author: JOHN W. OLIVER, Senior District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Harvey R. RIDINGER, Defendant.
    No. 85-00210-01-CR-W-1.
    United States District Court, W.D. Missouri, W.D.
    Nov. 26, 1985.

      Robert G. Ulrich, U.S. Atty., Robert E. Larsen, Asst. U.S. Atty., Kansas City, Mo., for plaintiff.
    Willard B. Bunch, Campbell, Erickson, Morgan & Gibson, P.C., Kansas City, Mo., for defendant.
   MEMORANDUM AND ORDER

JOHN W. OLIVER, Senior District Judge.

I.

This case pends on the defendant’s October 21, 1985 motion, filed pursuant to 18 U.S.C. § 3145(b), to review an order of detention entered by the Chief Magistrate of this Court on October 7, 1985. This Court’s attention was not directed to the motion until it had been pending for some time. On November 15, 1985, however, we obtained a transcript of the combined preliminary examination and detention hearing held before the Chief Magistrate on October 7, 1985 and on November 18, 1985 we conducted a de novo review of the detention order entered by the Chief Magistrate. The parties have stipulated the evidence upon which defendant’s pending motion should be considered and determined.

We reverse the Chief Magistrate’s action in entering the detention order and remand the matter to the Chief Magistrate for further proceedings for the reasons we shall state.

A.

The government’s response concedes that the procedural history of the case was accurately stated in defendant’s motion. That history was stated as follows:

(1) On October 3, 1985, a Complaint was issued charging the Defendant, Harvey R. Ridinger, with distributing hydromorphorne, a Schedule II, narcotic controlled substance.
(2) The Defendant was arrested the following day, October 4, 1985, and presented before Chief United States Magistrate, Calvin K. Hamilton, for a first appearance on the Complaint. During the first appearance, the Government moved for a detention hearing pursuant to 18 U.S.C. subsection 3142(f)(2)(A) and (B) and for a continuance of that hearing pursuant to 18 U.S.C. subsection 3142(f). A detention hearing was set for Monday, October 7, 1985.
(3) At the detention hearing, the Government presented the affidavit of Nancie Leigh Howley, Special Agent of the Federal Bureau of Investigation, made October 3, 1985, in support of an Application for Search Warrant for the search of the Defendant’s premises at 1601 Marsh, Blue Summit, Missouri; and inventory of items seized from the Defendant’s premises at 1601 Marsh, Blue Summit, Missouri, during the execution of a search warrant on October 4, 1985; and inventory of items seized from the person of the Defendant on October 4, 1985 incident to the arrest; and the Government also offered into evidence fifteen color photographs seized from the Defendant’s residence during the execution of the above mentioned search warrant. The same were received over objection by Defendant’s counsel.
(4) Defendant offered no evidence. It should be noted that Defendant’s counsel was advised of the necessity of the Court appearance on the morning of the day of the detention hearing and had no opportunity to confer with Defendant prior to the detention hearing with regard to the introduction of evidence on his behalf.
(5) After taking the photographs briefly under advisement, the Court ruled that no condition or combination of conditions would reasonably assure the safety of any person or the community and ordered the Defendant be committed to the custody of the Attorney General or his authorized representative for detention pending the completion of the trial.
(6) On October 7, 1985, the Court issued its written Order of Detention as required by 18 U.S.C. subsection 3142(i), which is attached as Defendant’s Exhibit "1'.

A copy of the detention order is attached hereto as Exhibit 1. The detention order reflects that the Chief Magistrate originally made 17 findings of fact to support his conclusion that “no condition or combination of conditions of release will reasonably assure the safety of any other person and the community.” The Chief Magistrate, however, set aside the findings made in paragraph 15 and paragraph 17 of his initial findings in a response that he filed to defendant’s motion to review on October 22, 1985.

Paragraph 15 of the Chief Magistrate’s original findings stated:

15. A house, owned by the defendant, situated at 1601 Marsh, Blue Summit, Missouri, was destroyed by fire, and The Maryland Casualty Insurance Company has refused to pay the $52,000.00 fire insurance claim because the fire has been ruled as arson;

Paragraph 17 of the Chief Magistrate’s original findings stated:

17. The undersigned has been provided, in camera, with information (which cannot be made public because to do so may jeopardize the life of the source) that the defendant has been involved in the murder of two individuals because they were snitches.

That finding shows on its face that the Chief Magistrate considered information in camera that was not disclosed either to government counsel or to the defendant and his counsel. At the de novo hearing conducted before this Court, we were advised that neither government counsel, the defendant, nor defendant’s counsel had ever seen the information which the Chief Magistrate viewed in camera and upon which paragraph 17 of his findings was based. The government neither proffered nor adduced in evidence the undisclosed information at the de novo review proceeding conducted before this Court.

B.

Defendant’s October 21, 1985 motion to review made a direct attack on paragraph 17 of the Chief Magistrate’s original findings which related to defendant’s alleged involvement in two murders. Defendant’s motion stated that “[t]his information was not made available to Defendant at the time of the detention hearing and he has had no opportunity to rebut the same” and that “[defendant denies that allegation.”

Defendant’s motion made a like attack in regard to paragraph 15 of the Chief Magistrate’s findings relating to whether defendant’s residence at 1601 Marsh had been destroyed by a fire that had been ruled as arson, alleging that such a finding was in error. Defendant’s motion stated that defendant’s counsel was, in fact, representing the defendant in a civil action against the insurer of the property and that an offer to settle that action for $36,270.00 and the extinguishment of a note in the amount of $22,325.42 was pending consideration for acceptance.

In regard to paragraph 13 relating to the “carrying a concealed weapon” charge, defendant’s motion to review pointed out that such a charge had been processed as a violation of a city ordinance in the Municipal Court of Kansas City, Missouri rather than as a felony in the Circuit Court of Jackson County, Missouri.

C.

On October 22, 1985, the day after defendant’s motion to review had been filed, the Chief Magistrate filed a response to defendant’s motion for review. The Chief Magistrate apparently considered the defendant’s motion as a motion for reconsideration of the order of detention entered October 7, 1985.

It is appropriate that we give consideration to the Chief Magistrate’s October 22, 1985 response in the course of our de novo review. For it is clear that the Chief Magistrate on October 22, 1985, set aside the findings he had made in paragraph 15 in regard to arson and the finding made in paragraph 17 in regard to defendant’s alleged involvement in two murders. That response also removes any doubt about the rationale upon which the Chief Magistrate relied to support the detention order entered on October 7, 1985. ■

D.

The government filed its response in opposition to defendant’s motion to review on October 24, 1985, two days after the Chief Magistrate had filed his October 22, 1985 response to defendant’s pending motion. The governmént’s response appropriately noted that the Chief Magistrate’s October 22, 1985 response made clear his reliance upon the presumption stated in Section 3142(e).

The government’s response, however, recognized that “courts have split as to whether this rebuttable presumption means that the defendant has the burden of introducing evidence contrary to the presumed fact (burden of production) or that the defendant has the burden of convincing the judicial officer that he is not a flight risk or a danger to the community (burden of persuasion).

The government appropriately conceded that “the clear weight of authority has ruled that the presumption only shifts the burden of production (United States v. Jessup, 757 F.2d 378, 380-381 (5th Cir. [1st Cir.] 1985); United States v. Payden, 598 F.Supp. 1388, 1397 (S.D.N.Y.1984); United States v. Freitas, 602 F.Supp. [1283] 1289, 1292 (N.D.Ca.1985); United States v. Moore, 607 F.Supp. 489, 497 (N.D.Ca.1985)).” The government added in a footnote that although the Eighth Circuit had not directly ruled the question, the Eighth Circuit en banc had made clear in United States v. Orta, 760 F.2d 887 (8th Cir. en banc 1985), that “it, too, will follow the ‘burden of production’ approach”, citing 760 F.2d at 891 n. 17. We agree.

The government also recognized that under the Eighth Circuit en banc opinion in United States v. Maull, 773 F.2d 1479 (8th Cir. en banc 1985) that “the district court reviews the Magistrate’s findings de novo.” The government cited no additional cases in its response. The government, however, argued on the facts that the “detention order detailed a litany of evidence that the defendant is a danger to the community” and that “[cjoupling this with the rebuttable presumption against release, the Magistrate had clear and convincing evidence that Harvey R. Ridinger presents a danger to the community and should be detained.” (Emphasis ours).

E.

At the de novo review proceeding conducted by this Court, the parties stipulated that the Court should consider all of the evidence adduced before the Chief Magistrate, except the undisclosed information considered by the Chief Magistrate in support of paragraph 17 of his findings which related to defendant’s alleged involvement in the murder of two individuals. Counsel for neither side has ever seen that information and therefore the government could not have introduced it in evidence even if it had wanted to do so.

In addition to the evidence' before the Chief Magistrate, the parties stipulated that this Court should also consider an affidavit filed by Rory Ridinger, one of the defendant’s sons, and an affidavit of the defendant which put in issue a number of the findings made by the Chief Magistrate.

Rory Ridinger’s affidavit was directed to the Chief Magistrate’s finding in paragraph 9 that the defendant has had “very little contact” with any of his four children who reside in the Kansas City area. His son’s affidavit states that “I have had a reasonably close relationship with him all of my life and frequent contact with him.”

The defendant’s affidavit was directed to a number of the Chief Magistrate’s findings. In regard to paragraph 12, the 15 Polaroid photographs, the defendant stated that “some of those photographs are not photographs of my anatomy, but of another person” and that the photograph of the male sex organ referred to in paragraph 12 “is not mine.” The affidavit also stated that “those photographs were taken during the course of a party and are not indicative of any violence of [sic] threat of violence.” The affidavit added “[m]any other photographs were taken from my residence and are in the possession of the government and these photographs, include photographs of Diane Singleton. Those photographs will indicate her condition at the time they were taken. In short, none of these photographs are, in any way, anything other than photographs taken during a party when all participants were inebriated. They certainly should not be considered as any evidence of my, so-called, violent nature.”

In regard to that portion of the Chief Magistrate’s finding in paragraph 2 relating to the defendant’s financial resources, he stated that “any investigation of my financial resources would indicate at the time of my arrest that I am 3 months behind on my property payments” and that “I have no such resources nor have I ever had such resources.”

In regard to paragraph 3 of the Chief Magistrate’s findings concerning his relationship with the government’s paid informant, the defendant stated “evidence can be produced that will indicate that Ms. Singleton was in debt to me for over $2,500.00” and that “[c]ontrary to her statement that the same was [the] result of my drug transactions, in fact it was money I had advanced to make bail bonds for her.”

The defendant attached to his affidavit a copy of a contract and application for bail bond dated May 15, 1985 in which he was listed as the indemnitor on a $15,000 bond requiring the appearance of Diane L. Singleton in the District Court of Johnson County, Kansas on June 10, 1985. Ms. Singleton’s employment was listed as a receptionist at Metal World, defendant’s place of business. Defendant also attached a letter from the bonding company dated November 11,1985 to defendant’s son Rory Ridinger which confirmed a final bond forfeiture payment in the amount of $500 that had been paid by defendant to the bonding company in May, 1985.

In regard to paragraph 17 of the Chief Magistrate’s findings concerning the two murders, the defendant stated that “I emphatically deny that I have been involved in any murders of any individuals at anytime for any reason.”

II.

A.

Counsel for both sides are in agreement that the principles stated by the Eighth Circuit’s en banc decision in Orta must be applied in this case. They also agree that the Eighth Circuit en banc decision in Maull, which presented an entirely different question, did not in any way qualify the principles earlier stated in Orta. Indeed, it is clear that Maull cited Orta with approval.

We do not believe that the Chief Magistrate erred in finding that the defendant was, in fact, armed at the time of his arrest (paragraph 7 of the findings) or in finding that 16 handguns, 7 shotguns, and 11 rifles were seized at the time the search warrant was executed (paragraph 6 of the findings). We are required to find, however, that there is no evidence in this case to support a finding that the defendant ever struck anyone or that any witness had been threatened by the defendant or that any witness had, in fact, expressed any fear of reprisal, as was true in the factual situation presented in Orta

The fact that the paid informant in this case told the FBI agent that “the defendant pointed a gun” at her at the time she made her first buy on August 29, 1985 (paragraph 3 of the findings) does not, standing alone, constitute clear and convincing evidence of dangerousness. For it is clear that in spite of that fact, and in spite of the fact that the paid informant viewed a number of guns on other occasions did not in any way deter the informant from proceeding to make two other buys a few days later on September 4,1985 (paragraph 4 of the findings) and on September 10, 1985 (paragraph 5 of the findings).

Experience establishes that transactions involving controlled drug substances and guns go hand-in-hand in a very large number of 21 U.S.C.A. § 841(a) cases. If the possession of guns, standing alone, could be said to constitute clear and convincing evidence sufficient to support the entry of a detention order on grounds of dangerousness, a very large number of persons accused of violations of that statute would be subject to pretrial detention as a matter of course.

Such a conclusion is contrary to the legislative history of the 1984 Bail Reform Act, 18 U.S.C. §§ 3141-3150, which states that “there is a small but identifiable group of particularly dangerous defendants as to whom neither the imposition of stringent release conditions nor the prospect of release can reasonably assure the safety of the community or other persons. It is with respect to this limited group of offenders that the courts must be given the power to deny release pending trial.” (S.Rep. No. 225, 98th Cong. 1st Sess. 6-7 (1983), reprinted in 1984 U.S.Code Cong. & Ad. News 3182, 3189.

The number of defendants that carry and collect guns in connection with their controlled drug substance activity cannot fairly said to be a “limited group of offenders.” There cannot, of course, be any question that there is “a small but identifiable group of particularly dangerous defendants” who deal in controlled drug substances. Experience and the adjudicated cases also establish that particular defendants in particular cases have in fact threatened witnesses and, in fact, do pose a threat to the safety of such witnesses and thus constitute a danger to persons in the community.

The factual circumstances in Delker presented such a situation. In this case, however, there is no evidence whatsoever that the paid informant felt that she was threatened or that anyone else expressed fear of reprisal or violence so far as the defendant in this case was concerned.

Orta made a detailed examination of the legislative history of the Bail Reform Act of 1984. Orta stated that:

Consistent with the intent expressed in the legislative history, the statutory scheme of 18 U.S.C. § 1342 continues to favor release over pretrial detention. Section 3142 provides four alternatives from which the judicial officer must choose: (1) release on personal recognizance or unsecured appearance bond, or (2) release subject to certain conditions, or (3) temporary detention to permit, among other things, revocation of conditional release, or (4) pretrial detention.

(760 F.2d at 890).

After stating that the “judicial officer most often will be deciding between the first and the second alternatives.” Orta added that:

The statutorily mandated progression from one choice to the next is critical: a judicial officer cannot determine that a detention hearing' and the possible imposition of pretrial detention is appropriate merely by determining that release on personal recognizance will not “reasonably assure” the defendant’s appearance at trial or “will endanger” the community. The judicial officer must also consider whether one of the codified conditions or any combination of the conditions will “reasonably assure” the defendant’s appearance and the safety of the community. The wide range of restrictions available ensures, as Congress intended, that very few defendants will be subject to pretrial detention. (760 F.2d at 890-891). (Emphasis added).

B.

The Chief Magistrate’s detention order in this case, contrary to the mandate of Orta, merely stated, without any statement of any supporting reasons, that pretrial detention rather than some form of pretrial release was the only alternative that would “reasonably assure the safety of any other person and the community.” The detention order does not include “a written statement of the reasons for the detention” as required by Section 3142(i). Rather, the detention order involved in this case merely included a conclusory recitation of the statutory language of the first sentence of Section 3142(f). The detention order obviously failed to identify any “person” whose safety may have been endangered by the defendant’s pretrial release. Nor did it state how the safety of the “community” would be protected by the defendant’s pretrial detention. Certainly there is no finding, nor any evidence to support a finding, that the defendant would engage in any criminal activity to the detriment of the community if he were released on bail.

We find and conclude that the conclusory recitation of the language of the statute does not comply with the mandate of Section 3142(i) which sets forth the requirements of the contents of a detention order. For that section expressly provides that in all detention orders issued pursuant to Section 3142(e), “the judicial officer shall —(1) include written findings of fact and a written statement of the reasons for the detention.” (Emphasis added). We believe it is obvious that Section 3142(i) requires that the judicial officer include both (1) findings of fact, and (2) a written statement of the reasons for detention. The fact that a judicial officer may make findings of fact cannot be said to satisfy the additional and separate requirement that he or she state the reasons for detention. The decision of whether a pretrial detention order should be entered must necessarily be decided on a case-by-case basis. The mere recitation of the conelusory statutory language of Section 3142(f) does not comply with the mandate of Section 3142(i). The legislative history of the 1984 Act, which we discuss in subpart C of this part of our memorandum opinion, fully supports the construction we have given Section 3142(f) and (i).

C.

The legislative history of the 1984 Act contained in Report of the Senate Committee on the Judiciary, S.Rep. No. 98-225, 98th Cong., 2nd Sess. (1984 U.S.Code Cong. & Ad.News, p. 3182-3219), is as vague in regard to the type of detention hearing that must be conducted as it is in regard to the scope of the district court’s review of a detention order entered by a magistrate. There are, however, some comments in that legislative history that may be said to throw some light on what the Congress may have had in mind in regard to the type of hearing that should be conducted before a pretrial detention order is entered.

The Report generally states that:

The concept of defendant dangerousness is described throughout this chapter by the term “safety of any other person or the community.” The reference to safety of any other person is intended to cover the situation in which the safety of a particular identifiable individual, perhaps a victim or witness, is of concern, while the language referring to the safety of the community refers to the danger that the defendant might engage in criminal activity to the detriment of the community. (Emphasis added).

{Id. at 3195).

The Report states somewhat more specifically that:

Subsections (e) and (f) set forth the findings and procedures that are required for an order of detention. The standard for an order of detention of a defendant prior to trial is contained in subsection (e), which provides that the judicial officer is to order the person detained, if, after a hearing pursuant to subsection (f), he finds that no condition or combination of conditions of release will reasonably assure the appearance of the defendant as required and the safety of any other person and the community. The facts on which the finding of dangerousness is based must, under subsection (f), be supported by clear and convincing evidence.
In determining whether any form of conditional release will reasonably assure the appearance of the defendant and the safety of other persons and the community, the judicial officer is required to consider the factors set out in section 3142(g). The offense and offender characteristics that will support the required finding for pretrial detention under subsection (e) will vary considerably in each case. Thus the Committee has, for the most part, refrained from specifying what kinds of information are a sufficient basis for the denial of release, and has chosen to leave the resolution of this question to the sound judgment of the courts acting on a case-by-case basis.

(Id. at 3200-02).

The report certainly makes clear that in the conduct of a case-by-case inquiry the judicial officer may not properly assume that a detention order may be justified solely on a basis of a finding that the defendant is charged with (A) a crime of violence; (B) an offense for which the maximum sentence is life imprisonmént or death; (C) an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act, 21 U.S.C. 801, et seq., 'as those offenses are set forth in Section 3142(f)(1). For the Report expressly states that: “Because the requirements of subsection (e) must be met before a defendant may be detained, the fact that the defendant is charged with an offense described in subsection (f)(1) (A) through (C) is not, in itself, sufficient to support a detention order.” (Id. at 3204).

The Report emphasizes the necessity of proof of dangerousness by “clear and convincing evidence” and explains that: “Because of the importance of the interests of the defendant which are implicated in a pretrial detention hearing, the Committee has specifically provided that the facts on which the judicial officer bases a finding that no form of conditional release is adequate reasonably to assure the safety of any other person and the community, must be supported by clear and convincing evidence. This provision emphasizes the requirement that there be an evidentiary basis for the facts that lead the judicial officer to conclude that a pretrial detention is necessary.” (Id. at 3205).

D.

The Report makes no direct reference to how the hearing to obtain the “evidentiary basis for the facts” that may lead the judicial officer, on a case-by-case basis, to conclude that the pretrial detention of a particular defendant is to be conducted. The Report’s citation, however, of United States v. Wind, 527 F.2d 672 (6th Cir.1975) and United States v. Gilbert, 425 F.2d 490 (D.C.Cir.1969), with approval in footnote 17 on page 3190 of the Report and again in footnote 61 on page 3204 of the Report may be said to throw additional light on what the Congress may have had in mind in regard to the type of hearing to be held.

For those cases were cited to reflect the prior case law which has long recognized the appropriateness of the denial of the pretrial release of a particular defendant where it is established that such a defendant would likely obstruct justice, or threaten, injure, or intimidate a prospective juror or witness, or attempt to do so. This Court exercised such power in particular cases before the Congress enacted the 1984 Act.

The provisions of Section 3142(f)(2)(B) expressly codified the prior case law. Because both of those cases cited by the Report dealt specifically with the type of hearing that was required under prior law, it may reasonably be assumed Congress intended that the standards set in those cases were the standards that should be applied in cases under the 1984 Act. We therefore discuss both of the cases that were twice cited with approval in the course of the legislative history of the 1984 Act.

E.

In United States v. Gilbert, supra, 425 F.2d 490, a District of Columbia case, the defendant was arrested and charged with assault with intent to kill. The Bail Agency of the District of Columbia recommended the defendant’s release on personal recognizance. The magistrate refused to follow that recommendation on the ground that “appellant was alleged to have threatened to kill the complaining witness and thus had engaged in the obstruction of justice.” (425 F.2d at 491). On the bond review in the district court, that court “interrogated counsel for the government with regard to the allegation of threats against the complaining witness.” (Id. at 491).

Government counsel' “represented [to the district court] that friends of appellant had wrongfully entered the apartment of the government’s eye-witness and threatened her to make her call the police to disavow appellant’s guilt in the shooting incident.” (Id. at 491). The district court pointed out, however, that “the committing magistrate had found that appellant himself had threatened the complaining witness.” (Id. at 491).

Gilbert then noted that the district court “then, and we think quite properly, ordered that the witness be produced in court the following morning for questions concerning the allegations of threats.” (Id. at 491). The witness, however, could not appear until the following Monday rather than the next morning as requested by the district court. When defense counsel protested in regard to the short delay, the district court summarily ordered the defendant’s pretrial detention.

The Gilbert court recognized that “[w]e are satisfied that courts have the inherent power to confine the defendant in order to protect future witnesses at the pretrial stage as well as during trial.” (Id. at 491-492). It added, however, that:

[T]his power should be exercised with great care and only after a hearing which affords the defendant an ample opportunity to refute the charges that if released he might threaten or cause to be threatened a potential witness or otherwise unlawfully interfere with the criminal prosecution.

(Id. at 492).

Gilbert reversed and remanded the district court’s order for the reason that “[n]o hearing was held by the court to determine whether there was a genuine basis for the allegation of threats by appellant” and because “[t]he allegation of threats against government witnesses should not have been handled in a summary fashion.” (Id. at 492).

United States v. Wind, supra, 527 F.2d 672, as does this case, involved an in camera viewing of evidence by the magistrate and by the district court to support their respective findings of dangerousness. The defendant in Wind was charged with various narcotic offenses. The magistrate set an interim bond of $1,000,000 pending a hearing at which Wind would be represented by counsel. A hearing was later held before the magistrate. At that hearing, counsel for the government presented evidence to the effect that “Wind had stated that he would post a $1,000,000-bond and then would flee, and that no witness would testify against him.” (527 F.2d at 673). Evidence was also presented by the government to the magistrate that “potential witnesses refused to testify against Wind from fear of injury by him.” (Id. at 673). The magistrate increased the bail to $1,500,000.

In determining whether the defendant’s pretrial detention should be affirmed, the Wind court noted that “[a]t the bail review hearing the District Court accepted the United States Attorney’s offer to present testimony in camera regarding the dangerous propensities of Wind.” (Id. at 673). The Sixth Circuit noted that the district court had explained that it had done so “in order to protect witnesses from possible retaliation by Wind prior to the trial.” (Id. at 673).

The Wind court further noted in regard to the procedural steps taken in the district court that:

Wind and his attorney were excluded from the in camera hearing. The District Court reviewed the evidence taken before the Magistrate and held that the Magistrate’s actions were proper, but it also found as a result of the in camera testimony that Wind would flee if released, regardless of bail, and would pose a danger to witnesses and to the community.

(Id. at 673).

The Wind court recognized that the “transcript of the hearings before the Magistrate contains substantial evidence that Wind did possess these dangerous propensities.” (Id. at 675). The Sixth Circuit noted, however, that the district court did not rely entirely on the evidence adduced before the magistrate in open court but that it “apparently relied also upon the testimony at the in camera hearing from which the defendant and his attorney were excluded.” (Id. at 676).

Although the record was silent as to the extent to which the district court had relied upon the in camera testimony presented to it, the Sixth Circuit reversed and remanded for a new hearing for the reason that:

In our opinion, reliance on that testimony to any extent was error. No authority was cited to us by the Government which would support resort to the ex parte in camera practice in this case, and we have found none. In general, we disapprove of the practice as being inconsistent with the right to a hearing and the opportunity to refute referred to in Gilbert.

(Id. at 676).

In light of the fact the Chief Magistrate concluded that he was justified in making an in camera examination of undisclosed information under the circumstances of this case, it is appropriate that we state the reasons for our disagreement with that view in order that difficulties be avoided in future cases. For it is clear that the number of cases in which the government is seeking pretrial detention orders, particularly in what in the past have been considered routine Section 841(a)(1) narcotics cases, is on the sharp increase in this judicial district.

F.

Although the Chief Magistrate eventually set aside paragraph 17 of his findings, it is apparent that paragraph 17 was based entirely on his in camera review of undisclosed information which suggested that the defendant had been involved in two murders. The Chief Magistrate stated that United States v. Acevedo-Ramos, 755 F.2d 203, supported an in camera review of undisclosed information which would support his findings of dangerousness. We disagree.

Indeed, we believe that the First Circuit looked the other way when it decided that case. In Acevedo-Ramos the Magistrate actually heard the live testimony of an FBI agent. That agent was cross-examined by two defense attorneys on two separate occasions. The Court noted, of course, that defense counsel “were hampered in their efforts to discredit Hill, however, by the government’s refusal to allow Hill to name the witnesses whose statements the FBI relied upon or to provide other information that might enable Acevedo to identify them.” (Id. at 205). The First Circuit also noted that defense counsel did not request that the Magistrate review in camera the FBI agents’ investigative file upon which his live testimony was based.

The First Circuit accordingly considered the question of “whether the new Bail Act changes the evidentiary rules and now forbids magistrates to rely upon hearsay evidence in ordering detention.” (Id. at 207). It concluded that “our reading of the statute and legislative history convinces us that Congress did not intend to forbid the judicial officer to rely upon investigatory descriptions of evidence (and similar hearsay) where the judicial officer reasonably concludes that those descriptions, reports, and similar evidence, in the particular circumstances of the hearing, are reliable.” (Id. at 207).

The First Circuit also noted that “the magistrate or judge possesses adequate power to reconcile the competing demands of speed and of reliability, by selectively insisting upon the production of the underlying evidence or evidentiary sources where their accuracy is in question.” (Id. at 207). It supported that observation by a reference to the legislative history of the earlier District of Columbia Bail Act upon which the 1984 Act was patterned, noting that the Report of the House Judiciary Committee had stated in regard to the earlier Act that: “If the court is dissatisfied with the nature of the proffer, it can always, within its discretion, insist on direct testimony.” (Id. at 208).

The First Circuit accordingly suggested that “[tjhrough sensible exercise of this power of selection, the judicial officer can make meaningful defendant’s right to cross-examine without unnecessarily transforming the bail hearing into a full-fledged trial or defendant’s discovery expedition.

In fact, even in an unusual case, where the government provides strong special reasons for keeping its evidentiary sources confidential (e.g., protecting witness safety), the magistrate or judge, upon defendant’s request, can still test the veracity of the government’s testimony and the quality of the underlying evidence, by, for example, listening to tapes or reading documents in camera. Cf. United States v. Stanford, 551 F.Supp. 209, 210-11 (D.Md.1982) (upholding bail hearing in camera inspection requested by government over defendant’s opposition).” (Id. at 207-08).

Acevedo-Ramos made two “Cf.” citations to United States v. Stanford, 551 F.Supp. 209 (D.Md.1982). We believe those citations were significant for purposes of determining the type of hearing required before a detention order may be issued under the 1984 Act. For Stanford, we believe properly, recognized the continued applicability of the rationale of both United States v. Gilbert, supra, and United States v. Wind, supra, to cases arising under the 1984 Act.

Stanford distinguished Wind on its facts for the reason that only one of two affidavits were presented for in camera review. In regard to the sealed affidavit that was presented for in camera review, the Stanford court held that:

[WJhere, as here, a defendant is provided with a summary of a sealed affidavit, the reliability of which is determined as a preliminary matter, and where the summary is found to be accurate and complete in terms of the type of detail necessary to put the defendant on notice-as to the nature of the allegations against him, due process is not violated as long as the defendant has the opportunity to refute the allegations. See United States v. Gilbert, supra. The Court is satisfied that the defendant in this case has had ample opportunity to rebut evidence before it. The Court does not believe its holding to be inconsistent with the spirit of Wind. (Emphasis added).

(551 F.Supp. at 211). We conclude that neither Acevedo-Ramos nor Stanford, upon which that case relied, support the in camera review made by the Chief Magistrate in this case.

G.

Nor do we believe that the Second Circuit case of United States v. Leon, 766 F.2d 77, cited and relied upon by the Chief Magistrate in his response to the defendant’s motion, supports the procedures followed by him in this case. Leon was decided under the 1984 Act. Leon simply concluded under the circumstances of that case that “[h]ere there is ample proof that defendant has threatened two potential witnesses” and that “evidence justifies defendant’s detention, without the aid of the rebuttable presumption Congress included in § 3142(e). ” (766 F.2d at 78). (Emphasis ours).

In regard to how the evidence had been presented the magistrate in Leon, the Second Circuit made clear that in addition to other evidence, the magistrate did make an in camera review of the testimony of two police officers. The magistrate, however, stated “specifically that he had not relied on testimony of the two police officers given in camera regarding certain confidential information that the officers had obtained from informants.” (Id. at 79-80). Exactly the opposite factual situation was presented in this case. For the Chief Magistrate specifically stated that he did rely upon the undisclosed information to support paragraph 17 of his findings.

It is thus apparent that the two cases relied upon by the Chief Magistrate to support his in camera review of undisclosed information do not support the procedures he followed.

IV.

A.

Section 3142(f) imposes the mandatory duty upon the judicial officer to “hold a hearing to determine whether any condition or combination of conditions, set forth in subsection (c) will reasonably assure the appearance of the person as required and the safety of any other person and the community in a case____” The remainder of Section 3142(f) does not clearly define the type of hearing that the judicial officer is required to conduct. Nor does the legislative history of the 1984 Act, other than the citation of Gilbert and Wind, deal with that question.

Other portions of Section 3142(f) reflect an apparent adoption of, or perhaps even a codification of procedures that were generally followed prior to the adoption of the 1984 Act. For example, past procedures were apparently codified by that portion of Section 3142(f) which provides that the “rules concerning admissibility of evidence in criminal trials do not apply to the presentation and consideration of information at the hearing.”

Still other portions of Section 3142(f), however, clearly suggest that Congress recognized that a defendant should be afforded new and specific procedural protections in order to insure that the power to order pretrial detention would not be subject to abuse.

Section 3142(f), for example, expressly-added a new requirement that “[a]t the hearing, the person has the right to be represented by counsel, and, if he is financially unable to obtain adequate representation, to have counsel appointed for him.” Before the enactment of Section 3142(f), it is well known that bail was set in many districts throughout the federal system in the absence of the defendant and before the defendant had counsel. „

Section 3142(f)’s creation of two other new procedural rights may be of substantially greater significance. For Section 3142(f) imposes the “clear and convincing” standard in regard to proof of a particular defendant’s alleged dangerousness. And finally, Section 3142(f) contains a sentence which added a new right that was not generally accorded a defendant before Congress passed the 1984 Act. For that sentence in Section 3142(f) states that the defendant “shall be afforded an opportunity to testify, to present witnesses on his own behalf, to cross-examine witnesses who appear at the hearing, and to present information by proffer or otherwise.”

There can be little doubt, of course, that under bail procedures followed before the enactment of Section 3142(f), a defendant did have and did exercise the right “to present information [to the judicial officer] by proffer or otherwise.” Indeed, a defendant under the bail procedures generally followed before the 1984 Act was passed usually presented his information concerning bail to the judicial officer by way of “proffer.” Information was “otherwise” presented under old procedures either by stipulation of the parties or by the actual submission of documentary evidence.

The new provisions included in Section 3142(f), however, establish the right of a defendant “to testify” and to “present witnesses on his own behalf” and to “cross-examine witnesses who appear at the hearing.” Those rights were not generally accorded a defendant under bail procedures followed before the enactment of the 1984 Act. Power and jurisdiction, of course, were vested in the judicial officer to insist upon the live testimony of witnesses or to require the government to establish the reliability of hearsay information. Power and jurisdiction were also vested in the judicial officer under the former practice to conduct an appropriate preliminary inquiry to determine whether the hearsay information presented against a particular defendant carried sufficient circumstantial guarantees of trustworthiness to establish the reliability of such hearsay information. Cf. Rule 803(24) and Rule 804(5) of the Federal Rules of Evidence. See also Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980).

We believe that when the new safeguards were added to Section 3142(f), that the Congress apparently recognized that, in cases in which the government’s motion for pretrial detention was grounded on a particular defendant’s alleged dangerousness, that the detention hearing to be conducted by the judicial officer would, more times than not, involve the presentation of the live testimony of witnesses called by the government and would include the exercise by the defendant of his right of cross-examination as newly granted by Section 3142(f).

It may even be concluded that Congress’ failure to grant the government the right “to present information by proffer or otherwise,” while such a right was retained for the defendant, could be said to reflect a Congressional determination that the government would be required to present its evidence of alleged dangerousness by means other than by proffer. We need not reach that question because we believe that there are quite practical solutions to the problems created by Section 3142(f)’s vagueness, which, if followed by the magistrates in this district, will avoid the problems created by the language of Section 3142(f) in regard to the type of hearing that should be conducted in a dangerousness case. We turn to that question.

B.

The point of beginning is that recognized by Chief Judge Weinstein in his recent decision in United States v. Colombo, 616 F.Supp. 780, 784 (E.D.N.Y.1985). It was there suggested that the adoption of Section 3142 procedures that would require “two evidentiary hearings—the first before the magistrate and the second before the district court”—should be avoided. {Id. at 784). Chief Judge Weinstein, we believe properly, stated that “the magistrate should conduct the bail application evidentiary hearing unless, in an unusual case, the district court judge, in the exercise of his or her discretion, reopens the matter for new evidence.” (Id. at 784).

We carry that thought further by suggesting that the Section 3142 cases in which the district court judge, on de novo review, should be required to exercise his or her discretion to reopen a case should ordinarily be confined to cases in which a defendant may wish to offer newly discovered evidence.

It is our view that if the magistrate conducts the type of dangerousness detention hearing the Congress contemplated by its enactment of Section 3142(f), and provided the magistrate also makes appropriate “written findings of fact” and includes in his detention order a “written statement of the reasons for the detention,” that the necessity for the district court to reopen the case on de novo review would be reduced to a very small number of highly unusual cases. It is further our view that procedural difficulties would be avoided in most cases if the magistrate would fully and fairly advise the defendant at the outset of the Section 3142(f) hearing of his right “to testify, to present witnesses on his own behalf, [and] to cross-examine witnesses who appear at the hearing,” as provided in that section. Should a defendant state, however, in response to that advice that he wishes to “present information by proffer or otherwise”, again as is his right under Section 3142(f), the magistrate should, on the record, obtain a familiar Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), waiver of his Section 3142(f) right to testify, to present witnesses, and to cross-examine the government’s witnesses. Such a procedure would not, of course, preclude the parties from entering into a stipulation of the evidence to be considered by the magistrate. The approval of such a stipulation, however, should be conditioned on the defendant’s waiver of record of the other rights granted him under Section 3142.

And, finally, but of paramount importance, the magistrate should, as stated by the First Circuit in Acevedo-Ramos, through the sensible exercise of his or her discretion, insist that the government produce the testimony of live witnesses or, by conducting an appropriate preliminary inquiry, establish the reliability of the information upon which the government bases its claim of dangerousness.

There will, of course, be particular cases in which the names of threatened witnesses or other persons must be protected. But the procedures followed in the District of Maryland in Stanford provide appropriate guidelines in regard to how such problems may be solved. If a particular defendant in such a case, or, indeed in any case, indicates that he or she does not wish to have the government present any direct evidence, once again, a Johnson v. Zerbst waiver should be stated on the record.

We are confident that the experienced Chief Magistrate and the other magistrates that serve this judicial district can adopt additional procedures under which, in all except rare and unusual cases, the only evidentiary hearing that need be conducted will be that conducted by the magistrate in accordance with the manner we have construed in Section 3142(f).

While the defendant objected to the Chief Magistrate’s in camera review of the undisclosed information concerning the two murders, upon which paragraph 17 of the Chief Magistrate’s findings was initially based, defendant’s counsel, although afforded an opportunity to do so, did not proffer any evidentiary data for the Chief Magistrate’s consideration. The record on de novo review by this Court establishes the Chief Magistrate’s action in viewing the undisclosed information in camera is almost mooted. For the record also shows that the Chief Magistrate, in fact, set aside both paragraph 15 and paragraph 17 of the findings made in his original order. It should be added that the proceedings in this Court on de novo review also presented substantially different factual circumstances than those considered by the Chief Magistrate. For it is clear that during the course of the de novo review, the defendant did, in fact, proffer the two affidavits to which we have made earlier reference. That proffer had an obvious legal impact upon the Section 3142(e) presumption relied upon by the Chief Magistrate and the government to support the detention order entered.

It is thus apparent that during the course of the de novo review, in sharp contrast to the procedures before the Chief Magistrate, the defendant did, in fact, meet his burden of coming forward with rebuttal evidence. The burden of persuasion that the government is required under the 1984 Act to establish by clear and convincing evidence thus continued to rest on the government.

All that remained to support the detention order was a group of 15 lewd photographs which the defendant’s proffer suggests were taken during a “party” and which, in any event, cannot, in our judgment be said to establish the defendant’s dangerousness by clear and convincing evidence. We recognize that a gun was used as a prop in connection with several of the photographs. We believe, however, that Chief Judge Weinstein was correct in Colombo when he concluded that “defects in character” may not be used “to predict violence.”

The only remaining factual circumstances established on de novo review relate to the fact that the defendant was armed at the time of his arrest and that a large number of guns were seized at the time the search warrant was executed. As we have already suggested, the presence of guns and narcotics go hand-in-hand in a substantial number of controlled substance prosecutions. If such evidence, standing alone, can be said to constitute clear and convincing evidence of dangerousness, a very substantial number of persons charged with Section 841(a)(1) violations would be subject to pretrial detention.

We accordingly find and conclude that this case should be reversed and remanded to the Chief Magistrate in order that he may consider whether a release order which would include an appropriate combination of the conditions of release set forth in 18 U.S.C. § 3142(c) should be entered.

IT IS SO ORDERED.

EXHIBIT 1

Magistrate’s Case No. 85-0143H-01 DETENTION ORDER

On October 3,1985, a complaint was filed with the undersigned charging Harvey R. Ridinger with distributing hydromorphone, a Schedule II narcotic controlled substance, on or about September 10,1985, in violation of 21 U.S.C. § 841(a)(1).

On October 4, 1985, the defendant was arrested and presented before the undersigned for his initial appearance on the complaint. Prior to the initial appearance, the Government filed a motion for a pretrial detention hearing and a motion to continue the hearing. The motion for continuance was granted, and the hearing was set for 9:30 a.m., October 7, 1985. The defendant was ordered into the custody of the United States Marshal pending the hearing.

A combined preliminary examination and detention hearing was held October 7,1985. The Government appeared by Assistant United States Attorney Robert E. Larsen. The defendant was present in person and by retained counsel (retained for these proceedings only), Willard B. Bunch. The parties stipulated that the bail report of Pretrial Service Officer Jeffrey L. Burkholder be considered by the Court as the testimony Mr. Burkholder would provide if he was called as a witness. The parties also stipulated that the following exhibits may be received in evidence:

1. Exhibit H-l—Affidavit of Nancie Leigh Howley, Special Agent of the Federal Bureau of Investigation, made October 3, 1985, in support of an Application for Search Warrant for the search of the defendant’s premises at 1601 Marsh, Blue Summit, Missouri;
2. Exhibit H-3—Inventory of items seized from the defendant’s premises at 1601 Marsh, Blue Summit, Missouri, during the execution of a search warrant (issued by the undersigned) on October 4, 1985; and
3. Exhibit H-4—Inventory of items seized from the person of the defendant, on October 4, 1985, incident to his arrest.

The Government also offered in evidence Exhibit H-2, consisting of 15 color photographs seized from the defendant’s residence during the execution of the above-mentioned search warrant. The defendant objected to the admissibility of the photographs on the ground that they were not material to the issue of detention versus release. After inspecting the photographs in camera, the undersigned concluded that the nature of the photographs are relevant to the issue of danger to other persons and the community and received the photographs in evidence with the provision that they are to be returned to Mr. Larsen for retention pending further need by the undersigned or a district judge.

No other evidence was adduced by the parties, and there were no proffers.

On the basis of the information contained in the (1) Court file, (2) bail report, and (3) Exhibits H-l, H-2, H-3, and H-4, the undersigned finds that:

1. On April 25, 1985, state and local officers searched the defendant’s residence (a house trailer) situated at 1601 Marsh, Blue Summit, Missouri, pursuant to a search warrant issued by a Jackson County, Missouri, Associate Circuit Judge and seized a considerable number of tablets of hydromorphone, benphetamine, and methylphenidate, all being Schedule II controlled substances;
2. A paid informant (Diana Singleton) of the Federal Bureau of Investigation, whose reliability has been established by independent investigation and surveillance as shown in the affidavit which is Exhibit H-l, has known the defendant for approximately four and one-half to five years and purchased dilaudid on a regular basis (usually once a week) from the defendant, usually trading stolen property for the dilaudid. The defendant has told the informant that he grosses approximately $100,000.00 per month from the sale of dilaudid at $50.00 per tablet. The informant has seen the defendant armed with a handgun during “drug” transactions;
3. On August 29, 1985, the above-mentioned informant (Diana Singleton) made a controlled (at the direction of and under the surveillance of agents of the Federal Bureau of Investigation) purchase, of three tablets of dihydromorphinone HCL, a Schedule II narcotic controlled substance from the defendant. The informant gave the defendant a Sony color television set, (provided by the agents) which she represented to the defendant to be stolen, in exchange for the three tablets. The informant also gave the defendant 30 cartons of cigarettes (also provided by the agents) which she represented to the defendant to be stolen as a partial payment toward a previously incurred narcotic debt. During this transaction, the defendant pointed a gun at the informant;
4. On September 4, 1985, the above-mentioned informant (Diana Singleton) made a controlled (at the direction of and under the surveillance of agents of the Federal Bureau of Investigation) purchase of two tablets of dihydromorphinone HCL, a Schedule II narcotic controlled substance, from the defendant. The informant gave the defendant $100.00 in cash for the two tablets. The informant also gave the defendant 35 cartons of cigarettes (provided by the agents) which she represented to the defendant to be stolen, as a partial payment toward a previously incurred narcotic debt. During this transaction, the informant observed several firearms in plain view in the living room area of the defendant’s house trailer;
5. On September 10, 1985, the above-mentioned informant (Diana Singleton) made a controlled (at the direction of and under the surveillance of agents of the Federal Bureau of Investigation) purchase of ten tablets of dihydromorphinone HCL, a Schedule II narcotic controlled substance, from the defendant. The informant gave the defendant $500.00 in cash for the ten tablets. The informant also gave the defendant 25 cartons of cigarettes (provided by the agents), which she represented to the defendant to be stolen, as a partial payment toward a previously incurred narcotic debt. During this transaction, the informant observed three or four handguns on a table in the living room of the defendant’s house trailer;
6. On October 4, 1985, agents of the Federal Bureau of Investigation searched the defendant’s premises at 1601 Marsh, Blue Summit, Missouri, pursuant to a search warrant issued by the undersigned. Among the items seized were:
a. A quantity of tablets suspected to be controlled substances;
b. The Sony television set which the informant gave to the defendant on August 29, 1985;
c. A triple beam scale; and
d. Approximately 16 handguns, 7 shotguns, and 11 rifles;
7. Incident to the arrest of the defendant on October 4, 1985, agents of the Federal Bureau of Investigation searched the person of the defendant and seized a .22 caliber, 4-shot, derringer with four live cartriges in the chamber;
8. The defendant, a 50-year old white male, has resided in the Kansas City Metropolitan area since 1945;
9. The defendant’s mother, ex-wife (from whom he was divorced in 1976), and four children (ranging in age from 19 to 32) reside in the Kansas City area, but he has very little contact with any of them;
10. The defendant has owned and operated Metal World, a scrap metal business, for the past five years, earning approximately $300.00 per week;
11. The defendant’s assets consist of the following:
a. Business at 1601 Marsh, Blue Summit, Missouri, which he values at $150,000.00, on which there is a mortgage of $17,000.00;
b. House at 4914 Sterling, Kansas City, Missouri, which he values at $80,-000.00, on which there are mortgages totaling $14,000.00; and
c. 1974 Cadillac automobile, 1975 Cadillac automobile, and a 1964 Buick automobile;
12. Exhibit H-2, 15 polaroid photographs, includes several photographs of the defendant’s sex organ pierced by various sharp pointed objects such as a nail, a hypodermic needle, and earrings. There are other photographs included in the exhibit showing an unclothed female in various poses, including one with a pistol pointed at her genitalia;
13. The defendant sustained two convictions in the Municipal Court of Kansas City, Missouri, on April 8, 1982, one of the offense of carrying a concealed weapon, and the other of of the offense of obstructing an officer;
14. If convicted of the offense charged in the complaint, the defendant faces a sentence to imprisonment for a period of 15 years and a fine of $125,000.00. In addition, it is quite likely that, in view of the seizures on April 25, 1985, and October 4,1985, and the purchases made by the informant (Diana Singleton) August 29,1985, and September 4, 1985, that additional charges of (a) distribution of a controlled substance, (b) possession of stolen property, and (c) using a firearm in the commission of a felony will be filed;
15. A house, owned by the defendant, situated at 1601 Marsh, Blue Summit, Missouri, was destroyed by fire, and The Maryland Casualty Insurance Company has refused to pay the $52,-000.00 fire insurance claim because the fire has been ruled as arson;
16. Exhibit H-l clearly shows that (a) there are reasonable grounds to believe that the offense charged in the complaint was committed and that the defendant committed the offense, and (b) there is substantial evidence of the defendant’s guilt; and
17. The undersigned has been provided, in camera, with information (which cannot be made public because to do so may jeopardize the life of the source) that the defendant has been involved in the murder of two individuals because they were snitches.

On the basis of Findings Numbered 1, 2, 3, 4, 5, 6, 7, 12, 13, 14, 15, 16, and 17, the undersigned finds that no condition or combination of conditions of release will reasonably assure the safety of any other person and the community. It is, therefore,

ORDERED that the defendant be committed to the custody of the Attorney General or his authorized representative for detention pending the completion of the trial. It is further

ORDERED that the defendant be confined in a corrections facility separate, to the extent practicable, from persons awaiting or serving sentences or being held in custody pending appeal. It is further

ORDERED that the Attorney General or his authorized representative ensure that the defendant is afforded reasonable opportunity for private consultation with his counsel. It is further

ORDERED that, on order of a court of the United States or on request of an attorney for the Government, the person in charge of the corrections facility in which the defendant is confined deliver the defendant to a United States Marshal for the purpose of an appearance in connection with a court proceeding.

7s/ Calvin K. Hamilton CALVIN K. HAMILTON Chief United States Magistrate

Kansas City, Missouri October 7, 1985

EXHIBIT 2

21 U.S.C. § 841(a)(1) NMT 15 years and/or $125,000 Special Parole Term of 3 years Special Assessment of $50.00

INDICTMENT

THE GRAND JURY CHARGES THAT: COUNT ONE

On or about April 25, 1985, at Kansas City, in the Western District of Missouri, HARVEY R. RIDINGER did knowingly and intentionally possess with intent to distribute Methylphenidate, a Schedule II controlled substance, all in violation of Title 21, United States Code, Section 841(a)(1) and Section 841(b)(1)(B).

COUNT TWO

On or about August 29, 1985, at Kansas City, in the Western District of Missouri, HARVEY R. RIDINGER knowingly and intentionally distributed hydromorphone, a Schedule II controlled substance; all in violation of Title 21, United States Code, Section 841(a)(1), and Section 841(b)(1)(B).

COUNT THREE

On or about September 4, 1985, at Kansas City, in the Western District of Missouri, HARVEY R. RIDINGER knowingly and intentionally distributed hydromorphone, a Schedule II controlled substance; all in violation of Title 21, United States Code, Section 841(a)(1), and Section 841(b)(1)(B).

COUNT FOUR

On or about September 10, 1985, at Kansas City, in the Western District of Missouri, HARVEY R. RIDINGER knowingly and intentionally distributed hydromorphone, a Schedule II controlled substance; all in violation of Title 21, United States Code, Section 841(a)(1), and Section 841(b)(1)(B).

FORFEITURE

Pursuant to Title 21, United States Code, Section 853(a)(2), the defendant HARVEY R. RIDINGER shall forfeit to the United States of America the following property, which was used, and was intended to be used, to commit and facilitate the commission of the aforementioned offense:

Lot 15, Resurvey of Block 11, Stark Acres, Jackson County, Missouri, and all appurtenances and improvements thereto, otherwise known as 1601 Marsh, Kansas City, Missouri.

A TRUE BILL.

Foreman of the Grand Jury

ROBERT E. LARSEN Assistant United States Attorney

      . Defendant’s motion further alleged that he had been willing to abide by any conditions of release that may be imposed by the Court including such conditions as were suggested in
        United States v. Maull, 768 F.2d 211 (8th Cir.1985).

      . His son’s affidavit further stated: "If he is permitted to be released on bond, I pledge any assistance that I may provide to him and to the Court with regard to assisting him in complying with conditions. I am willing to have him released into my custody and I am willing to report personally or by telephone on a daily basis as to his whereabouts and any other matters necessary.”

      . The record establishes that Diane Singleton was the paid government informant. The record does not show where the 15 photographs came from. Indeed, the record suggests that some sort of selection may have been exercised in the presentation of the particular photographs presented to the Chief Magistrate. For the October 4, 1985 inventory made by the FBI included as its Exhibit 15: "8 color, Polaroid photos." Exhibit 16 to the inventory suggests that "mise, color photos were found in a storage cabinet in the kitchen.”
      All 15 of the color, Polaroid photographs, however, were included in a jacket captioned “8, color, Polaroid photos—kitchen table (plain view)" that was adduced in evidence before the Chief Magistrate, over defendant’s objection, as Exhibit H-2.

      . Defendant’s affidavit also attached correspondence from counsel representing the Maryland Casualty Company dated November 11, 1985 which confirmed defendant’s counsel’s statement in regard to the pending offers to settle the civil action brought on the fire insurance policy.

      . In Orta the Magistrate found, and the district court did not disagree with his findings, that "Orta had once struck a woman in the head with a revolver, that several weapons and various quantities of cocaine and marijuana had been found in Orta and her husband’s places of residence, that Orta had been carrying a loaded gun in her purse, and that in both the matter at issue and another incident involving Orta and her husband, witnesses had been threatened or had expressed fears of reprisal.” (760 F.2d at 889 n. 7).

      . The Eighth Circuit appropriately stated in Lyons v. Robinson, 783 F.2d 737 (8th Cir.1985), that: "We have come to recognize that firearms are tools of the trade for drug dealers and are kept by dealers in narcotics almost to the same extent as such dealers keep scales, bags, and cutting equipment. United States v. McDaniel, 773 F.2d 242, 247, n. 4 (8th Cir.1985)."

      . In other portions of its opinion, the Orta court emphasized that "[t]he passage of the pretrial detention provision of the 1984 Act did not, however, signal a congressional intent to incarcerate wholesale the category of accused persons awaiting trial” (760 F.2d at 890); that "[a]lthough the judicial officer may impose further restrictions upon a finding that the legal standard for either the flight or the danger concern is not met, a determination that a defendant’s release 'will endanger’ the community will be rare” (760 F.2d at 891 n. 14); and that "Congress envisioned the pretrial detention of only a fraction of accused individuals awaiting trial.” (760 F.2d at 891).

      . The Report, of course, adds that: "However, the seriousness of the offenses described in subsection (f)(1) (A) through (C) coupled with the government motion is a sufficient basis for requiring an inquiry into whether detention may be necessary to protect the community from the danger that may be posed by a defendant charged with one of these crimes." (Id. at 3204). (Emphasis added). That statement clearly indicates that the type of offense does no more than provide a sufficient basis for conducting an appropriate inquiry into the question of the defendant’s dangerousness.

      . Acevedo-Ramos made clear that: “We do not here mean, to suggest that in camera presentation of evidence is often desirable or often permissible except in a very unusual case. Rather, we mean simply that in the very unusual case in which strong special reasons warrant confidentiality—and where the defendant is apprised of the gist of the evidence through government testimony at the hearing—the magistrate's independent, though in camera, review of the underlying evidence at defendant’s request offers the defendant greater protection than no independent check at all.” (755 F.2d at 209).
      Any assumption that the case at bar may be properly considered as “a very unusual case” is untenable. The record establishes that it is quite a run-of-the mill narcotics case.

      . In a footnote appended to the statement last quoted in the text, the Second Circuit made clear that "[o]rdinarily, we would remand for a hearing on whether the in camera testimony— which the government concedes violated the defendant’s right to cross-examine witnesses— tainted the magistrate’s conclusion.” (Id. at 80 n. 3). It concluded under all the circumstances presented in Léon that ”[a]fter carefully reviewing the sealed transcript of that testimony, we are convinced that nothing of consequence was revealed that was not disclosed also in open court.” (Id. at 80 n. 3).

      . A similar and consistent consideration was stated in Section 3142(j) which provides that "[n]othing in this section shall be construed as modifying or limiting the presumption of innocence.”

      . Such a "proffer” simply reflected defense counsel’s statement to the judicial officer of what factual data he believed could be established by the testimony of a live witness or witnesses or by documentary evidence.

      . We cite and discuss only the procedural aspects of Colombo and do not either cite or rely upon Chief Judge Weinstein’s determination of the entirely different Section 3142 question presented in that case.
      While we are in agreement with Colombo's discussion of the procedures that should be followed in Section 3142 cases, and with other parts of that opinion, we entertain some doubt about Colombo’s determination of the merits of the Section 3142 question presented in that case.

      . We do not, of course, suggest that lewd photographs may never support a pretrial detention order. See, for example, United States v. Yeaple, 605 F.Supp. 85 (M.D.Pa.1985), in which a showing that the defendant had photographed many minors engaging in sexually explicit conduct was held to support a pretrial detention order in a prosecution under 18 U.S.C. § 2252(a)(2).

      . Indeed, this Court imposed sentences in six Section 841(a) cases the day this memorandum opinion was drafted. Guns were involved under the circumstances of all those cases. The government, however, did not seek pretrial detention orders in any of those cases, except in the case of a native of Columbia who had illegally entered the United States. The detention order in that case, however, was based solely on flight rather than dangerousness grounds. We do not believe that the limited number of persons that the Congress anticipated would be subject to pretrial detention would include such a large group of cases.

      . In light of the return of an indictment on November 13, 1985 which prays for forfeiture, it would be appropriate that the Chief Magistrate give consideration to include among other conditions, a forfeiture agreement condition as authorized by Section 3142(c)(2)(K).


source: Caselaw Access Project

author: JOSEPH H. YOUNG, District Judge.

license: Public Domain

text:
    Charles WAGNER, et al. v. ALLIED CHEMICAL CORP., et al. Donald MORGAN, et al. v. ALLIED CHEMICAL CORP., et al.
    Civ. Nos. Y-84-59, Y-84-2354.
    United States District Court, D. Maryland.
    Nov. 29, 1985.

      Roy L. Mason, Baltimore, Md., for plaintiffs.
    George D. Solter, Baltimore, Md., Frank J. Eisenhart, Jr., Philadelphia, Pa., and Rudolph Rose, Baltimore, Md., for defendants.
   MEMORANDUM

JOSEPH H. YOUNG, District Judge.

This tort action, brought by 26 former employees of a pesticide plant and 13 of their spouses, seeks damages for injuries as a result of exposure to certain chemicals. The employee-plaintiffs brought this action against their employer, Allied, and 14 other companies which allegedly supplied chemicals to the plant (hereinafter “supplier defendants”). Plaintiffs filed the action in two groups: the Wagner plaintiffs filed January 10, 1984, and the Morgan plaintiffs filed March 8, 1984; the cases have been consolidated. Supplier defendants and Allied have filed motions for partial summary judgment against 12 plaintiffs and their spouses, asserting that their claims are barred by the statute of limitations, and for summary judgment on the basis of collateral estoppel because plaintiffs have already pursued a remedy under the Workmen’s Compensation Act. Finally, supplier defendants seek sanctions under Rule 11. At this time, the Court will rule on the Rule 11 and statute of limitations motions.

I. Statute of Limitations

There is no question that the appropriate statute of limitations to apply is three years for a civil action. Md.Cts. & Jud.Proc.Code Ann. § 5-101; Harig v. Johns-Manville Products, 284 Md. 70, 73, 394 A.2d 299 (1978). Although ordinarily the statute begins to run at the time of the injury, in some cases—such as with latent diseases—the plaintiff may not be aware of the injury until well after it actually occurs. Where injuries are inherently unknowable because the manifestations or the cause of the injury were in some way hidden from the victim, the cause of action accrues when a claimant “discovers, or through the exercise of reasonable care and diligence should have discovered, the nature and cause of (the) disability or impairment.” Harig, 284 Md. at 71, 394 A.2d 299; Accord Lutheran Hospital of Maryland v. Levy, 60 Md.App. 227, 233, 482 A.2d 23 (1985) (cause of action accrues when the claimant actually knew or reasonably should have known of the wrong). This “discovery rule” was adopted to mitigate the harshness of the statute of limitations for victims who cannot be charged with slumbering on their rights, Poffenberger v. Risser, 290 Md. 631, 431 A.2d 677 (1981), while still furthering the overall purpose of the statute of limitation, which is to ensure fairness to the defendant by encouraging the prompt filing of actions. Such promptness assures that no ancient obligations remain and that claims can be heard before “evidence has been lost, memories have faded, and witnesses have disappeared.” Order of R.R. Telegraphers v. Railway Express Agency, 321 U.S. 342, 349, 64 S.Ct. 582, 586, 88 L.Ed. 788 (1944); Harig, 284 Md. at 76, 394 A.2d 299.

Under the discovery rule, the court determines when the cause of action accrues, Rockstroh v. A.H. Robins Co., 602 F.Supp. 1259, 1264 (1985), which is the time that triggers the running of the statute of limitations. This decision is made on the basis of the plaintiff’s

actual knowledge—that is express cognition, or awareness implied from knowledge of circumstances which ought to have put a person of ordinary prudence on inquiry (thus charging the individual) with notice of all facts which such an investigation would in all probability have disclosed if it had been properly pursued.

Poffenberger, 290 Md. at 637, 431 A.2d 677; Lutheran Hospital, 60 Md.App. at 233, 482 A.2d 23.

In the present case, the discovery rule should apply. Plaintiffs allege that the manifestations of their injuries occurred for the most part after their employment with Allied was terminated, making it less likely that they should immediately suspect a causal connection. Even where the injuries were apparent while plaintiffs were still working, for Allied, the injuries appeared gradually over a period of time and were of a type which is not clearly related to chemical exposure. They had no way of knowing there may be a causal connection and in fact defendants continue to deny that there was such a connection. Thus, plaintiff’s causes of action accrued when they discovered, or through the exercise of reasonable care and diligence should have discovered, the nature and cause of the disability.

Plaintiffs were definitely “put upon inquiry” about a possible causal connection between their illnesses and the chemical exposure when they consulted attorneys or medical experts who expressly told them of the possible relationship. For most plaintiffs, this occurred in early 1981 when they consulted an attorney and certain doctors within three years of filing the action. Pri- or consultations with medical experts not only failed to reveal a causal connection, but also alleviated some plaintiffs’ suspicions of a causal connection when, according to some testimony, doctors employed by Allied specifically advised that the disabilities were unrelated to the chemicals. Additionally, plaintiffs had no medical expertise upon which to base their own conclusions about a causal relationship. Thus, certain plaintiffs were not put upon inquiry by express knowledge of the wrong until a time within three years of filing of their claims. Cf. Lutheran Hospital, 60 Md. App. at 236, 482 A.2d 23 (plaintiff was put upon inquiry when doctor asked her who had told her to walk on her ankle, leading her to believe that something wrong had been done); Jones v. Sugar, 18 Md.App. 99, 305 A.2d 219 (1973) (because of medical expertise, nurse should have known that she may have been wronged).

It is clear from the pleadings, depositions, and answers to interrogatories, however, that several of the plaintiffs should have investigated the nature and cause of their disability more than three years before filing an action against Allied. Plaintiffs Jimmie Hatfield, Jackson McGee, Donald Morgan, and Bernice Morgan all were present at the “Morgan party,” which was either on December 27, 1980 or January 3, 1981. This was more than three years before the actions were filed. At this party, there was a discussion of the common disabilities which past employees of Allied seemed to share. This led the past employees to make the crucial link between their current disabilities and their prior exposure to chemicals while working at Allied. Newspaper clippings which were relevant to the conversation and which, the party hosts had been collecting were viewed and discussed at that time. There is every indication that Hatfield, McGee, Donald Morgan, and Bernice Morgan were “put upon inquiry” at the time of conversation, so at that time their causes of action accrued. Because they did not file actions within three years, their claims are barred by the statute of limitations.

The remaining plaintiffs who are named in the motion for summary judgment, cannot be said to have slumbered on their rights. Most of the plaintiffs did have a general awareness that there had been another lawsuit brought by a past employee against Allied, but there is no indication that plaintiffs knew anything of the inquiry which was the subject of the suit.

Defendants insist that the claims of Doris Horseman and Katherine Savitski should be barred because they consulted with a lawyer about bringing an action against Allied in 1977, and decided not to pursue it. Although contact with a lawyer ordinarily is a reliable sign that a victim has already started investigating a potential claim, Lutheran Hospital, 60 Md.App. at 236, 482 A.2d 23, such an inference cannot apply in this case. It is not clear whether in 1977 Horseman and Savitski were investigating or even knew about the same injuries which are the basis of this action. The deposition transcript indicates that the severe symptoms of which Horseman and Savitski now complain began shortly before this action was filed, and Horseman explained that in 1977 she decided not to pursue a claim because she was not feeling bad. Plaintiff David Thompson also had prior contact with a lawyer, but according to his deposition the lawyer had contacted Thompson, who was not interested and refused to have any substantive discussion with the lawyer. Furthermore, it is not clear that Thompson’s disabilities had fully manifested themselves at that early point in time. Thus contact with a lawyer is not proof that the inquiry had begun in this case.

Defendants also contend that plaintiffs Mary Clarke and Charles Cookson were put upon inquiry by earlier treatment for disabilities that they had suffered. Those disabilities, for which Clarke was hospitalized and Cookson filed a workmen’s compensation claim were related to stomach and breathing problems, and were of an entirely different nature than most of the current claims which involve limbs and extremities.

In short, as to the remaining plaintiffs who are named in the motion for summary judgment there is a dispute not only as to the facts surrounding the nature of the plaintiffs’ awareness of a link between their disabilities and chemical exposures, but also as to the inferences to draw from particular incidents and conversations. On summary judgment, the moving party has the burden of proving that the material facts are not in dispute, and that there can be no reasonable dispute as to the legal conclusions to be drawn from these facts. Adickes v. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Morrison v. Nissan Co., Ltd., 601 F.2d 139, 141 (4th Cir.1979); Rockstroh v. A.H. Robins, 602 F.Supp. 1259, 1264 (D.Md.1985). In deciding the motion, the Court must view the facts and the inferences from those facts in the light most favorable to the non-moving party. Adickes v. Kress & Co., 398 U.S. at 157, 90 S.Ct. at 1608. Although one could conceivably imply from the circumstances that plaintiffs might have been put upon inquiry at an earlier point in time, there is no conclusive evidence that plaintiffs had the benefit of important signals such as advice from a medical expert, or comparisons of symptoms with co-worker. It cannot be said that they were put on inquiry until a coworker recommended that they see an attorney or decided on their own to see an attorney. This was within the three year period. Thus, as to plaintiffs Hatfield, McGee, and Donald and Bernice Morgan, defendants’ motion for partial summary judgment on the basis of statute of limitations is granted. For the remaining plaintiffs, summary judgment is denied. Obviously, as to the contested facts, trial testimony may make even more clear the knowledge, or lack of knowledge, of plaintiffs prior awareness of a connection between work and chemicals.

II. Rule 11

In supplier defendants’ Rule 11 motion for dismissal and sanctions, they assert that plaintiffs had no basis well grounded in fact for believing that their claimed illnesses were caused by exposure to chemicals during their employment at Allied. Under Rule 11, an attorney has an affirmative obligation to make a reasonable inquiry before concluding that the complaint is well grounded in fact and is warranted by existing law. The purpose of this requirement is to “discourage dilatory or abusive tactics and help to streamline the litigation process by lessening frivolous claims or defenses____ What constitutes a reasonable inquiry may depend on such factors as how much time for investigation was available to the signer; whether he had to rely on a client for information as to the facts ... or whether he depended on forwarding counsel or another member of the bar.” Fed.R.Civ.P. 11, Advisory Committee Note.

It appears that plaintiffs’ attorney did conduct an inquiry which falls within the range of reasonableness prior to filing this action. Although defendants point out serious factual weaknesses with several of the claims, plaintiffs’ attorney did consult with an expert, talked to claimants, and received an oral opinion from a doctor who examined most of the claimants, prior to filing this action. This inquiry is sufficient to avert sanctions under Rule 11. If defendants have concluded that there is insufficient evidence to maintain a claim and no genuine issue as to any material fact exists, then the correct procedure would be to move for summary judgment pursuant to Rule 56, Fed.R.Civ.P., rather than seek dismissal through Rule 11, as they do in this motion. Therefore, defendants’ motion for sanctions under Rule 11 is denied, and plaintiffs’ countermotion for sanctions is denied.

      . An alternative to mitigating the harshness of the statute of limitations by utilizing the discovery rule in this case would be to toll the statute of limitations pursuant to Md.Cts. & Jud. Proc.Code Ann. § 5-203, upon a showing that a party is kept in ignorance of a cause of action by the fraud of an adverse party. But because the discovery of the wrong triggers the running of the statute under both rules and the "discovery rule" does apply in this case, we need not reach the question under § 5-203 of whether there has been a fraud perpetrated.

      . According to several depositions, it is possible that several additional plaintiffs were at the Morgan party. By defendants' own admission, however, these facts are in dispute and it is impossible to conclude at this time that additional plaintiffs were at the party.

      . These plaintiffs are John and Kathryn Gruss, Doris and Marvin Horseman, Thomas and Linda Muir, David and Agnes Thompson, Charles Cookson, Mary Clarke, Lawrence and Linda Morgan, and Katherine Savitski.


text:
    Charles WAGNER, et al. v. ALLIED CHEMICAL CORP., et al. Ivan DESKINS, et al. v. ALLIED CHEMICAL CORP., et al.
    Civ. Nos. Y-84-59, Y-84-2354.
    United States District Court, D. Maryland.
    Dec. 17, 1985.

      Roy L. Mason, Baltimore, Md., for plaintiffs.
    George D. Solter, Baltimore, Md., Frank J. Eisenhart, Jr., Philadelphia, Pa., and Rudolph Rose, Baltimore, Md., for defendants.
   MEMORANDUM

JOSEPH H. YOUNG, District Judge.

Plaintiffs in this case are 22 former employees at defendant Allied Corporation’s former pesticide plant at 2000 Race Street, Baltimore City, and some of their spouses. Plaintiffs allege that they were injured as a result of exposure to chemicals at the pesticide plant and have sued Allied Corporation (“Allied”) and fourteen chemical suppliers (“supplier defendants”) under five different theories—negligence and gross negligence, nuisance, strict liability, breach of warranty, and “fraud, concealment and misrepresentation.” Some of the employee-plaintiffs and their spouses have joined together in a derivative claim under a sixth theory of loss of consortium.

On January 27,1984 and October 9,1984, employee-plaintiffs filed Workmen’s Compensation claims against Allied. At hearings in March, 1985, the testimony of all but two of the claimants was produced, and the proceedings continued on May 28, 1985 with the testimony of plaintiffs’ expert witness, Dr. Margit Bleecker. On June 12 and June 18, 1985, the Commission entered orders denying each claim. Sixteen of the claims were denied on the basis of statute of limitations, with alternative findings that “claimant did not sustain the occupational disease of bilateral carpal and tarsal tunnel syndrome arising out of and in the course of employment.” Four of the claims were denied solely on the latter basis—that these plaintiffs did not sustain an occupational disease arising out of their employment. The two remaining actions were also dismissed: the first, because plaintiff Charles E. Cookson denied signing the claim form, and the second dismissal was based upon the Commission’s finding that plaintiff Joseph J. Barnes did not “sustain an occupational disease.”

On the basis of these compensation proceedings, Allied moved for summary judgment and the supplier defendants moved for partial summary judgment. Allied asserts that the compensation remedy is an exclusive one under Maryland law. Allied further asserts that even if it were optional, each of the plaintiffs elected a remedy as against Allied, the employer, by filing compensation claims and pursuing them to a final judgment. Supplier defendants’ motion argues that collateral estoppel applies to the twenty plaintiffs who have already fully and fairly litigated the causation issue during the Workmen’s Compensation proceedings and received adverse decisions. Similarly, plaintiff Barnes litigated the issue of existence of the claimed condition to a final judgment and should be estopped from proceeding further.

Plaintiffs filed a memorandum in opposition to the defendants’ motions, contending that it is too late to assert the affirmative defense of collateral estoppel and that defendants attempts to amend their answers to the complaints are unduly prejudicial. Plaintiffs also assert that causation was not fully litigated and decided for plaintiffs whose adverse rulings were based upon the statute of limitations because the alternative rulings were hypothetical and not final. Furthermore, plaintiffs argue that none of the Commission’s findings on “occupational disease” are subject to collateral estoppel because the issues decided by the Commission are not identical to the issues before the Court, and causation was never specifically decided.

AMENDMENT OF ANSWER

An initial issue is whether it would be unduly prejudicial to plaintiffs to allow defendants to plead exclusive remedy and collateral estoppel at this late date. Plaintiffs’ argument on this issue has no merit. Although defendants did wait until the completion of the compensation proceedings before asserting these affirmative defenses, this cannot be viewed as a dilatory or prejudicial tactic. Defendants were not unreasonable in pleading these affirmative defenses after receiving a final judgment in the compensation proceedings, when their arguments were applicable. In contrast, plaintiffs could easily anticipate that defendants might plead the affirmative defense and could riot reasonably view defendants’ delay as a waiver. Thus, defendants’ motions based on their affirmative defenses will be considered at this time.

ALLIED’S MOTION FOR SUMMARY JUDGMENT

Maryland’s compensation statute, Md. Ann.Code art. 101 (1957) (hereafter “the Act”), was designed as an exclusive remedy for injured employees. Knoche v. Cox, 282 Md. 447, 385 A.2d 1179 (1978); Athas v. Hill, 54 Md.App. 293, 297-99, 458 A.2d 859, aff'd., 300 Md. 133, 476 A.2d 710 (1984). It substituted an absolute but limited liability regardless of fault for the employer’s common law liability for negligence, which was subject to a range of common law defenses. Cox v. Sandler’s Inc., 209 Md. 193, 198-99, 120 A.2d 674 (1955). There are some specific exceptions to the exclusivity, such as Section 44 of the Act, which allows workers an option to either take benefits under the Act or sue under common law where it is alleged an injury or death results from the deliberate intention of the employer. In other words, workers may elect one of the two possible remedies under specified conditions for intentional injury. If this § 44 exception is applicable to any of the plaintiffs, and they have not already chosen to pursue their remedy under the Act, then they may pursue their claim under common law in this Court.

It is unnecessary to determine whether plaintiffs’ complaints properly fall within the scope of the § 44 exception for deliberate injury because a preliminary issue is the election of remedies. Twenty-one of the plaintiffs received final adverse decisions under the Act from the Commission in June, 1985. In Maryland, the pursuit of a compensation claim to a final judgment constitutes an election of one of the two options provided in § 44 of the Act. Haynie v. National Gypsum Corp., 62 Md. App. 528, 490 A.2d 724 (1985).

“In order to make an election under the doctrine of election of remedies, the remedies available to a party must be coexisting and inconsistent. Further, a party must actually bring an action seeking one of the remedies available ... (and) must pursue the action to final judgment.”

Id. at 533, 490 A.2d 724. See Surratts Association v. Prince George’s County, 286 Md. 555, 567-68, 408 A.2d 1323 (1979) (describing doctrine of election of remedies).

The Haynie reasoning applies in this case. Plaintiffs had the option of two possible remedies against their employer: actions under either common law or under workers’ compensation laws. These remedies were coexisting, and because the worker could recover under only one of the two, they were inconsistent. Therefore, those plaintiffs who did in fact pursue their claims to a final ruling by the Commission are precluded from disregarding that § 44 choice and pursuing common law claims against the same employer for the same injury. Haynie v. National Gypsum Corp., 62 Md.App. at 533, 490 A.2d 724; Athas v. Hill, 54 Md.App. at 298, 458 A.2d 859 (“under § 44 the privilege given an employee whose injury results from the deliberate intention of (the) employer to have a (common law) cause of action against the employer ... is lost if the employee proceeds by way of compensation”).

One plaintiff, Charles E. Cookson, testified before the Commission that he never signed the claim form, and therefore is not clear that he pursued the compensation claim and in doing so elected his remedy. The Commission never made a finding as to whether Cookson did sign the form because the claim was denied after merely assuming, arguendo, that the claim had been filed. Without a factual determination on the issue of whether his claim was truly pursued, Cookson cannot be viewed as having elected a remedy under the Act. See Haynie v. National Gypsum Corp., 62 Md. at 533, 490 A.2d 724.

The only evidence before the Court on this issue is a copy of Cookson’s claim form and a copy of the Commission’s denial of the claim (Appendix to motion for summary judgment by defendant Allied Corporation, Exhibits 7(a) and (b)). It is evident from the language of the denial that Cookson did testify before the Commission and, therefore, substantially pursued his claim. Furthermore, since much of the same evidence was presented for all of the related claims, it is apparent that Cookson’s claim was pursued to the same extent as the other claims. This evidence of a filed and pursued claim raises the presumption that Cookson did actually sign the claim and elect his remedy. It is his burden to prove to this Court that this is not the case and that the remedy was never elected.

Therefore, the complaints of the 21 plaintiffs who admittedly pursued their compensation claims will be dismissed as to defendant Allied Corporation. In order to allow plaintiff Cookson time to meet his burden of proof, no ruling will be entered at this time on his claim.

SUPPLIER DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

Supplier defendants’ motion is based on collateral estoppel. They argue that the issue of causation was fully litigated during the compensation proceedings for all but two of the plaintiffs, and that, identical issues having been resolved, collateral estoppel is appropriate. Similarly, they argue that plaintiff Barnes litigated the issue of the existence of the claimed condition to a final judgment and should be estopped from proceeding with an identical claim.

The supplier defendants were not parties to the compensation cases, but they correctly maintain that strangers to a first action may assert collateral estoppel against one who was a party to the first action (defensive collateral estoppel), so long as that party had a full and fair opportunity to litigate the issue, and so long as the Court does not find that there are other circumstances present which make it unfair to allow collateral estoppel to operate. Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979); Blonder-Tongue Laboratories, Inc. v. University of Illinois, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971); Pat Perusse Realty Company v. Lingo, 249 Md. 33, 238 A.2d 100 (1968).

Applicability of collateral estoppel is a matter of state law in a diversity case. Blonder-Tongue, 402 U.S. at 325, 91 S.Ct. at 1441. Maryland requires a determination of four independent criteria before collateral estoppel is controlling:

1. Was the issue decided in the prior adjudication identical with the one presented in the action in question?
2. Was there a final judgment on the merits?
3. Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication?
4. Was the party against whom the plea is asserted given a fair opportunity to be heard on the issue?

Washington Suburban Sanitary Commission v. TKU Associates, 281 Md. 1, 18-19, 376 A.2d 505 (1977). The supplier defendants in this case have not satisfied the first requisite of that four part test, and on that basis their motion for partial summary judgment must be denied.

In the prior proceedings, there were a number of issues presented to the Court. The Commission made individual rulings on the issues of jurisdiction, notice, limitations and occupational disease in almost every case. However, the findings on occupational disease are too general to allow the application of collateral estoppel. Although the Commissioner concluded in each case that there was no occupational disease, questions remain as to the factual determinations upon which those conclusions were based. “Occupational disease” has several elements and to conclude that a claimant has an occupational disease, there must be a finding that the claimant has the ailment, that it was caused by the conditions of employment, and that claimant suffered an adverse change in wage earning capacity. Belschner v. Anchor Post Products, Inc., 227 Md. 89, 175 A.2d 419 (1961). It is evident from the transcripts of the proceedings before the Commission that adverse change in wage earning was an issue in those proceedings, so it cannot be concluded that causation was the basis of the Commissioner’s adverse findings on the issue of occupational disease.

Adverse change in wage earning capacity is irrelevant to the question of liability in the common law action presented before the Court. Since it was an element of the issue which the Commission ruled upon, the issue is not identical with the one presented in the present action and collateral estoppel is not appropriate.

Accordingly, Allied’s motion for summary judgment will be granted as to each plaintiff except for Cookson. The supplier defendants’ motion for partial summary judgment will be denied.

      . The only plaintiff not included in this motion is Cookson.

      . It is of no moment that plaintiffs did not appeal the Commission’s judgment. Under election of remedies, the plaintiff must have pursued the action to a final judgment, which was done in the case because the ruling of the Commission is a final judgment. See Great American Insurance Co. v. Havenner, 33 Md.App. 326, 364 A.2d 95 (1976) (decision of the Commission which has the effect of granting or denying some benefit is a final order); Burdock v. Kaiser Aluminum & Chemical Corporation, 22 Md.App. 631, 325 A.2d 171 (1974) (in occupational disease claims under the former statute, finality attaches to the decision of the Commission, not to the decision of the Medical Board). There is no requirement that the party also exhaust all opportunities for appeal before a court may conclude that a remedy was elected.

      . "The Commission: I have a question on limitations. Well, I have a bunch of things. Actually, ... I don't know if there is any disability here even if everything else—I don’t know if there is any disability." Excerpt from Appendix to motion for partial summary judgment, Vol. 1, section 5, p. 30 Beulah Burgess.
      “(assuming he’s got the disease and he’s got causal connection, is the disease an occupational disease in this case?”
      Mr. Scheller: Indeed. If the only exposure he testifies—
      The Commission: It's not an occupational disease unless he’s got some incapacity by definition. Where is the incapacity in this case?” Excerpt from Appendix to motion for partial summary judgment, Vol. 1, section 1, page 39, Edward Abbott.