author: THOMAS F. HOGAN, District Judge.

text:
    The TRAVELERS INSURANCE CO., Plaintiff, v. SCM CORPORATION, et al., Defendants.
    Civ. A. No. 83-1759.
    United States District Court, District of Columbia.
    Dec. 21, 1984.

      Gregory B. Macauley, Washington, D.C., for plaintiff.
    Timothy A. Russell, Michael L. Gassmann, Drinker, Biddle & Heath, Washington, D.C., for defendant SCM.
   MEMORANDUM OPINION

THOMAS F. HOGAN, District Judge.

This diversity action for damages arises from a June 19, 1980 fire which resulted in damage to real property owned by 13th & E Street Associates and insured by plaintiff, Travelers Insurance Co. (“Travelers”). According to the allegations of the complaint, the fire originated with a coffee maker manufactured by defendant SCM Corporation (“SCM”). Travelers seeks recovery from SCM on a variety of legal theories including strict liability, express warranty, implied warranty, and misrepresentation.

Travelers has also joined Wells Fargo Alarm Services (“Wells Fargo”) as a defendant alleging that the malfunction of an alarm system installed by Wells Fargo allowed the fire to spread extensively and multiplied the damages. Chesapeake and Potomac Telephone Co. (“C & P”) was joined on the theory that the negligence of C & P in transmitting Wells Fargo’s alarm signal over its telephone lines also contributed to the damage.

The complaint also names the United States Department of the Treasury (“Treasury Department”) and the Bureau of the Mint (“Mint”), the lessees of the office space owned by plaintiff’s insured, as well as two Mint employees, Cory Gillilland and Michael Burke. Plaintiff asserts that Gillilland and Burke negligently purchased and installed the coffee maker in violation of “regulations prohibiting the installation and use of employee owned electrical appliances in any Government occupied space.” Amended Complaint at 11. Plaintiff also claims that the defendants’ negligent installation and use of the coffee maker was a proximate cause of the fire. The liability of the Treasury and Mint allegedly arises from the “failure of the supervisors and managers to enforce the regulation ... prohibiting the use and installation of said coffee maker.” Id. at 18.

SCM, Wells Fargo and C & P have filed cross-claims for indemnification and contribution against each other and the other defendants. The Treasury, Mint, Gillilland and Burke (the “Federal Defendants”) have filed cross-claims against SCM, Wells Fargo and C & P. Several dispositive motions have been filed on a variety of grounds. Each of these arguments will be addressed separately below.

I. Wells Fargo’s Motion For Partial Summary Judgment

Wells Fargo has filed a motion for summary judgment on the grounds that the contract between Wells Fargo and 13th and E Street Associates contains a valid and enforceable liquidated damages clause. The contract provides in part that:

Wells Fargo shall not be liable for any of subscriber’s losses or damages, irrespective of origin, to person or property, whether directly or indirectly caused by performance or nonperformance of obligations imposed by this contract or by negligent acts or omissions of Wells Fargo, its agents or employees.

None of the parties to this lawsuit have filed any opposition to Wells Fargo’s motion. In light of the clear and unambiguous language of the contract and the sophistication and bargaining power of the parties, the Court finds the contractual limitation of liability to be valid and enforceable. Wells Fargo’s motion for summary judgment will be granted.

II. C & P Telephone’s Motion to Dismiss

C & P has moved to dismiss on the grounds that District of Columbia Public Service Commission Tariff No. 201 (“Tariff”) contractually limits its liability for any errors, omissions or defects in the transmission of telephone signals. This tariff provides that:

Liability of the telephone company for damages arising out of mistakes, omissions, interruptions ... or defects in transmission ... shall in no event exceed an amount equivalent to the proportionate charge to the customer for the service or facilities affected during the period such mistake, omission, interruption or defect in facilities continues after notice and demand____

According to C & P, this tariff has the “force of law” and precludes recovery for any damages arising from its allegedly negligent failure to transmit Wells Fargo’s alarm signal. Plaintiff and cross-claimants argue that the tariff is a mere contractual limitation on recovery and that it is possible to construe the complaint to allow third parties to recover. See Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

Plaintiff, joined by the Federal Defendants, suggests that C & P is construing the tariff too broadly. According to plaintiff, the tariff limits the telephone company’s liability to its “customers,” but does not provide “blanket protection against liability to third parties.” The parties agree that the service contract in question was voluntarily entered into by Wells Fargo and C & P, and that C & P’s liability to Wells Fargo is thus limited by the tariff. However, plaintiff suggests that the tariff should not be construed to preclude C & P’s liability to third parties — such as plaintiff and cross-claimants — to' whom C & P owes a duty of due care. In essence, plaintiff argues that it should not be bound to the terms of the tariff because the tariff is part of a contract between C & P and Wells Fargo, to which plaintiff is not a party. This argument has some initial appeal.

Upon closer examination, however, it appears that plaintiff’s argument is flawed in several respects. First, the Court has examined the cases cited by the parties without finding any suggestion that a distinction should be made between a utility “customer” and a “third party.” On the contrary, the relevant precedents speak in quite broad terms of the need to limit the liability of the public utilities. See e.g., Willhite v. South Central Bell Telephone Co., 693 F.2d 340, 343 (5th Cir.1982); Pilot Industries v. Southern Bell Telephone & Telegraph Co., 495 F.Supp. 356, 361 (D.S.C.1979); Holman v. Southwestern Bell Tele phone Co., 358 F.Supp. 727, 729 (D.Kan.1973).

Second, the plaintiffs argument is persuasive only when it is phrased in terms of contract: “the plaintiff and cross-claimants should not be ‘bound’ by the contract to limit liability between C & P and Wells Fargo.” Although it is possible to think of the tariff as part of the framework of the service .contract, plaintiff’s claims against C & P are founded not on contract but on the broader duties of tort law. More importantly, the tariff is not merely a private limitation on liability between the bargaining parties but a binding public regulation — established as a matter of public policy — to limit the liability of C & P. Shehi v. Southwestern Bell Telephone Company, 382 F.2d 627, 629 n. 2 (10th Cir.1967).

This broader view of the public policy nature of the tariff suggests that it would be unwise to create a third party exception to C & P’s limited liability. The setting of rates for C & P is entrusted to the Public Service Commission, and their decision to limit liability is “an inherent part of the rate.” Western Union Telegraph Company v. Esteve Brothers & Co., 256 U.S. 566, 571, 41 S.Ct. 584, 586, 65 L.Ed. 444 (1921). This Court is not persuaded that it would be either sound law or sound policy to disturb the current status of local telephone company liability.

Finally, the Court is uncertain whether the customer-third party distinction which plaintiff urges is conceptually sound or practically feasible. Consider, for example, a stockbroker whose telephone service is interrupted for twenty-four hours because of the negligence of the telephone eompany. Cf. Abraham v. New York Telephone Co., 85 Misc.2d 677, 380 N.Y.S.2d 969, 972 (1976). All parties would agree that the tariff effectively precludes the stockbroker from recovering damages from the phone company for his lost commissions. The plaintiff would argue, however, that some third parties should be allowed to recover. Would the term “third parties” include the broker’s customers who tried to call the stockbroker to place a buy or sell order? If so, should they be allowed to recover their lost profits (or losses) from the phone company? It would appear that the customers of the broker are certainly “third parties” in terms of the service contract between the phone company and the broker. One might argue, however, that the broker’s customers are also “customers” of the phone company’s services and, as such, should not be allowed to recover. The fact that the broker’s customers are easily categorized as both “third parties” and “customers” suggests that the bright line rule offered by plaintiff might not exist.

One might also consider the example of stock underwriters and the stock-issuing companies themselves. These parties may suffer lost profits as a result of the breakdown of the broker’s phone lines. They would seem to be, under plaintiff’s proposed distinction, the type of third parties who may recover. They are clearly not, with respect to the transaction at issue, “customers” of telephone service. Yet, it is difficult to conceive of a rationale to explain why only the most remote parties with the most speculative damages should be allowed to sue. It is also difficult to discern a principled basis for distinguishing “customers” from “third parties.” Any party that suffers a loss because of a failure of phone service is to some extent a customer of the phone company in the sense that it is receiving a (potential) benefit from its services. When the hypothetical stockbroker’s phone is out of order, he is not the only telephone customer whose service is impaired — everyone loses at least their ability to call him. The fact that there are so many potential customers with so great a potential loss is the very reason that the liability-limiting tariff exists.

In short, the Court can find no basis for creating an exception to the settled doctrine of limited liability. The obvious policy choice to shield C & P from damage claims in exchange for the benefit of lower rates further suggests that the tariff should be applied to all parties — not just those who contracted for the services in question. The Court will thus dismiss defendant C & P Telephone Company.

III. Federal Defendants Motion to Dismiss, or, in the Alternative, for Summary Judgment

The Federal Defendants have moved for dismissal, or summary judgment, on a variety of grounds. Plaintiff, Travelers Insurance Company, as well as SCM Corporation and C & P Telephone, have filed partial oppositions to the motion.

A. Sovereign Immunity

It is clear, at the outset, that plaintiff has failed to comply with the requirements of the Federal Tort Claims Act (F.T. C.A.), 28 U.S.C. § 2675(a). Because the F.T.C.A. constitutes the only basis for a waiver of sovereign immunity “for money damages for injury or loss of property ... caused by the negligent or wrongful act ... of any employee of the government,” the claims against the agencies of the United States must be dismissed. 28 U.S.C. § 2679. See United States v. Mitchell, 445 U.S. 535, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980); Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949).

Plaintiff and cross-claimants have argued that the claims against the government employees may be maintained despite the absence of jurisdiction over the United States and the individual agencies. The question of whether sovereign immunity bars suit against a federal officer or employee turns on the “nature and effect” of the claim. Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 691, 69 S.Ct. 1457, 1462, 93 L.Ed. 1628 (1949); Land v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 1012, 91 L.Ed. 1209 (1947). If the claim is in effect against the government, and if an award of damages “would expend itself on the public treasury,” Land at 738, 67 S.Ct. at 1012, the claim is against the United States and may be barred by sovereign immunity.

In the present case, the defendants Burke and Gillilland are sued in both their official and individual capacities. It is clear that a claim against a federal employee in his or her “official capacity” is in effect a claim against the government. The sovereign immunity doctrine cannot be evaded by changing the label on the claims or the parties. See e.g., Larson, 337 U.S. at 687, 69 S.Ct. at 1460; Hutchinson v. United States, 677 F.2d 1322, 1327 (9th Cir.1982). On the other hand, the existence of the Federal Tort Claims Act does not preclude all claims for damages against government employees in their individual capacities. See Neely v. Blumenthal, 458 F.Supp. 945, 953-55 (D.D.C.1978); but see 28 U.S.C. § 2679 (F.T.C.A. provides exclusive remedy against federal employees for damages resulting from operation of motor vehicles). Accordingly, only the claims against Gillilland and Burke in their individual capacities may go forward.

B. Statute of Limitations

Defendants argue that the Court should adopt the two year statute of limitations contained in the F.T.C.A., 28 U.S.C. § 2401, and apply it to the individual federal defendants in this case.

The Federal Defendants admit that there is no precedent for such a position but argue that the judicial adoption of the rule is necessary for reasons of fairness and uniformity. For the reasons set forth below, the Court declines to modify the established rule of allowing the individual claim to go forward despite the statutory bar to pursuit of the claim against the federal government.

The Federal Defendants argue that the “dual” period of limitations for federal employees in their individual and official capacities encourages blatant disregard of the Federal Tort Claims Act. The Court does not believe this to be the case. The most important incentive for meeting F.T. C.A. requirements is the possibility of obtaining the federal government, with its ability to pay, as a defendant. The fact that individual defendants — with infinitesimally smaller resources — may still be subject to liability is a small consolation to the plaintiff who willfully disregards the statutory scheme.

The Federal Defendants also argue that adopting the shorter F.T. C.A. limitation period will result in a “fairer” trial. They suggest that a uniform two-year period will guarantee the availability of records and provide “fresher memories” of the incident in question. This is certainly true, but a statute of limitations represents a balancing of the advantages of the need for repose and a relatively speedy trial against the plaintiff’s need for a fair amount of time to make his claim. That balancing has already been done by the District of Columbia government.

It should be recalled that under the Eire Doctrine, the local statute of limitations is a substantive rule of law which is controlling in federal court. Guaranty Trust Co. of New York v. York, 326 U.S. 99, 109, 65 S.Ct. 1464, 1469, 89 L.Ed. 2079 (1945). While the Congress may have authority to establish a statute of limitations as part of the framework under which the United States partially waives sovereign immunity and the federal courts may have some authority to adopt rules within that framework, this Court has no authority to modify substantive state law.

C. Failure to State a Claim of Negligence per se

Plaintiff and cross-claimants assert, as a basis of liability, that Gillilland and Burke violated an internal Federal Property Management Regulation § 101-20.110; 41 C.F.R. § 101-20.110 (Appendix B), which requires building manager approval prior to the installation of “employee-owned electrical appliances.” Although the individual federal defendants may not have obtained “approval” pursuant to Reg. § 110-20.110, the Court agrees with the defendants that this alleged failure cannot form the basis of a claim of negligence per se.

It is obvious from the wording of the regulation that the duty to obtain approval rested not on the individual employees but on the agency itself. The regulation provides: “An agency desiring to have an employee-owned electrical appliance installed in a building under the jurisdiction of GSA shall submit a request in writing to the GSA buildings manager____” If the appropriate regulations and requirements are not met, “the agency will be requested to order its removal.” Nothing in the regulation appears to establish any duty on the part of individual employees to comply with its requirements. Because the agency has been dismissed from this suit, the Court need not decide the legal effect of noncompliance with the regulation on the agency’s tort liability. With respect to the individual defendants, a statute that creates no duty cannot be the basis of liability.

The absence of a claim of negligence per se does not mean, however, that the claim against the individual federal defendants must be dismissed. It is conceivable that plaintiff and cross-claimants may be able to prevail in their claims of negligent use or installation of the coffee maker. Amended Complaint, ¶ 46, Cross Claim of SCM Corporation, ¶¶ 3, 4. While these allegations may prove difficult to establish at trial, they are factual matters that remain in dispute and, as such, are not appropriate for disposition at the present time. Thus, plaintiff and cross-claimants may proceed against the Federal Defendants Burke and Gillilland, in their individual capacities, only on the theory of negligent use or installation.

D. Immunity of Federal Officials

The “generally accepted rule” is that federal officials are “totally immune from suit for damages attributed to any common law tort emanating from non-ministerial conduct within the outer perimeter of his official authority.” Expeditions Unlimited Aquatic Enterprises v. Smithsonian Institution, 566 F.2d 289, 300 (D.C.Cir.1977) (footnotes omitted), cert. denied, 438 U.S. 915, 98 S.Ct. 3144, 57 L.Ed.2d 1160 (1978); Barnwell v. Cordle, 438 F.2d 236 (5th Cir.1971). This immunity is based on the principle that “officials of the government should be free to exercise their duties unembarrassed by the fear of damage suits in respect of acts done in the course of those duties ....” Barr v. Matteo, 360 U.S. 564, 570, 79 S.Ct. 1335, 1339, 3 L.Ed.2d 1434 (1959).

The question before this Court is whether the allegedly negligent conduct of federal defendants Burke and Gilliland falls within the “outer perimeter” of their official duties. If so, defendants are immune from tort liability for injury resulting from such conduct. Barr, 360 U.S. at 576, 79 S.Ct. at 1342.

In determining whether the acts in question — involving the preparation and consumption of coffee — fall within the grant of immunity, the Court recognizes that the range of activity covered by the immunity is quite broad. To retain immunity, an official’s acts “must simply be within the ambit of the authority and have some connection with the general matters committed to his control or discretion.” Donahoe v. Watt, 546 F.Supp. 753, 755 (D.D.C.1982) (citing Goodwin v. Briggs, cert. denied, 437 U.S. 904, 98 S.Ct. 3089, 57 L.Ed.2d 1133 (1978)). In other words, activities not “manifestly or palpably beyond [a government official’s] authority” are within the official’s jurisdiction for purposes of the immunity doctrine. Simons v. Bellinger, 643 F.2d 774 (D.C.Cir.1980) (quoting Spalding v. Vilas, 161 U.S. 483, 498, 16 S.Ct. 631, 637, 40 L.Ed. 780 (1896)).

Plaintiff, Travelers, and cross-claimants, SCM and C & P, filed oppositions to the individual federal defendants’ motions to dismiss. These oppositions do not challenge the legal basis of the grant of immunity as set forth above. Rather, they argue that the conduct of defendants Gillilland and Burke cannot properly be considered to be within the outer perimeter of their official duties.

At the outset, it is argued that the purchase and use of the coffee maker was a violation of government regulations and hence beyond the normal course of duty. However, as noted supra, the regulation in question in no way prohibited individual agency personnel from installing electrical appliances. The conduct in question was neither required nor prohibited but was within the discretion of the individuals involved.

The arguments in opposition also suggest that the conduct in question was too “ministerial” or too far removed from the policy-making sphere to fit easily within the Barr v. Matteo framework. Clearly, one of the central themes of the doctrine of absolute immunity, as enunciated in Barr, is the protection of policymaking decisions from possible attack in the Courts. The Barr Court specifically discussed the importance of removing the threat of common law liability “which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government.” Barr, 360 U.S. at 570, 79 S.Ct. at 1339.

This is clearly not a case which deals with discretionary official conduct or policy-level decisionmaking. Instead, the conduct in the present case might be thought of as discretionary personal conduct — it was clearly a permitted but certainly not a required element of the defendant’s official, acts.

In determining the scope of employment for purposes of the respondeat superior doctrine, courts have long considered certain “personal” activities to be so necessary, usual, and closely tied in to the workplace that they are considered to be within the scope of employment. See, e.g., Brown v. Anzalone, 300 F.2d 177 (3rd Cir.1962) (lighting fire to stay warm); George v. Bekins Van & Storage Co., 33 Cal.2d 834, 205 P.2d 1037 (1949) (smoking); J.C. Penney Co. v. McLaughlin, 137 Fla. 594, 188 So. 785 (1939) (going to restroom). Certainly, obvious distinctions may be made between the immunity policy of Barr and the respondeat superior doctrine. Nevertheless, the Court finds the scope of employment opinions instructive in their recognition of discretionary personal activities as an integral part of the workplace.

The Court is concerned, however, that a holding placing the activities in this case within the realm of absolute immunity will stretch that doctrine out of context and create a gap between the liability of public employees and their private counterparts that the Supreme Court never intended to create. Although the conduct of defendants Gillilland and Burke may be considered lawful, within their discretion, and even within the scope of their employment, it is not the type of activity which requires the blanket protection of the absolute immunity doctrine. The Court recognizes that the language of Barr and its progeny is quite broad but nevertheless believes that a distinction may be drawn between discretionary personal activities and discretionary official duties.

This is so because of the nature of official decisionmaking. At the policy level, many of a government official’s actions and decisions have at least the potential to cause some injury to someone. Any such injury — even in the form of a denial of a benefit — may be readily pled in the form of a common law tort by a competent attorney. Thus, the absolute immunity afforded by Barr is a necessary shield from a potential onslaught of lawsuits — “suits which would consume time and energies that would otherwise be devoted to governmental service....” Barr, 360 U.S. at 570, 79 S.Ct. at 1339.

Any lawsuit against a government employee will consume time and energy, but only a suit involving official acts will “appreciably inhibit the ... effective administration of policies of government.” Id. In short, the doctrine of absolute immunity exists to protect and encourage government officials in making difficult decisions involving the operation of government. Personal decisions and activities, such as the coffee-making in the instant case, do not need the same protection and encouragement.

Finally, the Court notes that Congress has immunized federal employees from tort liability for injuries arising from automobile accidents occurring within the scope of employment. Thomason v. Sanchez, 539 F.2d 955 (3rd Cir.1976) (limited exclusivity provision of F.T.C.A. immunizes government employee from individual liability). Although the somewhat shopworn maxim expressio unius est exclusio alterius does not compel the Court to the opposite conclusion with respect to other types of job-related conduct, the limited nature of the exception does suggest an intent to treat public employees on the same terms as their private colleagues in the ordinary run of cases. The Court believes that the congressional judgment is not in any way contrary to the holding of Barr, which also provides a narrow exception to the usual rule of individual liability. Thus, although the congressional intent is not controlling on the issue at hand, this Court declines to expand the immunity provided by Barr v. Matteo far beyond its original intent and in a fashion that would effectively override the Congressional judgment evinced in the Federal Tort Claims Act. The motion of the individual federal defendants to dismiss on the grounds of absolute immunity is denied.

An appropriate order will be entered in accordance with the terms of this Opinion.

      . Several of the claims and issues raised by various parties do not merit serious attention and will not be discussed in this opinion.

      . The parties have argued about the extent to which a utility company owes a "duty” of care to third parties who may suffer injury because of the utility’s failure to provide services. Some courts have been reluctant to find such a duty, see Reimann v. Monmouth Consolidated Water Co., 9 N.J. 134, 87 A.2d 325 (1952); others draw a line between "misfeasance” and "nonfeasance.” See East Coast Freight Lines, Inc. v. Consolidated Gas Co. of Baltimore, 187 Md. 385, 50 A.2d 246 (1946). This Court need not reach this issue, but will assume, without deciding, that in accordance with the modern trend in the law, C & P’s duty of due care will run to all foreseeable plaintiffs. The Court will further assume that the plaintiff and cross-claimants fall within this broadened scope of duty.

      . In fact, the losses suffered by the broker's customers are as much a result of the phone company's breach of a service contract with the attempted callers (the customers) as they are of any breach of contract with the broker.

      . Even if the contract theory is used, one still has difficulties in developing an explanation why third parties — and not “customers” — should recover. For example, in the hypothetical above, the stockbroker’s customers, as well as the stockbroker, are contracting with the phone company and are "customers” of telephone service. If the other potential plaintiffs, such as the underwriters, are going to attempt to recover under a contract theory as "third party beneficiaries" of the service contract, they are going to be bound by the terms of the same contract as the stockbroker.

      . In the absence of such an innovation by this Court, the suit would proceed as the case was admittedly filed within the local limitation period.


source: Caselaw Access Project

author: LAFFITTE, District Judge.

license: Public Domain

text:
    UNITED STATES of America, v. Hector ACEVEDO-RAMOS, Defendant.
    Crim. No. 84-373 HL.
    United States District Court, D. Puerto Rico.
    Dec. 21, 1984.

      Luis Carbone, Luis F. Abreu Elias, Hato Rey, P.R., William M. Kunstler, Ronald L. Kuby, New York City, for defendant.
    Daniel F. Lopez Romo, U.S. Atty., Hato Rey, P.R., for United States.
   OPINION AND ORDER

LAFFITTE, District Judge.

Defendant Héctor Acevedo-Ramos was indicted and arrested on November 15, 1984, with other five defendants. Defendant was charged on a two count indictment with conspiracy to delay and affect commerce by robbery, in violation of 18 U.S.C. § 1951, and with the substantive offense of robbery of approximately 770 diamonds from Taillex Corporation, valued at $620,-918, in violation of 18 U.S.C. § 2. The offenses carry a maximum penalty of twenty years imprisonment and/or a $10,000 fine in each count.

The Government sought, and, after a full hearing held on November 19, 21, and 26, 1984 before Magistrate Arenas obtained, defendant’s preventive detention pursuant to the Bail Reform Act of 1984, 18 U.S.C. § 3141 et seq., effective on October 12, 1984. The detention order, filed on November 26, 1984, contains written findings of fact and the reasons for detention as mandated by Section S142(i). On November 28, another Opinion and Order, on reconsideration, was filed by the Magistrate, reaffirming his prior detention order. On Decémber 6, defendant filed a “Notice of Appeal”, which the Court entertained and set for hearing on December 12th, as a motion for revocation or amendment of a detention order. 18 U.S.C. § 3145(b). Simultaneous briefs were ordered to be filed, and thereafter the matter was submitted on December 14, 1984, upon defendant’s supplemental brief.

Defendant claims that the detention order should be set aside and defendant released on bail, on the grounds that (1) Section 3142 of the Bail Reform Act is facially unconstitutional, and deprives defendant of due process of law, (2) pretrial detention as authorized by the Act violates the Eighth Amendment, and (3) the findings of the Magistrate that defendant is a danger to the Government witnesses and to the community, and that there is serious risk that he will obstruct or attempt to obstruct justice, are not supported by “clear and convincing evidence.”

A. THE BAIL REFORM ACT

The Bail Reform Act of 1984, Chapter II of the Comprehensive Crime Control Act of 1984, Public Law No. 98-473, was Congress’ response to the flaws in the pretrial release system created by the Bail Reform Act of 1966. Congress found that there was a widespread pattern of serious crimes being committed by persons on pretrial release. See, S.Rep. No. 225, 98th Cong., 2nd Session 6 (1984); S.Rep. No. 147, 98th Cong., 1st Sess. 22-30 (1983); S.Rep. No. 317, 97th Cong., 2nd Sess. 27-35 (1982); 130 Cong.Rec. S4109, daily ed. Jan. 20, 1984 (remarks of Sen. Thurmond); id. at S537, daily ed. Jan. 31, 1984 (remarks of Sen. Mitchell); id. at S945 (daily ed. Feb. 3, 1984 (remarks of Sen. Hatch). The Act reflects congressional concern with the alarming problem of crimes committed by persons on release and with the inadequate authority of the courts to make release decisions that give appropriate recognition to the danger a person may pose to others, to the community or to the administration of justice. Senator Mitchell remarked:

In the 17 years of experience we have had with the (Bail Reform Act of 1966), it has come under criticism as too liberally permitting pretrial release and not allowing judges to give sufficient weight to any other factors involved, particularly the safety of the community.
The need to allow a judge to consider the dangerousness of a defendant to the community when bail or pretrial release is contemplated is to me obvious. And it is supported by studies. A 1981 Lazar Institute study found that approximately 1 in 6 defendants awaiting trial was rearrested during the pretrial period. And of those, more than one-third had multiple arrests.
No society can or will maintain its essential civil liberties if a majority of its citizens comes to believe that the Government cannot or will not protect them against random crime. Current bail and pretrial release practice is an area in which the public perception is that apprehension and arrest provide no assurance for public safety.

Id. at S939 (daily ed. Feb. 3, 1984.)

The applicable provisions governing these proceedings are set forth below:

Section 3142. Release or detention of a defendant pending trial
(a) IN GENERAL. — Upon the appearance before a judicial officer of a person charged with an offense, the judicial officer shall issue an order that, pending trial, the person be—
******
(4) detained pursuant to the provisions of subsection (e).
******
(e) DETENTION. — If, after a hearing pursuant to the provisions of subsection (f), the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community, he shall order the detention of the person prior to trial____ Subject to rebuttal by the person, it shall be presumed that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community if the judicial officer finds that there is probable cause to believe that the person committed ... an offense under section 924(c) of title 18 of the United States Code [possession of a firearm during the commission of a felony].
(f) DETENTION HEARING. — The judicial officer shall 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—
(1) upon motion of the attorney for the Government, that involves—
(A) a crime of violence;
(B) ...
(C) ...
(D) ...
(2) Upon motion of the attorney for the Government or upon the judicial officer’s own motion, that involves—
(A) ...
(B) a serious risk that the person will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness or juror.
The hearing shall be held immediately upon the person’s first appearance before the judicial officer unless that person, or the attorney for the Government seeks a continuance. Except for good cause, a continuance on motion of the person may not exceed five days, and a continuance on motion of the attorney for the Government may not exceed three days____ At 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. The person 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. The rules concerning admissibility of evidence in criminal trials do not apply to the presentation and consideration of information at the hearing. The facts the judicial officer uses to support a finding pursuant to subsection (e) that no condition or combination or conditions will reasonably assure the safety of any other person and the community shall be supported by clear and convincing evidence. The person may be detained pending completion of the hearing.
(g) FACTORS TO BE CONSIDERED. —The judicial officer shall, in determining whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of any other person and the community, take into account the available information concerning—
(1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person, including—
(A) his character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and
(B) whether, at the time of the current offense or arrest, he was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and
(4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release.
* * * * * *
(i) CONTENTS OF DETENTION ORDER. — In a detention order issued pursuant to the provisions of subsection (e), the judicial officer shall—
(1) include written findings of fact and a written statement of the reasons for the detention;
(2) direct that the person be committed to the custody of the Attorney General for the confinement in a corrections facility separate, to the extent practicable, from persons awaiting or serving sentences or being held in custody pending appeal;
(3) direct that the person be afforded reasonable opportunity for private consultation with his counsel; and
(4) direct that, on order of a court of the United States or on request of any attorney for the Government, the person in charge of the corrections facility in which the person is confined deliver the person to a United States marshal for the purpose of an appearance in connection with a court proceeding.
The judicial officer may, by subsequent order, permit the temporary release of the person, in the custody of a United States marshal or another appropriate person, to the extent that the judicial officer determines such release to be necessary for preparation of the person’s defense or for another compelling reason.
(j) PRESUMPTION OP INNOCENCE. —Nothing in this section shall be construed as modifying or limiting the presumption of innocence.

The pretrial detention provision of the Bail Reform Act of 1984, 18 U.S.C. § 3142, is modeled upon a pretrial detention statute enacted by Congress for the District of Columbia in 1970, 23 D.C.Code Section 1322. The statute passed constitutional muster in United States v. Edwards, 430 A.2d 1321 (D.C.Ct.App.1981), cert. denied, 455 U.S. 1022, 102 S.Ct. 1721, 72 L.Ed.2d 141 (1982), in the face of a wide range of constitutional attacks. The legislative history of Section 3142 shows that Congress relied heavily on Edwards in enacting the federal counterpart of the District of Columbia’s detention statute. See, S.Rep. No. 225, 98th Cong., 1st Sess. 3-36 (1983).

B. DEFENDANT’S DUE PROCESS CLAIM

Defendant asserts that Section 3142 is unconstitutional per se and is really a subterfuge to impose punishment in the absence of a trial. Supplemental Memorandum p. 9. Defendant also claimed in oral argument that pretrial detention is really punishment for past conduct without an adjudication of guilt. In Edwards, supra, it was concluded that pretrial detention is regulatory, prospective and forward-looking, and not punishment. The Edwards court further held that pretrial detention is intended to protect the safety of the community, a legitimate legislative interest by “incapacitating the detainee to curtail reasonably predictable conduct, not to punish for prior bad acts”. Id at 1332. The legislative history of the Bail Reform Act of 1984 indicates an intent to protect the community against persons likely to endanger it, and not as an intent to punish. See, S.Rep. No. 225, 98th Cong., 2nd sess. 8 (1984); S.Rep. No. 147, 98th Cong., 1st Sess. 34-35 (1983).

The Supreme Court has stressed that crime prevention is a “weighty social objective”, Brown v. Texas, 443 U.S. 47, 52, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357 (1979); and that the legitimate and compelling governmental interest in protecting the community from crime cannot be doubted. DeVeau v. Braisted, 363 U.S. 144, 155, 80 S.Ct. 1146, 1152, 4 L.Ed.2d 1109 (1960). For the reasons elaborated below, we hold that the pretrial detention provisions in Section 3142 of the Bail Reform Act, combined with other procedural safeguards in the Act discussed below, serves a compelling interest and a legitimate congressional objective in the battle against crime, and comports with due process of law. Schall v. Martin, — U.S. -, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984).

The statutory provisions that rely on future conduct as a basis for pretrial detention are not speculative nor vague. In Schall, supra, the Supreme Court stated:

Our cases indicate that from a legal point of view there is nothing inherently unattainable about a prediction of future criminal conduct. Such a judgment forms an important element in many decisions, and we have specifically rejected the contention ... “that it is impossible to predict future behavior and that the question is so vague as to be meaningless.” (Citations omitted.)
We have also recognized that prediction of future criminal conduct is an “experienced prediction based on a host of variables” which cannot be codified. Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 16, 99 S.Ct. 2100 [2108], 60 L.Ed.2d 668 (1979). Id. at 2417-18.

The statute contains sufficient procedural safeguards to satisfy the Schall standards. The procedural requirements for the pretrial detention hearing set forth in Section 3142(f) are based on those of the District of Columbia statute which were held to meet constitutional due process requirements in Edwards, supra. The Act provides for a prompt hearing, right to counsel and to the appointment of counsel if the person is financially unable to secure adequate representation, the right to present witnesses, the right to testify, cross-examine, and to offer information by proffer or otherwise. Section 3142(f)(2)(B). The Act further specifies the factors to be considered [Section 3142(g) ], and that the findings for a detention order shall be supported by “clear and convincing evidence” [Section 3142(f)]. The detention order must be in writing and shall contain certain conditions [Section 3142(h)(1) ]. Finally, Section 3145(b) and (c) provides for an expedited review by a District Court and by a Court of Appeals. This built-in system of expedited appeals serves to further guarantee an accused’s due process rights not to be held in detention unlawfully. These layers of expedited review, coupled with the strict time constraints of the Speedy Trial Act provides additional safeguards. In this particular case, the trial has already been scheduled for January 23, 1985.

C. THE CLAIM THAT DETENTION WITHOUT BAIL VIOLATES THE EIGHTH AMENDMENT

The defendant argues that his pretrial detention without bail contravenes the Eighth Amendment’s proscription against excessive bail, and that denial of bail is the most offensive example of “excessive bail.” We disagree. Defendant relies on Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 1 (1951). But the reference in Stack to the right of admission to bail is dicta. The issue there was not pretrial detention. More appropriate is Carlson v. Landon, 342 U.S. 524, 72 S.Ct. 525, 96 L.Ed. 547 (1952), when the Court in upholding pretrial detention of aliens, pending deportation proceeding, stated:

“The bail clause was lifted with slight changes from the English Bill of Rights Act. In England that clause has never been thought to accord a right to bail in all cases, but merely to provide that bail shall not be excessive in those cases where it is proper to grant bail. When this clause was carried over into our Bill of Rights, nothing was said that indicated any different concept. The Eighth Amendment has not prevented Congress from defining the classes of cases in which bail shall be allowed in this country.” Id. at 545, 72 S.Ct. at 536-37 (footnotes omitted).

In Edwards, the District of Columbia Court of Appeals followed Carlson in rejecting the claim of a constitutional right to bail. The right to bail has been a statutory tradition, not an absolute constitutional right. The excessive bail claim of the Eighth Amendment was never intended to restrict what offenses could be deemed bailable. U.S. v. Edwards, supra, at 1330, 1331; Hunt v. Roth, 648 F.2d 1148 (8th Cir.1981), vacated as moot sub nom Murphy v. Hunt, 455 U.S. 478, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982). Indeed, the overwhelming weight of authority indicates that the Eighth Amendment is addressed only to the amount of bail set for a bailable offense, but creates no right to bail for an offense made non-bailable by statute. U.S. v. Abrahams, 575 F.2d 3, 5 (1st Cir.1978), cert. denied, 439 U.S. 821, 99 S.Ct. 85, 58 L.Ed.2d 112 (1978); Atkins v. Michigan, 644 F.2d 543, 549 (6th Cir.1981), cert. denied, 452 U.S. 964, 101 S.Ct. 3115, 69 L.Ed.2d 975 (1981); U.S. v. Beaman, 631 F.2d 85, 86 (6th Cir.1980); U.S. v. Miller, 589 F.2d 1117, 1135 (1st Cir.1978), cert. denied, 440 U.S. 958, 99 S.Ct. 1499, 59 L.Ed.2d 771 (1979).

At oral argument, the defendant contended that pretrial detention offends the presumption of innocence. In Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), the Supreme Court disposed of this argument:

The presumption of innocence is a doctrine that allocates the burden of proof in criminal trials; it also may serve as an admonishment to the jury to judge an accused’s guilt or innocence solely on the evidence adduced at trial and not on the basis of suspicions that may arise from the fact of his arrest, indictment, or custody, or from other matters not introduced as proof at trial. Taylor v. Kentucky, 436 U.S. 478, 485 [98 S.Ct. 1930, 1934, 56 L.Ed.2d 468] (1978); See, Estelle v. Williams, 425 U.S. 501 [96 S.Ct. 1691, 48 L.Ed.2d 126] (1976); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368] (1970); 9 J. Sigmore, Evidence Section 2511 (3d ed. 1940). It is “an accurate, shorthand description of the right of the accused to ‘remain inactive and secure, until the prosecution has taken up its burden an produced evidence and effected persuasion; ... ’ an ‘assumption’ that is indulged in the absence of contrary evidence.” Taylor v. Kentucky, supra, [436 U.S.] at 484, n. 12 [98 S.Ct. at 1934, n. 12], Without question, the presumption of innocence plays an important role in our criminal justice system ... But it has no application to a determination of the rights of a, pretrial detainee during confinement before his trial has even begun. Id. at 533, 99 S.Ct. at 1870-71. (Emphasis added.)

Congress was apparently aware of this problem by including Section 3142(j) in the Bail Reform Act, which provides: “Nothing in this Section [pertaining to pretrial detention] shall be construed as modifying or limiting the presumption of innocence.” Thus, the presumption of innocence is not impaired by a refusal to admit an accused to bail on the basis of dangerousness.

Finally, defendant claims that his pretrial detention interferes with his ability to prepare his defense. Aside from the fact that no showing was made for said assertion, defendant, by counsel’s own admission, has been able to consult with his attorneys. Furthermore, Section 3142(i)(3) provides that the detention order must direct that the detainee be afforded reasonable opportunity for private consultation with his counsel. The detention order herein meets this requirement.

In the recent case of U.S. v. Hazzard, 598 F.Supp. 1442, (N.D.Ill.1984), the validity of the core pretrial detention provisions of 3142 were upheld.

D. THE CLAIM THAT MAGISTRATE’S FINDINGS ARE NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.

The evidence before Magistrate Arenas was presented by Government through the oral testimony of Special FBI Agent Hill, a member of the organized crime squad in the San Juan Division. During the course of investigations carried out by that squad, Agent Hill became aware of defendant as a subject in a number of matters. During the investigation of the Taillex robbery it became apparent to the FBI San Juan Office that the perpetrators were organized crime figures. Agent Hill testified about his investigation of the robbery of approximately 770 diamonds valued at $620,000 from the Taillex Corporation offices in Caguas, Puerto Rico. He stated that his testimony was based on interviews with the abducted victim, monitored tapes, and information provided from other sources, including reliable FBI informants. Defendant, who has been in the jewelry business since the date of the events leading to his indictment in this case, conceived and planned the robbery, and conducted surveillance of the offices of Taillex. Thereafter, the other participants conducted surveillances, received inside information, gathered a robbery team, followed, abducted, and handcuffed the Taillex manager, forced him to open the safe at gunpoint with threats to him and his family. The diamonds taken by the robbery team were turned over to the defendant in exchange of $135,000.

On the aforesaid testimony, the Magistrate found probable cause to believe that defendant committed the offenses charged in the indictment.

Agent Hill further testified as to defendant’s involvement in a series of murders and robberies, as follows:

1. The murder-robbery of jeweler Leo Dershowitz on February 2, 1974.
2. The murder-robbery of jeweler Howard Block on August 30, 1974.
3. The murder-robbery of jeweler Abraham Shafizadeh on July 28, 1974.
4. The conspiracy to murder and rob the owner of a gold manufacturing company in Carolina, Puerto Rico.
5. The armed robbery of the Consuegra jewelry store in Mayaguez, Puerto Rico.
6. The abduction of two employees of Gordon’s jewelry store in Río Piedras, Puerto Rico, and the subsequent burglary of Gordon’s on April 18, 1980.

A review of the transcript supports the following findings of fact entered by the Magistrate:

Special Agent Hill testified that the FBI’s investigation of each of these crimes had determined that, as in Taillex, the defendant participated in the planning, organizing, and eventual disposal of the jewelry stolen. He testified that the defendant’s involvement in the Dershowitz murder-robbery was confirmed by participants in the murder-robbery as well as tape recordings of a participant in the murder-robbery. In the Block murder-robbery, the defendant’s role was confirmed again by a participant in the murder-robbery, information provided by a reliable FBI informant, as well as the FBI’s investigation of the attempt by the defendant to obstruct the subsequent investigation by the Police of Puerto Rico (POPR) into the murder-robbery, by purchasing the original case file to destroy the evidence and kill the witnesses.
As to the conspiracy to murder and rob the owner of a gold manufacturing plant in Carolina, Puerto Rico, Special Agent Hill testified that the defendant’s participation was confirmed by a reliable FBI informant and participants in the conspiracy. The defendant’s role in the Consuegra jewelry store robbery was confirmed by participants in the robbery. Finally, the defendant’s involvement in the abduction of two employees of Gordon’s jewelers, and the subsequent burglary of Gordon’s was confirmed by participants in both the abduction of the employees and the subsequent burglary, as well as by statements made by participants to FBI informants.
Special Agent Hill also testified, in some detail, about the FBI’s investigation of the defendant’s effort to buy the POPR case file in the Shafizadeh murder-robbery from an undercover police agent. He testified that the defendant’s involvement in this attempt to obstruct justice was confirmed by the undercover police agent’s testimony, tape recordings of the defendant and photographs of the defendant purchasing the file. The photographs were not placed in evidence. Special Agent Hill went on to testify that the defendant had stated that he wanted the file to make the Government’s evidence disappear and to find out who the Government’s witnesses were, so that he could have them killed. Special Agent Hill concluded his testimony, as to this incident, by stating that the FBI has reliable source information which indicates that the defendant bought both juries in his two subsequent trials for the obstruction of justice, in the local courts. This includes defendant’s declarations against penal interest. Both trials terminated without the juries reaching a verdict.

Defendant cross-examined Agent Hill, and at a subsequent hearing continued the Agent’s cross-examination and introduced character witnesses and other evidence on his behalf to establish that he is a non-violent person. The Magistrate found, however, that although defendant appeared to be an accomplished entrepreneur and a good provider, he was a danger to the community and a risk existed that he will obstruct or- attempt to obstruct justice. U.S. v. Medina, 570 F.Supp. 853 (D.P.R.1983). Congress intended that the concern about safety be given a broader construction than merely danger of harm involving physical violence. See U.S. v. Provenzano, 605 F.2d 85 (3rd Cir.1979).

Finally, the Magistrate concluded that no condition or combination of conditions would assure the safety of the Government’s witnesses and the community or insure the proper administration of justice in defendant’s case. The order gave the reasons for the detention as mandated by 3142(i)(l), and provided for the requirements of subsection (1)(2), (3) and (4).

Defendant argues that the evidence is insufficient to support the detention order because it is hearsay, and further contends that it is not “clear and convincing.” Our point of departure is the statute itself. Section 3142(f) provides that at the detention hearing “The rules concerning admissibility of evidence in criminal trials do not apply to the presentation and consideration of information at the hearing.” This language is terse and free of ambiguities. It means what it says. The judicial officer, be it a magistrate or a judge, is statutorily permitted to consider and, of course, weigh hearsay information. What the Act does not allow is to enter a finding of dangerousness or of obstruction of justice upon a preponderance of the evidence, in cases where the judicial officer must weigh conflicting evidence. To tip the scales on the Government’s side in such a case is not enough. Nor is it enough to provide uncontradicted but unpersuasive evidence. However, when, as here, the information presented at the hearing was not only uncontradicted, but strong, the “clear and convincing evidence” standard has been met. Clear and convincing evidence has been defined as more than preponderance of the evidence but less than that beyond a reasonable doubt. Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 1807-1812, 60 L.Ed.2d 323 (1979); U.S. v. Mastrangelo, 561 F.Supp. 1114, 1120 (E.D.N.Y. 1983). The “clear and convincing standard” set forth in Section 3142(f) requires from the fact finder a high degree of certainty that the information presented supports the conclusion of dangerousness or risk to the obstruction of justice.

We conclude that the Government presented clear and convincing evidence that the crime with which defendant is charged is a crime of violence, 18 U.S.C. 3142(f)(1)(a); that the defendant has had history of involvement in violent crimes and therefore is a danger to the Government .witnesses and to the community; that the defendant has, in the past, attempted to and has obstructed justice. 18 U.S.C. § 3142(f)(2)(b).

The Court concludes that the statutory scheme of the Bail Reform Act, providing for pretrial detention, does not derogate the importance of a defendant’s interest in remaining at liberty prior to trial. However, this Court must consider not only the defendant’s interest, but also important societal interests to protect the integrity of the judicial process, and the safety of the community.

However, detention orders under the Act are neither to be routinely sought by Government nor automatically granted by the courts. Only in those cases involving a reasonably identifiable group of defendants who pose a serious risk to the safety of others, or to the administration of justice, if released, and where the strict requirements of the statute are met, should detention orders be issued.

WHEREFORE, upon consideration of the record and the transcript of the proceedings before the Magistrate, the Magistrate's two orders, arguments of counsel and briefs, the defendant’s motion to revoke or modify the detention order is hereby DENIED.

IT IS SO ORDERED.

      .. Section 3142(i) reads:
      "(i) Contents of detention order. In a detention order issued pursuant to the provisions of subsection (e), the judicial officer shall—
      (1) include written findings of fact and written statement of the reasons for detention."

      . Section 3145(b) provides:

        "Review of a Detention Order. If a person is ordered detained by a magistrate, or by a person other than a judge of a court having original jurisdiction over the offense and other than a Federal appellate court, the person may file, with the court having original jurisdiction over the offense, a motion for revocation or amendment of the order. The motion shall be determined promptly."

      . Although defendant did not elaborate, the Court assumes that the claim is aimed at triggering the full procedural safeguards of a criminal trial under the Fifth and Sixth Amendments.

      . The time limitations of the Speedy Trial Act, 18 U.S.C. § 1361 et seq., serve to neutralize any argument that pretrial detention may be of unlimited extension.

      . Section 3142 makes references to conduct that "will endanger the safety of any other or the community”, "or that there is a serious risk that the person will obstruct or attempt to obstruct justice or threaten, injure, or intimidate a prospective witness or juror.”

      . Congress has never enacted a statutory right to bail in capital cases. See, S.Rep. 147, 98th Cong. 1st Sess. 19-20 (1983); Mitchell, Bail Reform and the Constitutionality of Preventive Detention, 55 Va.L.Rev. 1223 (1969).

      . Historically, bail has been denied as to those persons charged with capital offenses, and to those posing an unacceptable risk of flight, without any constitutional difficulties.

      . Defendant’s witnesses were: Frank Forina, a San Juan wholesale jeweler; Father Vernard Kanfush, a Capuchin Franciscan; Joseph Hochler, sales manager of Jewels of the World, now owned by defendant, and his wife.

      . The defendant was once arrested and tried on an effort to buy a file from the Puerto Rico Police Department in the Shafizadeh murder-robbery from an undercover police agent. This was confirmed by tape recordings and photographs of the attempt to purchase the file to have the witness killed. His two trials on said charges concluded with two hung juries.

      . There was information from FBI informants that defendant tampered with the juries in two ■ consecutive trials involving charges of having wrongfully acquired the Government’s file from an undercover agent, in the Shafizadeh murder-robbery.