concurring.
I concur in the affirmance of the convictions of Spearman, Jackson and Selvera.
I also concur in the grant of a new trial for the defendant Leonard Smith. I do so, however, for reasons somewhat different than those of Judge Heaney.
Our inquiry is not whether there was sufficient evidence to sustain Smith’s conviction. The fundamental issue on appeal is whether a reasonable possibility exists that evidence improperly admitted may have contributed to Smith’s conviction. Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Under the law and record one must conclude that such a reasonable possibility exists.
The trial court allowed all of the taped conversations into evidence on the government’s representation that proof would be introduced (1) that the conspiracy still continued despite Conway’s arrest and (2) that Jackson, Selvera and Smith were still members of that conspiracy at the time the conversations took place. The taped conversation between Jackson and Conway which occurred on October 31, 1976, after Conway had been arrested, was inadmissible and clearly prejudicial. At the time of the conversation neither Conway nor Jack*1237son were members of the conspiracy. No evidence was introduced to suggest that Jackson was still a member of the conspiracy at the time of his conversation with Conway. In fact, the indictment specifically alleges that both Spearman and Jackson left the conspiracy in March of 1976.1
The Jackson-Conway tape was the first tape played and it was by far the most damaging of all of the tapes. It contained remarks, highly prejudicial to Smith, contrived by Conway, who was then acting as a pseudo-police agent. Assuming jurors could in some way block Conway’s statements from their minds, they were nonetheless led to assume that Jackson’s statements were admissible. The taped conversation reveals that Jackson told Conway “Smitty” was his man and that Jackson had formerly made payments to Smith at the rate of $350.00 per week. These comments were not merely cumulative to other testimony; they injected into the record evidence that Smith had received payments from Jackson, as well as from Conway and Selvera. Since Jackson had clearly left the association in March, this narrative was not made in furtherance of any conspiracy and was therefore inadmissible. Cf. United States v. Birnbaum, 337 F.2d 490, 494-95 (2d Cir. 1964). The government erred in representing to the trial court to the contrary and in using the Jackson-Conway tape. Smith was denied his constitutional right to confront and cross-examine Jackson as to the truth of the statements. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593 (1953); Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949). Cf. Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970).
I agree with the government that the Selvera-Conway, Smith-Conway and Smith-Selvera tapes were made during the course of the conspiracy and in furtherance of it. There was sufficient proof that the conspiracy continued between Selvera and Smith after Conway’s arrest. The tapes show that Selvera mentioned, in his words, “an affileration” and his “people,” and his remarks indicated that he still employed Smith. Selvera stated as well that Smith would still provide Conway protection for pay once Conway was back in “business.” This evidence, I think, indicates that Smith and Selvera were still associated in the conspiracy charged after Conway’s arrest.
Although the arrest of one coconspirator terminates his membership in the conspiracy, it does not follow that the conspiracy itself is terminated: See United States v. Williams, 548 F.2d 228, 231 (8th Cir. 1977). Where evidence demonstrates that conspirators remain fully capable of carrying out their purpose, notwithstanding the arrest of one of them, it cannot be said that the conspiracy is terminated as a matter of law. Smith’s phone calls with Selvera and Conway, when viewed from the government’s point of view, constituted admissible evidence that a clandestine cover-up was still going on. Despite the fact that some of the heroin supply may have been dried up with Conway’s arrest, Selvera’s conversations with Smith create a permissible inference that the conspiracy between the two of them remained alive and that further drug distribution would take place when the opportunity presented itself. The fact that the conspiratorial object was postponed or slowed down does not unequivocally show that the conspiracy was terminated. Smith’s and Selvera’s conversations demonstrate to the contrary. Cf United States v. Papia, 560 F.2d 827, 835-36 (7th Cir. 1977). Even if the conspiracy had come to an end, *1238post-conspiratorial acts may be admitted as linking a party to a conspiracy. See Lut-wak v. United States, supra 344 U.S. at 617, 73 S.Ct. 481. Smith’s taped conversations with Selvera were admissible because they were made during the continuation of the conspiracy and in furtherance of it.
Moreover, even assuming the conspiracy had terminated, Smith’s statements would still be admissible against him as admissions against his interest. A conspirator’s statement made after a conspiracy has always been held admissible against the declarant as an admission against interest. See Lutwak v. United States, supra 344 U.S. at 618, 73 S.Ct. 481; United States v. Killian, 524 F.2d 1268, 1272 (5th Cir. 1975), cert. denied, 425 U.S. 935, 96 S.Ct. 1667, 48 L.Ed.2d 177 (1976). Even if the taped conversations were admissible, I am unable to conclude that introduction of the taped conversations between Selvera and Conway, which contained Conway’s contrived, suggestive and prejudicial comments, was harmless error as to Smith.
It is undisputed that the substance of Conway’s comments was previously contrived by the investigating officers and Conway. Admittedly Conway was no longer part of the conspiracy; his comments were clearly not in furtherance of the conspiracy. If anything they were in furtherance of a police investigation toward the criminal prosecution of the conspirators. Cf. United States v. Williamson, 450 F.2d 585, 591 (5th Cir. 1971), cert. denied, 405 U.S. 1026, 92 S.Ct. 1297, 31 L.Ed.2d 486 (1972). The hearsay responses of a party who is not a member of a conspiracy are, if minimal, sometimes admissible under the doctrine of verbal completeness to avoid confusing the jury through the introduction of only that portion of a conversation actually uttered by a coconspirator. See United States v. Williams, supra at 232 n. 14. However, Conway’s statements in this case were hardly to be considered minimal. Introduction of the taped conversations between Conway and Selvera took over two days at trial, and Conway’s suggestive remarks dominated the conversations.
It is true that the trial court cautioned the jury to disregard Conway’s statements. In view of the prejudicial impact of the scurrilous remarks made by Conway on these tapes applicable here is Mr. Justice Jackson’s statement in his concurring opinion in Krulewitch v. United States, 336 U.S. at 453, 69 S.Ct. at 723; “The naive assumption that prejudicial effects can be overcome by instructions to the jury . all practicing lawyers know to be unmitigated fiction.” 2
I do not find that the exclusion of Conway’s statements on retrial would require the total exclusion of Selvera’s statements. *1239As in Bruton v. United States, supra, there are alternative ways by which the government may obtain the benefit of a coconspir-ator’s comments to a police officer without adulteration of the record through the introduction of self-serving investigative remarks. The prejudice lies in the infusion into the record of contrived suggestive, incriminating remarks by an agent of the police. All of Conway’s prejudicial remarks are not needed to reveal what Selvera stated. Excising prejudicial remarks from a statement is often done before reading it to a jury in criminal and civil trials. Furthermore, Conway could testify as to what Selv-era told him since he would be subject to cross-examination and confrontation as to what the coconspirator may have said. However, in doing so he should not inject his own prejudicial self-serving comments into evidence.
Smith’s defense was that his contacts with Selvera and Conway were necessary in his role as a police officer in order to obtain information. Smith testified that he fed information to Selvera in order to maintain their confidence and friendship. The government’s evidence, of course, contradicted this. It is not for this court, even after a verdict of guilty, to judge the credibility or weight of Smith’s defense. The issue is whether there is a reasonable possibility that the improperly admitted evidence contributed to the conviction. See Schneble v. Florida, 405 U.S. 427, 432, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972); Chapman v. California, supra; Saltzburg, The Harm of Harmless Error, 59 Va.L.Rev. 988 (1973).
Setting aside the obvious prejudice of Conway’s police-contrived statements, the admission of Jackson’s taped conversation alone undoubtedly had a prejudicial effect on the jury in rejecting Smith’s defense. To reason on this record that the other evidence was sufficient to find Smith guilty requires us to engage in deciding guilt or innocence from conflicting evidence. This is not the task of the appellate court. Only where there exists overwhelming independent evidence of guilt should an appellate court conclude that error is harmless beyond a reasonable doubt. Cf. Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Schneble v. Florida, supra 405 U.S. at 431, 92 S.Ct. 1056. No overwhelming independent evidence of guilt was presented here. Other than the prejudicial hearsay evidence on the tapes, no direct evidence that anyone paid Smith any money was introduced. Even if we felt that without the prejudicial evidence a jury would in all likelihood have reached the same result we must still reverse. The error relates not only to prejudicial trial evidence but is of constitutional magnitude as well. See Bruton v. United States, supra. When prejudice of this magnitude enters into a trial our task is to determine, with as much objectivity as possible, whether the error was harmless beyond a reasonable doubt. Chapman v. California, supra 386 U.S. at 24, 87 S.Ct. 824.
I cannot in good conscience say that such was the case here.
. The indictment recites as a part of the conspiracy:
After Ike Conway had delivered the heroin to his dealers and received the money from the sales, Ike Conway would pay SELVERA his share of the proceeds. This arrangement continued on an average of twice monthly until March of 1976 when JACKSON and SPEAR-MAN no longer actively participated in the operation. Ike Conway’s and SELVERA’S financial arrangement continued until the return of this Indictment, although the last quantity of heroin brought back by Ike Conway utilizing SELVERA’S funds was on or about August 18, 1976.
. This comment was cited by the Court in Bru-ton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Relevant here is the Court’s footnote eight, which I set forth in full:
Judge Hand addressed the subject several times. The limiting instruction, he said, is a “recommendation to the jury of a mental gymnastic which is beyond, not only their powers, but anybody’s else,” Nash v. United States, 54 F.2d 1006, 1007 (2 Cir.); “Nobody can indeed fail to doubt whether the caution is effective, or whether usually the practical result is not to let in hearsay,” United States v. Gottfried, 165 F.2d 360, 367 (2 Cir.); “it is indeed very hard to believe that a jury will, or for that matter can, in practice observe the admonition,” United States v. Delli Paoli, 229 F.2d 319, 321 (2 Cir.). Judge Hand referred to the instruction as a “placebo,” medically defined as “a medicinal lie.” Judge Jerome Frank suggested that its legal equivalent “is a kind of ‘judicial lie’: It undermines a moral relationship between the courts, the jurors, and the public; like any other judicial deception, it damages the decent judicial administration of justice.” United States v. Grunewald, 233 F.2d 556, 574 (2 Cir.). See also 8 Wigmore, supra, n. 3, § 2272, at 416.
Compare E. Morgan, Some Problems of Proof Under the Anglo-American System of Litigation 105 (1956), who suggests that the use of limiting instructions fosters an inconsistent attitude toward juries by “treating them at times as a group of low-grade morons and at other times as men endowed with a superhuman ability to control their emotions and intellects.” See also Shepard v. United States, 290 U.S. 96, 104, 54 S.Ct. 22, 78 L.Ed. 196; Meltzer, Involuntary Confessions: The Allocation of Responsibility Between Judge and Jury, 21 U.Chi.L.Rev. 317, 326 (1954).
Id. at 132 n. 8, 88 S.Ct. at 1626.