785 F.

2d 415

UNITED STATES of America

v.
BABICH, Gregory Thomas a/k/a Thomas Babich.
Appeal of Gregory BABICH.
No. 85-3520.

United States Court of Appeals,

Third Circuit.
Submitted Under Third Circuit Rule 12(6)
March 3, 1986.
Decided March 12, 1986.

George E. Schumacher, Federal Public Defender, and Thomas S. White,

Asst. Federal Public Defender, Pittsburgh, Pa., for appellant.
J. Alan Johnson, U.S. Atty., Paul J. Brysh, Asst. U.S. Atty., and T. Brent
McCune, Legal Intern, Pittsburgh, Pa., for appellee.
Before ALDISERT, Chief Judge, and SEITZ and ADAMS, Circuit
Judges.OPINION OF THE COURT
ALDISERT, Chief Judge.

I.

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.

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:

3 shall refrain from violation of any law (federal, state, and local). You shall get
You
in touch immediately with your probation officer if arrested or questioned by a lawenforcement officer.
4

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.
6

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, 104 S.Ct. 1439, 79 L.Ed.2d 760 (1984). A majority held
that the district court did not err in failing 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.1

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 forth in United

States v. Bazzano, 712 F.2d at 836-37 (separate opinion, Garth, J.); 842-43
(separate opinion, Seitz, 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.2 Moreover, it is a precedent established by the full court
only three years ago. Thus, what the Supreme Court said in Arizona v. Rumsey,
467 U.S. 203, 212, 104 S.Ct. 2305, 2311, 81 L.Ed.2d 164 (1984), seems
especially appropriate here:
9

Petitioner has invited the Court to overrule Bullington [v. Missouri, 451 U.S.
430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981) ], decided only three years ago.
We decline the invitation. Although adherence to precedent is not rigidly
required in constitutional cases, any departure from the doctrine of stare decisis
demands special justification. See, e.g., Swift & Co. v. Wickham, 382 U.S. 111,
116, 86 S.Ct. 258, 261, 15 L.Ed.2d 194 (1965); Smith v. Allwright, 321 U.S.
649, 665, 64 S.Ct. 757, 765, 88 L.Ed. 987 (1944). Petitioner has suggested no
reason sufficient to warrant our taking the exceptional action of overruling
Bullington.

10

And more recently the Supreme Court has stated:

11

Today's decision is supported, though not compelled, by the important doctrine

of stare decisis, the means by which we ensure that the law will not merely
change erratically, but will develop in a principled and intelligible fashion. That
doctrine permits society to presume that bedrock principles are founded in the
law rather than in the proclivities of individuals, and thereby contributes to the
integrity of our constitutional system of government, both in appearance and in
fact. While stare decisis is not an inexorable command, the careful observer
will discern that any detours from the straight path of stare decisis in our past
have occurred for articulable reasons, and only when the Court has felt obliged
"to bring its opinions into agreement with experience and with facts newly
ascertained". Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 412, 52 S.Ct.
443, 450, 76 L.Ed. 815 (1932) (Brandeis, J., dissenting).

12

Vasquez v. Hillery, --- U.S. ----, ----, 106 S.Ct. 617, 625, 88 L.Ed.2d 598
(1986).3

13

After a careful examination of the briefs, we are satisfied that the litigants
before us present no contentions that were not carefully treated in the various
opinions that accompanied our decision in Bazzano. We find no argument, nor
have we been furnished empirical data or "facts newly ascertained" that
constitute a "special justification" to recommend that a court in banc be

convened in this case to depart from the doctrine of stare decisis. What remains
then is to decide if the district court properly considered and applied the court's
mandate in Bazzano. We hold that it did.4 We therefore conclude that the
district court was not mandated by the constitution or by rule or decision of this
court to postpone the hearing or to grant use immunity under the circumstances.
14

Turning to Babich's appeal on the merits of the revocation of his probation, we

note that his conduct was deficient in several respects. Babich did not contact
his probation officer as required. Moreover, his letter to the probation officer of
the Middle District of Pennsylvania was sent two months after the arrest and
thus did not meet the requirement that notification of arrest be given
"immediately".

15

It is well established that the district court has broad discretion to revoke
probation if its conditions are violated. United States v. Hamilton, 708 F.2d
1412 (9th Cir.1983); United States v. Rice, 671 F.2d 455 (11th Cir.1982). The
court need only be "reasonably satisfied" that the probationer has violated the
terms of his probation. United States v. Lacey, 661 F.2d 1021 (5th Cir.1981),
cert. denied, 456 U.S. 961, 102 S.Ct. 2036, 72 L.Ed.2d 484 (1982); United
States v. Manuszak, 532 F.2d 311 (3d Cir.1976); United States v. D'Amato, 429
F.2d 1284 (3d Cir.1970). Failure to comply with reporting requirements alone
may justify probation revocation. Higdon v. United States, 627 F.2d 893, 900
(9th Cir.1980); United States v. Rodgers, 588 F.2d 651, 654 (8th Cir.1978).

16

Here the district court found that Babich violated the first condition of his
probation requiring him to "get in touch immediately with [his] probation
officer if arrested". App. at 5a, 30a, 80a. To the extent that appellant's argument
is based on narrative or historical facts found by the district court we apply the
clearly erroneous rule and will not disturb the trial court's finding; to the extent
that his argument is based on a challenge to the trial court's exercise of
discretion in revoking probation, we conclude that there was no abuse.

17

The judgment of the district court will be affirmed.

In United States v. Bazzano, Judges Aldisert, Gibbons, Weis, and Garth would
have accepted the contentions of the appellant Mollica which, ostensibly, were
the same as those of the appellant here. 712 F.2d at 829 n. 2. Judges Seitz and
Sloviter would not promulgate a supervisory rule. Id. at 841-46, 849. Judge
Seitz believed that "the decision whether to postpone probation revocation
should be left with the sound discretion of the district court ..." Id. at 845.

Judges Adams, Hunter, and Becker said that the requested supervisory rule "is
deficient on three grounds: (a) it is unduly vague and provides insufficient
guidance for district courts; (b) it sweeps too broadly and represents a rigid
approach in an area better left to the discretion of district judges and probation
officials; and (c) it constitutes an improvident use of this Court's supervisory
power." Id. at 850. Judge Higginbotham would have remanded only for an issue
not present here--a fourth amendment suppression hearing. Id. at 829 n. 4
2

A panel of this court is bound by precedents. Matter of Penn Central

Transportation Company, 553 F.2d 12, 17 (3d Cir.1977) ("A panel of this court
cannot overrule a decision of the court in banc...."); see also Internal Operating
Procedures of the United States Court of Appeals for the Third Circuit:
B. Policy of the Court.
In order that a panel's decisions may reflect input from the entire court on the
law in this circuit, these procedures are designed:
***

To insure decisional stability of the court by providing a means for the panel
system to operate efficiently and at the same time provide that a published
opinion of the court expressed by a panel may not be overruled without the
approval of a majority of the full court
IOP, Introduction at iii.
C. Policy of Avoiding Intra-Circuit Conflict of Precedent.
It is the tradition of this court that reported panel opinions are binding on
subsequent panels. Thus, no subsequent panel overrules a published opinion of
a previous panel. Court in banc consideration is required to overrule a published
opinion of this court.
IOP, Chapter 8c at 25.

Justice Marshall has explained:

Stare decisis should be more than a fine-sounding phrase. This is especially
true for us, because "unless we respect the ... decisions of this Court, we can
hardly expect that others will do so." Mitchell v. W.T. Grant Co., 416 U.S. 600,
629, 634, 94 S.Ct. 1895, 1910, 1913, 40 L.Ed.2d 406 (1974) (STEWART, J.,
dissenting). Accordingly, "[a] substantial departure from precedent can only be
justified ... in the light of experience with the application of the rule to be

abandoned or in the light of an altered historic environment." Id., at 634-635, 94

S.Ct. at 1913-1914.
Oregon ex rel. State Land Board v. Corvallis Sand & Gravel, 429 U.S. 363,
394-95, 97 S.Ct. 582, 598-99 (1977) (Marshall, J., dissenting).
4

On several occasions the district court noted the importance of the in banc
decision:
THE COURT: Well, it is not a matter I am going to decide by shooting from
the hip, and therefore we will take Mr. White's objection under advisement. We
will defer ruling on it until I can examine these positions, particularly in light of
my reading this morning of United States v. Bazzano at 712 F.2d 826, 1983, the
case which produced a divergence of opinions by the Court of Appeals.
We will hear the evidence. If necessary, I may write an opinion on the matter,
or, if possible, may be able to rule on it this morning. We will take your
objection under advisement. I intend to hear the testimony. If I grant your
objection, then the testimony will be excluded.
App. at 21a.
THE COURT: We will defer ruling on your objection until I have had a chance
to study Bazzano in depth, but I intend to hear the evidence because the
witnesses are here today.
App. at 29a.
I have reviewed also the United States v. Bazzano, and it is clear that the Court
of Appeals has various views concerning this matter, but in light of the
affirmance of Judge Cohill in [that] case, I believe the law still remains in this
circuit that arrests are matters that a district court may take into consideration in
deciding whether there has been a violation of probation.
App. at 80a.