concurring in part and dissenting in part. ’
I also concur in the affirmance of the convictions of Jackson, Spearman and Selv-era. However, I would not reverse Leonard Smith’s conviction, and I dissent from that portion of the opinion granting Smith a new trial.
I agree with Judge La.y that the conspiracy, at least as between Smith and Selvera, continued after Spearman and Jackson left it and after Conway’s arrest. Therefore, the statements made by either Selvera or Smith in the furtherance of the conspiracy were admissible under Rule 801(d)(2)(E) of the Federal Rules of Evidence.
Although Conway’s remarks on the tape recordings, after his arrest and decision to aid in the investigation, were inadmissible against any of the remaining coconspira-tors, I do not agree that those remarks were so prejudicial that they substantially influenced the jury.
There was sufficient admissible evidence to support Leonard Smith’s conviction. Conway testified directly about statements Selvera made to him concerning Smith. *1240Some of these statements were made while Conway was still a member of the conspiracy. All of them were made during the continuing conspiracy between Smith and Selvera. Under Rule 801(d)(2)(E), this testimony by Conway was not hearsay and it was very incriminating. Conway testified that after his August 1975 arrest by Smith and the dismissal of those charges, Selvera told him, “Leonard Smith took care of it.” Conway also testified that he gave Selvera $2000 to give Smith for getting the charges dropped, and he then gave Selvera $250 a week to give Smith so he could “go ahead and deal drugs and have protection on the street.”
Conway gave other direct, admissible, and incriminating testimony concerning Smith. He stated Selvera told him that on two occasions during the conspiracy Smith gave Selvera “dope he wanted me to sell for him.” He testified that on the day before he was arrested in September of 1976 Selv-era told him, “Smitty say you got to get out of town, they got an indictment they are going to bring out[.]” He testified that when Smith arrested him, Smith said, “I got to carry you in, won’t be anything to
Even though Conway’s tape recorded statements to Smith and Selvera, after the conspiracy terminated as to Conway, were inadmissible, tape recorded statements by either Smith or Selvera, to each other or to Conway, were admissible. Both defendants made statements incriminating Smith. Selvera stated to Conway, “[T]hat little * * * money that we gave Smitty was well spent * * In talking about the vice squad Selvera said, “[T]hey got all new help, and they all work for Smitty.” In discussing payoffs with Conway, Smith said, “[L]et’s set up another meet cause I don’t talk, ah, on situations of this nature.” And, “Like I said, I’ll talk to you later about that part of it.”
The most devastating evidence against Smith was tape recordings of his telephone calls to Selvera. On December 14, 1976, Smith called Selvera. The relevant portion of that conversation is as follows:
SELVERA Hello.
SMITH Hey, what’s going on?
SELVERA Oh man, what’s going on, you know where I stand, you ain’t called me no more, froze me out, it’s OK.
SMITH Everythings been quiet.
SELVERA It can’t be too quiet if you had some rap for me.
SMITH Well, that just come up, see when things come up I get in touch with you.
SELVERA (Laughter)
SMITH Right?
SELVERA Uh huh (yes).
SMITH Well, everythings quiet, then we’ll be quiet.
SELVERA Right.
SMITH But you gonna have to get your man off my back, he’s been calling every day wanting to set up a meeting, he done got so bold he calls at the office every day and I told him that whatever until he has to go through at that end out there.
SELVERA Hey, I’ll take care of that. What about, what about them pieces? You mean I can’t stop no more pieces.
SMITH Uh naw, they’re watching the house.
SELVERA Yeah.
SMITH I don’t know where they got wind of it at but, uh, I found out ■ yesterday, look like, well, in fact, it was about an hour before I saw you, I said, god damned here- he is, I’m thinking about him and here he is.
SELVERA Yeah.
SMITH But anyhow, they been watching your house so just you know, if you do, don’t do any, no more business there. Go some place else and do the business.
On December 16, 1976, after Smith’s superior officer planted the story with Smith that they were going to get a search warrant for “Mexican Frank’s” (Selvera’s) house, Smith called Selvera and said, “Yeah, the party you were going to have this morning, I won’t be able to make it.”
*1241I acknowledge that, in addition to this evidence, the jury heard tape recorded statements of Jackson and contrived tape recorded statements by Conway that incriminated Smith. I agree that once the jury heard those remarks they probably could not be completely disregarded. However, the district court gave a lengthy cautionary instruction to the jury before any of the tapes were played. He specifically instructed that:
the alleged participation of Ike Conway in the alleged conspiracy involving the defendants, and each of them, in the instant case ceased and terminated on the date of Mr. Conway’s arrest, which was 16 September, 1976; from and after that date, any statements made by Conway in tapes or otherwise against his alleged co-conspirators, that is, the defendants in this case, may not be considered by you as against the defendants or any of them by reason of the fact that so far as Conway alone is concerned, the conspiracy had ended as of 16 September, 1976, when he was arrested. (Emphasis supplied.)
The Supreme Court recognizes that “[i]t is not unreasonable to conclude that in many such cases the jury can and will follow the trial judge’s instructions to disregard * * * information.” Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct. 1620, 1627, 20 L.Ed.2d 476 (1968). Although in Bruton the Court found a limiting instruction insufficient to overcome the prejudicial impact of a codefendant’s confession, this case is different. The most damaging inadmissible remarks were made by Conway. He was the government’s key witness, was readily available for cross-examination, and was extensively cross-examined. Furthermore, Drug Enforcement Administration agent Robert Upchurch testified that he instructed Conway to involve himself in a conversation concerning Smith in each one of the taped conversations. The jury was well aware of Conway’s role as a police agent, and the contrived nature of his tape recorded remarks.
These facts convince me that there is no reasonable possibility that the evidence improperly admitted may have contributed to Smith’s conviction; that the admission of that evidence was harmless error beyond a reasonable doubt with respect to Leonard Smith’s conviction; and that Smith’s conviction should be affirmed.