712 F.2d 826 (3rd Cir. 1983), 81-1936, United States v. Bazzano
|Citation:||712 F.2d 826|
|Party Name:||United States v. Bazzano|
|Case Date:||June 17, 1983|
|Court:||United States Courts of Appeals, Court of Appeals for the Third Circuit|
Nov. 8, 1982.
Argued Feb. 4, 1982.
Rehearing and Rehearing In Banc Denied July 20, 1983.
Vincent C. Murovich, Jr., Murovich, Reale & Fossee, Robert L. Potter (Argued), Titus, Marcus & Shapira, Pittsburgh, Pa., for appellant.
J. Alan Johnson, U.S. Atty., Paul J. Brysh (Argued), Asst. U.S. Atty., Pittsburgh, Pa., for appellee.
Argued Feb. 4, 1982.
Before GIBBONS, WEIS and GARTH, Circuit Judges.
Reargued In Banc Nov. 8, 1982.
Before SEITZ, Chief Judge, and ALDISERT, ADAMS, GIBBONS, HUNTER, WEIS, GARTH, HIGGINBOTHAM, SLOVITER and BECKER, Circuit Judges.
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.
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. 1
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.
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 2 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 3 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 4 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 5 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.
GARTH, Circuit Judge:
The district court, among other rulings...
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