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United States v. Babich

March 12, 1986

UNITED STATES OF AMERICA,
v.
BABICH, GREGORY THOMAS, A/K/A THOMAS BABICH. GREGORY BABICH, APPELLANT



Appeal from the United States District Court for the Western District of Pennsylvania (Pittsburgh) (D.C. Crim. No. 82-00067).

Author: Aldisert

Before: ALDISERT, Chief Judge, and SEITZ and ADAMS, Circuit Judges.

Opinion OF THE COURT

ALDISERT, Chief Judge.

The major issue presented is whether, pursuant to our supervisory powers, this court should promulgate a rule providing that when a federal probationer is arrested for a state criminal offense, a probation revocation hearing shall not take place until after disposition of the state offense or, alternatively, the probationer shall be granted use immunity if he chooses to testify at the hearing. Appellant Gregory Babich appeals the district court's refusal to grant such relief and urges that we promulgate such a rule. Babich also addresses the merits of the district court's decision to revoke his probation and argues that the district court erred in determining that he failed to comply with the conditions of probation requiring him to notify his federal probation officer if arrested.

I.

Appellant Babich was subject to the terms of federal probation imposed on June 28, 1982, when he was arrested by local authorities on October 8, 1984, for fraudulently using a credit card. The first condition of his federal probation provided:

You shall refrain from violation of any law (federal, state, and local). You shall get in touch immediately with your probation officer if arrested or questioned by a law-enforcement officer.

App. at 5a. Babich failed to report his arrest to his probation officer in the Western District of Pennsylvania as required by the terms of his parole. Two months after his arrest, however, Babich wrote a letter to the probation office of the Middle District of Pennsylvania, apparently to seek assistance in contacting the probation officer in the Western District of Pennsylvania.

The district court held the final probation revocation hearing prior to the disposition of the state criminal charges on which Babich had been arrested. Babich requested a continuance of the probation revocation hearing until the pending state criminal charges against him were resolved, or, in the alternative, a grant of use immunity for his testimony at the revocation hearing. The district court refused these requests. Babich chose not to testify, and the district court revoked his probation.

II.

We are not strangers to the major question on appeal. This court in banc decided the precise issue in United States v. Bazzano (Mollica, appellant), 712 F.2d 826 (3d Cir. 1983)(in banc), cert. denied sub nom. Mollica v. United States, 465 U.S. 1078, 79 L. Ed. 2d 760, 104 S. Ct. 1439 (1984). A majority held that the district court did not err in falling either to postpone the probation revocation hearing until Mollica's trial on state charges or to grant Mollica use immunity if he chose to testify at the revocation hearing.*fn1

The district court considered and rejected the argument presented here: that appellant has a right to delay a probation revocation hearing or, alternatively, to be granted use immunity. Accordingly, we have jurisdiction to notice the contention on review.

Although appellant first argues that he has a constitutional right to such relief, we believe that the postponement of the revocation hearing or the grant of use immunity is not constitutionally required for the reasons set for the in United States v. Bazzano, 712 F.2d at 836-37 (separate opinion, Garth, J.); 842-43 (separate opinion, Switz, C.J.); 848 (Gibbons, J., dissenting); 849 (Sloviter, J.). We are thus left with the action taken by the full court in Bazzano. Clearly, it is binding precedent.*fn2 Moreover, it is a precedent established by the full court only three years ago. ...


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