

Murovicli, Keale & Fossee

100 Smithfield Street

Pittsburgh, Pennsylvania 15222

Robert L. Potter (Argued)

Titus Marcus & Shapira

624 Oliver Building

Pittsburgh, Pennsylvania 15222

Attorneys for Appellant

J. Alan Johnson

United States Attorney

Paul J. Brysh (Argued)

Assistant United States Attorney

633 U.S. Post Office and Courthouse

Pittsburgh, Pennsylvania 15219

Attorneys for Appellee

OPINION ANNOUNCING THE JUDGMENT

OF THE COURT

PER CURIAM:

Primo V. Mollica appeals from an order entered on

May 18, 1981 by the United States District Court for the

Western District of Pennsylvania, revoking his probation

and imposing a term of five years’ imprisonment. For the

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reasons hereafter expressed, the judgment of the district

court will be affirmed.

On March 5, 1976, Mollica pleaded guilty to viola-

tions of 18 U.S.C. §1955 (conducting an illegal gam-

bling business), 18 U.S.C. §1511 (conspiracy to obstruct

law enforcement with intent to facilitate an illegal gam-

bling business), and 18 U.S.C. §§1961-1963 (RICO).

On May 11, 1976, he was sentenced to five years’ impris-

onment and fined $15,000. Mollica’s prison sentence

was, however, suspended and he was placed on a five-

year term of probation pursuant to 18 U.S.C. §3651.

On February 19, 1981, Mollica was charged by

Pennsylvania authorities with operation of a lottery,

bookmaking, and conspiracy, in violation of 18 Pa. Cons.

Stat. §§5512, 5514, and 903, respectively. Federal pro-

bation officials thereupon, on April 27, 1981, petitioned

the district court to revoke Mollica’s probation, alleging

that Mollica had violated two of the conditions of his pro-

bation: that he refrain from violating any federal, state,

or local law, and that he notify his probation officer im-

mediately of any change in his residence. A hearing on

the petition was set for May 8, 1981, two days before

Mollica’s five-year term of probation would expire.

At the hearing on May 8, Mollica sought to postpone

the probation revocation proceedings until after the dis-

position of the state charges. The district court refused

to delay. the ‘revocation proceedings because of its con-

cern that such a postponement could result im its loss of

jurisdiction over Mollica by virtue of the expiration of the

five-year maximum probationary period prescribed by 18

U.S.C. §3651. The court also denied Mollica’s motion to

suppress evidence that had been seized by Pittsburgh

police officers during a search conducted on February

18, 1981, the court holding that even if the search war-

A-4

rant was defective, as Mollica alleged, the exclusionary

rule did not apply to probation revocation proceedings.

At the revocation hearing, a Pittsburgh detective

testified that he had received information from an infor-

mant that Mollica was conducting a telephone gambling

business at the residence of Donna Stagno. After obtain-

ing a search warrant, the detective and two other officers

went to the Stagno residence, apprehended Mollica and

Stagno, and conducted a search of the house.

In what appeared to be the master bedroom, the po-

lice found two telephones and numerous sheets of paper

and adding machine tapes containing numbers and the

names of college and professional basketball teams. An

FBI expert on sports betting operations testified that the

sheets found in the bedroom represented incoming and

outgoing bets for a two-week period totaling in excess of

$1 million. The police also found in the room a sheet

containing the name and telephone numbers of

Mollica’s probation officer, and Mollica furnished the of-

ficers with a key to a desk drawer in the room which

contained $17,000 in cash. Prior to leaving the resi-

dence, Mollica, referring to Stagno, said to the police,

“Why take her? It’s ali my stuff.” However, a handwrit-

ing expert testified that the numbers on the sheets

found in the bedroom were written by two different per-

sons, neither of whom was Mollica.

Mollica unsuccessfully sougiit to have the court

grant use immunity to him, to Stagno, and to Jerry

Fimmano, who testified to having resided in the Stagno

residence in early 1981 but who invoked his fifth

amendment privilege against self-incrimination when

asked about the gambling records found in the bedroom.

On May 18, 1981, eight days after the expiration of

the five-year probationary period, which began May i1,

1976, the district court found that Mollica had violated

the Pennsylvania lottery and bookmaking statutes,

revoked his probation, and imposed a five-year term of

A-5

imprisonment, the maximum sentence the court could

at that time have imposed.’

In a Supplemental Appendix filed with this court

prior to argument before the court in banc, we were in-

formed that the state court had granted Mollica’s motion

for suppression of certain evidence and, having thereby

suppressed the only evidence available to the Common-

wealth, thereafter dismissed Mollica’s state proceeding

on the ground of insufficient evidence.

In his appeal, Mollica now asserts:

(1) that the fourth amendment exclusionary rule is

applicable to a probation revocation proceeding and thus

that the district court erred in refusing to conduct a sup-

pression hearing;

(2) that the district court was without power to

revoke his probation and to reimpose his original

five-year prison sentence when the maximum five-year

period of probation allowed under 18 U.S.C. §3651 had

already expired at the time of the revocation;

(3) that even if the district court had the authority

to revoke his probation, the court erred in not postponing

the probation revocation hearing until after trial of the

state charges underlying the revocation proceeding, or,

alternatively, in not granting him use immunity in the

revocation hearing;

(4) that the district court erred in reimposing his

original sentence without stating its reasons for doing

SO;

(5) that the district court erred in not ordering dis-

closure of the identity of the informant whose informa-

tion led to the search and seizure of the gambling mate-

rials; and

(6) that the district court erred in refusing to grant

immunity to defense witnesses Stagno and Fimmano.

1. The court dismissed the charge that Mollica had violated his

probation by failing to notify his probation officer of a change of

residence.

A-6

For the reasons expressed in Judge Garth's separate

opinion which follows, a majority of the court holds to-

day that the Fourth Amendment exclusionary rule does

not apply to probation revocation proceedings.

Further, the court unanimously holds today that the

district court did not err in holding that it had power to

revoke Mollica’s probation, in failing to state its reasons

for the sentence, in not ordering disclosure of the infor-

mant’s identity, or in refusing to grant immunity to de-

fense witnesses Stagno and Fimmano. As to these is-

sues, the court unanimously agrees that there was no

error, for the reasons set forth in Judge Garth's separate

opinion.

The court is divided with respect to the remaining

issue, that is, whether the district court erred in failing

either to postpone the probation revocation hearing until

after trial of Mollica’s state charges or to grant Mollica

use immunity if he chose to testify at the revocation

hearing. This division results in an insufficient number

of votes to reverse the district court. Four judges’ would

accept Mollica’s argument and would therefore reverse

the district court’s judgment and remand for a hearing

consistent with the principles urged on the court by

Mollica. Three judges’ would remand the case to the dis-

trict court but for a more limited purpose, and would not

authorize the district court to make use immunity avail-

able to Mollica. Two judges' would remand only for a

Fourth Amendment suppression hearing. That relief,

however, is no longer available, in light of the court's

2. Judges Aldisert, Gibbons, Weis and Garth.

3. Judges Adams, Hunter and Becker.

4. Judges Higginbotham and Sloviter. Judges Aldisert and Gib-

bons, who would remand for a hearing at which use immunity

would be made available to Mollica, see note 2, supra, would also

remand for a suppression hearing, consistent with their view that

the exclusionary rule is applicable to probation revocation proceed-

ings.

A-7

holding today that the exclusionary rule is inapplicable

to probation revocation proceedings. One judge® would

not remand for any purpose. On analysis, it is apparent

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 as to the manner in which it is to pro-

ceed. Because a majority vote of this court is necessary

to reverse the judgment of the district court, and be-

cause no such majority exists, the order of the district

court denying postponement or use immunity cannot be

reversed.

Accordingly, having determined that the district

court did not err in its rulings as to five of the issues

raised by Mollica, and there being no majority to reverse

the district court as to its ruling on the sixth (denying

postponement or use immunity), the May 18, 1981 order

of the district court will be affirmed.

GARTH, Circuit Judge:

The district court, among other rulings leading to

the revocation of Mollica’s probation, held that the

fourth amendment exclusionary rule did not apply to

probation proceedings; that it was not required to

postpone its revocation proceedings until after Pennsyl-

vania had concluded its own state proceedings against

Mollica, nor, alternatively, was it required to make use

immunity available to Mollica in the event Mollica

sought to testify in the federal revocation hearing. I

agree with the district court in all of its rulings, except

its ruling denying postponement/use immunity.

5. Chief Judge Seitz.

A-8

In that one respect, I believe that the district court

erred and, accordingly, that a remand should now be or-

dered for additional proceedings consistent with the dis-

cussion of postponement/use immunity set out in Part

III, infra of this opinion. Because the court today affirms

the district court judgment rather than reversing that

judgment and directing a remand, | am obliged to dis-

sent. My dissent from the court's affirmance, however, is

limited solely to the court's failure to remand for the ap-

plication of postponement/use immunity principles.

Applicability of the Exclusionary Rule

to Probation Revocation Proceedings

Mollica argues that the fourth amendment exclu-

sionary rule is applicable in probation revocation pro-

ceedings, and that the district court therefore erred in

refusing to conduct a suppression hearing with regard to

the evidence obtained as a result of the search of the

Stagno residence. We do not agree.

Of the seven courts of appeals that have considered

the question whether the exclusionary rule is applicable

to probation revocation proceedings, six have concluded

that it is not. See United States v. Frederickson, 581 F.2d

711, 713 (8th Cir. 1978) (per curiam); United States v.

Winsett, 518 F.2d 51, 53-55 (9th Cir. 1975); United

States v. Farmer, 512 F.2d 160, 162-63 (6th Cir.), cert.

denied, 423 U.S. 987 (1975); United States v. Brown,

488 F.2d 94, 95 (5th Cir. 1973) (per curiam); United

States v. Hill, 447 F.2d 817, 819 (7th Cir. 1971); United

States ex rel Sperling v. Fitzpatrick, 426 F.2d 1161,

1163 (2d Cir. 1970) (parole revocation). But see United

States v. Workman, 585 F.2d 1205, 1211 (4th Cir. 1978)

(holding that the rule is applicable).

Despite the substantial weight of authority against

the application of the rule, we acknowledge that the

question is a close one. Those who have argued in favor

A-9

of the rule’s applicability to probation revocation pro-

ceedings have stressed that since prosecutors frequently

use a revocation proceeding as an alternative to trying

the probationer on the new criminal charges, the same

exclusionary practice should apply in revocation pro-

ceedings as does in a criminal trial. They assert that the

Supreme Court has consistently applied the exclusion-

ary rule to affirmative proof offered by the government in

state and federal criminal trials, and has never exempted

from the operation of the rule any adjudicative proceed-

ing in which the government offers unconstitutionally

seized evidence in direct support of a charge that may

subject the victim of a search to imprisonment.

In addition, proponents of the exclusionary rule ar-

gue that probationers, despite their probationary status,

still retain the basic constitutional right to be free from

unreasonable searches and seizures, and that unbridled

police intrusions into probationers’ lives would disrupt

any effort being made to rehabilitate them. They con-

tend that as the courts create more and more exceptions

to the exclusionary rule, the rule will no longer be an ef-

fective deterrent to police misconduct because the police

will soon come to believe that, notwithstanding the gen-

eral rule of exclusion, some exception will nearly always

be available under which the seized evidence will be ad-

missible. Finally, they assert that application of the ex-

clusionary rule in the probation context is required to

prevent the integrity of the legal system from being

tainted by the use of illegally obtained evidence.

On the other hand, those who have argued against

the application of the exclusionary rule in the context of

probation revocation have stressed that the exclusion of

unconstitutionally seized evidence in the prosecution of

substantive criminal offenses provides a sufficient deter-

rent to police misconduct. They claim that the exclusion

of such evidence from revocation proceedings as well,

would add only minimally to the rule’s deterrent effect.

At the same time, they assert, application of the rule

A-10

would tend to obstruct the remedial and protective pur-

poses of the probation system, by depriving the courts of

relevant evidence bearing on the extent of the probation-

er’s rehabilitation. Moreover, they contend, it would

force probation officers to substitute for the informal

process of evaluation of a probationer’s rehabilitation the

more time-consuming task of amassing formally admis-

sible evidence.

Additionally, those who oppose exclusion note that

the probationer differs from the ordinary citizen in that

he has less of a right to be free from governmental super-

vision. They argue that considerations of judicial integri-

ty are present whenever the government seeks to use il-

legally obtained evidence, yet the Supreme Court has

declined to require such evidence to be suppressed in all

circumstances. Finally, they observe that the availability

of sanctions against police officers who conduct unlaw-

ful searches provides an adequate deterrent to such con-

duct without interfering in the probation process by the

drastic exclusionary requirement that would deprive the

authorities of relevant information. See, e.g., United

States ex rel. Sperling v. Fitzpatrick, suvra, 426 F.2d at

1164 (opinion of Hays, J.).

After considering these competing arguments, we

are persuaded by the reasoning of those courts that have

refused to apply the exclusionary rule in probation revo-

cation proceedings. In our view, excluding from such

proceedings reliable evidence bearing on a probationer's

rehabilitation would contribute little to deterring consti-

tutional violations while impeding society's interest in

protecting itself against convicted criminals who have

abused the liberty afforded them. Thus, applying the

balance of interest analysis, utilized by the Supreme

Court in determining whether to extend the exclusion-

ary rule, leads us to hold that the exclusionary rule is in-

applicable to probation revocation proceedings.

The balance to be struck between the competing in-

terests involved in determining whether to extend the

A-I1

exclusionary rule has been clearly spelled out by the Su-

preme Court. In United States v. Calandra, 414 U.S.

338 (1974), faced with the question of whether the ex-

clusionary rule should be extended to grand jury pro-

ceedings, the court stated:

In deciding whether to extend the exclusionary

rule to grand jury proceedings, we must weigh the

potential injury to the historic role and functions of

the grand jury against the potential benefits of the

rule as applied in this context.

414 U.S. at 349. This balancing test has been reaffirmed

by the Supreme Court in subsequent decisions, see

Stone v. Powell, 428 U.S. 465, 486-89 (1976); United

States v. Janis, 428 U.S. 433, 453-54 (1976), and has

been applied as well by courts of appeals dealing with

the present issue, see, e.g., United States v. Winsett, 518

F.2d 51 (9th Cir. 1975) (minimal deterrent effect of ex-

tending exclusionary rule to probation revocation pro-

ceedings outweighed by dangers the rule would pose to

probation system); United States v. Workman, 585 F.2d

1205 (4th Cir. 1978) (applying Calandra balancing test

to conclude that exclusionary rule does apply to proba-

tion revocation proceedings).

Of substantial importance in the weighing of the in-

terests involved is the principle that the rule is not a per-

sonal constitutional right of the party aggrieved, but

rather is a device designed to deter violations of fourth

amendment rights. See Calandra, 414 U.S. at 348. In

clarifying the interests to be balanced the Supreme

Court has explained that “[t}he purpose of the exclusion-

ary rule is not to redress the injury to the privacy of the

search victim. . . . Instead, the rule’s prime purpose is

to deter future unlawful police conduct.” Calandra, 414

U.S. at 347. “The rule is calculated to prevent, not to re-

pair. Its purpose is to deter — to compel respect for the

constitutional guaranty in the only effectively available

way — by removing the incentive to disregard it.” Unit-

A-12

ed States v. Calandra, supra, 414 U.S. at 347-48 (quot-

ing Elkins v. United States, 364 U.S. 206, 217 (1960).

Thus, whether the rule should be extended to pro-

bation revocation proceedings must depend on whether

its application will significantly enhance the rule’s deter-

rent effect. For, if the marginal increase in deterrence

stemming from the rule’s application will be slight, then

the balance of interests is unlikely to favor applying the

rule and thereby depriving revocation proceedings of

“ ‘all the evidence which exposes the truth.’” United

States v. Calandra, 414 U.S. 338, 351 (1974) (quoting

Alderman v. United States, 394 U.S. 165, 175 (1969)).

The Supreme Court has noted that empirical deter-

minations of the deterrent effect of the exclusionary rule

have shed little light on the questions posed by this bal-

ance of interests. See Janis, supra, at 449-53 (survey and

criticism of empirical studies). As a result, the Court has

“relied, instead, on its own assumptions of human na-

ture and the interrelationship of the various components

of the law enforcement system.” Janis, supra, at 459.

When the police conduct a search, their aim gener-

ally is to convict the target of the search of a substantive

offense, and they know that any unconstitutional con-

duct on their part incident to the search will be grounds

for suppressing the evidence at the defendant’s trial.

Such evidence, when seized by state police officers, is

excludable in both the state criminal trial on the sub-

stantive offense, Mapp v. Ohio, 367 U.S. 643 (1961), and

in any federal criminal trial, Elkins v. United States, 304

U.S. 206 (1960). Thus, “the entire criminal enforcement

process, which is the concern and duty of these [state]

officers, is frustrated,” Janis, supra, at 448 (footnote

omitted), and considerable deterrent effect arises from

alre: jy existing applications of the exclusionary rule.

In determining whether the incremental deterrent

effect of extending the exclusionary rule to various pro-

ceedings would be substantial, the Court has inquired

into whether use of the evidence in the proceeding in

A-13

question “falls outside the offending officer’s zone of pri-

mary interest.” Janis, supra, at 458. See also Tirado v.

Commissioner of Internal Revenue, 689 F.2d 307, 311

(2d Cir. 1982) (“The primary consideration is the rela-

tionship between the law enforcement responsibilities

and expertise of the seizing officials and the type of pro-

ceeding at which the seized material is being offered.’’)

The “zone of primary interest” for state police offi-

cers is the acquisition of evidence for use in criminal

proceedings, whether of the state or of the federal gov-

ernment. Janis, supra at 458. The interest of state offi-

cers is greatest in state criminal proceedings,” but ex-

tends to criminal proceedings of another sovereign by

virtue of the law enforcement officers’ interest in achiev-

ing some conviction. See Janis, supra at 458 (explaining

Elkins v. United States, supra). Yet the interest of state

officers is attenuated to some extent by virtue of the fact

that such evidence is used in a proceeding by another

sovereign.

In the present case, however, not only is the sover-

eign conducting the proceeding in question different

from the sovereign to which the offending officers are

responsible, but the proceeding in question is not the

criminal trial which is of primary concern to law enforce-

ment agents. As a result, it is unlikely that state law en-

forcement agents will be interested in seizing evidence

that will be of use in a federal probation revocation pro-

ceeding. Thus, in the absence of evidence that the of-

fending agents knew that the target of their search was a

probationer,’ the deterrent effect of excluding the rel-

1. In this case we do not reach the question whether the exclu-

sionary rule should be applied in a probation revocation proceeding

if the police knew or had reason to know that the target of their

search was a probationer. See United States v. Rea; United States v.

Winsett, 518 F.2d 51, 55 (9th Cir. 1975); United States v. Brown,

488 F.2d 94, 95 (Sth Cir. 1973) (per curiam). We expressly leave

this question open. There is no evidence in the record of this case

that the police who conducted the search knew or had reason to

know that Mollica was on probation.

A-14

evant evidence will be substantially attenuated. Cf.

Janis, supra, at 457-58.

That the target of the search might be on probation

and the seized evidence thus of use in a revocation pro-

ceeding is not likely to cross the police officers’ minds. In

this light, since, in the case of such a typical search and

seizure, the possibility of use of any seized evidence in a

probation revocation hearing is relatively remote, there

would appear to be little added deterrent effect from ap-

plying the exclusionary rule in probation revocation

proceedings.’

Against this minimal increase in deterrence of po-

lice misconduct we must weigh “the potential injury to

the . . . role and functions of |probation]."’ Calandra,

supra at 349. In considering the effect on probation re-

vocation proceedings of extending the exclusionary rule,

it must be remembered that because the probationer has

already been found guilty of a crime, and his liberty is

only “conditional,” United States v. Basso, 632 F.2d

1007, 1013 (2d Cir. 1980), cert. denied, 450 U.S. 965

(1981), a revocation hearing is, in effect, more a resen-

tencing than a taking of rights. As the Supreme Court

indicated in Morrissey v. Brewer, 408 U.S. 471 (1972),

and Gagnon v. Scurpelli, 411 U.S. 778 (1973), the “full

panoply of rights” due a defendant in a criminal prosecu-

tion is not available in a revocation proceeding.

Morrissey v. Brewer, supra, 408 U.S. at 480. For exam-

ple, the Government has a lesser burden of proof in revo-

cation proceedings, United States v. Manuszak, 532

F.2d 311, 317 (3d Cir. 1976), and the Federal Rules of

Evidence (other than with respect to privileges) do not

apply, Fed. R. Evid. 1101(d)(3).

These features of probation revocation proceedings

do not imply, of course, that probationers do not possess

2. United States v. Workman, 585 F.2d 1205 (4th Cir. 1978),

relied upon by Mollica, in our view greatly overstates the deterrent

effect of applying the exclusionary rule in such a specialized con-

text. See id. at 1210.

A-15

the fourth amendment right to be free from unreason-

able searches and seizures, or that that right is not pro-

tected by the warrant requirement. See United States v.

Rea, 678 F.2d 382, 386-88 (2d Cir. 1982); United States

v. Hallman, 365 F.2d 289 (3d Cir. 1966).* Nevertheless,

these features of probation revocation proceedings do re-

flect the fact that the state has a great interest in receiv-

ing all information available on the question of whether

the probationer has observed the conditions of his proba-

tion. As the Supreme Court stated in Morrissey v. Brew-

er, 408 U.S. 471, 483 (1972):

The State has found the parolee guilty of a

crime against the people. That finding justifies im-

posing extensive restrictions on the individual's lib-

erty. Release of the parolee before the end of his

prison sentence is made with the recognition that

with many prisoners there is a risk that they will not

be able to live in society without committing addi-

tional antisocial acts. Given the previous conviction

and the proper imposition of conditions, the State

has an overwhelming interest in being able to re-

turn the individual to imprisonment without the

burden of a new adversary criminal trial if in fact he

has failed to abide by the conditions of his parole.

Application of the exclusionary rule to probation re-

vocation proceedings would interfere significantly with

the state’s ability to ensure that conditions of probation

were being met. As a result, the state's ability to protect

3. A refusal to apply the exclusionary rule in probation revoca-

tion proceedings would not be inconsistent with this court's deci-

sion in United States v. Hallman, 365 F.2d 289 (3d Cir. 1966). In

Hallman, we did state that “Hallman was not without basic rights

because he was a parolee,” id. at 291, and suppressed evidence

seized as a result of an unlawful search. But the evidence in Hall-

man was sought to be used in Hallman’s trial on the substantive of-

fense of bank robbery, and not in connection with a revocation of

Hallman's parole. Hallman is thus readily distinguishable from the

instant case.

A-16

society from additional antisocial acts committed by pro-

bationers, and ultimately its ability to achieve the reme-

dial purposes of the probation system, would be im-

paired. See Winsett, supra, at 54-55.'

Accordingly, we conclude that there was no justifi-

cation for applying the exclusionary rule in the context

of Mollica’s probation revocation proceeding. As was

stated in United States ex rel. Sperling v. Fitzpatrick,

supra, “The exclusionary rule is believed to be a neces-

sary restraint on the adversarial zeal of law enforcement

officials. ‘As it serves this function, the rule is a needed,

but grudgingly taken, medicament; no more should be

swallowed than is needed to combat the disease.’ * 426

F.2d at 1163 (opinion of Hays, J.) (footnote and citation

omitted ).

4. The Ninth Circuit in Winsett. supra, observed

The primary purpose of probation, which has become an

integral part of our penal system, is to promote the rehabilita-

tion of the criminal by allowing him to integrate into society as

a constructive individual, without being confined for the term

of the sentence imposed. . . . An important aspect of our pro-

bation system is the placing of certain restrictions on the proba-

tioner, such as the requirement that he not associate with crim-

inals or travel outside the judicial district. These conditions

serve a dual purpose in that they enhance the chance for reha-

bilitation while simultaneously affording society a measure of

protection. Because violation of probation conditions may indi-

cate that the probationer is not ready or is incapable of rehabili-

tation by integration into society it is extremely important that

all reliable evidence shedding light on the probationer’s con-

duct be available during probation revocation proceedings.

Consequently, to apply the exclusionary rule to probation

revocation hearings would tend to frustrate the remedial pur-

poses of the probation system

518 F.2d at 54-55 (citation and footnote omitted)

Il.

The District Court’s Power to Revoke Probation

After Expiration of the Five-Year Statutory Period

Mollica argues that, because at the time his proba-

tion was revoked, the five-year time limit on probation

established by 18 U.S.C. §3651 had expired, the district

court lacked subject matter jurisdiction to effect the re-

vocation, even though revocation proceedings had for-

mally begun with a Petition to Revoke Probation prior to

the expiration of the five-year period.

18 U.S.C. §3651 provides in relevant part:

Upon entering a judgment of conviction of any

offense not punishable by death or life imprison-

ment, any court having jurisdiction to try offenses

against the United States when satisfied that the

ends of justice and the best interest of the public as

well as the defendant will be served thereby, may

suspend the imposition or execution of sentence

and place the defendant on probation for such peri-

od and upon such terms and conditions as the court

deems best.

The court may revoke or modify any condition

of probation, or may change the period of probation.

The period of probation, together with any ex-

tension thereof, shall not exceed five years.

The defendant's liability for any fine or other

punishment imposed as to which probation is grant-

ed, shall be fully discharged by the fulfillment of the

terms and conditions of probation.

A later portion of the statute, 18 U.S.C. §3653, provides

that as long as a warrant for the arrest of the probationer

is issued within the five-year period, the district court

may revoke the probationer’s probation:

A-18

At any time within the probation period, or

within the maximum probation period permitted by

section 3651 of this title, the court for the district in

which the probationer is being supervised or if he is

no longer under supervision, the court for the dis-

trict in which he was last under supervision, may is-

sue a warrant for his arrest for violation of probation

occurring during the probation period.

As speedily as possible after arrest the proba-

tioner shall be taken before the court for the district

having jurisdiction over him. Thereupon the court

may revoke the probation and require him to serve

the sentence imposed, or any lesser sentence, and,

if imposition of sentence was suspended, may im-

pose any sentence which might originally have

been imposed.

Thus, the statute suggests that as long as formal revoca-

tion proceedings are commenced (by arrest warrant or

otherwise) within the five-year period, probation can be

revoked, even if the revocation hearing starts and the ac-

tual revocation takes place after the end of the five-year

period.

Indeed, all the cases support this view. See Nicholas

v. United States, 527 F.2d 1160 (9th Cir. 1976); United

States v. Strada, 503 F.2d 1081 (8th Cir. 1974); United

States v. Bartholdi, 453 F.2d 1225 (9th Cir. 1972). In

Nicholas, for example, the court stated:

The district court had jurisdiction to execute

the remainder of Nicholas’ sentence, even if the

five-year probationary period had expired, because a

bench warrant had been issued for his arrest within

the initial five-year period, and the hearing upon re-

vocation was held within a reasonable time aiter ex-

ecution of the warrant.

A-19

527 F.2d at 1161 (citation omitted). This court recently

rejected an argument similar to Mollica’s in the context

of parole revocation. Franklin v. Fenton, 642 F.2d 760,

764 (3d Cir. 1980) (“Since the original warrant was is-

sued within the petitioner’s original term, it could be ex-

ecuted thereafter.” )

It is difficult to think of a reason why a court should

arbitrarily lose jurisdiction at the end of the five-year

statutory period when the alleged probation violation

took place within the five-year period and the probation-

er was formally notified within that period that the Gov-

ernment would seek to revoke his probation. The five-

year provision has not been applied mechanically in oth-

er contexts; for example, its running has been tolled

during periods when the probationer was not in fact un-

der probationary supervision by virtue of his own wrong-

ful act. See United States v. Workman, 617 F.2d 48, 51

(4th Cir. 1980); United States v. Lancer, 508 F.2d 719,

733-34 (3d Cir.) (in banc), cert. denied, 421 U.S. 989

(1975). Thus, since the proceedings to revoke Mollica’s

probation were commenced within the five-year period

of 18 U.S.C. §3651, the revocation of Mollica’s probation

was not time-barred.

III.

Postponement of the Revocation Hearing;

Use Immunity

I preface the following discussion of postponement/use

immunity with the caveat that, as the per curiam opin-

ion announcing the judgment of the court reflects, the

court is divided in its views on this issue, with no one

view commanding a majority. Thus the order of the dis-

trict court from which Mollica appeals must be affirmed.

The discussion that follows in this section adopts

the argument advanced by Mollica. That argument, if

accepted by a majority of the court, would require a re-

versal and a remand to the district court for further pro-

A-20

ceedings conforming to the principles urged by Mollica

and discussed below. However, as noted, no majority ex-

ists for this position and the succeeding discussion re-

presents the view only of the author of this opinion and

those members of the court, Judges Aldisert, Gibbons

and Weis, who have joined with him: a minority. Points

of view which differ from the discourse that follows are

to be found in the separate opinions of the various mem-

bers of the court. ;

Mollica argues that when a probation revocation

hearing is held prior to the disposition of related criminal

charges, the probationer is faced with a dilemma. If he

chooses to testify in the probation revocation hearing, he

may compromise his constitutional privilege against

self-incrimination in connection with the related crimi-

nal proceeding. If he decides not to testify in the revoca-

tion hearing, his probation may be revoked even though

he may later be acquitted of the related criminal

charges. Thus, Mollica argues that the proper procedure

is for the probation revocation proceedings to be

postponed until after the related criminal charges are re-

solved, and if postponement is not desired by the Gov-

ernment and the revocation hearing is held first, for the

probationer to be given use immunity so that he can

testify without penalty in the revocation proceeding. Cf.

Simmons v. United States, 390 U.S. 377, 389-94 (1968)

(defendant's testimony at suppression hearing inadmis-

sible at trial). At this point in time, Mollica’s argument is

also reinforced by the fact that mere postponement of

the revocation hearing would not prejudice the Govern-

ment because, as we have concluded in Part II, supra,

revocation proceedings need only be commenced by ar-

rest warrant, petition, or otherwise, within the five-year

limitations period of 18 U.S.C. §3651. Thus, the revoca-

tion hearing itself would not have to be commenced or

A-21

completed within that period. Neither would postpone-

ment endanger the public, Mollica argues, because, if

necessary and appropriate, a probationer who is accused

of violating the terms of his probation can be taken into

custody pending the outcome of the revocation hearing,

the propriety of which is an issue neither presented by

nor addressed on this appeal.

Mollica argues additionally that, even though the

state court granted his motion for suppression of the

only evidence available to the Commonwealth, and

thereafter dismissed the proceeding against Mollica on

the grounds of insufficient evidence, this circumstance

does not moot the issue presented to us. He points out

that the charges were merely dismissed and that he was

not acquitted. He also points out that, because addition-

al evidence not available to the state when it dismissed

his charges might become available as a result of his tes-

timony at a probation revocation hearing, his dilemma,

which led to this appeal, would still obtain. Thus, he ar-

gues that, even though a postponement of the probation

revocation hearing is no longer a realistic alternative be-

cause the state action against him has concluded, never-

theless, the possible revival of the state charges still re-

quires our adherence to the procedure which he

proposes.

Mollica here does not argue that postponement of

revocation hearings or the giving of use immunity are

constitutionally required. Courts in numerous cases

have held that they are not. See Ryan v. State of Mon-

tana, 580 F.2d 988 (9th Cir. 1978), cert. denied, 440

U.S. 977 (1979); United States v. Brugger, 549 F.2d 2

(7th Cir.), cert. denied, 431 U.S. 919 (1977); Flint v.

Mullen, 499 F.2d 100 (1st Cir.), cert. denied, 419 U.S.

1026 (1974). But see Melson v. Sard, 402 F.2d 653 (D.C.

Cir. 1968) (per curiam). Rather, Mollica argues that this

court should impose a postponement/use immunity re-

quirement as an exercise of its supervisory power over

the district courts in this circuit.

A-22

As Mollica notes, there is substantial support for the

view that probation revocation proceedings should be

postponed until after the disposition of the criminal

charges upon which revocation would be based. For ex-

ample, the ABA's Standards Relating to Probation §5.3

(Approved Draft 1970), provide that

|a] revocation proceeding based solely upon com-

mission of another crime ordinarily should not be

initiated prior to the disposition of that charge. How-

ever, upon a showing of probable cause that another

crime has been committed by the probationer, the

probation court should have discretionary authority

to detain the probationer without bail pending a de-

termination of the new criminal charge.

As the commentary to that section explains:

The relative informality of a probation revoca-

tion proceeding, as compared to the trial of an origi-

nal criminal charge, underlines the danger. Relax-

ation of rules of admissibility of evidence, the

absence of a jury, a lesser burden of proof — factors

such as these can lead to an abuse of the proceeding

by basing revocation upon a new criminal offense

when the offense could not be proved in an ordinary

criminal trial. Additional complexity is introduced

by the position in which the probationer is put as re-

gards his privilege against self-incrimination: a re-

vocation proceeding before trial of the charge on

which it is based well could compromise the asser-

tion of this fundamental constitutional right. . .

These problems can be minimized if the proba-

tion revocation proceeding is postponed until after

the disposition of the new criminal charge. The re-

cord will then be clear and the possibilities of unfair-

ness to the probationer will have been sharply re-

duced, particularly as they involve the privilege

against self-incrimination. This standard according-

A-23

ly suggests such postponement as an operating

policy.

(citations omitted.) See also Model Penal Code §301.3

(1962). Indeed, Mollica’s probation officer testified at

the revocation hearing that it is the standard policy of

the United States Probation Office to delay federal pro-

bation revocation proceedings until after disposition of

pending state criminal charges. App. at 286.

The leading case on this subject is People v. Cole-

man, 13 Cal. 3d 867, 120 Cal. Rptr. 384, 533 P.2d 1024

(1975), in which the Supreme Court of California, exer-

cising its supervisory power over lower California courts,

announced that the testimony of a probationer at a pro-

bation revocation hearing held prior to the disposition of

criminal charges arising out of the alleged violation of

the conditions of his probation, and any evidence derived

from such testimony, may not be used against the proba-

tioner by the prosecution in its case-in-chief on the relat-

ed criminal charges. Id. at 889, 120 Cal. Rptr. at 402,

533 P.2d at 1042. “he supreme courts of Alaska, Rhode

Island, and Wiscons *» have taken similar positions. See

McCracken v. Corey, 612 P.2d 990 (Alaska 1980) (parole

revocation); State v. DeLomba, 117 R.I. 673, 370 A.2d

1273 (1977); State v. Evans, 77 Wis. 2d 225, 252

N.W.2d 664 (1977). See alse People v. Carr, 185 Colo.

293, 524 P.2d 301 (1974). The Ninth Circuit in Ryan,

supra, while declining to hoid that use immunity was

constitutionally required, recognized the desirability of

such a procedure:

If our opinion as to the wisdom of the Montana

rule were dispositive, we might prefer the California

procedure, mandated by the state court under its

supervisory power, which provides use immunity

for a probationer’s testimony if it is given at a revo-

cation hearing held prior to trial on criminal charges

which were the basis for the revocation proceed-

A-24

ing. . . . Itis not unreasonable to conclude that the

lesser standard of proof at a revocation proceeding

and the objectives of making an accurate determi-

nation of revocation charges and a proper assess-

ment of the penalty to be imposed are factors that

make it proper for a state to encourage testimony by

a grant of use immunity.

580 F.2d at 994 (citation omitted).

I am persuaded by Mollica’s argument, and agree

that it is the better practice for probation revocation pro-

ceedings to await completion of the state criminal trial

on the substantive charge giving rise to the revocation

proceeding. If the government were to insist, or if the

district court decided in its discretion, that probation re-

vocation proceedings must be held prior to the disposi-

tion of the criminal charge, I agree that the defendant

should be given use immunity to testify in the revocation

proceeding. The determination as to which of these

courses to follow would necessarily rest in the sole dis-

cretion of the district court, which should articulate on

the record the reasons for its determination.

If such a practice were to be required in the instant

case, we would obviously be obliged to reverse and re-

mand for application of the procedure described. Howev-

er, as has been pointed out, there is no majority of the

court subscribing to Mollica’s argument to reverse and

remand for application of the procedure he urges upon

us. Rather, while some members of the court, who sub-

scribe to this discussion, agree that a remand should be

ordered for application of the rule advocated by Mollica,

other members of the court would remand, but only for

the purpose of ensuring that Mollica’s right to testify was

A-25

not compromised by the district court’s doubts about its

jurisdiction.°

This division of the court has resulted, as stated by

the per curiam opinion announcing the judgment of the

court, in a judgment affirming the district court’s order

of May 18, 1981. Because of my conviction that a re-

mand is necessary so that the district court may either

postpone the probation revocation hearing until state

proceedings have been completed or make use immuni-

ty available to Mollica, I disagree with the court’s dispo-

sition, and therefore dissent.

IV.

Mollica raises several other objections to the proba-

tion revocation proceedings before the district court. We

reject Mollica’s arguments for the reasons that follow.

Statement of Reasons for Imposing Sentence

Mollica contends that the district court should have

explained on the record why, after he had successfully

completed almost all of his probationary period, it had

5. If a remand were ordered out of concern that Mollica’s right

to testify was impaired by the district court's doubts about its juris-

diction, then Mollica would face the same dilemma he formerly

faced. He could choose to testify only at the risk of supplying the

very evidence that the state needs in order to indict him. It should

be remembered that the state, after having excluded the evidence

that arose from the search of the Stagno residence, then dismissed

charges against Mollica for lack of evidence. Thus, it would appear

that on this limited remand Mollica could not testify without fur-

nishing the very evidence the lack of which led to the dismissal of

the state charges. I do not think it likely that any purpose would be

served by such a limited remand, because in the almost certain

event that Mollica chose not to testify, for fear of furnishing evi-

dence to the state, the district court would be placed in exactly the

same position it was in after the first hearing.

A-26

resentenced him to the five-year term of imprisonment it

had originally imposed. Federal appellate courts general-

ly do not require trial courts to state reasons for the im-

position of the sentences they impose. See, e.g., United

States v. Vasquez, 638 F.2d 507, 3534 (2d Cir. 1980),

cert. denied, 450 U.S. 970, 102 S. Ct. 165, 102 S. Ct. 528

(1981); United States v. Garcia, 617 F.2d 1176, 1178

(5th Cir. 1980); United States v. Del Piano, 593 F.2d

539, 540 (3d Cir.) (per curiam), cert. denied, 442 U.S.

944 (1979); United States v. Thompson, 541 F.2d 794,

795 (9th Cir. 1976) (per curiam). Although this rule has

been criticized by a member of this court, see, e.g., Unit-

ed States v. Bazzano, 570 F.2d 1120, 1130-38 (3d Cir.

1977) (Adams, J., concurring in the judgment) (collect-

ing authorities), cert. denied, 436 U.S. 917 (1978), we

have continued to adhere to it.

Whatever justification exists for requiring a trial

court to explain its reasons when initially imposing sen-

tence, there is far less justification for requiring a court

to give reasons when it merely reinstates its earlier sen-

tence after finding that the defendant had violated his

probation. True, it is mot inevitable that courts will

reimpose the original sentence upon finding a probation

violation, and there may be good arguments in a given

case for not doing so. But when a defendant has violated

the terms of his probation — even toward the end of the

probationary period — it indicates to the court that it

erred in its original determination that the defendant did

not need to serve his prison sentence in order to be reha-

bilitated. That being the case, the court is justified, with-

out more, in concluding that it should do now what it

could have done initially: impose the original prison

term without probation. The probation statute, 18

U.S.C. §3653 (1976), expressly gives the court this op-

tion. See United States v. Lancer, supra, 508 F.2d at

726-27.

Since Mollica’s sentence is within the statutory lim-

its, it is not subject to challenge. United States v.

A-27

Dansker, 581 F.2d 69, 75 (3d Cir. 1978); Government of

the Virgin Islands v. Richardson, 498 F.2d 892, 894 (3d

Cir. 1974). As the Supreme Court said in Dorszynski v.

United States, 418 U.S. 424, 443 (1974), “well-estab-

lished doctrine bars review of the exercise of sentencing

discretion.” For these reasons, Mollica’s objection to his

sentence must fail.

Disclosure of Informant’s Identity

In Roviaro v. United States, 353 U.S. 53 (1957), the

Supreme Court recognized that there is a qualified privi-

lege possessed by the Government to refuse to disclose

the identify of a confidential informant from whom it has

received information about alleged criminal activity. In

determining whether the privilege should be sustained,

a court must “balanc[e] the public interest in protecting

the flow of information against the individual's right to

prepare his defense.” Jd. at 62.

Mollica’s argument, as to why the identity of the in-

formant here would be useful, is vague. “[M]ere specula-

tion as to the usefulness of the informant’s testimony to

the defendant is insufficient to justify disclosure of his

identity.” United States v. Estrella, 567 F.2d 1151, 1153

(1st Cir. 1977) (citations omitted). So far as appears, the

informant’s role in this case was nothing more than that

of allegedly providing the police with probable cause for

conducting their search, and we have already held in

Part II supra that the fruits of the search are not subject

to suppression even if the search warrant was defective.

The evidence of Mollica’s guilt consisted primarily of the

physical evidence seized during the search. Where an

informant’s role was in validating a search, disclosure of

his identity is not required. McCray v. Illinois, 386 U.S.

300 (1967). Mollica has failed to present a convincing

argument that the informant played any more important

role in the Government's case or in his defense.

A-28

Refusal to Grant Defense Witness Immunity

Mollica argues that the district court erred in refus-

ing to grant immunity to defense witnesses Stagno and

Fimmano. As a result, both Stagno and Fimmano in-

voked their fifth amendment privilege when called to the

stand. In United States v. Herman, 589 F.2d 1191 (3d

Cir. 1978), cert. denied, 441 U.S. 913 (1979), this court

discussed two situations in which the due process clause

might compel the granting of immunity to defense wit-

nesses: one statutory and one judicial.

First, Herman noted that in cases where Govern-

ment actions denying use immunity to defense wit-

nesses were undertaken with the “deliberate intention of

distorting the judicial fact finding process,” the court

has the remedial power to order acquittal unless on re-

trial the Government grants statutory immunity. Id. at

1204 (citing United States v. Morrison, 535 F.2d 223

(3d Cir. 1976)). Second, Herman observed that in cer-

tain cases a court may have “inherent authority to effec-

tuate the defendant's compulsory process right by con-

ferring a judicially fashioned immunity upon a witness

whose testimony is essential to an effective defense.” Id.

In Government of Virgin Islands v. Smith, 615 F.2d

964 (3d Cir. 1980), we gave content to both bases of de-

fense witness immunity when we vacated the sentences

of certain defendants and remanded for evidentiary p

ceedings respecting these principles. In particular, w

set out the requirements for invoking judicially fash-

ioned defense witness immunity:

[Bjefore a court can grant immunity to a defense

witness, it must be clear that an application has

been made to the district court naming the proposed

witness and specifying the particulars of the wit-

ness’ testimony. In addition, the witness must be

available and the defendant must make a convinc-

A-29

ing showing sufficient to satisfy the court that the

testimony which will be forthcoming is both clearly

exculpatory and essential to the defendant's case.

Immunity will be denied if the proffered testimony

is found to be ambiguous, not clearly exculpatory,

cumulative or if it is found to relate only to the credi-

bility of the government’s witnesses.

615 F.2d at 972 (footnote omitted).

In this case, Mollica had made no showing of gov-

ernmental conduct which would warrant a grant of stat-

utory immunity. There was no evidence of any attempt

on the part of the prosecution to distort the facts of the

case by keeping Stagno and Fimmano from testifying.”

Nor was there evidence of any other governmental ac-

tion or misconduct which would fall within the

Morrison-Herman standard. As we said in Smith, “{a]b-

sent [such] prosecutorial misconduct, a defendant is

foreclosed from insisting that statutory immunity be

granted his witness.” Id. at 968

As for “judicially fashioned” immunity, Mollica

clearly failed to make “an application. . . to the district

court naming the proposed witness and specifying the

particulars of the witness’ testimony.” Id. at 972. At no

time during the revocation hearing did Mollica tell the

district court what testimony either Stagno or Firimano

would give were they to be provided with immunity. The

belated affidavit of Mollica’s counsel, asserting that

Fimmano would have exculpated Mollica had Fimmano

been given immunity and testified, cannot cure the fact

that no such representation was made to the district

court at the hearing. Furthermore, there has never been

6. Mollica suggests that the Government knew that the hand-

writing on the betting slips found in Stagno’s bedygom was that of

Fimmano. The record does not bear out this suggestion. Fimmano

had testified on direct examination, but his testimony was stricken

when he refused to answer particular questions on cross-

examination.

A-30

any representation as to how Stagno’s testimony would

have exculpated Mollica. Under these circumstances,

the district court did not err in refusing to grant Stagno

and Fimmano the immunity which Smith authorizes.

Conclusion

I agree that as to all issues raised on appeal by

Mollica, other than the postponement/use immunity is-

sue, the district court's order of May 18, 1981 should be

upheld. However, because I would reverse and remand

to the district court so that it might conduct further pro-

ceedings consistent with Mollica’s postponement/use

immunity argument (see Part III, supra), I must re-

spectfully dissent from the judgment of the court affirm-

ing the district court’s order.

SEITZ, Chief Judge.

In my view, the district court did not deprive appel-

iant Mollica of any constitutional right by requiring him

to choose whether to testify at his probation revocation

hearing at the risk that his testimony or evidence derived

therefrom might be used against him in a subsequent

criminal trial. Also, I do not think it is a proper invocation

of our supervisory power to require a district court either

to postpone a probation revocation hearing based on

pending state criminal charges until the resolution of

those charges, or to grant the probationer use immunity.

A postponement decision is a matter best left to the dis-

cretion of the district court, and use immunity is unjusti-

fied in this context because it may result in a substantial

burden on the state law enforcement function. Finally,

A-31

although I believe the district court abused its discretion

by basing its denial of Mollica’s request for postpone-

ment or use immunity on a misperception of law, I

would not remand to the district court for further pro-

ceedings because of the present posture of the case.

On March 5, 1976 Mollica pleaded guilty to viola-

tions of 18 U.S.C. §1955 (conducting an illegal gam-

bling business), 18 U.S.C. §1511 (conspiracy to obstruct

law enforcement with intent to facilitate an illegal gam-

bling business), and 18 U.S.C. §§1961-1963 (RICO).

He was sentenced to five years’ imprisonment and fined

$15,000. The district court suspended his prison sen-

tence and placed him on a five year term of probation

pursuant to 18 U.S.C. §3651.

On February 18, 1981 Pittsburgh police officers

conducted a search of a house owned by Donna Stagno.

The police had obtained a warrant for this search based

on information received from an undisclosed informant,

who indicated that Mollica was conducting a telephone

gambling business at the Stagno residence. The search

produced several pieces of evidence substantiating the

informant’s allegation.

Based on this and other evidence gathered on Feb-

ruary 18, Pennsylvania authorities charged Mollica with

operation of a lottery, bookmaking, and conspiracy in

violation of 18 Pa. Con. Stat. §§5512, 5514 and 903, re-

spectively. On August 13, 1982 the Court of Common

Pleas of Allegheny County, Pennsylvania granted a mo-

tion to suppress certain evidence implicating Mollica in

the alleged criminal activity. The Commonwealth did

not appeal the suppression order, and on August 13,

1982 the Court of Common Pleas granted a motion of

the Commonwealth to dismiss the indictment.

Meanwhile, federai probation officials on April 27,

1981 had filed a petition in the district court to revoke

A-32

Mollica’s probation. The petition alleged thar the evi-

dence produced by the February 18, 1981 search re-

vealed that Mollica had violated a condition of his proba-

tion requiring him to refrain from violating any federal,

state or local law. The district court entered an order on

April 27, 1981 requiring Mollica to appear before the

court on May 8, 1981 and show cause why his probation

should not be revoked. The May 8, 1981 date was two

days before Mollica’s five-year term of probation would

expire.

At the May 8 hearing, Mollica requested that the

district court either postpone the probation revocation

proceedings until after the disposition of the state

charges or grant him use immunity. Fearing that his tes-

timony at the probation revocation hearing would be

used against him in the state criminal proceedings,

Mollica contended that either postponement or use im-

munity was required by fundamental fairness.

The district court refused Mollica’s request for

postponement and proceeded with the revocation heac-

ing. Mollica chose not to testify. The district court en-

tered an order revoking Mollica’s probation, from which

Mollica brings this appeal.

II.

Mollica argues that “{w)here the prosecutor insists

on conducting a probation hearing prior to trial on the

state charges, then a limited use immunity therefore

must arise in favor of the probationer under the privilege

against self-incrimination of the U.S. Constitution.”

This Fifth Amendment guarantee, however, protects the

individual only against compelled self-incrimination. See

Hoffa v. United States, 385 U.S. 293, 303-04 (1966).

In McGautha v. California, 402 U.S. 183 (1970),

vacated on other grounds, 408 U.S. 941 (1971), the Su-

preme Court held that no impermissible coercion result-

ed when a defendant in a state single-verdict trial system

A-33

was required to choose whether to stand on his right

against self-incrimination at the risk that his failure to

testify would be damaging on the issue of punishment.

Id. at 217. I can perceive no principled basis for distin-

guishing McGautha from the instant case, in which

Mollica was required to choose whether to stand on his

right against seb"-incrimination at the risk that his fail-

ure to testify would be damaging concerning probation

revocation.' Therefore, I cannot conclude that Mollica

was under the kind of compulsion that violates the privi-

lege against self-incrimination.

Mollica also argued before the district court that use

immunity was necessary as a matter of “fundamental

fairness”. Although he did not elaborate further on this

contention, I presume he meant to suggest that forcing

him to choose between exercising his constitutional

right to be heard in person at his probation revocation

hearing, Gagnon v. Scarpelli, 411 U.S. 778, 782 (1982),

and preserving his privilege against self-incrimination at

the state criminal proceedings, violates due process.

I am not unappreciative of the difficulty of this

choice. Yet, not every burden on the exercise of a consti-

tutional right, and not every pressure or encouragement

to waive such a right, is constitutionally impermissible.

Corbitt v. New Jersey, 439 U.S. 212, 218 (1978). The

threshold question in this regard is whether compelling

an election impairs to an appreciable extent any of the

1. In Brooks v. Tennessee, 406 U.S. 605 (1971), the Supreme

Court held unconstitutional a state statute that required a defend-

ant desiring to testify in a criminal proceeding to do so before any

other testimony for the defense was heard. Id. at 606. Brooks is dis-

tinguishable from the instant case because in Brooks the defendant

was required to choose whether to stand on his right against

self-incrimination at the risk that his failure to testify would be dam-

aging on the issue of guilt. In my view, the risk of conviction and

consequent punishment to a defendant presumed innocent until

proven guilty is more coercive than the risk of added punishment to

a probationer, such as Mollica, who already has been convicted.

A-34

policies underlying the constitutional rights asserted.

McGautha v. California, 402 U.S. at 213 (state unified

guilt-punishment criminal trial system does not violate

due process; choice between exercising right of allocu-

tion at punishment stage and preserving privilege

against self-incrimination at guilt stage does not appre-

ciably undermine policies underlying either right).

As I have indicated, Mollica’s forced election of

rights did not violate his right against self-incrimination.

Therefore, I must conclude also that this election did not

impair to an appreciable extent any of the policies

underlying that right. McGautha v. California, 402 U.S.

at 217.

Neither did Mollica’s forced election impair to an

appreciable extent any of the policies underlying his due

process right to be heard in person at his probation revo-

cation hearing. Identification of the precise dictates of

this due process right requires a careful balancing of the

private interest that will be affected by the official action

against the Government's interest, including the func-

tion involved and the fiscal and administrative burdens

that the additional or substitute procedural requirement

would entail. See Mathews v. Eldridge, 424 U.S. 319,

335 (1975).

The individual interests protected by the due proc-

ess right to be heard in person at a probation revocation

hearing include personal participation in the revocation

process, and bringing to the court's attention evidence

peculiarly within the probationer’s own knowledge. Yet,

neither of these interests is substantially undermined by

a requirement that a probationer must choose whether

to be heard at the expense of waiving the privilege

against self-incrimination. See McGautha v. California,

402 U.S. at 220 (same individual interests, which also

underlie due process right to be heard at sentencing as-

sumed to exist for purpose of argument, not undermined

by requiring defendant to risk that statements made re-

garding punishment will be damaging with regard to

guilt).

A-35

By contrast, the Government's interests weigh

heavily against relieving the probationer of the above

election either by postponing probation revocation hear-

ings or by granting the probationer use immunity. As I

will later suggest, postponement may result in substan-

tial expense aiid inconvenience to federal probation offi-

cials, while use immunity would impose on the govern-

ment the substantial burden in a subsequent criminal

prosecution of proving that its evidence was derived

from a source wholly independent of the probationer’s

previously immunized testimony. Therefore, as I bal-

ance the Mathews v. Eldridge factors, I cannot say that

the election required of Mollica deprived him of the due

process right to be heard in person at his probation revo-

cation hearing.

III.

Mollica argues in the alternative that this Court

should promulgate a supervisory rule which requires a

district court either to postpone a probation revocation

hearing based on pending state criminal charges until

the resolution of those charges, or to grant the probation-

er use immunity. I need not decide whether the supervi-

sory rule proposed by Mollica would be the better prac-

tice, because I believe the subject matter of Mollica’s

so-called “dilemma?” is ill-suited to a proper invocation of

our supervisory power. Moreover, I am not convinced

that there is any substantial need for such a rule, given

the admission of the United States probation office that

its general policy is to delay the institution of probation

revocation proceedings until the disposition of state

criminal charges. See United States v. Tonelli, 577 F.2d

194, 196 (3d Cir. 1978) (supervisory rule requiring that

putative defendants be advised of Fifth and Sixth

Amendment rights before testifying in grand jury pro-

ceeding unnecessary in light of Justice Department's

adoption of this practice).

A-36

Whatever its source,’ there is no doubt that this

Court has supervisory power to promulgate rules of prac-

tice and procedure for the better administration of the

judicial process. Clearly, however, not every problem

faced by a district court is properly the subject of a su-

pervisory rule. Instead, some matters are best left to the

sound discretion of the district court. This is particularly

the case when resolution of an issue demands the

weighing and balancing of several factors, or when the

district court is in a better position to resolve a dispute by

virtue of its proximity to the facts.

In my opinion, the district court is in the best posi-

tion to balance the several considerations relevant to

whether probation revocation hearings based on state

criminal charges should be postponed until the resolu-

tion of those charges. One of these considerations, for

example, is the inconvenience that may result from an

untimely motion for postponement. United States v.

Turkish, 623 F.2d 769, 777-78 & n.5 (2d Cir. 1980) (dis-

trict court's refusal] to grant defense witness immunity

did not deny constitutionally protected fairness because

demand for immunity was untimely and would, if grant-

ed, have resulted in substantial inconvenience to pros-

ecution), cert. denied, 449 U.S. 1077 (1981). In the in-

stant case, Mollica did not make his request for

postponement or use immunity until his probation revo-

cation hearing had begun. For the district court to have

2. Commentators have suggested that a court of appeals’ su-

pervisory power may be justified either as an inherent power, Hill,

The Bill of Rights and the Supervisory Power, 69 Colum. L. Rev.

191, 195 (1969), or as a power impliedly delegated by Congress’ en-

actment of the Court of Appeals Act. Schwartz, The Exercise of the

Supervisory Power by the Third Circuit Court of Appeals, 27 Vill. L.

Rev. 506. 514-25 (1981-82). It is unnecessary for me to decide

whether either or both of these sources is the basis of the supervi-

sory authority of the courts of appeals, since the Supreme Court has

expressely affirmed the legitimacy of this power. Bartone v. United

States, 375 US. 52, 54 (1963) (per curiam).

A-37

granted this request might have resulted in serious in-

convenience; probation officials argued that several of

their witnesses were from out of town, and could be re-

turned to a second probation revocation hearing, if at all,

only at added expense.

Similarly, the status of a pending state criminal pro-

ceeding may determine whether postponement is the

appropriate course of action. For example, in the instant

case postponement would not be a viable alternative at

the present time, since there exist no pending criminal

charges the disposition of which could mark the time at

which the probation revocation hearing would be

recommenced.

Postponement also might be inappropriate when

the request for postponement occurs at the inception of

the state criminal process. Because state criminal pro-

ceedings may continue for some time,’ delay of a proba-

tion revocation hearing may result in the loss of evi-

dence, the disappearance or death of witnesses, or other

forms of prejudice to the government.

By contrast, it might cause federal probation offi-

cials little inconvenience if the district court were to

grant postponement of probation revocation hearings

when the state criminal trial is near completion.: Pre-

sumably, the probation revocation proceedings could be

resumed shortly, with little likelihood that the delay will

have resulted in any harm to the government's case. In

any event, the district court will be in the best position to

assess the inconvenience that may result from a long de-

lay, and to assign this inconvenience its proper weight.

3. For example, in this case, had the district court granted

Mollica’s request for postponement on May 8, 1981, postpone-

ment would have resul\ed in a significant delay of the probation re-

vocation proceeding, since the state charges against Mollica were

not dismissed until August 13, 1982.

A-38

B. Use Immunity

Without doubt, a supervisory rule requiring district

courts to grant use immunity to a probationer who faces

the same sort of election as did Mollica would advance

the federal interest in avoiding revocations of probation

based on erroneous information or an erroneous evalua-

tion of the need to revoke probation. Morrissey v. Brew-

er, 408 U.S. 471, 484 (1972). Nevertheless, the Su-

preme Court has held that courts of appeals should not

promulgate a supervisory rule implementing such a

non-constitutionally required goal when the rule would

impose a significant corollary burden on a co-equal

branch of government. See United States v. Payner, 447

U.S. 727, 734-37 (1979) (court of appeals’ use of super-

visory power to suppress evidence seized in violation of

fourth amendment rights of third party not before the

court inappropriate because loss of probative evidence

significantly burdens law enforcement efforts of execu-

tive branch). Similarly, this Court has declined to exer-

cise its supervisory power when the result would be a

significant encroachment on an integral function of

state government. See Poteet v. Fauver, 517 F.2d 393,

398 (3d Cir. 1975) (declining to exercise supervisory

power to order assignment of new judge for resen-

tencing in state criminal proceeding out of respect for

court system of equal sovereignty)

In the instant case, federal probation officials

sought to revoke Mollica’s probation based upon pend-

ing state criminal charges. Therefore, we are not con-

fronted with the possibility that a grant of use immunity

would impose a significant burden on federal law en-

forcement officials.

Rather, my objection to a supervisory rule requiring

use immunity in the present context concerns the effect

immunity would have on state law enforcement, an inte-

gral function of state government. Younger v. Harris,

401 U.S. 37, 44-45 (1971). Specifically, granting the

A-39

probationer immunity would require the state to prove

that evidence it seeks to use against a probationer in a

subsequent criminal trial is derived from a source wholly

independent of his previously immunized testimony.

As a general principle, immunization of the “fruits”

of immunized testimony is necessary to satisfy the pro-

spective witness that his testimony will not return to

haunt him. Cf. Kastigar v. United States, 406 U.S. 441,

460 (1970) (immunity for “use” and “fruits” in federal

use immunity statute necessary and sufficient to provide

full protection required by privilege against self- incrimi-

nation). Requiring the government to prove that evi-

dence it seeks to use against a probationer is derived

from a source wholly independent of his previously im-

munized testimony is but a natural and necessary com-

plement of “fruits” immunity.

Proving that evidence is derived from a source inde-

pendent of previously immunized testimony would im-

pose a substantial burden on the state prosecution in a

subsequent criminal trial. Although the state may in

some cases be able to satisfy the independent source

burden by cataloguing or freezing the evidence obtained

prior to the defendant’s immunization, this is not so

when a continuing investigation “disclose|s] vital evi-

dence after, though not resulting from, the immunized

testimony.” United States v. Turkish, 623 F.2d at 775. If

the state cannot meet its burden in such a case, the re-

sult will be the loss of potentially crucial evidence.

Moreover, when the state’s investigation is ongoing,

it may take measures in order to meet the independent

source burden which are in themselves costly. For ex-

ample, the state may decide that it is necessary to ap-

point a new team of investigators and prosecutors after

the probationer has been granted immunity. United

States v. Turkish, 623 F.2d at 778. Yet, this would result

in the loss of the knowledge and experience of the first

team of investigators and prosecutors, as well as much

duplication of effort by the second-appointed team.

A-40

United States v. Thevis, 665 F.2d 616, 640 n.26 (5th

Cir.), cert. denied, 103 S. Ct. 57 (1982). In recognition of

these potential burdens, this Court has held that the pos-

sibility that a defense witness may be subject to future

prosecution is a legitimate reason for denying him im-

munity. United States v. Lowell, 649 F.2d 950, 965 (3d

Cir. 1981). Therefore, given these significant potential

burdens on state law enforcement activities, I would de-

cline to use our supervisory power to promulgate a rule

requiring district courts to grant use immunity as an al-

ternative remedy in this context.

IV.

Although in my view the decision whether to

postpone probation revocation proceedings or to grant

use immunity should be left with the sound discretion of

the district court, in this case it appears that the district

court may have denied Mollica’s request for the wrong

reason. Although the record in this case is not entirely

clear, I believe it can be fairly read as indicating that the

district court based its decision to deny Mollica’s request

for postponement on its interpretation of 18 U.S.C.

§3651. Apparently, the district court interpreted section

3651 as granting it jurisdiction to revoke Mollica’s pro-

bation only if it commenced the revocation hearing dur-

ing his five year probationary term. Because postpone-

ment of Mollica’s revocation hearing would have

extended the proceedings beyond this term, the court

thought postponement would have deprived it of juris-

diction to revoke his probation.

The other judges of this court have indicated, and I

agree, that postponement beyond the five year proba-

tionary term would not have divested the district court of

jurisdiction over Mollica. This is because the district

court’s April 27, 1981 order requiring Mollica to appear

before the court and show cause why his probation

should not be revoked fell within the five year statutory

A-4!

period. Therefore, the district court's refusal to grant

Mollica’s request for postponement was apparently

based on an erroneous application of section 3651.

The district court's error clearly is inconsistent with

a sound exercise of discretion, and would call for a re-

mand were it not for the procedural posture of this case.

Because the Pennsylvania authorities have dismissed

the criminal charges against Mollica which formed the

basis of his probation revocation, postponement no long-

er remains a viable remedy. Moreover, it would be an

abuse of discretion to grant Mollica use immunity, since

immunity is not constitutionally required and would re-

quire the state, should it decide to reindict Mollica, to

satisfy the “independent source” burden. Consequently,

I believe a remand would be wholly ineffectual in afford-

ing Mollica the remedy to which he is entitled, a proper

exercise of the district court’s discretion concerning

whether to postpone his probation revocation hearing or

grant him use immunity.

I also would not remand to give Mollica a second

chance to choose whether to testify at his probation revo-

cation hearing. As I have indicated, the district court's

misinterpretation of its jurisdiction deprived Mollica of a

proper exercise of the court’s discretion concerning

whether to postpone his revocation hearing or grant him

use immunity. The court's error did not, however, de-

prive Mollica of the right to choose whether to testify.

Mollica exercised this right, choosing not to testify. No

error of the district court entitles him to a reevaluation of

this decision.

Finally, | agree~with the court that on rehearing,

Mollica cannot invoke the Fourth Amendment as a

ground for excluding the evidence obtained by the state

authorities. I also agree that the district court did not err

in failing to explain the reasons for resentencing Mollica

A-42

to his original five-year term of imprisonment, refusing

to require the disclosure of the identity of the govern-

ment’s informant, or refusing to grant immunity to de-

fense witnesses Stagno and Fimmano.

I would affirm the judgment of the district court.

GIBBONS, Circuit Judge, with whom Judge Aldisert

joins, dissenting:

This court's judgment affirming the revocation of

Mr. Mollica’s probation is technically correct, since no

majority of this court agrees upon a ground for modity-

ing it. But while we recognize that since both of the posi-

tions we espouse are minority positions, and thus that

the judgment must stand, we dissent from both majority

holdings.

I. The Use Of Illegally Obtained Evidence in Parole

Revocation Proceedings.

A majority of the court advances two reasons for the

conclusion that illegally obtained evidence is admissible

in a probation revocation proceeding. One is that a pro-

bationer, because he has already been found guilty of a

crime, has only a “conditional” liberty. The other is that

since the application of the exclusionary rule to proba-

tion revocation proceedings will not significantly en-

hance the deterrence of police misconduct it should not

be applied. Neither reason is sound.

It is true that the procedural rules applicable to a

criminal prosecution, such as jury trial and proof beyond

a reasonable doubt, do not apply in a probation revoca-

tion proceeding. But it is a classic non-sequitur to sug-

gest that, because the procedural rules of criminal pros-

ecutions and of probation revocation proceedings are not

A-43

identical, persons on probation have a lesser interest in

the zones of privacy and personal autonomy which the

fourth amendment protects. This court recognized in

United States v. Hallman, 365 F.2d 289 (3d Cir. 1966),

that the fourth amendment protects a parolee from a

warrantless seizure. It held that such illegally seized evi-

dence could not be admitted in a subsequent counter-

feiting case. Certainly that case ought to control on the

full applicability of the fourth amendment to probation-

ers, for no meaningful distinction can be drawn, for

fourth amendment purposes, between a probationer and

a parolee. Moreover, the Hallman court drew no distinc-

tion based upon the nature of the proceeding in which

the illegally obtained evidence was to be used. From the

point of view of the victim of a fourth amendment viola-

tion, the government’s further invasion of constitutional-

ly protected privacy rights by making use of the fruits of

that invasion in a public forum is the same whether that

public forum is a prosecution or a proceeding to revoke

probation or parole. The public exploitation of the inva-

sion of privacy continues and aggravates it. The court

becomes a partner in that exploitation to exactly the

same extent in both proceedings. Matters that should,

under the law, have remained private are put to a public

use, to the ongoing detriment of the victim. A peeping

tom looking through a bedroom window commits an

egregious invasion of privacy. If he titilates his friends

with a description of what he observed in the bedroom,

the invasion of privacy is magnified. If a court then af-

fords him a public forum in which the private informa-

tion becomes a public record, the court participates in

that invasion of privacy and magnifies it to the maxi-

mum. The exclusionary rule prohibits the court from

participating in illegal invasions of privacy by maximiza-

tion of the dissemination of information which under the

standards of privacy enshrined in the fourth amencment

should remain private.

A-44

On this issue the majority disregards the court’s in-

volvement in the ongoing invasion of the victim’s privacy

interests by separating the exclusionary rule from those

privacy interests. That majority holds that the rule is not

a personal constitutional right of the party aggrieved, but

only a device designed to deter violations of fourth

amendment rights. It is indeed a rule to prevent viola-

tions of fourth amendment rights — violations by the

court in compounding illegal invasions of privacy by fur-

ther public exploitation of material that should have re-

mained private in the first place.

Over a decade ago I outlined the reasons why the

deterrence of police misconduct as the sole justification

for the exclusionary rule is a snare and a delusion. Gib-

bons, Practical Prophylaxis and Appellate Methodology:

The Exclusionary Rule as a Case Study in the Deci-

sional Process, 3 Seton Hall L. Rev. 295 (1972). Almost

everything that has occurred in fourth amendment ju-

risprudence since then has reinforced my conviction as

to the unsoundness of the deterrence rationale. The ma-

jority opinion on the fourth amendment issue is a typical

example. Proceeding from the assumption, unsupported

by empirical evidence, that application of the rule in

criminal trials does in fact have an effect on police con-

duct, it jumps to the equally unsupported assumption

that non-application of the rule in parole revocation pro-

ceedings will have no encouraging effect. Our visceral

reaction, and we confess it is only that, is that the case

for a deterrence-encouragement rationale is stronger

rather than weaker in the probation revocation context.

The police, often less interested in convictions than in

crime prevention, already have a great incentive in

dealing with parolees or probationers to seek their incar-

ceration under the much lower evidentiary standards ap-

plicable to revocation proceedings. The holding that ille-

gally obtained evidence may be freely used in a

probation revocation proceeding sends a strong signal to

law enforcement personnel that the task of building a le-

A-45

gal case which would sustain a conviction may be

shortcut in the interest of getting a probationer off the

street by an invasion of his fourth amendments rights.’

Our visceral reaction as to the rule’s deterrence or en-

couragement of police misconduct is at least as probable

as that of the majority on that issue.

Neither visceral reaction, however, is a sound basis

for a ruling that the court should become an active par-

ticipant in an ongoing illegal invasion of constitutionally

protected privacy interests. The only valid reason for the

exclusionary rule is that advanced by Justices Holmes

and Brandeis years ago in their notable dissents in

Olmstead v. United States, 277 U.S. 438, 469, 471

(1928). The government plays “an ignoble part” when it

commits illegal invasions of privacy. Id. at 470 (Holmes,

J., dissenting). The evidence, therefore, is excluded “in

order to preserve the judicial process from contamina-

tion.” Id. at 484 (Brandeis, J., dissenting). The contami-

nation to which Brandeis referred was that caused by

the active participation of the court in providing a public

forum for the widespread dissemination and public use

of information which should have remained private.

Brandeis was one of the first scholars to recognize

the importance of individual privacy as a basic liberty.

Warren and Brandeis, The Right of Privacy, 4 Harv. L.

Rev. 193 (1890). Many years elapsed before a majority of

the Supreme Court accepted his normative judgment as

1. An amicus curiae brief filed in the Supreme Court by Dan

Johnston, county attorney for Polk County, lowa, in Illinois v. Gates,

——. §.Ct. ___ (1983), contended that the exclusionary rule is ac-

countable for the extremely low number of dismissals of prosecu-

tions because of suppression of evidence, and that a retreat from

Mapp v. Ohio, 367 U.S. 643 (1961), will be perceived by the law

enforcement community as a signal that the fourth amendment

should not be taken seriously. See argument of couns! in Illinois v.

Gates, 51 U.S.L.W. 3643, 3645 (March 8, 1983). Mr. Johnston's vis-

cvral reaction is informed by law enforcement experience which the

members of this court lack.

A-46

to the value of that liberty. Now, we concede, this court's

majority is swimming with a strong tide against recogni-

tion of the value of privacy rights.’ The head count

among the courts of appeals on the precise issue of ad-

missibility of illegally obtained evidence in probation re-

vocation proceedings is evidence of that tide. In this

court United States v. Hallman, 365 F.2d 289 (3d Cir.

1966), while technically distinguishable, put us, at least

until today, in the same normative camp as the Fourth

Circuit. United States v. Workman, 585 F.2d 1205, 1211

(4th Cir. 1978). We would have this circuit stay there. It

is offensive to cast federal judges in the role of peeping

toms once removed, presiding over a public forum for

the public dissemination of information which under the

Constitution was and should have remained private.

Moreover, embracing that ignoble role, as the majority

on that issue does, will in the long run erode the moral

authority of the court, which is its only real source of

power.

We would hold that the court erred in refusing to

hold a hearing to determine whether the evidence it ad-

mitted in the probation revocation proceeding was ille-

gally obtained.

Il. The Privilege Against Self-Incrimination in Pa-

role Revocation Proceedings

Judge Garth’s separate opinion, which unfortunate-

ly does not command a majority, outlines the reasons

why, when the executive branch of the federal govern-

ment calls upon the article III judiciary to impose the

sanction of revocation of probation, the court should in-

sist upon either use/fruits immunity so that the proba-

tioner may testify or postponement of the revocation

2. But see Franks v. Delaware, 438 U.S. 154 (1977) (warrant

based on knowingly false affidavit should be voided and fruits of

search suppressed ).

A-47

hearing until incrimination from testimony is no longer

likely. We agree with his proposed holding. We note that

his reliance on a judge-made procedural rule not specifi-

cally required by a statute or the Constitution is entirely

consistent with the Supreme Court’s latest pronounce-

ment on the supervisory powers of the federal courts.

The purposes underlying use of the supervisory

powers are threefold: to implement a remedy for vio-

lation of recognized rights. . .; to preserve judicial

integrity by ensuring that a conviction rests on ap-

propriate considerations validly before the jury. . .:

and finally, as a remedy designed to deter illegal

conduct... .

United States v. Hastings, 51 U.S.L.W. 4572, 4574

(U.S. May 23, 1983) (citations omitted). All three pur-

poses apply here. The rule Judge Garth proposes imple-

ments a probationer’s privilege against self-incrimi-

nation. It also assures that the parole revocation

proceeding will have the benefit of all evidence possibly

favorable to the probationer, and thus that the decision is

made on appropriate considerations. Finally, it deters re-

liance on probation revocation proceedings in circum-

stances in which the prosecuting authorities could not

prove a substantive offense, and prevents those authori-

ties from placing the probationer in the position of leav-

ing a weak case unanswered or running the risk of

strengthening it by self-incrimination.

Thus we dissent as well from the holding that pro-

bation revocation proceedings should go forward, absent

a grant of use/fruits immunity, in the face of a valid as-

sertion that testimony by the probationer would tend to

incriminate him in respect to a pending criminal charge.

A-48

SLOVITER, Circuit Judge.

1. I agree with Chief Judge Seitz that appellant

Mollica was not deprived of any constitutional rights

when the district court refused to postpone Mollica’s

probation revocation hearing or to grant him use immu-

nity. I agree that we should not enunciate a supervisory

rule to cover this situation for the reasons set forth in

Chief Judge Seitz’ opinion.

2. lagree with Judge Gibbons that the district court

should have held a hearing to determine whether the

challenged evidence was illegally obtained. In recent de-

cisions, the Supreme Court has grounded its rationale

for the rule more on pragmatism than on principle: “The

|exclusionary] rule’s prime purpose is to deter future un-

lawful police conduct and thereby effectuate the guaran-

tee of the Fourth Amendment against unreasonable

searches and seizures.” United States v. Calandra, 414

U.S. 338, 347 (1974). See United States v. Janis, 428

U.S. 433, 446 (1976). Even if viewed in that light, I am

unpersuaded that probation revocation proceedings

should stand on a significantly different footing than

criminal trials for this purpose. Although empirical evi-

dence is unhappily unavailable, as the Court has recog-

nized, see id., it is reasonable to assume that the deter-

rent effect on police misconduct would be strengthened

if the exclusionary rule is applied in an unwaivering and

undeviating fashion whenever the evidence is sought to

be used in a proceeding which may subject the victim of

the search to imprisonment. See United States v. Work-

man, 585 F.2d 1205, 1211 (4th Cir. 1978). Therefore, I

would remand for the purpose of directing the district

court to hold a suppression hearing. Since a majority of

the court has not accepted that position, I vote to affirm.

A-49

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 im-

munity and postponement of probation revocation hear-

ings. I would vacate and remand, not on the basis of the

supervisory rule, but to enable Mollica to testify if he so

elects.

When Mollica’s counsel moved for postponement of

the probation revocation hearing, the district court was

concerned that postponement beyond the five year pro-

bationary 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 issue, it might have exer-

cised 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 ex-

ercise 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 clarifi-

cation. 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 uncer-

tainty. 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

A-50

issue betore 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 hear-

ing without granting immunity. Even if this view is cor-

rect, it does not follow that remand is unwarranted. Fair-

ness and caution support a decision to remand because

Mollica may now choose to testify at the probation revo-

cation hearing, even in the absence of immunity, inas-

much as the state criminal charges have been dropped

and might not be revivable.

The proposed supervisory rule requires — without

exception — that a district court postpone probation re-

vocation proceedings or grant use immunity to proba-

tioners who wish to testify, but are unwilling to do so in

the absence of a posiponement. The rule is based upon

Judge Garth’s conception of the “better practice”; it is

not dictated by precedent, statute, or constitutional pro-

vision. 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

pervisory power.

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 post-

poned, 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

A-5I

Mollica and the revival of any previous charges is specu-

lative. Judge Garth’s proposal might well constrain a dis-

trict court for the entire period of the statute of limita-

tions. Mollica’s hearing, for example, could be delayed

for at least two years from the date he allegedly commit-

ted the offense and possibly much longer.’ In a case in-

volving murder or voluntary manslaughter, postpone-

ment could be indefinite.’

The 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 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 dis-

trict 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 ar-

ticulate a rationale would be less objectionable. But

1. 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.

2. See, e.g., 42 Pa. Cons. Stat. Ann. §5551 (Purdon 1981) (un-

limited period for prosecution of murder or voluntary manslaugh-

ter).

A-52

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.

Even assuming that the rule could be more precise-

ly crafted, its rigid application would create an unsat-

isfactory choice for district courts and prosecutors con-

templating probation revocation proceedings: they must

grant use immunity or postpone. Yet there might well be

exceptional circumstances in which the Government

can demonstrate a compelling need to avoid postpone-

ment, but in which a grant of immunity would be unac-

ceptable. The rule would also have unfortunate conse-

quel es in the ordinary probation revocation case in

which use immunity is granted. The probationer’s testi-

mony will often have little effect on the outcome of a re-

vocation 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 legiti-

mate source wholly independent of the compelled [im-

munized] testimony.” Kastigar v. United States, 406

U.S. 441, 460 (1972).

In cases involving judicially created use immunity

for defense witnesses, we require that the defendant

show that the proferred testimony is both clearly excul-

patory 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 “[njo court

has authority to immunize a witness.” Pillsbury Co. v.

Conboy, 51 U.S.L.W. 4061, 4064 (U.S. Jan. 11, 1983).

Although this statement appears in the context of a dis-

cussion of defense witness immunity pursuant to stat-

ute, the Court may have meant to express the view that

A-53

the judiciary lacks even the inherent, nonstatutory pow-

er to immunize a witness. If the district court lacks the

authority to immunize a witness, it is questionable

whether it possesses the inherent 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 prosecu-

tions, 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 stand-

ard of proof and more relaxed rules of evidence and pro-

cedure than do parallel criminal trials,’ and probationers

consequently may feel compelled to testify. However,

these procedural differences do not justify a blanket su-

pervisory 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 antici-

pate 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 be-

lieves for good reason should be held promptly.

Even assuming that the rule proposed could be

made sufficiently precise and flexible, I do not agree that

the promulgation of such a rule constitutes an appropri-

ate exercise of our supervisory power. Unlike the rules of

practice in federal courts, this supervisory rule has not

been promulgated under the exacting procedures estab-

3. For example, we hold today that the exclusionary rule does

not apply in probation recovation proceedings.

A-54

lished by the Judicial Conference of the United States

pursuant to 28 U.S.C. §331 (1976).‘ Nor was the rule

published in proposed form, subjected to comment and

criticism, reported to elected public officials for modifi-

cation or disapproval, or consolidated in an accessible

format. Deviation from the carefully delineated path es-

tablished for the adoption of the federal rules should oc-

cur only in limited circumstances. These procedures

and the policy favoring uniformity among the federal cir-

cuits make the analogy to state supervisory rules inappo-

site. See typescript, supra, at 19-20.

Although this Court has promulgated supervisory

rules on a number of occasions, they generally address

matters peculiarly within the province of the judiciary.’

A survey of the case law indicates that such rules are rel-

atively narrow in compass and relate primarily to the

regulation of practices followed by judges, the admissi-

bility of evidence. the supervision of grand juries, and

the conduct of counsel in court. See Schwartz, supra

note 4, at 509-12. By contrast, the rule proposed today

has a direct imy ct on the prerogatives of another

branch of the federal government as well as on the pre-

rogatives of the states. While such incursions are not un-

precedented, this Court, as a matter of general policy,

has rarely taken such a drastic step in the absence of a

constitutional mandate. It is apparent that encroach-

ments of the kind advanced by the majority should be

4. 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).

5. 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

7. Cf Government of Virgin Islands v. Smith. 615 F.2d 964 (3d

Cir. 1980) (requiring judicially created immunity. under certain

conditions, to vindicate consututional right to fair trial); United

A-55

based on more than notions of what constitutes the “bet-

ter 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 signifi-

cant problems in this case.* Had it not been for the juris-

dictional issue which the Court resolves today, the pro-

bation office 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 juris-

diction, and not the absence of a supervisory rule, pre-

vented the postponement of Mollica’s hearing while

state proceedings were pending. The rule may well be a

solution to a nonexistent problem.

A supervisory rule governing the timing of revoca-

tion hearings might be legitimate; 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 ab-

sence of political accountability, the lack of procedural

safeguards, the intrusion on prosecutorial discretion,

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 (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’).

8. See United States v. Hastings, 51 U.S.L.W. 4572, 4574

(U.S. May 23, 1983) (supervisory rule inappropriate when the error

to which the rule is addressed is harmless).

A-56

and the superfluity of a rule absent a showing of need,

all suggest circumspection in the exercise of our super-

visory power. If some guidance for district courts is ad-

visable, we would do better, I believe, to set forth the

considerations that should inform the exercise of discre-

tion by district judges.

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 justifi-

cation 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 uncom-

mon 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 (1977); Tilton v. Richardson, 403 U.S. 672 (1971).

While such decisions may frustrate a court’s role of pro-

viding 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 HARY. 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 in-

voke the exclusionary rule on remand or grant use im-

munity, since a majority of this Court rejects both op-

tions. But three judges (Adams, Hunter, and Becker)

A-57

would remand to ensure that Mollica’s right to testify

was not compromised by the lower court's erroneous

concern regarding its jurisdiction,’ and I do not believe

that a majority of this Court has foreclosed that option.

Indeed the only disposition that appears inconsis-

tent with those opinions is an affirmance. It is scant con-

solation 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.

Judge Hunter and Judge Becker join in this dissent.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

9. Although, on remand, Mollica would again face the dilem-

ma 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 charges will not be reinstated or will

carry relatively little sanction. Alternatively, he might be so con-

cerned with the federal probation revocation proceedings that he

might want to testify in the hopes of exculpating himself.

————— ss lh el

A-58 [CORRECTED COPY}

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 81-1936

UNITED STATES OF AMERICA

JOHN BAZZANO, JR. a/k/a “JOHNNY”, a/k/a “J”;

JOSEPH DE MARCO avk/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 wk/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”

Primo Mollica, Appellant

SUR PETITION FOR REHEARING

Present: SEITZ, Chief Judge, ALDISERT, ADAMS,

GIBBONS, HUNTER, WEIS, GARTH, HIGGINBOTHAM,

SLOVITER and BECKER, Circuit Judges

The petition for rehearing filed by appellant, Primo

V. Mollica, in the above entitled case having been sub-

mitted 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

A-S9

concurred in the decision having asked for rehearing,

and a majority of the circuit judges of the circuit in regu-

lar active service not having voted for rehearing by the

court in banc, the petition for rehearing is denied.

By the Court

LEONARD I. GARTH

Circuit Judge

VATED: July 20, 1983

ADAMS, Circuit Judge, Statement Sur Petition for

Rehearing:

The petition for rehearing filed in this case confirms

a number of propositions that make remand appropriate.

Mollica now makes it quite clear that if there were a re-

mand 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 be-

lieves 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 Associ-

A-60

ation v. Civil Service Commission of the City of New

York, 51 U.S.L.W. 5105 (U.S. June 28, 1983).

Judge Hunter and Judge Becker join in this

statement.

WEIS, Circuit Judge, Statement Sur Petition for

Rehearing:

Although I continue to believe that Mr. Mollica was

entitled to use immunity had he chosen to testify, his

willingness to forego that protection has brought about a

significant change in the posture of this case. In view of

the present circumstances, | vote for rehearing.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

A-61

United States Court of Appeals

For THE THIRD CIRCUIT

No. 81-1936

UNITED STATES OF AMERICA

VS.

JOHN BAZZANO, JR., a/kia “JOHNY”, a/k/a “J”;

JOSEPH DE MARCO a/k/a “JOE”; JOSEPH CHARLES

YIMIN, a k a “BULL”; CHARLES PATRICK KELLING-

TON ak/a “CHUCK”, FRANCIS DATTALO a/k/a

“FRANK” a ka “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“PETEORSI”; DOMINIC PAUL SERAPIG-

LIAa/ k/a WILSON CONSTABLE; THOMAS C. POLJAK

a/k/a “ELIZ CHIEF”; GEORGE B. HINES a/k/a “ELIZ

CONSTABLE”

Primo Mollica,

Appellant

(D.C. Crim. No. 75-00192-07)

On APPEAL FROM THE UNITED States District Court

For THE WESTERN District OF PENNSYLVANIA

Present: SEITZ, Chief Judge; ALDISERT, ADAMS, GIB-

BONS, HUNTER, WEIS, GARTH, HIGGINBOT-

HAM, SLOVITER and BECKER, Circuit Judges.

JUDGMENT

This cause came on to be heard on the record from the

United States District Court for the Western District of Penn-

A-62

sylvania and was argued by counsel on February 4, 1982 and

reargued before the Court in banc on November 8, 1982.

On consideration whereof, it is now here ordered and

adjudged by this Court that the judgment of the said District

Court, entered May 18, 1981, be, and the same is hereby

affirmed.

ATTEST:

Clerk

June 17, 1983

Certified as a true copy and reissued in lieu

of a formal mandate on September 9, 1983.

ATTEST:

Chief Deputy Clerk, United States Court of Appeals

for the Third Circuit.

“I

onl ae

APPENDIX B

LIST OF UNITED STATES SUPREME COURT

DECISIONS (1970-1983) REVERSING

CRIMINAL CONVICTIONS OR SENTENCES

IN THE ABSENCE OF A MAJORITY RATIONALE

Welsh v. United States, 398 U.S. 333 (1970) (conviction re-

versed in 4+1-3 vote); Coleman v. Alabama, 399 U.S. 1 (1970)

(conviction reversed in 4+1+1-2 vote); Baldwin v. New York,

399 U.S. 66 (1970) (conviction reversed in 3+2-3 vote); United

States v. Jorn, 400 U.S. 470 (1971) (grant of motion to dismiss

information upheld 4+2-3); Coolidge v. New Hampshire, 403

U.S. 443 (1971) (conviction reversed in a 4+ 1-4 vote); Loper v.

Beto, 405 U.S. 473 (1972) (writ of habeas corpus granted in

4+1-4 vote); Peters v. Kiff, 407 U.S. 493 (1972) (defendant

found to have standing to challenge jury composition in crimi-

nal trial by vote of 3+3-3); Codispoti v. Pennsylvania, 418 U.S.

506 (1974) (conviction reversed in a 4+1-1 vote); Woodson v.

North Carolina, 428 U.S. 28 (1976) (death sentence set aside by

3+2-4 vote); Roberts v. Louisiana, 428 U.S. 325 (1976) (death

sentence set aside by 3+2-4 vote); Gardner v. Florida, 430 U.S.

349 (1977) (death sentence set aside in 3+1+1+1+1-2 vote);

Moore v. City of East Cleveland, 431 U.S. 494 (1977) (convic-

tion reversed by vote of 4+1-4); Coker v. Georgia, 433 U.S. 584

(1977) (death sentence set aside by 4+1+1+1-2 vote); Ballew v.

Georgia, 435 U.S. 223 (1978) (conviction reversed by 2+ 1+3+3

vote); Lockett v. Ohio, 438 U.S. 586 (1978) (death sentence set

aside in 4+ 1+1-2 vote); Bell v. Ohio, 438 U.S. 637 (1978) (death

sentence set aside in 4+1+1-1 vote); Godfrey v. Georgia, 446

U.S. 420 (1980) (death sentence set aside by 4+2-3 vote; Brown

v. Louisiana, 447 U.S. 323 (1980) (conviction reversed in 4+2-3

vote); Walter v. United States, 447 U.S. 649 (1980) (conviction

reversed in 2+2+1-4 vote); Wood v. Georgia, 450 U.S. 261

(1981) (conviction reversed in 4+ 1-3 vote); Estelle v. Smith, 451

U.S., 454 (1981) (death sentence set aside in 4+2+3 vote);

Robbins v. California, 453 U.S. 420 (1981) (conviction re-

ae) "Leal Viet Oe pee Sl -_ yon ee Oe oe” eS! a ee eee

B-2

versed by 4+1+1-3 vote); Connecticut v. Johnson, U.S.

. 103 S.Ct. 969, 74 L.Ed. 2d 823 (1983) (conviction rev-

ersed by 4+1-4 vote).

reid, Oe

aot “by, aces > ¢

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.