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United States v. Bazzano

June 17, 1983

UNITED STATES OF AMERICA
v.
JOHN BAZZANO, JR. A/K/A "JOHNNY", A/K/A "J", JOSEPH DE MARCO A/K/A "JOE", JOSEPH CHARLES YIMIN A/K/A "BULL", CHARLES PATRICK KELLINGTON A/K/A "CHUCK", FRANCIS DATTALO A/K/A "FRANK", A/K/A "HOB", ATTILIO POLICASTRO A/K/A "FLAT TOP", PRIMO VICTOR MOLLICA A/K/A "XG", JOHN FRANKLIN MATZ A/K/A "JACK", A/K/A "MAYOR", DAVID RANKIN GUFFEY A/K/A "CHIEF", A/K/A "CLAIRTON CHIEF", JOHN REGIS WARD A/K/A "JP", A/K/A "WARD", PETER PAUL ORSINI A/K/A "PETE", A/K/A "PETE ORSI", DOMINIC PAUL SERAPIGLIA A/K/A "WILSON CONSTABLE", THOMAS C. POLJAK A/K/A "ELIZ CHIEF", GEORGE B. HINES A/K/A "ELIZ CONSTABLE" PRIMO MOLLICA, APPELLANT



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA. Opinion Filed May 12, 1982, Vacated June 17, 1982. Opinion Re-filed July 7, 1982, Vacated August 10, 1982. Petition for Rehearing Granted August 10, 1982.

Gibbons, Weis and Garth, Circuit Judges. Seitz, Chief Judge, Aldisert, Adams, Gibbons, Hunter, Weis, Garth, Higginbotham, Sloviter and Becker, Circuit Judges. Gibbons, Circuit Judge, with whom Judge Aldisert joins, dissenting. Adams, Circuit Judge, dissenting from the judgment of affirmance. Judge Hunter and Judge Becker join in this dissent.

Author: Per Curiam

Opinion ANNOUNCING THE JUDGMENT OF THE COURT

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 reasons hereafter expressed, the judgment of the district court will be affirmed.

I.

On March 5, 1976, Mollica pleaded guilty 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, he was sentenced to five years' imprisonment 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 probation 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 probation: that he refrain from violating any federal, state, or local law, and that he notify his probation officer immediately 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 disposition of the state charges. The district court refused to delay the revocation proceedings because of its concern that such a postponement could result in 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 warrant 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 informant that Mollica was conducting a telephone gambling business at the residence of Donna Stagno. After obtaining 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 police 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 officers with a key to a desk drawer in the room which contained $17,000 in cash. Prior to leaving the residence, Mollica, referring to Stagno, said to the police, "Why take her? It's all my stuff." However, a handwriting expert testified that the numbers on the sheets found in the bedroom were written by two different persons, neither of whom was Mollica.

Mollica unsuccessfully sought 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 11, 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 imprisonment, the maximum sentence the court could at that time have imposed.*fn1

In a Supplemental Appendix filed with this court prior to argument before the court in banc, we were informed that the state court had granted Mollica's motion for suppression of certain evidence and, having thereby suppressed the only evidence available to the Commonwealth, 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 suppression 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 disclosure of the identity of the informant whose information led to the search and seizure of the gambling materials; and

(6) that the district court erred in refusing to grant immunity to defense witnesses Stagno and Fimmano.

II.

For the reasons expressed in Judge Garth's separate opinion which follows, a majority of the court holds today 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 informant's identity, or in refusing to grant immunity to defense witnesses Stagno and Fimmano. As to these issues, 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*fn2 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*fn3 would remand the case to the district court but for a more limited purpose, and would not authorize the district court to make use immunity available to Mollica. Two judges*fn4 would remand only for a Fourth Amendment suppression hearing. That relief, however, is no longer available, in light of the court's holding today that the exclusionary rule is inapplicable to probation revocation proceedings. One judge*fn5 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 proceed. Because a majority vote of this court is necessary to reverse the judgment of the district court, and because 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.

SEITZ, Chief Judge.

In my view, the district court did not deprive appellant 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 discretion of the district court, and use immunity is unjustified in this context because it may result in a substantial burden on the state law enforcement function. Finally, although I believe the district court abused its discretion by basing its denial of Mollica's request for postponement or use immunity on a misperception of law, I would not remand to the district court for further proceedings because of the present posture of the case.

I.

On March 5, 1976 Mollica pleaded guilty 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). He was sentenced to five years' imprisonment and fined $15,000. The district court suspended his prison sentence 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 February 18, Pennsylvania authorities charged Mollica with operation of a lottery, bookmaking, and conspiracy in violation of 18 Pa. Con. Stat. §§ 5512, 5514 and 903, respectively. On August 13, 1982 the Court of Common Pleas of Allegheny County, Pennsylvania granted a motion 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, federal probation officials on April 27, 1981 had filed a petition in the district court to revoke Mollica's probation. The petition alleged that the evidence produced by the February 18, 1981 search revealed that Mollica had violated a condition of his probation 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 testimony at the probation revocation hearing would be used against him in the state criminal proceedings, Mollica contended that either postponement or use immunity was required by fundamental fairness.

The district court refused Mollica's request for postponement and proceeded with the revocation hearing. Mollica chose not to testify. The district court entered an order revoking Mollica's probation, from which Mollica brings this appeal.

II.

Mollica argues that "where 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, 17 L. Ed. 2d 374, 87 S. Ct. 408 (1966).

In McGautha v. California, 402 U.S. 183, 28 L. Ed. 2d 711, 91 S. Ct. 1454 (1971), reh'g denied, 406 U.S. 978, 92 S. Ct. 2407, 32 L. Ed. 2d 677 (1972), the Supreme Court held that no impermissible coercion resulted when a defendant in a state single-verdict trial system 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 distinguishing McGautha from the instant case, in which Mollica was required to choose whether to stand on his right against self-incrimination at the risk that his failure to testify would be damaging concerning probation revocation.*fn1 Therefore, I cannot conclude that Mollica was under the kind of compulsion that violates the privilege 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, 36 L. Ed. 2d 656, 93 S. Ct. 1756 (1973), 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 constitutional right, and not every pressure or encouragement to waive such a right, is constitutionally impermissible. Corbitt v. New Jersey, 439 U.S. 212, 218, 58 L. Ed. 2d 466, 99 S. Ct. 492 (1978). The threshold question in this regard is whether compelling an election impairs to an appreciable extent any of the 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 allocution at punishment stage and preserving privilege against self-incrimination at guilt stage does not appreciably 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 revocation 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 function 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, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976).

The individual interests protected by the due process 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 assumed to exist for purpose of argument, not undermined by requiring defendant to risk that statements made regarding punishment will be damaging with regard to guilt).

By contrast, the Government's interests weigh heavily against relieving the probationer of the above election either by postponing probation revocation hearings or by granting the probationer use immunity. As I will later suggest, postponement may result in substantial expense and inconvenience to federal probation officials, while use immunity would impose on the government 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 balance 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 revocation 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 probationer use immunity. I need not decide whether the supervisory rule proposed by Mollica would be the better practice, 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 proceeding unnecessary in light of Justice Department's adoption of this practice).

Whatever its source,*fn2 there is no doubt that this Court has supervisory power to promulgate rules of practice 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 supervisory 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 position to balance the several considerations relevant to whether probation revocation hearings based on state criminal charges should be postponed until the resolution 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) (district court's refusal to grant defense witness immunity did not deny constitutionally protected fairness because demand for immunity was untimely and would, if granted, have resulted in substantial inconvenience to prosecution), cert. denied, 449 U.S. 1077, 66 L. Ed. 2d 800, 101 S. Ct. 856 (1981). In the instant case, Mollica did not make his request for postponement or use immunity until his probation revocation hearing had begun. For the district court to have granted this request might have resulted in serious inconvenience; probation officials argued that several of their witnesses were from out of town, and could be returned to a second probation revocation hearing, if at all, only at added expense.

Similarly, the status of a pending state criminal proceeding 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 proceedings may continue for some time,*fn3 delay of a probation revocation hearing may result in the loss of evidence, the disappearance or death of witnesses, or other forms of prejudice to the government.

By contrast, it might cause federal probation officials little inconvenience if the district court were to grant postponement of probation revocation hearings when the state criminal trial is near completion. Presumably, 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 delay, and to assign this inconvenience its proper weight.

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 evaluation of the need to revoke probation. Morrissey v. Brewer, 408 U.S. 471, 484, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972). Nevertheless, the Supreme 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, 65 L. Ed. 2d 468, 100 S. Ct. 2439 (1980) (court of appeals' use of supervisory 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 executive branch). Similarly, this Court has declined to exercise 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 resentencing 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 pending state criminal charges. Therefore, we are not confronted with the possibility that a grant of use immunity would impose a significant burden on federal law enforcement 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 integral function of state government. Younger v. Harris, 401 U.S. 37, 44-45, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971). Specifically, granting the 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 prospective witness that his testimony will not return to haunt him. Cf. Kastigar v. United States, 406 U.S. 441, 460, 32 L. Ed. 2d 212, 92 S. Ct. 1653 (1972) (immunity for "use" and "fruits" in federal use immunity statute necessary and sufficient to provide full protection required by privilege against self-incrimination). Requiring the government to prove that evidence it seeks to use against a probationer is derived from a source wholly independent of his previously immunized testimony is but a natural and necessary complement of "fruits" immunity.

Proving that evidence is derived from a source independent of previously immunized testimony would impose 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 evidence 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 result 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 example, the state may decide that it is necessary to appoint 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. United States v. Thevis, 665 F.2d 616, 640 n.26 (5th Cir.), cert. denied, 459 U.S. 825, 103 S. Ct. 57, 74 L. Ed. 2d 61 (1982). In recognition of these potential burdens, this Court has held that the possibility that a defense witness may be subject to future prosecution is a legitimate reason for denying him immunity. 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 decline to use our supervisory power to promulgate a rule requiring district courts to grant use immunity as an alternative 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 probation only if it commenced the revocation hearing during his five year probationary term. Because ...


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