KEARSE, Circuit Judge:
Defendants Anthony Salerno and Vincent Cafaro appeal from orders of the United States District Court for the Southern District of New York, 631 F.Supp. 1364, committing them to the custody of the Attorney General for pretrial detention pursuant to the Bail Reform Act of 1984 (the “Bail Reform Act” or “Act”), 18 U.S.C. §§ 3141-3156 (Supp. II 1984), on the ground that no condition or combination of conditions of their release will reasonably assure the safety of any other person and the community. On appeal, defendants raise statutory and constitutional challenges to their continued confinement. We find no merit in their statutory arguments but agree that to the extent that § 3142(e) of the Act permits their pretrial detention on the stated ground, that section violates the Due Process Clause of the Constitution of the United States. We therefore vacate the orders of the district court, remand for the setting of conditions of bail, and stay the issuance of the mandate until the mandate of this Court is issued in United States v. Melendez-Carrion, 790 F.2d 984 (2d Cir.1986).
I. BACKGROUND
Salerno and Cafaro were arrested on March 21,1986, and have been incarcerated since that date. They were charged, along with 13 others, in a 29-count indictment with one count of conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act (“RICO”), in violation of 18 U.S.C. § 1962(d) (1982); one count of participating in a racketeering enterprise, in violation of 18 U.S.C. § 1962(c) (1982); 16 counts of mail fraud, in violation of 18 U.S.C. § 1341 (1982); one count of wire fraud, in violation of 18 U.S.C. § 1343 (1982); eight counts of extortion, in violation of 18 U.S.C. § 1951 (1982); and one count of operating an illegal bookmaking business and one count of operating an illegal numbers business, in violation of 18 U.S.C. § 1955 (1982). The RICO counts allege 35 specific acts of racketeering activity, including the alleged mail and wire frauds, extortion, and gambling, and two conspiracies to commit murder.
A. The Initial Decision by Judge Walker
At the arraignment of Salerno and Cafa-ro before Judge John M. Walker, Jr., sitting as Part I Judge, the government moved for their pretrial detention pursuant to 18 U.S.C. § 3142(e). The government conceded that neither defendant posed a risk of flight, but it contended that no condition of bail or combination of conditions would assure the safety of the community or any person. After a three-day continuance at the request of the government, Judge Walker conducted an eviden-tiary hearing.
At the hearing, the government submitted to the court a lengthy and detailed proffer of evidence derived from court-ordered electronic surveillance at various locations and from the anticipated testimony of two of the government’s trial witnesses. The proffer indicated that Salerno was the “boss” of the Genovese Crime Family of La Cosa Nostra, that Cafaro was a “captain” in the Genovese Family, and that the two had participated in conspiracies to use violence in seeking to, inter alia, eliminate competition for their gambling operations, collect moneys in the course of their loansharking business, and control labor unions. The proffer also indicated that the expected testimony of the two witnesses, former high-ranking members of organized [67]*67crime who had testified for the government at trials of other organized crime figures, would show Salerno’s participation in conspiracies to murder two named individuals. Tapes of electronic surveillance also disclosed Salerno’s approval of at least one other plan to commit murder.
Salerno, in opposition to the motion for detention, suggested that the government’s key witnesses were subject to impeachment on the basis of their criminal pasts and their favorable cooperation agreements with the government, and he proffered the testimony of witnesses who, while denying knowledge relating to any of the allegations in the indictment, would state that they did not consider Salerno to be any danger to the community. Salerno also produced a letter from his doctor, who had attended him since 1977, stating that Salerno, age 74, has had a history of high blood pressure complicated by congestive heart failure since 1961 and that his condition has resulted in serious vascular damage which, despite a strict medical regimen, has progressed. The doctor noted also that in 1981 Salerno suffered a stroke from which he has recovered with some limited residual disability.
Cafaro presented no evidentiary material at the hearing. He relied on argument that the government’s tape recordings of his threats of violence and counseling of others to use violence revealed at most “tough talk” and that the government had offered no proof that any of the violent acts discussed by him were actually carried out.
After the two-day hearing, the court granted the government’s motion for detention in an Opinion and Order dated March 28, 1986 (“March 28 Order”), which apparently was not filed but was modified by an Opinion and Order filed on April 2, 1986 (“April 2 Opinion”). In the April 2 Opinion, the court reviewed in detail the government’s proffer with respect to the defendants’ use or threatened use of violence and concluded that the government had established by clear and convincing evidence that no condition or combination of conditions of release would ensure the safety of the community or any person in the community. As to Salerno, the court noted, inter alia, that
[t]he government has proffered information showing that Salerno could order a murder merely by voicing his assent with the single word “hit.” Although some of these murder conspiracies occurred between six and ten years ago, their seriousness and the ease with which they could be ordered weigh heavily in favor of finding that Salerno is a present danger to the community.
April 2 Opinion at 1371. The court noted that the release conditions proposed by Salerno, which included so-called “house arrest” and an order not to commit crimes or intimidate witnesses, closely paralleled those found inadequate in United States v. Colombo, 111 F.2d 96 (2d Cir.1985), and it concluded that Salerno should remain detained pending trial.
As to Cafaro, the court found that the government had “established by clear and convincing evidence that Cafaro was actually conducting the business of the enterprise and that he did so by directing others to commit violent acts.” April 2 Opinion at 1375. The court concluded that the release conditions proposed by Cafaro, which were that he surrender his passport and not be allowed to go to specified restaurants, social clubs, and offices, or to associate with other defendants, would at most assure Cafaro’s presence at trial but would in no way assure the safety of the community:
The activities of a criminal organization such as the Genovese Family do not cease with the arrest of its principals and their release on even the most stringent of bail conditions. The illegal businesses, in place for many years, require constant attention and protection, or they will fail. Under these circumstances, this court recognizes a strong incentive on the part of its leadership to continue business as usual. When business as usual involves threats, beatings, and murder, the present danger such people pose in the community is self-evident.
[68]*68Id. at 1375. The court stated that “this court cannot envision any set of conditions that could ensure the safety of the community from Cafaro.” Id. at 1375.
Accordingly, the court ordered that Salerno and Cafaro be committed to the custody of the Attorney General for confinement prior to trial. To the extent practicable, defendants were to be confined in a corrections facility separate from persons awaiting or serving sentences or being held in custody pending appeal, and were to be afforded reasonable opportunity for private consultation with their respective attorneys.
B. The Decision by Judge Lowe
While the government’s motion was pending before Judge Walker as Part I judge, the present prosecution was assigned by lot to Judge Mary Johnson Lowe for trial. On April 1 defendants asked Judge Lowe to review the March 28 detention order announced by Judge Walker and thereafter made a more formal motion for review of both the March 28 Order and the final detention order embodied in the April 2 Opinion. Following a hearing on April 11, Judge Lowe denied defendants’ motion. She ruled that Judge Walker’s findings were not subject to de novo review and that there was no new evidence sufficient to warrant disturbing those rulings.
Defendants have filed notices of appeal seeking review of the orders of Judges Walker and Lowe.
C. Issues on Appeal
Defendants raise several issues on appeal. Salerno contends that the government’s reliance on the fruits of electronic surveillance without giving him 10 days’ notice violated the provisions of 18 U.S.C. § 2518(9) (1982). Both defendants contend that the evidence was insufficient under the standards set by 18 U.S.C. § 3142(f) to support the district court’s findings, and that to the extent that § 3142(e) of the Bail Reform Act permits their pretrial detention solely on the ground that they are likely to commit further crimes against the community, the Act violates their right to due process. The government contends that to the extent that defendants seek review of Judge Walker’s March 28 Order, the notices of appeal were not timely filed, and this Court thus lacks jurisdiction to review that order.
We conclude that Judge Walker’s detention order is properly before us and we thus reject the government’s jurisdictional argument. We also reject defendants’ statutory contentions, but we find merit in their constitutional attack on § 3142(e) of the Bail Reform Act in the present circumstances.
II. JURISDICTION
The government challenges our jurisdiction to review Judge Walker’s March 28 Order on the ground that defendants’ notices of appeal were not filed until April 21,1986. Rule 4(b) of the Federal Rules of Appellate Procedure provides that
[i]n a criminal case the notice of appeal by a defendant shall be filed in the district court within 10 days after the entry of the judgment or order appealed from____ A judgment or order is entered within the meaning of this subdivision when it is entered in the criminal docket.
Notwithstanding a welter of confusing dates, it appears that, given the sequence of events below, defendants’ notices of appeal were timely filed.
First, although the notices of appeal list the March 28 Order as among those of which review is sought, that order was never entered in the court’s criminal docket. Instead, it apparently was superseded by the order dated April 2,1986, which was embodied in the April 2 Opinion. The April 2 Opinion was entered in the criminal docket on April 7. Thus the 10-day appeal period began on April 7.
Second, although defendants’ notices of appeal bear the typed and handwritten date April 21, 1986, and were not docketed until April 23, the notices are officially stamped as having been filed in the Southern Dis[69]*69trict Clerk’s Office on April 16, 1986. docket entries also state that the notices of appeal were filed on April 16. Thus, it appears that the notices were filed within the 10-day period after the docketing of Judge Walker’s final detention order. They are timely to give us jurisdiction to review that order. The
III. STATUTORY ISSUES
Defendants contend that the detention order was entered in violation of various statutory provisions. We have considered all of defendants’ statutory arguments and conclude that none of them has merit. Only two warrant discussion: (1) that the court should have rejected the government’s proffer against Salerno of an electronically intercepted conversation because the government had failed to provide him, in advance of the detention hearing, with certain surveillance information pursuant to 18 U.S.C. § 2518(9); and (2) that the evidence was insufficient to support the court’s finding pursuant to 18 U.S.C. § 3142 that they pose a danger to the community.
A. The Intercepted Conversation
Part of the government’s proof against Salerno was its proffer of a recording of a conversation in a construction trailer in Edgewater, New Jersey, obtained through a court-ordered electronic surveillance (“Edgewater surveillance”). Section 2518(9) of Title 18 provides that
[t]he contents of any wire or oral communication intercepted pursuant to this chapter or evidence derived therefrom shall not be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in a Federal or State court unless each party, not less than ten days before the trial, hearing, or proceeding, has been furnished with a copy of the court order, and accompanying application, under which the interception was authorized or approved. This ten-day period may be waived by the judge if he finds that it was not possible to furnish the party with the above information ten days before the trial, hearing, or proceeding and that the party will not be prejudiced by the delay in receiving such information.
Salerno argues that because the government failed to provide him with the Edge-water surveillance application and order 10 days before the detention hearing, the court should have rejected the government’s proffer of the contents of the intercepted conversation. We disagree.
Preliminarily, however, we note our disagreement with the government’s primary argument as to why we should reject Salerno’s contention. The government argues that § 2518(9) has no applicability to detention hearings under the Bail Reform Act because, in light of the Act’s provision that such a hearing should be held not later than five days after a defendant’s first appearance before a judicial officer, see 18 U.S.C. § 3142(f), compliance with § 2518(9) prior to such a hearing would be impossible. We think it clear that Congress intended § 2518(9) to apply to detention hearings, and we do not find the two provisions irreconcilable. On its face, the language used by Congress — “any trial, hearing, or other proceeding in a Federal or State court” — plainly seems broad enough to include a hearing on a pretrial detention motion. Further, the legislative history of § 2518(9) states that the term “ ‘[proceeding’ is intended to include all adversary type hearings.” S.Rep. No. 1097, 90th Cong., 2d Sess. 105, reprinted in 1968 U.S. Code Cong. & AdmimNews 2112, 2195 (“Senate Report”). We have no doubt that Congress views a detention hearing as an adversary type hearing. It provided in the Bail Reform Act that at such a hearing a defendant is entitled, inter alia, to be represented by counsel, to have counsel appointed for him if he is indigent, and to “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.” 18 U.S.C. § 3142(f). Thus we conclude that Bail Reform Act [70]*70detention hearings are proceedings to which § 2518(9) was intended to apply.
This intention is not vitiated by the fact that § 3142(f) schedules a defendant’s initial detention hearing to be held before the 10-day period would normally expire. Appropriate means of coordinating the two sections to achieve the purposes of each are found in the terms of the sections themselves. Thus, § 2518(9) authorizes the judge to waive the 10-day period if he finds that it was not possible for the government to furnish the defendant with the required information so far in advance of the proceedings and that the defendant will not be prejudiced by the delay. And § 3142(f) allows the court, in scheduling the detention hearing, to grant a continuance of longer than the normal maximum length (five days on defendant’s motion, three days on the government’s motion) for good cause, which would presumably include prejudice to the defendant resulting from the government’s inability to have provided him earlier with the surveillance order and application.
Nonetheless, we find no violation of § 2518(9) here. The purpose of that section’s 10-day provision is “to afford the defendant ‘an opportunity to make a pretrial motion to suppress____’” United States v. Melendez-Carrion, 790 F.2d at 994 (quoting Senate Report at 105-06, 1968 U.S.Code Cong. & Admin.News at 2195). Such a motion may be made, however, only by an “aggrieved person,” § 2518(10)(a), i.e., “a person who was a party to any intercepted wire or oral communication or a person against whom the interception was directed,” § 2510(11). A person who was not named in the wiretap order and was not a party to any conversation intercepted during that tap is not an “aggrieved person” and may not move to suppress information derived from it. United States v. Fury, 554 F.2d 522, 525-26 (2d Cir.), cert. denied, 433 U.S. 910, 97 S.Ct. 2978, 53 L.Ed.2d 1095 (1977); see Alderman v. United States, 394 U.S. 165, 175 & n. 9, 89 S.Ct. 961, 968 & n. 9, 22 L.Ed.2d 176 (1969) (“aggrieved person” language adopted existing standing rule that Fourth Amendment rights may not be asserted vicariously).
As the district court found, Salerno was not named in the Edgewater surveillance order and was not a party to the intercepted conversation. Accordingly, he had no standing to seek its suppression and was not prejudiced by the government’s inability to provide him with the surveillance application and order 10 days prior to the detention hearing.
B. Sufficiency of the Evidence
The Bail Reform Act authorizes detention pending trial where “no condition or combination of conditions will reasonably assure ... the safety of any other person and the community____” 18 U.S.C. § 3142(e). The burden is on the government to prove that pretrial release of the defendant will pose a danger to any person or the community, and it must prove the facts underlying this contention by clear and convincing evidence. 18 U.S.C. § 3142(f); United States v. Chimurenga, 760 F.2d 400, 405 (2d Cir.1985).
The district court’s conclusion that the defendant poses a danger to the community, as well as its ultimate determination that only confinement will assure the safety of other persons and the community, normally must be upheld if not clearly erroneous. United States v. Gotti, 794 F.2d 773, 778-779 & n. 4 (2d Cir.1986); Melendez-Carrion, 790 F.2d at 994; Colombo, 777 F.2d at 100. Where, as in this case, the future misconduct that is anticipated concerns violent criminal activity, no issue arises concerning the outer limits of the meaning of “danger to the community,” an issue that would require a legal interpretation of the applicable standard.
Within this framework we find no basis for overturning the district court’s findings or conclusions. The evidence proffered by the government, as set forth above, amply supported the court’s findings that the government had proven by [71]*71clear and convincing evidence that Salerno “is a danger to the community as the ‘Boss’ of an organization that uses force, violence, and threats of force and violence to further its illegal operations,” April 2 Opinion at 1371, and that Cafaro “has directed violent acts and is ready, willing and able to direct violent acts in the future,” id. at 1374.
Nor do we see any error in the district court’s application of the terms of the Bail Reform Act to the facts found and its conclusion that the conditions of release proposed by the defendants were inadequate to prevent defendants from resuming the conduct of “business as usual.” The conditions proposed by Salerno were not significantly different from those this Court found inadequate in United States v. Colombo, 111 F.2d 96; and the conditions proposed by Cafaro would have been substantially less effective.
We conclude that the detention order did not violate the Bail Reform Act.
IV. THE CONSTITUTIONAL ISSUE
Defendants’ principal constitutional contention is that the Bail Reform Act violates due process insofar as § 3142(e) permits pretrial detention of a defendant on the ground that his release would pose a danger to the community or any person. We agree. The government makes no claim that pretrial detention may be upheld as a punishment. Detention could not be imposed as punishment in the absence of an adjudication of guilt. See Bell v. Wolfish, 441 U.S. 520, 535-37, 99 S.Ct. 1861, 1871-73, 60 L.Ed.2d 447 (1979). Instead the government contends that pretrial detention on the ground of dangerousness may be constitutionally imposed as a regulatory measure to protect public safety. In United States v. Melendez-Carrion, a majority of the panel held § 3142(e) unconstitutional as applied to two defendants detained before trial for a period in excess of eight months on the ground of danger to the community. The panel majority was internally divided, however, with Judge Newman holding that danger to the community may not constitutionally justify pretrial detention as a regulatory measure and Chief Judge Feinberg holding that such detention had become unconstitutional punishment because of the length of the detention that had occurred. In the present case, a majority of the panel is in agreement that the Due Process Clause prohibits pretrial detention on the ground of danger to the community as a regulatory measure, without regard to the duration of the detention.
At the outset we note that the present detention order does not hinge on risk of flight or threats to potential witnesses, jurors, or others involved in the judicial process. The government conceded at the detention hearing that there was no risk that the defendants would flee and not appear for trial. Nor was there any finding by the court that the defendants were likely to tamper with or intimidate witnesses or jurors, or otherwise to jeopardize the trial process. We recognize that pretrial detention may be validly imposed when substantial evidence indicates that a defendant, if released, would commit such acts. See Melendez-Carrion, 790 F.2d at 1002 (Newman, J.) (“Pretrial detention to avoid undue risks of flight or jeopardy to the trial process [is] not prohibited by a constitutional scheme that relies on the trial process to determine guilt and enforce the criminal law.”); cf. United States v. Gotti, 794 F.2d 773 (2d Cir.1986) (defendant’s release may be revoked pursuant to § 3148 of the Act if it is established by a preponderance of the evidence that no conditions of release would likely prevent defendant’s intimidation of witnesses).
The sole bases for the detention order in this case are the findings that the defendants would, if released, carry on “business as usual” notwithstanding any release conditions, and that business as usual involves threats and crimes of violence. April 2 Opinion at 1371, 1375. We regard § 3142(e)’s authorization of pretrial detention on this ground as repugnant to the concept of substantive due process, which we believe prohibits the total deprivation of liberty simply as a means of [72]*72preventing future crimes. As Judge Newman elaborated in Melendez-Carrion:
The Government contends that section 3142(e) is to be upheld simply because preventive detention is a rational means of advancing the compelling state interest in public safety. That cannot be the test for determining the constitutionality of preventive detention. The fallacy of using such a test can be readily seen from consideration of preventive detention as applied to persons not arrested for any offense. It cannot seriously be maintained that under our Constitution the Government could jail people not accused of any crime simply because they were thought likely to commit crimes in the future. Yet such a police state approach would undoubtedly be a rational means of advancing the compelling state interest in public safety. In a constitutional system where liberty is protected both substantively and procedurally by the limitations of the Due Process Clause, a total deprivation of liberty cannot validly be accomplished [on the sole ground that] doing so is a rational means of regulating to promote even a substantial government interest.
Incarcerating dangerous persons not accused of any crime would exceed due process limits not simply for lack of procedural protections. Even if a statute provided that a person could be incarcerated for dangerousness only after a jury was persuaded that his dangerousness had been established beyond a reasonable doubt at a trial surrounded with all of the procedural guarantees applicable to determinations of guilt, the statute could not be upheld, no matter how brief the period of detention. It would be constitutionally infirm, not for lack of procedural due process, but because the total deprivation of liberty as a means of preventing future crime exceeds the substantive limitations of the Due Process Clame. This means of promoting public safety would be beyond the constitutional pale. The system of criminal justice contemplated by the Due Process Clause — indeed, by all of the criminal justice guarantees of the Bill of Rights— is a system of announcing in statutes of adequate clarity what conduct is prohibited and then invoking the penalties of the law against those who have committed crimes. The liberty protected under that system is premised on the accountability of free men and women for what they have done, not for what they may do. The Due Process Clause reflects the comtitutional imperative that incarceration to protect society from criminals may be accomplished only as punishment of those convicted for past crimes and not as regulation of those feared likely to commit future crimes.
... As a matter of probabilities, a person lawfully arrested may pose a greater danger than someone not arrested but only suspected of dangerousness, but is very likely less of a risk to the community than many who have been convicted, sentenced, and released from confinement after expiration of their sentences. Just as the Due Process Clause would prohibit incarcerating a person not even accused of a crime in order to prevent his future crimes, it would equally bar preventive detention of a person who has been convicted of past crimes and has served his sentence. The Clause must accord similar protection to a person not convicted but only accused of a crime. Moreover, if the arrest is thought to reflect that the person is more deserving of confinement than members of the public not accused of crime, the confinement would offend the procedural component of due process by dispensing with the procedural guarantees of the Fifth and Sixth Amendments that must be observed before past conduct may justify incarceration on grounds of dangerousness.
790 F.2d at 1000-01 (Newman, J.) (emphasis added; footnote omitted).
In sum, if a person is not charged with a crime, he may not, consistent with principles of due process, be incarcerated simply on the ground that he is likely to commit a crime. The lodging of charges [73]*73for alleged past crimes does not alter this concept of due process. The proper remedy for charges of past crimes, assuming they are proven, is payment of the penalty provided by law for those crimes, and we note that a person who has paid this penalty stands in a similar position, vis-a-vis the Bail Reform Act, to one who has not been charged with a crime. Notwithstanding the rehabilitative aspirations of criminal sentencing, however, it must be recognized that there is a substantial amount of recidivism by those who have served their sentences. Yet, once a person has paid the penalty for crimes of which he has been found guilty, he may not be further incarcerated to protect the public. Thus, even the probability that a convicted criminal will again engage in crime does not sanction his incarceration simply in anticipation of such future crimes. His incarceration as a regulatory measure would be barred, not by the Double Jeopardy Clause, which does not apply to nonpunitive measures, see Helvering v. Mitchell, 303 U.S. 391, 398-99, 58 S.Ct. 630, 632-33, 82 L.Ed. 917 (1938), but by the substantive component of the Due Process Clause.
To uphold § 3142(e)’s provision for pretrial detention on the ground that defendants charged with violent criminal activities will continue “business as usual” would, therefore, create the anomaly that a person who has been charged with crimes but not yet convicted may be incarcerated on the ground that he will commit crimes in the future, whereas persons who have been neither charged with nor convicted of crimes, or have served their sentence of conviction on those charges, may not be incarcerated on the basis of such a prediction.
We reject the government’s contention that the fact of arrest, even for serious crimes, justifies detention of the defendants as a regulatory measure simply because they are likely to continue their criminal activities. As stated in Judge Newman’s opinion in Melendez-Carrion,
[tjhere can be no doubt that an arrest permits some regulatory curtailment of liberty. Even before probable cause has been found by a neutral magistrate, “a policeman’s on-the-scene assessment of probable cause provides legal justification for arresting a person suspected of crime, and for a brief period of detention to take the administrative steps incident to arrest.” Gerstein v. Pugh, 420 U.S. 103,113-14 [95 S.Ct. 854, 863, 43 L.Ed.2d 54] (1975). In addition, a seizure “reasonable” under the Fourth Amendmént permits detention until a determination of probable cause by a judicial officer “promptly after arrest.” Id. at 125 [95 S.Ct. at 868]. Furthermore, the Constitution’s scheme for a system of criminal justice specifies that arrest is to be followed by trial and plainly implies that reasonable steps may be taken to ensure that the trial will take place. Procedures may therefore be used both to secure the defendant’s presence at trial and to prevent the defendant from aborting the trial by intimidating witnesses or physically harming them____ Pretrial detention to avoid undue risks of flight or jeopardy to the trial process [is] not prohibited by a constitutional scheme that relies on the trial process to determine guilt and enforce the criminal law.
Pretrial detention to prevent future crimes against society at large, however, is not justified by any concern for holding a trial on the charges for which a defendant has been arrested. It is simply a means of providing protection against the risk that society’s laws will be broken. Even if the highest value is accorded to that objective, it is one that may not be achieved under our constitutional system by incarcerating those thought likely to commit crimes in the future. Detention of a person lawfully arrested for past criminal conduct is unconstitutional not because preventing crime is less important than preventing a defendant’s flight, but because this means of preventing crime conflicts with fundamental principles of our constitutional system of criminal justice, while detention to prevent flight serves the principles of that system by guarantee[74]*74ing that the defendant will stand trial and, if convicted, face punishment.
Permitting an arrested person thought to be dangerous to remain at liberty unquestionably incurs a risk. The prediction of dangerous conduct, however difficult to make and however unreliable, will undoubtedly be correct in some instances. But all guarantees of liberty entail risks, and under our Constitution those guarantees may not be abolished [on the sole ground that] government prefers that a risk not be taken.
790 F.2d at 1001-03 (Newman, J.) (footnotes omitted). Even the risk of some serious crime, such as destruction of an airliner, as adverted to in Chief Judge Fein-berg’s dissenting opinion, post, must, under our Constitution, be guarded against by surveillance of the suspect and prompt trial on any pending charges, and not by incarceration simply because untested evidence indicates probable cause to believe he has committed one crime and is a risk to commit another one. Surveillance would doubtless be the government’s response if confidential information, not disclosable to obtain an indictment, alerted the government to such a risk by a person not charged with a crime. It should be no less effective in cases where an indictment has been returned, even assuming, which is unlikely, that a person posing such a risk would not be detained despite a well-grounded fear that he would flee.
We do not believe that Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), upholds pretrial detention to guard against the commission of future crimes. The detention there allowed, upon a policeman’s assessment of probable cause, was for the purpose of taking “the administrative steps incident to arrest.” Id. at 114, 95 S.Ct. at 863. The Court’s statement that the defendant will not escape “or commit further crimes” during that brief period of detention was not said to provide a reason for continuing the detention; rather it was said to show that there was no reason for dispensing with the requirement that the police submit their evidence of probable cause to a neutral magistrate. Id. It would be somewhat ironic if a decision rendered to assure a suspect the protection of a neutral magistrate’s determination of probable cause after “a brief period of detention to take the administrative steps incident to arrest” became the basis for extending that detention for weeks and months after the probable cause determination has been made.
Nor do we believe that the Supreme Court’s decision in Schall v. Martin, 467 U.S. 253, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984), upholding brief preventive detention of juveniles, disposes of the due process objection to preventive detention of adults. Though the governmental interest in protecting the public is obviously of a high order whether the danger is posed by juveniles or adults, the Court in Sckall was at pains to point out that juveniles, who “unlike adults, are always in some form of custody,” id. at 265,104 S.Ct. at 2410, have an interest in liberty less substantial than that of adults, an interest that “may, in appropriate circumstances, be subordinated to the State’s ‘parens patriae interest in preserving and promoting the welfare of the child.’ ” Id. (quoting Santosky v. Kramer, 455 U.S. 745, 766, 102 S.Ct. 1388, 1401, 71 L.Ed.2d 599 (1982)).
We have considered the opinions of other appellate courts that have upheld the constitutionality of pretrial detention on the ground of dangerousness and we disagree with them for the reasons stated by Judge Newman in Melendez-Carrion. See 790 F.2d at 1003-04 (Newman, J.). Nor do we believe that the decision of the Supreme Court in Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944), authorizes the abandonment of the fundamental principle that detention simply to deter the commission of crime can properly occur only after conviction.
We emphasize again that there has been no finding in the present case that defendants pose a danger to witnesses or to the judicial process. The finding is that they will, if released, conduct business as usual. For the reasons above, we conclude that to [75]*75the extent that § 3142(e) of the Bail Reform Act authorizes detention on this ground, it is unconstitutional.
CONCLUSION
The orders appealed from are vacated, and the matter is remanded to the district court for the setting of conditions of bail. All members of the panel are in agreement that the mandate is hereby stayed until the mandate of this Court is issued in United States v. Melendez-Carrion.