# Petition — Mollica v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0811%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 465 U.S. 1078 ## Text Court, U.S, ED No. 83- OCT 14 1983 ALEXANDER L. STEVAg, CLERK gn the Supreme Court of the Limited States October Term, 1983 PRIMO MOLLICA, Petitioner, wa 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Pittsburgh, Pennsylvania 15222 (412) 471-3490 Counsel for Petitioner QUESTIONS PRESENTED Petitioner’s probation was revoked and a prison sen- tence imposed.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 i 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, tv 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. 3 (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 (c) Intervening Factual Developments. 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). 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). 6 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. 8 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. 10 [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 12 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 13 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). 14 [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. 15 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). 16 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). 17 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. 18 A-| UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 81-1936 UNITED STATES OF AMERICA v. 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 A-3 reasons hereafter expressed, the judgment of the district court will be affirmed. I 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. ; A. 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). B. 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. A. 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. B. 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 c. 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. V. 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. V. 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 probati [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0811%3A1. Public record. Not legal advice.