The opinion of the court was delivered by: BIUNNO
BIUNNO, Senior District Judge.
The disposition in U.S. v. Bazzano (Appeal of Mollica) 712 F.2d 826 (1983) (en banc), has resolved the questions which have prevented the processing of the violation of probation charges in this case.
As all who are familiar with the history know, a panel decision was filed May 12, 1982 and then vacated on June 17, 1982. A new panel opinion was filed July 7, 1982, and then vacated August 10, 1982 on grant that day of petition for rehearing en banc. Reargument was on November 8, 1982 and the opinion was filed June 17, 1983.
The trial judge in Bazzano was faced with a number of questions, the first of which was whether a valid order revoking probation could be entered after the maximum statutory period of 5 years' probation had expired, when the probationer is arrested, or formal proceedings for revocation are begun without arrest, within the probation period, see 18 U.S.C. § 3651, § 3653. On this point, the court en banc was unanimous in deciding that so long as the arrest or formal proceedings begin while the party is still on probation, an order of revocation may be entered after the time has expired. See per curiam opinion, II, and opinion of Judge Garth, II.
This unanimity on the point is not surprising, since a probationer who violates probation stops earning credit for time on probation when the violation occurs even though some time may inevitably pass before the occurrence of the violation is discovered and formal proceedings begun, heard and decided. See United States v. Lancer, 508 F.2d 719 (CA-3, 1975) (en banc), cert. den. 421 U.S. 989, 44 L. Ed. 2d 478, 95 S. Ct. 1992 (1975).
In the present case, no such problem exists because formal proceedings were begun well within the period of probation, based on new state charges for violation of the law.
Both earlier panel opinions, filed May 12, 1982 and July 7, 1982, expressed the view that since the initiation of revocation proceedings during the probation period assures the continuance of jurisdiction to support hearing, decision and revocation after the probation period would otherwise have expired, the trial courts should ordinarily postpone the hearing until after the trial of the new charges had been completed, subject to some exceptions given for illustration. This policy was indicated to be in exercise of the supervisory power of the Court of Appeals.
Whatever significance the point had then arose from the fact that to proceed with the probation revocation hearings before trial on the new charges put Mollica in a dilemma. If he testified at the hearings, what he said might be used against him at trial on the new charges later. If he protected his future trial position by not testifying at the probation hearing, he might weaken his position on revocation.
It was because of this dilemma that the first two panel opinions sought a solution by calling for postponement of the hearings as the course of choice, and, if other considerations precluded postponement, then the trial court was to fashion and grant a limited testimonial use immunity on the principles developed in Government of Virgin Islands v. Smith, 615 F.2d 964 (CA-3, 1980).
The final decision of the en banc court left the trial court judgment on this pair of alternatives undisturbed for lack of a majority on appeal. There seem to be four formulations, adhered to by 1, 2, 3 and 4 members, with none commanding 6 votes.
This sharp division might ordinarily imply that there are slippery slopes in every direction, but this is not so. The division does mean that there is no rule laid down under the court's supervisory power. Had there been one, trial courts within the Circuit would be obliged to adhere to and follow it. Since there is none, each case will be dealt with on the basis of the totality of its own facts and the totality of the circumstances.
In the present case, probationer Gonzalez was tried in state court on the new charges and the jury returned a verdict of guilty on May 20, 1982. At the several appearances so far the court has been informed of this, as well as of the fact that Gonzalez testified at his trial. However, there is no judgment of conviction because sentence has not yet been imposed.
The reason, as the court is told, is that after verdict and before sentence Gonzalez moved for a new trial and that motion has not been decided because ...