Seitz, Chief Judge, Aldisert, Adams, Gibbons, Hunter, Weis, Garth, Higginbotham, Sloviter and Becker, Circuit Judges.
Author: Garth; Adams; Weis
SUR PETITION FOR REHEARING
The petition for rehearing filed by appellant, Primo V. Mollica, in the above entitled case having been submitted to the judges who participated in the decision of this court, and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied.
ADAMS, Circuit Judge, Statement Sur Petition for Rehearing:
The petition for rehearing filed in this case confirms a number of propositions that make remand appropriate. Mollica now makes it quite clear that if there were a remand he would testify without a grant of immunity at a probation revocation hearing and that his testimony would demonstrate that the conditions of his probation had not been violated. Despite these statements, Mollica must now begin a five year term of imprisonment as a result of having asserted a constitutional claim before the district court. Since this seems manifestly unfair and, indeed, inconsistent with the federal courts' role in protecting constitutional rights, I vote for rehearing.
There is another reason why rehearing is in order. Even though a majority of the judges sitting in banc believes that Mollica should have an opportunity to be heard, the judgment compelling revocation of probation comes about because no single rationale for remand can command a majority. Such a result appears inconsistent with the approach taken by the Supreme Court of the United States in the recently decided Guardians Association v. Civil Service Commission of the City of New York, 463 U.S. 582, 103 S. Ct. 3221, 77 L. Ed. 2d 866 (1983).
Judge Hunter and Judge Becker join in this statement.
WEIS, Circuit Judge, Statement Sur Petition for Rehearing:
Although I continue to believe that Mr. Mollica was entitled to use immunity had he chosen to testify, his willingness to forego that protection has brought about a significant change in the posture of this case. In ...