(dissenting).
The court, while reversing in part on an incidental feature and remanding the case to give the Government an opportunity to introduce a missing link of evidence, actually upholds the Government’s essential position. It decides that Goodman is not entitled to invoke the constitutional privilege against self-incrimination. With this disposition of the substance of the case I must disagree.
The majority treats this case as if it were a criminal prosecution against Goodman for conspiracy, while in my view the correct approach is whether, despite certain exculpatory evidence, there is a genuine possibility of prosecution. It has long been established that if there exists any doubt of such endangerment, the privilege against self-incrimination should be allowed, for there need be only a possibility of prosecution, not necessarily conviction, for the witness to be entitled to the benefit of the Fifth Amendment privilege. Counselman v. Hitchcock, 1892, 142 U.S. 547, 585-586, 12 S.Ct. 195, 35 L.Ed. 1110; Brown v. Walker, 1896, 161 U.S. 591, 597, 16 S.Ct. 644, 40 L.Ed. 819; Hoffman v. United States, 1951, 341 U.S. 479, 488, 71 S.Ct. 814, 95 L.Ed. 1118.
The court’s opinion rests upon the basic assumption, made with a confidence which seems to me unwarranted, that Goodman’s participation in any continuing conspiracy ended with his disclosures to the federal agents in 1950. It relies on the finding of the District Judge that there was such abandonment at that time. However, despite such a finding, the Government is in no way precluded from initiating a prosecution for conspiracy continuing after 1950. The finding of abandonment should not be given the weight usually accorded a trial court’s finding of fact, for the issue is not whether there is evidence to support the Judge’s determination that Goodman withdrew from a conspiracy in 1950. To repeat, the question is whether there exists a possibility of prosecution for conspiracy extending beyond that date. I cannot say on this record that such possibility is “imaginary.”
If the record demonstrated that there was no contact between Goodman and anyone connected with Associated Barr Stores after 1950, the court’s position-might be stronger. The record reveals, however, that there were such contacts, although the extent is unclear. It is true, as the opinion points out, that initially Goodman testified that he had not visited Associated Barr’s office in Philadelphia since 1950, and that when the store officials contacted him, he referred them to *264his attorney. But the significance of this is diminished, if not destroyed, by further elaborating testimony. This testimony did not touch the matter incidentally or tangentially merely, but was pursued doggedly and at considerable length.1
On cross-examination by the government attorney, Goodman stated that he had discussions with Associated Barr officials after 1950, both before and after the Tax Court proceeding, but not in their office. The Government persisted in its interrogation about this, asking: “Isn’t it a fact, Mr. Goodman, that after 1950 that you were in Philadelphia on several occasions prior to the Tax Court hearing and that you discussed — or the Barrs discussed with you — their tax problem?” To this, Goodman at first replied that he did not remember. The Government pressed the point, asking him twice more about conferences in Philadelphia after 1950, and Goodman then refused to answer on grounds of self-incrimination. Finally, after being directed by the court to answer, Goodman admitted that there were discussions after 1950 with Associated Barr officials about the tax matter.
In this connection, a highly significant case is Hyde v. United States, 1912, 225 U.S. 347, 367-372, 32 S.Ct. 793, 56 L.Ed. 1114. One of the petitioners, Schneider, was indicted with his employer and two others for conspiring to defraud the United States in obtaining certain public lands. The conspiratorial agreement was alleged to have been made in 1901, and various overt acts were recited, including making fictitious affidavits, extending through 1903 or 1904. To some extent at least, Schneider in 1902 disclosed the conspiracy to government agents. Apparently about the same time, he also terminated his employment. His contention was that there was no showing that he consciously participated in any overt acts within the three year limitations period before the indictment, and that it was error for the trial court to instruct the jury that if he had originally engaged in the conspiracy, even if he “did not do anything within the three-year period but ‘remained acquiescent, expecting and understanding’ that further acts should be performed, they, if performed, would be his acts, ‘and would have the same effect against him as if he had done them himself.’ ” 225 U.S. at page 368, 32 S.Ct. at page 802. The Supreme Court, however, upheld the instruction, pointing out that affirmative action is required to effectuate withdrawal from a continuing conspiracy. In vain Schneider insisted that his termination of employment and his disclosure to federal agents constituted a withdrawal and that therefore the trial judge should not have permitted the jury to find that subsequent overt acts by other defendants were chargeable to him. This claim the Supreme Court rejected, holding that it was for the jury to decide whether his disclosures and termination of employment constituted a repudiation of the conspiracy, or whether, instead, by acquiescence he had a part in the subsequent overt acts of others.
Under the principles of Hyde, it cannot be said here that by his actions in 1950 Goodman clearly withdrew from any possible continuing conspiracy, especially in view of his subsequent contacts with officials of Associated Barr Stores. The District Court’s finding in the present proceeding, that there was a withdrawal, will not be determinative in any subsequent criminal prosecution against Goodman. Just as in Hyde, it will be a question for the jury’s decision in a criminal trial.
Moreover, in his 1956 affidavit Goodman did not, as the court suggests, imply that everything he revealed in 1950 was pure fabrication and that, in reality, no conspiracy ever existed. He did state in the 1956 affidavit that some of the 1950 assertions were false and that if forced to disclose the actual facts, he might be implicated in a continuing con*265spiracy to evade the federal income tax laws.
The Government also relies upon Grunewald v. United States, 1957, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931, and Forman v. United States, 1960, 361 U.S. 416, 80 S.Ct. 481, 4 L.Ed.2d 412, arguing that the facts in the instant case are insufficient to implicate Goodman in a continuing conspiracy to evade income taxes within the doctrines of those cases, and. the court’s opinion seems to adopt this reasoning. In Grünewald, however, the Supreme Court merely held that on its facts, there could not be implied an illegal subsidiary conspiracy to conceal the principal conspiracy of “fixing” criminal tax cases, thereby extending the statute of limitations beyond 1952 which was the limit for prosecuting the principal conspiracy. Since the statute of limitations had run on the principal conspiracy to “fix” criminal tax cases, and since an attempt to conceal this conspiracy did not amount to a new conspiracy thereby extending the statute of limitations, the Court reversed the convictions. Yet, the Court did give specific approval to the theory that there may have existed a single conspiracy, the central object of which was to immunize the taxpayers from tax evasion prosecution, and limitations on this would have only begun to run in 1952. This possibility was deemed to possess sufficient vitality to induce the Supreme Court to remand for a new trial under this alternative theory. The Grünewald case held only that mere concealment of a conspiracy does not constitute a new conspiracy permitting prosecution after limitations upon the first conspiracy have run. It did not do away with prosecutions for continuing conspiracies to evade the payment of income taxes. This is later made perfectly clear in the For-man case.
In Forman v. United States, supra, decided after the District Court’s decision in the present case, Forman and one Seijas, who were together engaged in operating pinball machines, were accused of having extracted and retained “holdout” money from the machines. This money was neither entered on their books nor included in their tax returns. In 1953 they were indicted for a continuing conspiracy extending from 1942 to 1953 to “evade the taxes of Seijas and his wife for 1942-1945, inclusive, by concealing their ‘holdout’ income.” 361 U.S. at page 423, 80 S.Ct. at page 486. Many overt acts were alleged, including making false statements, some as late as 1953. The Supreme Court held that the law recognizes such continuing conspiracies and that the evidence in the ease supported the charge. Although 1945 was the last year in which taxes were not paid, the statute of limitations, it was held, would not have begun to run until the last overt acts aimed at concealing the “holdout” income took place in 1953.
Turning to the instant case, instead of furnishing support for the Government’s argument, the teaching of Forman is that Goodman was justified in asserting the privilege against self-incrimination. The facts revealed by Goodman are entirely consistent with the continuing conspiracy theory expounded in the Forman case. In fact, there is a striking factual parallel between the two cases, although the evidence against Goodmdm is, at this point at least, less extensive. If the Government should later decide to initiate a prosecution, its theory could well be that Goodman and his employers entered into a continuing conspiracy to evade taxes on income from the sale of jewelry up to 1950, while he was store manager, and that the object of this conspiracy was not and could not have been fully attained until 1957, six years after the filing in 1951 of the return for the last tax year, 1950. In that view limitations would not have begun to run until 1957, and Goodman might be vulnerable to prosecution until 1963. To avoid a defense of limitations the Government need prove only that some act was done in furtherance of the conspiracy at any time from its inception up to the accomplishment of its purpose.
Indeed, there may be available an alternative theory under which limitations may still not have begun to run because *266Goodman may not have affirmatively withdrawn from the conspiracy. We have seen from the Hyde case, supra, that a party may be deemed to be engaged in a continuing conspiracy if the evidence does not show affirmatively that he actually abandoned it, which becomes a jury question at the criminal trial. In United States v. Zwillman, 2 Cir., 1940, 108 F.2d 802, 803, an attempt was made as late as 1939 to interrogate the witness about his relations with possible co-conspirators as early as 1928. The Court of Appeals, however, held that such interrogation was improper and that the witness was entitled to invoke his Fifth Amendment privilege, saying: “If a conspiracy was shown in those earlier years it would continue unless abandoned and the defendant would have to prove abandonment in order to take advantage of the statute of limitations.” The court’s opinion in the present case, agreeing with the District Court, finds such abandonment. However, if he is prosecuted, Goodman will have the burden, as the Zwillman case points out, of proving affirmatively that he withdrew from the conspiracy. A jury might well take the view, as permitted by the Hyde case, that despite Goodman’s disclosures to government agents in 1950, later recanted, and the termination of his employment at that time, this did not in fact constitute repudiation of the conspiracy. Whether the Government could successfully sustain an indictment in a tax conspiracy case on the theory that a continuing conspiracy might be of indefinite duration, not ending until affirmative abandonment, need not be decided here. Considering the ingenious resort by prosecutors, with not infrequent success, to the doctrine of conspiracy, one cannot say with certainty that the Government would not attempt this. For present purposes this is enough.2
The continuing conspiracy cases, as shown above, pointedly establish that a limitations defense in this area is quite different from that in prosecutions for other crimes. When the statute may begin to run is not, as a general matter, at all clear cut. It may differ in diverse cases depending upon particular factual details. Therefore, where any indication of a continuing conspiracy exists a court should incline against disallowing the privilege on the ground of limitations.
Moreover, by its argument that the facts of this case are insufficient to establish a conspiracy extending beyond 1950, under the principles of Grunewald and Forman, the Government misconceives the very purpose of the Fifth Amendment. To stand upon his constitutional rights, the witness is not obliged to show that he has actually violated the law. If such a requirement were exacted, the object of the privilege against self-incrimination would be completely frustrated. Justice Clark, in the opinion for the Court in Hoffman v. United States, 1951, 341 *267U.S. 479, 486-487, 71 S.Ct. 814, 818, made this clear:
“However, if the witness, upon interposing his claim, were required to prove the hazard in the sense in which a claim is usually required to be established in court, he would be compelled to surrender the very protection which the privilege is designed to guarantee. To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.” (Emphasis supplied.)
Rather than reveal facts indicating that the witness has engaged in criminal activity, he need only show that answering the questions could furnish a “link in the chain of evidence needed to prosecute the claimant for a federal crime.” Hoffman v. United States, supra, 341 U.S. 486, 71 S.Ct. 818. See also: Blau v. United States, 1950, 340 U.S. 159, 71 S. Ct. 223, 95 L.Ed. 170; Grunewald v. United States, supra, 353 U.S. 422-423, 77 S.Ct. 963; Poretto v. United States, 5 Cir., 1952, 196 F.2d 392; United States v. Coffey, 3 Cir., 1952, 198 F.2d 438; United States v. Trigilio, 2 Cir., 1958, 255 F.2d 385. Nor is this a doctrine of recent origin; it was enunciated by Chief Justice Marshall a century and a half ago in one of his most celebrated cases. United States v. Burr, 1807, 25 Fed.Cas. page 38, No. 14,692e.3
Because I believe that Goodman has revealed enough to show that he is in danger of prosecution, despite the Government’s presently projected theory concerning the running of the statute of limitations, and because answers to the questions asked could furnish “links in the chain” of evidence leading to his prosecution, I would uphold his right to invoke the Fifth Amendment privilege against self-incrimination. Instead of remanding the case for the narrow purpose of allowing the Government to supply a necessary item of evidence which it had apparently overlooked, while at the same time affirming the District Court’s decision on the principal point that Goodman is not entitled to rely upon the Fifth Amendment, I think that the order of the District Court should be reversed in its entirety.
. This particular interrogation extends over 57 pages of the record in the District Court.
. True, evidence of activities, Goodman’s own or those of others, within six years of the indictment, would have to be shown, but the testimony could and likely would take a wider range. The circumstances of Goodman’s affidavit and his conduct in the tax years 1944 to 1947, particularly any transactions with Berman in those early years, such as the payment to him of additional compensation pointedly inquired about in one of the questions propounded, would be relevant to establish the continuing conspiracy. The answers demanded of him in the Tax Court pertain to acts in the earlier stages of such continuing conspiracy. They would supply a link in the chain of proof, despite the lapse of time. Thus, the testimony pressingly sought from this witness still has potency to assist in his conviction, by bringing out or leading to information pertinent to prosecution. A continuing conspiracy may be of long duration and take a variety of forms, and any evidence, however remote in time, even evidence not directly establishing overt acts, but which is background explaining the nature, origin and progress of the conspiracy may be shown. Thus, Goodman may reasonably fear that testimony sought to be elicited from him by the challenged questions could tend to incriminate him. Such compulsory self-incrimination the Constitution forbids.
. It is in order to note yet another reason why a witness, insisting on his Fifth Amendment privilege, should not be pushed too far toward showing complicity in criminal activity. As has been repeated many times, “[t]he privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances.” Slochower v. Board of Higher Education, 1956, 350 U.S. 551, 557-558, 76 S.Ct. 637, 641, 100 L.Ed. 692. See also Grünewald v. United States, supra, 353 U.S. 421, 77 S.Ct. 963; Griswold, The Fifth Amendment Today (1955). While it is probably true, as the Government asserts, that the facts are insufficient to show that Goodman was involved in a conspiracy to evade the payment of income taxes continuing after 1950, this does not deprive him of his privilege against self-incrimination. He may not actually be guilty of a continuing conspiracy to violate the internal revenue laws, but may still be in danger of prosecution for such conspiracy if forced to answer questions concerning his activity. As previously mentioned, if there is a possibility that the witness will so endanger himself, he is entitled to the benefit of the privilege, whether he be innocent or guilty.