author: BELL, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Martin SKLAROFF and Jesse Sklaroff, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Martin SKLAROFF, Jesse Sklaroff, and Barney Tillman Berry, Defendants-Appellants.
    Nos. 71-2948, 71-3192.
    United States Court of Appeals, Fifth Circuit.
    Jan. 17, 1975.
    Rehearing Denied March 4, 1975.

      James J. Hogan, Alan E. Weinstein, Miami Beach, Fla., for defendants-appellants, Sklaroff.
    Victoria D. Little, Decatur, Ga., for defendant-appellant Berry.
    John W. Stokes, U. S. Atty., J. Robert Sparks, Atlanta, Ga., Marilu Marshall, Miami, Fla., John J. Robinson, Crim. Div., Appellate Section, Dept, of Justice, Washington, D. C., for plaintiff-appellee United States.
    Before WISDOM and BELL, Circuit Judges, BREWSTER, District Judge.
   BELL, Circuit Judge:

Defendants Martin and Jesse Sklaroff were convicted in the Southern District of Florida on charges of violating 18 U.S.C.A. § 1084. They were also convicted in the Northern District of Georgia, along with defendant Berry, of conspiring to violate § 1084, and on substantive counts charging violations of § 1084.

The essence of the charges was the business of bookmaking and the use of the telephone by the Sklaroffs to transmit information assisting in the placing of bets and wagers to Berry and a co-defendant Dudley in Atlanta, and to others in cities outside Florida. (Dudley later pleaded guilty.) The appeals from these convictions were consolidated and we now affirm the convictions.

There are some assignments of error common to the three defendants. These center on telephone conversations intercepted by wiretaps. The sufficiency of the evidence is also drawn into the question by all defendants. In addition, Berry claims error with respect to the issuance of a search warrant, the court’s charge on the question of voice identification, and the court’s construction of § 1084 to include the recipient of information by transmission which assists in placing bets and wagers.

Assuming the admissibility of the evidence procured by and through the wire interceptions, to be discussed hereinafter, there is no merit whatever in the contention that the evidence was insufficient to warrant the convictions of the defendants. We also find no error with respect to the issuance of the warrant to search Berry’s business premises in Atlanta. See United States v. Ventresca, 1965, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684. After objection by Berry’s counsel, the trial court corrected its charge as to the issue of voice identification and we hold that any possible prejudice to Berry was obviated by the corrected charge.

There is no merit in the contention that § 1084 does not include the recipient of information in the bookmaking business which assists in the placing of bets and wagers. Berry relies on United States v. Stonehouse, 7 Cir., 1971, 452 F.2d 455 but see United States v. Sellers, 5 Cir., 1973, 483 F.2d 37, where we aligned our court with Sagansky v. United States, 1 Cir., 1966, 358 F.2d 195; and Torneo v. United States, 10 Cir., 1972, 459 F.2d 445, in holding that the statute embraces the recipient in the transmission process.

The central questions presented are in connection with wire interceptions. United States District Judge W. O. Mehrtens authorized FBI agents to intercept telephone conversations between the Sklaroffs and others originating from four specified pay telephones located in the public area of the Miami International Airport. The interceptions were authorized for a period of seven days from the date of the order.

These telephones were allegedly being used by the Sklaroffs for the transmission in interstate commerce of bets and wagers, and of information assisting in the placing of bets and wagers in violation of 18 U.S.C.A. § 1084. In addition to intercepting the conversations, one FBI agent was concealed in a refrigerator crate near the four telephone booths, and was able to take motion pictures of the Sklaroffs from that vantage point. There is little dispute in the proof as to use of the telephones by the Sklaroffs and the times involved. Many calls were intercepted and some of these led to Berry and Dudley in Atlanta.

It is first urged that Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.A. §§ 2510—2520, is unconstitutional. The argument for unconstitutionality is that (1) wire interceptions authorized by the Act are so inherently broad and the intrusions allowed so indiscriminate as to necessarily violate the Fourth Amendment; (2) an order authorizing the interception of wire communications is for the purpose of obtaining testimonial evidence of crimes and therefore violates the Fourth and Fifth Amendments; (3) the interceptions authorized by the Act violate First Amendment rights of free speech; (4) the interceptions authorized constitute a search and thus a defendant is entitled to notice prior to entry, and (5) the Act is unconstitutional in that it authorizes interceptions without probable cause being established. Taken together, it is said that it is impossible to have a constitutionally valid statute authorizing wire interceptions.

The arguments made in support of the claim that the statute is unconstitutional have been addressed by one or more of our sister circuits and, without exception, they have upheld the constitutionality of the Act. See e. g., United States v. Tortorello, 2 Cir., 1973, 480 F.2d 764; United States v. Cafero, 3 Cir., 1973, 473 F.2d 489; United States v. Bobo, 4 Cir., 1973, 477 F.2d 974; United States v. Cox, 8 Cir., 1972, 462 F.2d 1293; Cox v. United States, 10 Cir., 1971, 449 F.2d 679. One teaching of Berger v. New York, 1967, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040; and Katz v. United States, 1967, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, is that a statute permitting wire interceptions under narrow restrictions and carefully circumscribed conditions may be constitutional. We join in holding that Title III, §§ 2510—2520, meets the test of Berger and Katz.

The defendants also urge that the procedures used in obtaining the interception order were deficient; that the order itself was legally insufficient; and that the government failed to comply with the requirements of the order once it was obtained.

One alleged defect or deficiency in the application for the order is said to lie in the fact of an error in one digit in one telephone number, and in exchange number 691 being stated as 961 as to another of the four telephone numbers. This argument is made in the face of a clear description of the four telephones including a diagram of their location. This is no more than a clerical error and is entirely without substance.

We likewise find no deficiency from the standpoint of probable cause, particularity as to description of the conversations to be intercepted, or the duration of the intrusion. The Act also requires a showing of need for the interceptions and that other investigative procedures appear to be unlikely to succeed. We find that this requirement was met.

The assertion that the government violated § 2518(8)(a) by failing to deliver immediately the recordings of the interceptions to the judge issuing the interception order at the end of the period of the order, is without merit. There was a delay of fourteen days. There was no showing of prejudice to the defendants in the delay. The purpose of this provision of the statute is to safeguard the recordings from editing or alteration. There was no showing that the integrity of the interceptions was in any way violated. The government accounted for the delay by showing that the recordings remained in the FBI evidence room for seven days and that the additional seven days were used in the preparation of search warrants.

Indeed, we have carefully considered the facts obtaining to the interceptions from beginning to end in light of the requirements of § 2518. There was substantial compliance with the requirements on the part of the government and the authorizing judge.

The last question to be considered is the claim that the application for the interception order was not authorized in accordance with 18 U.S.C.A. § 2516(1). It was represented to the issuing judge that the application had been authorized by Assistant Attorney General Wilson. It developed that it was authorized by the Attorney General. This circumstance did not invalidate the subsequent order authorizing the interceptions. Nor was it invalidated by the failure to advise the issuing judge that Deputy Assistant Attorney General Petersen, in an authorized ministerial act, had signed Wilson’s name. United States v. Chavez, 1974, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380. See also United States v. Bobo, supra, 477 F.2d at 984; United States v. Cox, supra, 462 F.2d at 1297-1300.

We have carefully considered every assignment of error. The appeals are without merit.

Affirmed.

      . § 1084. Transmission of wagering information; penalties

      (a) Whoever being engaged in the business of betting or wagering knowingly uses a wire communication facility for the transmission in interstate or foreign commerce of bets or wagers or information assisting in the placing of bets or wagers on any sporting event or contest, or for the transmission of a wire communication which entitles the recipient to receive money or credit as a result of bets or wagers, or for information assisting in the placing of bets or wagers, shall be fined not more than $10,000 or imprisoned not more than two years, or both.


source: Caselaw Access Project

author: TUTTLE, Circuit Judge:

license: Public Domain

text:
    HEIRS OF Ude C. FRUGE et al., Plaintiffs-Appellants, v. BLOOD SERVICES and Aetna Casualty & Surety Company, Defendants-Appellees.
    No. 74-1615.
    United States Court of Appeals, Fifth Circuit.
    Jan. 17, 1975.

      J. Michael Morrow, J. Winston Ardoin, Eunice, La., Gary Boland, Baton Rouge, La., for plaintiffs-appellants.
    Richard C. Meaux, Lafayette, La., for Blood Services and others.
    Douglas L. Irish, Phoenix, Ariz., for defendants-appellees.
    Before TUTTLE, RONEY and GEE, Circuit Judges.
   TUTTLE, Circuit Judge:

The question presented by this appeal is whether the plaintiffs-appellants, the children and sole heirs of Mrs. Ude C. Fruge, have a cause of action under Louisiana law against the supplier of blood used in a’ transfusion that allegedly caused their mother’s death.

Mrs. Fruge, a 75-year-old widow, entered Moosa Memorial Hospital in Eunice, Louisiana, in March of 1970. On July 25, 1970, she was supplied with whole blood by the defendant-appellee for a transfusion in the course of treatment for hypoproteinemia and anemia. Some time later, Mrs. Fruge developed homologous serum jaundice, more commonly known as viral hepatitis, and required further hospitalization. She died on January 8, 1971.

Her heirs brought this wrongful death action against Blood Services, an Arizona non-profit corporation, in the United States District Court for the Western District of Louisiana. Aetna Casualty and Surety Company, the insurer of Blood Services, was joined as a defendant. The plaintiffs based their claim on four grounds: negligence, breach of warranty, breach of implied warranty and strict liability.

After substantial discovery by both sides, Blood Services moved for summary judgment, pursuant to Rule 56(b) Fed.R.Civ.P., on four issues:

“(1) Blood Services is a charitable organization and is, therefore, immune from liability and suit.

“(2) No recovery may be had on a theory of breach of warranty in a blood transfusion situation.

“(3) Plaintiffs may not recover on any strict liability theory.

“(4) No recovery may be had for death on a theory of breach of implied warranty.”

Several months later, Aetna also moved for summary judgment on grounds (2), (3) and (4) of the motion filed by Blood Services.

The trial court held under Louisiana law that Blood Services was a charity and thus immune from suit in tort, that Article 1764, subd. B of the Louisiana Civil Code barred liability of the defendants under the theories of both breach of “any type” of warranty and strict liability in tort, and that it was unnecessary to decide whether Article 2315 of the Code would support a cause of action for breach of implied warranty in tort. 365 F.Supp. 1344 (W.D.La.1973). In conclusion, the trial court said: “Accordingly, summary judgment is granted in favor of Blood Services dismissing all the plaintiff’s demands. Likewise, all claims against Aetna other than in negligence are dismissed.” 365 F.Supp. at 1351.

The plaintiffs on appeal contend that the trial court was wrong in law on each issue: that the doctrine of charitable immunity has been abandoned by the Louisiana courts, that Article 1764, subd. B of the Louisiana Civil Code does not bar causes of action under theories of breach of warranty and strict liability, that if it does it violates the state constitution, and that Article 2315 of the Code supports an action based on breach of implied warranty.

We agree with the plaintiffs that the doctrine of charitable immunity is no longer law in Louisiana; indeed, the defendants conceded this during oral argument before us. Thus, the case must be remanded for further proceedings on the issue of negligence. We agree with the trial court’s disposition of all other issues in the case, although we decide against the plaintiffs the one issue — the availability of a cause of action for breach of implied warranty under Article 2315— held open by the trial court.

Therefore, we affirm in part, reverse in part, and remand.

I. DOCTRINE OF CHARITABLE IMMUNITY

The trial court properly held at the time it granted summary judgment that Blood Services was a charity under Louisiana law, and thus that it was immune from suit in tort, citing Grant v. Touro Infirmary, 254 La. 204, 223 So.2d 148 (1969). After the trial court’s judgment, the Supreme Court of Louisiana overruled Grant in Garlington v. Kingsley, 289 So.2d 88 (La.1974) and held therein that charitable institutions were not immune from suit in tort. The Louisiana Supreme Court subsequently held that Garlington v. Kingsley is effective retroactively. Jackson v. Doe, 296 So.2d 323 (La.1974); Connor v. Methodist Hospital, 297 So.2d 660 (La.1974).

During oral argument before this Court, the defendants admitted that the doctrine of charitable immunity no longer protected them from suit in negligence. However, they urged that there is an independent ground for affirming the result below as there is no evidence in the record of any negligence by defendant Blood Services. This argument is without merit, and none of the cases cited by the defendants in support of the argument are on point.

There indeed is no evidence in the record of any negligence by Blood Services, because there was no need for the plaintiffs to present any in the posture in which the motion for summary judgment arose. The motion by Blood Services for summary judgment on issue (1) was solely on the question of charitable immunity and not on negligence vel non. As such, the plaintiffs were never called upon to produce any Rule 56(c) materials — such as depositions, answers to interrogatories and affidavits — that would show that the defendants were negligent in fact. We cannot now say that there is no genuine material issue of fact with respect to negligence by the defendants, because the question was never raised in the trial court. Where summary judgment is granted on one issue, an appellate court may not extend that judgment to another issue under the guise of affirming the “result below” when the effect is to preclude the losing party from “disputing] facts material to that claim.” Fountain v. Filson, 336 U.S. 681, 683, 69 S.Ct. 754, 756, 93 L.Ed. 971 (1949).

In sum, now that it is clear that the defendants are not immune from suit in tort, the case must be remanded for further proceedings on the issue of negligence.

The only question now is whether the plaintiffs-appellants have any cause of action other than negligence.

We conclude that they do not.

II. OTHER CAUSES OF ACTION

This is one of those extremely rare situations where the precise legal question before a court has been clearly foreseen by the legislature and unequivocally resolved. Six years ago, the Louisiana legislature — like many others —amended its laws to extinguish all causes of action except negligence against blood banks and hospitals supplying whole blood and its components. The reason for this unusual action was simple, and apparently cogent to the legislature: the obvious and overwhelming need for blood and blood products to be used in transfusions and in surgery was barely met by available supplies, and suppliers, were threatened by crippling legal liability for a very small but — according to the majority 'of medical authorities — hard to avoid risk that their blood carried undetectable viral hepatitis. If competent and carefully operated blood banks were to survive, the state legislature believed, they required legislative protection.

The form of protection developed by the State of Louisiana was an amendment to the Civil Code provision that defined the subjects of contract and created means for limiting or renouncing implied warranties in contracts of sale. Article 1764 of the Civil Code, as amended by Acts of 1968, No. 301, § 1, provides in full:

Art. 1764. Contracts; subject, motive, elements determining nature, and exceptions to implied warranty provisions.
A. All things that are not forbidden by law, may legally become the subject of, or the motive for contracts; but different agreements are governed by different rules, adapted to the nature of each contract, to distinguish which it is necessary in every contract to consider:
1. That which is the essence of the contract, for the want whereof there is either no contract at all, or a contract of another description. Thus a price is essential to the contract of sale; if there be none, it is either no contract, or if the consideration be other property, it is an exchange.
2. Things which, although not essential to the contract, yet are implied from the nature of such agreement, if no stipulation be made respecting them, but which the parties may expressly modify or renounce, without destroying the contract or changing its description; of this nature is warranty, which is implied in every sale, but which may be modified or renounced, without changing the character of the contract or destroying its effect.
3. Accidental stipulations, which belong neither to the essence nor the nature of the contract but depend solely on the will of the parties. The term given for the payment of a loan, the place at which it is to be paid, and the nature of the rent payable on a lease, are examples of accidental stipulations. What belongs to the essence and to the nature of each particular description of contract, is determined by the law defining such contracts; accidental stipulations depend on the will of the parties, regulated by the general rules applying to all contracts. B. Notwithstanding the provisions of Section A.2, of this Article, the implied warranties of merchantability and fitness shall not be applicable to a contract for the sale of human blood, blood plasma or other human tissue or organs from a blood bank or reservoir of such other tissues or organs. Such blood, blood plasma or tissue or organs shall not for the purposes of this Article be considered commodities subject to sale or barter but shall be considered as medical services.

A. Breach of Implied Warranty.

The immediate effect of the amendment, which is section B of the article, is obvious: all implied warranties resulting from the sale of blood and like materials were thereby revoked. Thus, the cause of action for breach of implied warranty in the distribution of blood was legislatively extinguished.

B. Breach of Warranty.

The other effects of the amendment are equally clear but are not at once apparent until the amended article is viewed in the context of other codal provisions. The linchpin of the amendment is its designation of blood sales as “medical services.” Plaintiffs-appellants argue that this designation is confined to causes of action based on implied warranties by the phrase “for the purposes of this Article.” However, this misstates the general purpose of the article. Article 1764 is the third article of Title IV of the Civil Code, “Of Conventional Obligations.” In this context and by its language, the article serves to define the scope of consensual obligations in Louisiana’s civil law. To read the article as simply a codification of the law of implied warranty is to ignore the bulk of the article’s text. The article, taken as a whole, defines and limits the scope of sales; that is, it establishes in general terms the “subjects” of contracts in Louisiana. With this broad scope, any definition excluding any type of transaction from the realm of consensual obligation makes that transaction other than a sale.

This effect is critical to the implementation of the legislature’s policy to protect blood suppliers and hospitals, because, as a result, without the sale of a marketed product, there can be no actions for breach of warranty for injuries or death resulting from blood transfusions. It is axiomatic, of course, that breach of express warranty is not available as a cause of action without a sale, because the essence of warranty is a consensual agreement — express or implied— arising from contract. LSA-C.C. art. 1964, art. 2475. Lartique v. R. J. Reynolds Tobacco Co., 317 F.2d 19, 27 (5th Cir. 1963). Without a sale under contract, there is no consensual nexus between the parties and thus no warranties may attach.

The sale/service distinction has been criticized in these cases as a disingenuous foundation upon which to erect a major policy, see, e. g., Russell v. Community Blood Bank, Inc., 185 So.2d 749, 752 (Fla. App.1966), but the distinction is long-established, Lartique v. R. J. Reynolds Tobacco Co., supra, 317 F.2d at 31, note 23, and such criticisms do not detract from its validity. See, part III of this opinion, infra.

C. Strict Liability.

The designation of the provision of blood as a service has another effect under Louisiana law. Under the rapidly developing Louisiana law of products liability, strict liability is unavailable as a cause of action without the sale of a marketed product. Thus the statute effectively bars a claim based on strict liability.

It has only been recognized recently that the civil law of Louisiana includes a doctrine of strict liability at all. The threshold prerequisite to the availability of the cause of action is the sale in fact of a marketed product. Weber v. Fidelity & Casualty Ins. Co., 250 So.2d 754, 755 (La.1971); Welch v. Outboard Marine Corp., 5 Cir., 481 F.2d 252, 254; see, generally, Wade, Strict Tort Liability of Manufacturers, 19 Sw. L.J. 5, 13 (1965); cf., McDaniel v. Baptist Memorial Hospital, 469 F.2d 230, 233 (6th Cir. 1972); Restatement of Torts, Second, § 402A(1); see, also, Reyes v. Wyeth Laboratories, 498 F.2d 1264 (5th Cir. 1974). The point of the prerequisite is that the theoretical underpinnings of strict liability as recognized in Louisiana are irrelvant to, and inconsistent with, situations where the plaintiff is harmed by the latent defect of an article that has not reached him or her through the marketplace; the essence of Louisiana’s strict liability against manufacturers or| sellers of products with latent defects is that the purchaser or consumer relied on the representations of the manufacturer or seller that the product was safe for its intended use, and that the danger inherent in the product was within the manufacturer’s or seller’s power to prevent. Weber, supra. Neither of these classical factors applies to the provision of blood by blood banks or hospitals for two reasons: 1) the material, in relatively small percentages, is said to be unavoidably dangerous (see, Restatement of Torts, Second, § 402A, comment k, but see note 4, supra), and 2) the consumer does not rely on the supplier’s representations, but instead relies on the skill and competence of the attending physician to judge whether the known risk is outweighed by the necessity for the material.

We express no opinion as to the wisdom of this doctrine, or its limitations; our only function is to determine applicable Louisiana law. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). In our view the district court correctly held that the plaintiff’s claim under a theory of strict liability was barred under Louisiana law.

It is not magical that the codal provisions eliminated all causes of action except negligence for supplying defective blood and blood components. This was the very purpose of the provisions. See, Recent Developments, 69 Mich.L.Rev. 1172, 1179-80 (1969). It must not be forgotten that the effect of the codal provisions is two-fold: they bar all causes of action arising from the supply of blood itself, but they preserve the classical delictual action based on fault embodied in Article 2315 of the Code. The legislature did not intend to create absolute immunity for those whose material or service caused injury or death resulting from blood transfusions. The compelling reasons for abolishing warranties and strict liability in this area evaporate when the reason for the harm is not the hard to avoid danger inherent in the blood or its use, but is the result of negligence. Actionable negligence here may take many forms, of which some, but not all, might include careless screening of blood donors, negligent handling of blood materials or improvident decisions to order transfusions in light of high risks that outweigh meager benefits. In these circumstances, there is no doubt that liability would still attach under Article 2315; the plenary protection created by Article 1764, as amended, would no longer be applicable or justified. In sum, it is only in cases of negligence that a cause of action is available under the Code in such circumstances.

III. CONSTITUTIONALITY OF ART. 1764

The plaintiffs-appellants challenge not only the construction of Article 1764, but also its state constitutionality. They contend that Article 1764 violates the guarantee of due process, provided for by Article 1, § 2 of the Louisiana Constitution, and the prohibition against the legislative creation of an exclusive right or immunity to an individual in Article 4, § 4. The argument, in essence, is two-fold: that 1) the legislature may not, acting consistently with limitations imposed by the state constitution, eliminate causes of action already provided by the positive law announced in the Code, 2) for the benefit of a specific individual or organization.

We are unable to accept this reasoning. For over 50 years, the Louisiana courts have recognized the validity of legislative regulation of causes of action, including replacement and even extinction, that one person may have against another for personal injuries. Colorado v. Johnson Iron Works, 146 La. 68, 83 So. 381 (1919). The entire scheme of workmen’s compensation is grounded on the acknowledgment of this power. Id. Other state courts have repeated this acknowledgment over the years in other areas. See, e.g., Paul v. Nolen, 166 So. 509, 511 (La.App.1936).

The article is no less valid because it is explicitly directed at the suppliers of blood and blood components. Article 4, § 4 of the Louisiana Constitution prohibits the granting of special immunity for “any corporation, association or individual.” The article has been narrowly construed by the Louisiana courts, which have held that “A statute which is applicable to all persons under like circumstances and does not subject any individual to an arbitrary exercise of power does not violate the due process or equal protection clauses of the state and federal constitutions.” Standard Homestead Ass’n v. Horvath, 205 La. 520, 17 So.2d 811, 813 (1944). Thus, as long as a privilege or immunity “operates equally and fairly to those who engage in like transactions” and “affects alike all persons pursuing the same business under the same conditions,” the Louisiana Constitution is satisfied. Id. at 814. See, also, Succession of Vincent, 229 So.2d 449 (La.App., 1969). In the case before us, “[t]he law in question involves all within the class of selling or distributing blood or plasma equally and . . . [t]here appears to be no discrimination in the law favoring the [defendant] per se .,” McDaniel v. Baptist Memorial Hospital, supra, 469 F.2d at 235. Because the article applies with such generality to all those who provide the vital medical service of supplying blood and blood components — such as blood banks, hospitals and the like — it easily satisfies the well-established tests of constitutionality as a valid exercise of legislative authority.

In conclusion, the only cause of action available to the plaintiffs in this case is negligence, and because the trial court did not pass on the issue and because it is clear that the defendants are no longer immune from liability in negligence, the case is remanded to the trial court for further proceedings on that issue.

Affirmed in part, reversed in part and remanded.

      . Aetna did not move for summary judgment on the first issue, because under then well-settled Louisiana law, a charitable institution’s immunity from suit in tort was personal and did not extend to its insurer. See, e. g., Grant v. Touro Infirmary, 254 La. 204, 223 So.2d 148, 151 (1969).

      . The cases cited by the defendants stand, quite correctly, for the unexceptionable proposition that an appellate court may affirm the decision — if correct — of a trial court even though the trial court relied on the wrong reason in reaching its result. See, e. g., Helvering Gowran, 302 U.S. 238, 245 [58 S.Ct. 154, 82 L.Ed. 224] (1947), and cases therein cited. The underlying assumption of this proposition is, of course, that the parties had a full and fair opportunity to develop facts relevant to the decision. Where this opportunity has not been available, the proper resolution of the appeal is not affirmance but remand.

      . A total of 44 states have adopted similar statutes to preclude the imposition of strict liability in blood transfusion cases. The statutes are cited by the trial court in its reported opinion, 365 F.Supp. at 1350, n. 3.

      . The question of the detectability of viral hepatitis in donor blood has been hotly disputed, and we, of course, express no opinion whatsoever as to the answer. See, generally, A. W. Holmes, J. B. Alsever, D. A. Garibaldi! “Medical Judgment vs. Legal Doctrine in the Matter of Hepatitis Contaminated Blood,” 48 Chi.B.Rec. 204 (June 1967), 48 Chi.B.Rec. 22 (Oct. 1967); Boggs Melnick, Conrad & Feleher, “Viral Hepatitis,” 214 J.A.M.A. 1041 (1970).

      . The Illinois legislature, for example, in enacting a similar statute (S.H.A. ch. 91, §§ 181-184), expressed its policy in these words:
      “The availability of scientific knowledge, skills and materials for the purpose of injecting, transfusing or transplanting human whole blood, plasma, blood products, blood derivatives and products, corneas, bones, or organs or other human tissue is important to the health and welfare of the people of this State. The imposition of legal liability without fault upon the persons and organizations engaged in such scientific procedures inhibits the exercise of sound medical judgment and restricts the availability of important scientific knowledge, skills and materials. It is therefore the public policy of this State to promote the health and welfare of the people by limiting the legal liability arising out of such scientific procedures to instances of negligence or willful misconduct.” Illinois Statutes, Title 91, Section 181 (1971).

      . Liability for defective products under the Louisiana Civil Code was exhaustively examined in Lartique v. R. J. Reynolds Tobacco Co., 317 F.2d 19 (5th Cir. 1963). See, further, Soileau v. Nichola[o]s Drilling Co., 302 F.Supp. 119 (W.D.La.1969); Welch v. Outboard Marine Corp., 481 F.2d 252 (5th Cir. 1973). See, also, Weber v. Fidelity & Casualty Ins. Co., [259 La. 599] 250 So.2d 754 (La. 1971).

      . The Louisiana doctrine was firmly established in Weber v. Fidelity & Casualty Ins. Co., supra, note 6. Although the majority opinion does not mention the term “strict liability” in so many words, the case has consistently been viewed as settling the principles of liability without fault in Louisiana law. See, Weber v. Fidelity & Casualty Ins. Co., id., [250 So.2d] at 758ff, (dissenting opinion) Welch v. Outboard Marine Corp., supra, note 6, [481 F.2d] at 255-56 [256], For earlier developments in Louisiana, see Soileau v. Nicholas Drilling Co., supra, note 6. See, also, Lartique v. R. J. Reynolds Tobacco Co., supra, note 6; Penn v. Inferno Manufacturing Corp., 199 So.2d 210 (La.App. 1967), cert. denied [251 La. 27] 202 So.2d 649 (1967).

      . Each unit of blood supplied by defendant Blood Services carried this notice:
      “Federal law prohibits dispensing without prescription. See circular for instructions for use.
      “WARNING: Whole blood may transmit certain diseases, such as viral hepatitis, for the presence of which no laboratory tests are available. Because of this fact, human blood is delivered without any warranty, whether of merchantability, fitness or otherwise, extending beyond the description on this label.”
      In addition, defendant Blood Services distributed the following Official Package Circular to each hospital it supplied:
      “HOMOLOGOUS SERUM JAUNDICE (VIRAL HEPATITIS): The transmission of viral hepatitis is an inherent and unavoidable risk which is present each time a unit of whole blood is given. There is no known laboratory test which will detect the presence of the virus in the donor blood. The incubation period is usually 15 to 180 days and the disease is often severe and protracted and may be fatal.”

      . LSA-C.C. article 2315 provides in full:
      “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.
      The right to recover damages to property caused by an offense or quasi offense is a property right which, on the death of the obligee, is inherited by his legal, instituted, or irregular heirs, subject to the community rights of the surviving spouse.
      The right to recover all other damages caused by an offense or quasi offense, if the injured person dies, shall survive for a period of one year from the death of the deceased in favor of: (1) the surviving spouse and child or children of the deceased, or either such spouse or such child or children; (2) the surviving father and mother of the deceased, or either of them, if he left no spouse or child surviving; and (3) the surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving. The survivors in whose favor this right of action survives may also recover the damages which they sustained through the wrongful death of the deceased. A right to recover damages under the provisions of this paragraph is a property right which, on the death of the survivor in whose favor the right of action survived, is inherited by his legal, instituted, or irregular heirs, whether suit has been instituted thereon by the survivor or not.
      As used in this article, the words “child”, “brother”, “sister”, “father”, and “mother” include a child, brother, sister, father, and mother, by adoption, respectively. (Amended by Acts 1948, No. 333, § 1; Acts 1960, No. 30, § 1.)”

      . Art. 1, § 2 of the Louisiana Constitution of 1921 provides in full:
      “Section 2. No person shall be deprived of life, liberty or property, except by due process of law. Except as otherwise provided in this Constitution, private property shall not be taken or damaged except for public purposes and after just and adequate compensation is paid.”

      . Art. 4, § 4 of the Louisiana Constitution of 1921 provides in pertinent part:
      “Section 4. The Legislature shall not pass any local or specific law on the following specified subjects:
      * * * * * *
      “Granting to any corporation, association, or individual any special or exclusive right, privilege or immunity.”


author: COLEMAN, Circuit Judge. GEWIN, Circuit Judge WISDOM, Circuit Judge, THORNBERRY, Circuit Judge,

text:
    A. C. PARK, Petitioner-Appellant, v. H. T. (Tommy) HUFF, Respondent-Appellee.
    No. 73-1897.
    United States Court of Appeals, Fifth Circuit.
    Jan. 20, 1975.

      Wesley R. Asinof, Fayetteville, Ga., for petitioner-appellant.
    Tony H. Hight, Dist. Atty. Assoc., Arthur K. Bolton, Atty. Gen., Atlanta, Ga., Nat Hancock, Jefferson, Ga., David L. G. King, Jr., Atlanta, Ga., for respondentappellee.
    Before BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORN-BERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY and GEE, Circuit Judges.
   COLEMAN, Circuit Judge.

Floyd Hoard was the Solicitor General (District Attorney) of the Piedmont Judicial Circuit of the State of Georgia. On the morning of August 7, 1967, by means of a dynamite bomb attached the previous night to the ignition system of his automobile, the Solicitor General was precipitately dispatched from this world. Among those soon indicted for murder in connection with this heinous occurrence was A. C. Park, the present habeas corpus appellant.

A jury in Jackson County convicted Park, with no recommendation for mercy. He was sentenced to death by electrocution. On appeal to the Supreme Court of Georgia, the conviction was reversed for the failure to have accorded Park the right to both open and close the jury arguments in compliance with certain provisions of a Georgia statute which had been in effect since 1852, Park v. State, 224 Ga. 467, 162 S.E.2d 359, 368 (1968).

At the second trial, Park was again convicted and the conviction was affirmed, Park v. State, 225 Ga. 618, 170 S.E.2d 687 (1969).

On petition for certiorari, the United States Supreme Court, without reaching the merits, vacated the death penalty and remanded the case to the Supreme Court of Georgia for further proceedings, Park v. Georgia, 408 U.S. 935, 92 S.Ct. 2845, 33 L.Ed.2d 749 (1972). This resulted in a life sentence, Park v. State of Georgia, 229 Ga. 731, 194 S.E.2d 410 (1972).

This did not end matters. Park next instituted habeas corpus proceedings, attacking the constitutional validity of his conviction. In an extensive written opinion (which does not appear to have been reported in Federal Supplement), the District Court for the Northern District of Georgia denied relief, (1973).

On appeal to this Court, that judgment was reversed, one Judge dissenting, Park v. Huff, 493 F.2d 923 (1974).

The case was subsequently ordered reheard en banc, with oral argument, 493 F.2d 935 (1974).

Upon such rehearing, we are convinced that Park’s conviction involved no collision with the Confrontation Clause of the Sixth Amendment. We affirm the judgment of the District Court.

Four men were indicted along with Park.

J. H. Blackwell had connected the bomb to the automobile ignition. With full knowledge of the scheme, Lloyd G. Seay and George Ira Worley had assisted in obtaining the dynamite at a store in Anderson, South Carolina. They were lurking near the Hoard residence on the Sunday night when the deadly deed was done, having gone there in the same automobile with Blackwell.

Douglas Pinion initiated the $5,500 contract for the killing and later paid the fee to Seay, but he did not go to the murder scene.

At the time of Park’s second conviction, Pinion, Blackwell, Seay, and Worley were all serving life sentences for the murder. Seay and Blackwell pleaded guilty upon a recommendation for life sentences. Juries convicted Pinion and Worley, see Pinion v. State, 225 Ga. 36, 165 S.E.2d 708; also unreported opinion of District Judge Sidney O. Smith, Jr. (App. 395).

The extensive trial and appellate records compiled prior to the filing of the petition for habeas corpus raise no substantial dispute as to the roles respectively played by Blackwell, Seay, Worley, and Pinion in the paid assassination.

The legal battle, the one we are concerned with here, has been, and is, over the conspiratorial part allegedly played by Park, of which he stands convicted and from which he seeks escape by the federal habeas corpus door.

On Park’s second appeal, the Supreme Court of Georgia held that the evidence at the second trial “was at least as strong as on the first trial and amply authorized the verdict”, 170 S.E.2d at 691.

FACTS RECITED BY THE GEORGIA SUPREME COURT

Our reading of the record prompts us to adopt, as amply supported by the record, the recitation of the evidence recited by the Georgia Supreme Court in its opinion disposing of the first appeal, 162 S.E.2d 361-363:

“About the latter part of March 1967, Solicitor General Hoard was concerned about the illegal sale of alcoholic beverages being made from a garage at the residence of the defendant Park and also from a building owned by him and known as ‘the yellow house,’ both located in Jackson County, where the sale of alcoholic beverages was not legal. There was evidence that since 1965 Park and the co-indictee Pinion had worked together in such sales. In late March Hoard began an investigation of these sales. This investigation was begun without telling local sheriff Perry, but later Hoard apparently informed him.
“Hoard obtained the assistance of an agent of the Georgia Bureau of Investigation, and in turn other law enforcement personnel were brought in. Several of these men made purchases at the above named places in order to obtain evidence for a contemplated padlock proceeding. One testified that ‘this was an open operation and there — nothing hidden about the thing. You just walked in there and asked him for some liquor and he sold it to you and it was more or less generally known it was carried on that way.’
“A raid was scheduled for Saturday afternoon, May 6, 1967. However, on Friday evening it was discovered that Park was attempting to move large quantities of alcohol from these two places. Thereupon, the scheduled raid was immediately made and $21,700 of contraband, consisting of 31 cases of whiskey and 2,254 cases of beer, was taken. Park and Albert Funderburk, who had been employed at ‘the yellow house’ by Park for almost two years, were arrested. Criminal cases were made against the two men by Hoard.
“On May 23, 1967, upon Hoard’s petition, an order was issued directing that the two places be padlocked.
“On July 11, 1967, Park, Funderburk and another employee of Park entered pleas of guilty for such illegal alcohol operations, and their fines, totaling $6,300, were paid by Park. Also, on this date, an appeal from the padlock order was dismissed. About this time Funderburk made plans to move back into the yellow house in August.
“Neither this padlock order nor the confiscation order on the alcohol seized was carried out until after the death of Hoard. There is no evidence as to why these orders were not executed.
“Next, we recite the salient testimony of events immediately surrounding the murder.
“This testimony was given by the coindietee Blackwell, to whom the State had offered to recommend a life sentence provided he would testify fully, fairly and completely, and also by the co-indictee Seay. No mention of any such offer to Seay appears.

[BLACKWELL’S TESTIMONY]

“Blackwell’s testimony, insofar as material on these issues, was that which follows.
“Prior to Solicitor General Hoard’s death Seay asked Blackwell if he had the nerve to kill anybody and two weeks later inquired of him if he would ‘blow that man up,’ without identifying anyone. No affirmative answer appears to have been given.
“On Thursday before Hoard’s death on Monday, August 7, 1967, Seay, Blackwell, and another co-indictee, Worley, met by pre-arrangement at a named highway restaurant in another county and drove to Anderson, South Carolina, where Blackwell, with money provided by the others of that group, purchased sticks of dynamite and caps. On Saturday Seay showed Blackwell how to connect these to the coil of an automobile.
“On Sunday evening Blackwell, Seay and Worley met. Seay offered Blackwell $1,500 if he would go with them and watch while Seay or Worley put the dynamite on the car. One of them, Seay he thought, told Blackwell ‘the man wanted it done that night before he went to court on Monday.’ Worley pointed out Hoard’s house, and Seay made a short trip to verify it and the car parked there as Hoard’s. During this time Blackwell and Worley went to a nearby place, wired several sticks of dynamite together, and returned to a point near Hoard’s residence.
“Then Blackwell went to Hoard’s yard where his car was parked, placed the dynamite and one cap to the coil of the car, and rejoined Seay and Worley. The three drove away, and at a bridge the shoes and gloves Blackwell had worn were thrown out.
“Later on the same night Blackwell went to Wrightsville, Georgia, and during the morning heard of Hoard’s death over the radio.
“On the following Wednesday, Seay gave Blackwell $700 in cash and an automobile valued at $800.
“Blackwell identified certain photographs, including places and objects associated with the murder.

[SEAY’S TESTIMONY]

“The testimony of the co-indictee Seay, insofar as material here, was that which follows.
“He had known Blackwell about eight months, Worley four or five years, and Pinion some six to eight years. He was 23 years of age and had known Park since childhood.
“He had not had any direct dealings with Park.
“In June, about two months before Hoard’s death, Pinion asked Seay if he wanted to make some ‘easy money,’ and later told him that ‘he wanted a man done away with,’ saying it was Hoard. He did not say who wanted it done, but mentioned to him ‘the old man’ several times.
“Pinion had told Seay on a number of occasions that he was working with Park, and Seay once talked with both of them about their buying liquor from him. They talked about payment and arrangements in connection with this, and one of them told him that whenever he needed money he could come to Park’s place and pick it up, but Seay did not recall ever doing so.
“This dealing with Park and Pinion began three or four years previously and continued until Hoard was killed. Pinion was the only person he dealt with on behalf of Park. When he had the conversation with Pinion about doing away with Hoard, he knew that Pinion was acting on behalf of Park, and in their conversations Pinion and he always referred to Park as ‘the old man.’
“Pinion did not tell Seay that ‘the old man’ wanted Hoard done away with, but that ‘a man wanted somebody done away with.’ Also, he did not say why he wanted Hoard killed. He mentioned to Seay the liquor raid made by Hoard, but Seay did not recall whether this was at the same time he discussed killing Hoard.
“Pinion first offered Seay. $5,000, and said it would be best to kill Hoard on the road with a shotgun as he was returning home.
“Seay told Pinion that he was not interested but would try to find someone. Seay mentioned it to Worley, who wanted $7,500. Worley did not know whom Seay had in mind to be killed. Pinion said that Hoard had to be killed before he went to court that Monday morning, and Seay so told Worley. Seay then reported to Pinion that he had someone to do it if he would pay more money. Pinion replied ‘Well, that is all the man will pay,’ and T don’t think the man will pay any more. I will go see. I will check.’ Pinion left and in about 45 minutes he returned and told Seay, ‘the old man won’t go up any more. I will put $500 on it. Make it $5,500.’ Worley did not wish to do it but decided to go ahead.
“On either Thursday or Friday, Seay, Blackwell, and Worley arranged their meeting at a highway restaurant, made the trip to South Carolina, purchased the explosives, returned to Jackson County, and Blackwell experimented with wiring the caps to a 1964 Ford automobile.
“Seay told Worley that he did not want to be involved, but Worley replied that if he didn’t, ‘the old man’ would get someone else and intimated that ‘the old man’ would harm him or his family. Seay knew whom Worley was referring to, and stated that ‘we always referred to “the old man” as Mr. Park.’
“Seay then testified essentially the same as Blackwell with reference to what transpired later, including the meeting on Sunday night of him, Blackwell and Worley, their proceeding to and locating Hoard’s residence and car, tying the explosives, Blackwell’s rigging them to the automobile, disposing of the shoes and gloves, going to Wrights ville, learning of Hoard’s death, and returning to Pick-ens County. Seay also identified the same photographs that Blackwell had verified.
“Five or six days after Hoard’s death Pinion brought $5,500 in cash to Seay, and Seay gave the money to Worley who divided it $2,000 to Seay, $2,000 to Worley and $1,500 to Blackwell. Pinion told Seay that ‘the old man’ was worried and had asked who did it, and that he had told him others did it.
“There was testimony by other witnesses for the State, which verified some of the foregoing, particularly the physical facts, but it is not necessary to recite it here.
“In his unsworn statement Park disavowed any participation whatever in the murder of Hoard.”

Our panel opinion in this case stated, “The out-of-court statements of Pinion and Worley, however, clearly implied that Park was involved in the conspiracy to murder Solicitor General Hoard”, 493 F.2d at 927. The panel opinion also noted the existence of “testimony that Pinion acted as Park’s ‘enforcer’ and that he used guns and administered beatings in the prosecution of their illicit business”. In other words, when Pinion went to see “the old man” about raising the fee for the assassination, the deduction that Pinion was acting for and on behalf of Park rested on far more than fanciful grounds.

After its recitation of the facts in evidence, the Supreme Court of Georgia applied the law as follows, 162 S.E.2d 364, 365:

“Since this defendant did not commit the act itself and was.not actually present at the scene when others committed it, in order for him to be convicted the evidence must connect him with the crime upon the theory of conspiracy, which is ‘a corrupt agreement between two or more persons to do an unlawful act.’ Fincher v. State, 211 Ga. 89(4), 84 S.E.2d 76.
“Proof of conspiracy is required for the admission of the testimony of Seay as to declarations allegedly made to him by Pinion and as to statements allegedly made to him by Worley.
“Our Code, § 38-306, provides that ‘After the fact of conspiracy shall be proved, the declarations by any one of the conspirators during the pendency of the criminal project shall be admissible against all.’ This court, in applying this section, has held that the conspiracy itself must be proved by evidence aliunde such declarations, and that the declarations are not admissible unless the conspiracy is prima facie shown by such aliunde evidence. Lanier v. State, 187 Ga. 534(4), 542-543, 1 S.E.2d 405, and citations.
“The existence of a conspiracy ‘may be established by direct proof, or by inference, as a deduction from acts and conduct, which discloses a common design on their part to act together for the accomplishment of the unlawful purpose. In other words, the existence of the common design or purpose between two or more persons to commit an unlawful act may be shown by either direct or circumstantial evidence.’ Chappell v. State, 209 Ga. 701, 702, 75 S.E.2d 417, 418.
“Under the evidence here there was admittedly and unquestionably a conspiracy among several persons to violate the laws of this State with reference to the sale of alcoholic beverages. It is equally certain that the defendants Park and Pinion were members of that conspiracy, and it is probable that others, including Seay, belonged to it.
“The State contends that Hoard’s death was pursuant to or in furtherance of that conspiracy. -It relies upon the rule that ‘It is not necessary that the crime of murder should be a part of the original design; but it is enough if it be one of the incidental probable consequences of the execution of their design * * * ’ (Gore v. State, 162 Ga. 267(1)(a), 134 S.E. 36, 38), or if it is ‘naturally or necessarily done pursuant to, or in furtherance of the conspiracy.’ Handley v. State, 115 Ga. 584, 41 S.E. 992 (one Justice absent).
“The State urges that the evidence as a whole, and with all inferences and deductions therefrom, leads to the conclusion that the death of Hoard was deemed necessary to protect Park’s illegal liquor operations and was in furtherance of the conspiracy to violate the liquor laws. It argues that Hoard’s death was considered necessary because he planned to present to the grand jury on the day of his death facts as to Park’s activities.
“For support of this contention the State relies upon much of the foregoing evidence, including the following: that Hoard had instituted the padlock proceedings against Park; that he had caused the confiscation of Park’s contraband alcohol; that he had filed criminal accusations against Park and others; that they had plead guilty and their fines totaling $6,300 had been paid by Park; that Park’s liquor locations had not been in fact padlocked; that the contraband had not been destroyed; and that Funderburk intended to move back in ‘the yellow house’ in August.
“As we view the record, a conspiracy involving the defendant in the murder of Hoard was prima facie shown by such aliunde evidence, and the inferences and deductions therefrom.
“In view of such evidence as to conspiracy it follows that it was not error to permit Seay to testify as to the declarations made to him by Pinion that ‘the old man won’t go up any more’ and that ‘the old man was worried’; or as to Worley’s statement to him that ‘the old man’ would harm him or his family if he did not participate.
“Accordingly, it was not error for Seay to testify that Pinion told him that he was working with Park in the liquor business. Nor was it error for him to testify that he knew when he was dealing with Pinion in June that he was dealing with him as agent of Park, since the basis for that statement was that Pinion had told him about Park’s involvement in the conspiracy to kill Hoard.”

The evidence at the second trial, which resulted in the affirmed conviction, followed that of the first trial except the State ran into several obstacles in its effort to develop the proof. For example Blackwell, the man who had placed the deadly bomb, who had testified at the first trial, and who had already received a life sentence on a plea of guilty recommended in return for his willingness to testify, invoked his Fifth Amendment privilege against self incrimination and refused to testify at the second trial. Since he had been thoroughly cross-examined at the prior trial (by the same counsel who was participating in the second trial) Blackwell’s recorded testimony was read to the jury.

Seay had been sentenced as had Blackwell. When called to the stand he likewise invoked the Fifth Amendment. Later on, he abandoned this position, did testify, and was most thoroughly cross-examined. Under cross-examination by defense counsel, he explained his original unwillingness to take the witness stand a second time by swearing that while in prison he had been offered $10,000 to repudiate his former testimony and that the safety of his wife and small children had been explicitly threatened. While being pressed by Park’s counsel, Seay said that he had been offered $10,000 to repudiate his prior statement by one Nixdorf. He was asked if he would perjure himself to save his wife’s life, to which he responded, “I’d do anything to save her life.”

At another point, on cross-examination, he was asked, “Are you saying that Mr. Park over here threatened your wife?”

Answer. “Well, I’m saying that he sent Mr. Nixdorf down to see me, offer me money not to get back where I was, hire me any lawyers in the United States I wanted; Texas, Boston, anywhere * * * anything Mr. Nixdorf done is for Mr. Park. He’s working for him; employed by him.”

It is upon the above record, and in contravention of the reasoning of the Supreme Court of Georgia, that Park seeks habeas corpus, asserting that his conviction resulted from denial of his Sixth Amendment right to confront the witnesses against him.

In the District Court it was specifically stipulated by Park’s counsel that the claimed violation of the Confrontation Clause, accomplished by admitting the declarations of the non-testifying Pinion and Worley, is the only issue upon which there had been state exhaustion, thus ripe for federal habeas corpus disposition.

There is an important distinction between the instant case and Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970). In Dutton’s case, Section 38—306 of the Annotated Georgia Code was attacked on the ground that a part of its hearsay exception was constitutionally invalid in that it did not identically conform to the hearsay exception as applied to conspiracy trials in the federal courts, that is, the challenged statement in Dutton had been made subsequently to the commission of the homicide and while the alleged participants were attempting to conceal the identity of the actual murderers. Under federal conspiratorial exceptions to the hearsay rule the evidence could not have been admitted; under the Georgia statute, in a state trial, it was admissible. It was argued that this aspect of the Georgia statute violated the Confrontation Clause.

To this, in a plurality opinion, with one Justice concurring in the result, the Supreme Court responded, “Appellee does not challenge and we do not question the validity of the coconspirator exception [to the hearsay rule] in the federal courts.”

Moreover, the Supreme Court in its Dutton decision pointed out that Evans [in that case] was not being prosecuted for conspiracy but for the substantive offense of murder, that is, one in which he, according to eye witness testimony, actively participated.

In the instant case, the declarations of Pinion and Worley were made prior to the murder and while efforts were being made to cause it. To be specific, this was a typical conspiratorial situation. It did not involve declarations of co-conspirators made after the crime was committed.

This remands us to an evaluation of the views of the Supreme Court of Georgia in Park’s case. The opinion there defined conspiracy, under Georgia law, as “A corrupt agreement between two or more persons to do an unlawful act”, 162 S.E.2d 364, thus the conspiracy does not have to be one which is, of itself, explicitly defined and punishable as an independent criminal offense.

The Georgia Court continued, “It is not necessary that the crime of murder should be a part of the original design; but it is enough if it be one of the incidental probable consequences of the execution of their design. * * * * [The existence of a conspiracy] may be established by direct proof, or by inference, as a deduction from acts and conduct, which discloses a common design on their part to act together for the accomplishment of the unlawful purpose. In other words, the existence of the common design or purpose between two or more persons to commit an unlawful act may be shown by either direct or circumstantial evidence.”

The Court further concluded that, “a conspiracy involving the defendant in the murder of Hoard was prima facie shown by such aliunde evidence, and the inferences and deductions therefrom.”

Thus, we repeat, the instant case falls clearly within the four corners of conspiracy cases frequently encountered in both state and federal courts in which the declarations of co-conspirators made during the existence and furtherance of the conspiracy are admissible as an exception to the hearsay rule. As will later be seen, this has been uniformly held not to infringe on Sixth Amendment confrontation rights.

Our Panel was of the view that “There was no independent, non-hearsay evidence of Park’s participation in the plot to kill Solicitor General Hoard; there was independent evidence only of Park’s participation in a conspiracy to violate the State’s alcoholic beverage law.” We cannot agree, for the evidence recited herein well supports the inference or deduction, which the jury accepted, that the killing was incidental to or in furtherance of the undisputed ongoing liquor conspiracy and was inescapably a part of it, for without the former there would have been no motive or reason for the ultimate event. The liquidation of the Solicitor General could well have been accepted by criminal minds as the only way to keep the illegal liquor conspiracy alive. The only other possible motive, revenge for prior interference and heavy fines, would have been a direct descendant of and inseparably linked by common bonds to the original conspiratorial activities. That the beginning unlawful conspiracy inseparably merged in the murder to us seems to be inescapable. There was no “combination of two conspiracies”, as mentioned in the panel opinion.

Nor can we agree, as the Panel thought, that the declarations of the alleged co-conspirators were unsupported by indicia of reliability. Quite evidently, as indicated by its verdict, the jury found beyond a reasonable doubt that the Pinion and Worley statements had been made, that “the old man”, Park, was the only man anywhere near this situation who was possessed of enough funds to finance the assassination. It was Pinion, his enforcer, who, by his declaration, had to go see “the old man” to settle a demand for an increased fee, with reported negative results. After the deed was done, it was Pinion who travelled to Seay’s home and threw the $5,500 on the bed, departing without saying a word. There is not a whisper in the record that Pinion personally had or, on his own, could marshal such resources. Hoard had cost “the old man” $21,700 in seized contraband and $6,300 in fines for himself and employees — compared to which a $5,000 hit fee would look relatively small, especially if if carried with it the hope of holding on to contraband not yet destroyed and of carrying on a rather major (and profitable) illegal operation in a dry county.

In the context of this case we attribute no constitutional significance to the failure of the State to call Pinion and Worley to the stand. Both men had denied their complicity in the murder. They had stood trial on it, maintaining their innocence. They were nevertheless convicted. It would have been a strange expectation, indeed, to anticipate that, if called, they would abandon their steadfast position and render assistance to those who had succeeded in consigning them to the penitentiary for life. Moreover, it is an inescapable assumption that counsel for the State and for Park knew what happened at the trials of these men. With this knowledge, neither side bothered to put either of them under subpoena. Even Blackwell and Seay, who had made their peace with the State in return for a life sentence, invoked the Fifth Amendment at the second trial, from which Blackwell never wavered, although Seay did withdraw from that position and took the stand.

The determinative point, as later developed, is that Seay was the only witness to the out of court statements of Pinion and Worley and as to this he was thoroughly cross-examined.

In the context of that already written, we turn to a discussion of some principles of controlling law, applicable to cases such as this one. In doing so, there is no intention to rake the field or to -attempt a treatise on the Confrontation Clause, or the law of conspiracy, or exceptions to evidentiary hearsay rules. What does appear is that the Georgia law applicable to cases of this kind completely tracks the federal law in such instances; we are unable to discern the first relevant distinction between the two.

The common law offense of conspiracy has not been incorporated in the Georgia Criminal Code, yet that Code specifically acknowledges the existence of conspiracies in Section 38—306, supra, by providing that “After the fact of conspiracy shall be proved, the declarations by any one of the conspirators during the pendency of the criminal project shall be admissible against all”. It has been well established by numerous Georgia cases that despite the failure of the Code to denounce the common law offense of conspiracy, a conspiracy may nevertheless be an incident of and one of the means by which a substantive crime may be accomplished, including the crime of murder. For a detailed history and analysis of this legal proposition see Weeks v. State, 66 Ga.App. 553, 18 S.E.2d 503 (1942), and the cases there discussed.

We are thus convinced that the application of the standard exception to the hearsay rule as to conspiracies in this case did not depend upon the existence of a statute making conspiracy a crime in and of itself. This view is bolstered by the plain federal law on the subject, the constitutionality of which seems never to have been successfully challenged.

Indeed, the admissions and statements of a co-defendant are admissible as against the other defendant, even in the absence of a conspiracy count, where there is independent evidence of a concert of action. Clearly, once such concert of action is independently shown, hearsay statements in furtherance of that relationship are admissible in evidence, United States v. Williams, 9 Cir., 1970, 435 F.2d 642. The threshold requirement for admissibility is satisfied by a showing of a likelihood of an illicit association between the declarant and the defendant, United States v. Ragland, 2 Cir., 1967, 375 F.2d 471. The independent evidence of illicit association may be totally circumstantial, United States v. Garguilo, 2 Cir., 1962, 310 F.2d 249; United States v. Ragland, supra.

In United States v. Williams, supra, 435 F.2d at page 645, the Court cited United States v. Olweiss, 2 Cir., 1943, 138 F.2d 798, 800, cert. denied, 321 U.S. 744, 64 S.Ct. 483, 88 L.Ed. 1047 (1943), in which Judge Learned Hand stated:

“It was proper to charge them as principals — which they probably were in any event — even though they were only accessories. (§ 550, Title 18, U.S.C.A.); and any evidence admissible against Olweiss was admissible against them, so far as it consisted of conduct in furtherance of the joint venture in which all three were engaged. The notion that the competency of the declarations of a confederate is confined to prosecutions for conspiracy has not the slightest basis; * * *.”

The common design which is the essence of conspiracy may be made to appear when the parties steadily pursue the same object, whether acting separately or together by common or different means, ever leading to the same unlawful result, United States v. Gordon, 7 Cir., 1944, 138 F.2d 174, cert. denied, 320 U.S. 798, 64 S.Ct. 266, 88 L.Ed. 481. Presenting evidence of violations of different statutes does not create separate conspiracies out of one conspiracy. The gist of the matter is an agreement to commit unlawful acts, United States v. Noah, 9 Cir., 1973, 475 F.2d 688. Of critical importance, the character and effect of a conspiracy are not to be judged by dismembering it and viewing its separate parts, but only by looking at it as a whole, Carlson v. United States, 10 Cir., 1951, 187 F.2d 366, cert. denied, 341 U.S. 940, 71 S.Ct. 1000, 95 L.Ed. 1367.

A conspiracy is a partnership in crime and so long as that partnership continues the partners act for each other in carrying it forward; an overt act of one partner may be the act of all even without any new agreement specifically directed to that particular act, Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946).

Participation in a criminal conspiracy may be shown by circumstantial as well as direct evidence, Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957). A party’s stake in an alleged conspiracy is relevant to the question of whether he participated therein, Direct Sales Co. v. United States, 319 U.S. 703, 63 S.Ct. 1265, 87 L.Ed. 1674 (1943).

Once the existence of the common scheme of a conspiracy is shown, slight evidence is all that is required to connect a particular defendant with the conspiracy, United States v. Lee, 5 Cir., 1973, 483 F.2d 968.

Conspiracy is almost always a matter of inference deduced from the acts of the persons accused, which are done in pursuance of an apparent criminal purpose, and proof need go no further than reach that degree of probability where the general experience of men suggests that it has passed the mark of reasonable doubt, Blumenthal v. United States, 9 Cir., 1947, 158 F.2d 883, affirmed 332 U.S. 539, 68 S.Ct. 248, 92 L.Ed. 154.

From the foregoing, we are totally convinced that the theory upon which Georgia prosecuted Park and upon which the jury convicted him is legally unassailable.

This leaves only the question of whether the conviction was obtained at the expense of the Confrontation Clause of the Sixth Amendment, a fundamental right made obligatory on the states by the Fourteenth Amendment, Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).

The general facts and circumstances of the conspiracy which led to the murder were developed by live witnesses, duly subjected to cross-examination, presenting no issue of confrontation.

The confrontation attack is centered upon the admission, through the testimony of Lloyd Seay, of statements made by co-conspirators Douglas Pinion, and George Worley before the murder was committed. As to this, Seay was subjected to the most rigorous and searching cross-examination. This is exactly what the Confrontation Clause guarantees, see, e. g., Nelson v. O’Neil, 402 U.S. 622, 91 S.Ct. 1723, 29 L.Ed.2d 222 (1971). A conspirator’s declaration in furtherance of the conspiracy may be used against another conspirator not present on the theory that the declarant is the agent of the other, and the admissions of one are admissible against both as a standard exception to the hearsay rule, Delli Paoli v. United States, supra; Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593 (1953). The issue was whether Pinion and Worley had made the statements. Seay was the only witness who swore that they had. He was cross-examined at length and in detail. That puts an end to the confrontation argument in this case.

We need not linger long over certain issues not reached by the Panel in its decision.

After they had invoked the Fifth Amendment at the second trial, there was no error in the use of the transcripts of the testimony of Blackwell and Seay given at the former trial in which both had been cross-examined by the same defense counsel who appeared at the second trial, United States v. Mobley, 5 Cir., 1970, 421 F.2d 345.

The use of Blackwell’s confession is no cause for intervention in this case as it nowhere mentioned the defendant Park, White v. United States, 5 Cir., 1969, 415 F.2d 292.

The judgment of the District Court denying the appellant Park habeas corpus relief is

Affirmed.

Since Park is now at large on' bail, pending the outcome of this appeal, the mandate will issue

Forthwith.

GEWIN, Circuit Judge

(concurring specially):

Reluctantly, I concur in the result reached by the majority in this case. In my view, this special concurrence is impelled by the Supreme Court’s plurality opinion in Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), and the decision of this court en banc in Hoover v. Beto, 467 F.2d 516 (1972), cert. denied, 409 U.S. 1086, 93 S.Ct. 703, 34 L.Ed.2d 673. Were it not for those two decisions, I would join with my dissenting Brothers.

The plurality opinion in Evans concluded that no error was committed in the trial of Evans on a capital offense when the state was allowed to prove by a witness named Shaw that Williams, a co-conspirator with Evans, made the statement, “If it hadn’t been for that dirty son of a bitch Alex Evans, we wouldn’t be in this now.” The Court concluded that the Georgia hearsay statute and Georgia decisions authorized the admissibility of the statement. Some of the Justices seemed to assign as an additional reason for admissibility the fact that the statement by Williams “did not misrepresent Evans’ involvement in the crime.” Two Justices thought the admission of the statement was harmless error because it was “so incredible that the testimony must have hurt, rather than helped, the prosecution’s case.” It is rather significant that four Justices concluded that the Georgia rule satisfied the right of confrontation (opinion of Justice Stewart concurred in- by Chief Justice Burger, Justices White and Blackmun). Four other Justices disagreed with that conclusion (opinion of Justice Marshall, concurred in by Justices Black, Douglas and Brennan). The deciding vote was cast by Justice Harlan who refused to apply Sixth Amendment standards to the Georgia statute and Georgia decisions interpreting it, but considered the question as posing an issue of due process. It seems fair to say that there is no clear holding of the Court except as to the result reached.

It is interesting to note that at the time of trial, the witness Williams was in the custody of the state of Georgia and easily available to the state. The murder for which Evans was being tried had been committed for over a year. The purpose of the conspiracy had been accomplished. The facts were known, and therefore, the statement by Williams could not have aided in the concealment of the conspiracy. Indeed, Truett, a participant in the murder, who had been granted full and complete immunity and was the principal prosecution witness, testified fully as to Evans’ involvement. As the court stated in Fiswick v. United States, 329 U.S. 211, 217, 67 S.Ct. 224, 227, 91 L.Ed. 196, 200 (1946), “[CJonfession or admission by one co-conspirator after he has been apprehended is not in any sense a furtherance of the criminal enterprise. It is rather a frustration of it.” Nevertheless, the plurality opinion in Evans sustains the admissibility of the statement under the Georgia rule which allows such evidence because it is deemed to be in furtherance of the conspiracy or in concealment of it. Whether the statement be considered incredible as some of the Justices seemed to think or as a true representation of Evans’ involvement in the crime as others apparently thought, it is surely not complimentary of a defendant standing trial on any charge, especially a capital offense, to be characterized as “a dirty son of a bitch” and to be accused as the person who caused the trouble.

Similarly, this court in Hoover permitted the state to introduce into evidence the confession of Calvin Sellars, one of the principals involved, through the mouth of Officer C. V. Stone. Officer Stone was allowed to testify as to what Sellars had said to him, which seriously implicated Hoover even though Sellars was not shown to be unavailable to the state as a witness.

If the hearsay statement made by Williams was admissible against Evans and if the hearsay statement made by Sellars was admissible against Hoover, notwithstanding the confrontation provision of the Sixth Amendment, I am compelled to concur in the result reached by the majority which approves the admission of damaging hearsay statements by witnesses who never confronted Park.

Although I feel bound to concur in the result reached by the majority, I must pause to pay some obeisance to the confrontation clause. Except for the cases cited, I could not agree that an accused can be deprived of the right to confront and be confronted by the witnesses against him. The confrontation clause of the Sixth Amendment arose out of ominous circumstances in the history of the common law. In 1586, Mary, Queen of Scots, was convicted in a star chamber proceeding chiefly on documentary evidence which she claimed was forged, but she was unable to interrogate those who had written the documents. Sir Walter Raleigh was convicted upon hearsay evidence in 1603 and ultimately executed fifteen years after trial. He pled for the right of confrontation in these words:

“If I knew any of these things, I would absolutely confess the indictment and acknowledge myself worthy a thousand deaths. Why, then, my Lords, let my accuser be brought and let me ask him a question and I have done; for it may appear from his own relation that his accusation cannot be true, or he may be discovered by examination. If you condemn me upon bare inferences and will not bring my accuser to face, you try me by no law, but by a Spanish inquisition. If my accuser were dead or out of the realm, it were something; but my accuser lives and is in the house, and yet you will not bring him to my face.”

Raleigh’s plea was made a vital part of our law in the Sixth Amendment.

Moreover, since I am bound by the result reached in Evans and in Hoover, there is another reason why I am constrained to concur in the result of the majority, even if I would not do so absent the two decisions mentioned. There yet remains in our law a viable principle which requires respect for the decisions of the highest tribunals of a state once it is concluded that a Constitutional issue is not presented. It is a hazardous undertaking for federal courts to overturn the conclusion of state courts unless the Supremacy Clause requires such action.

In Avery v. Alabama, 304 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1939) the defendant was convicted of murder, sentenced to death and his conviction was affirmed by the Supreme Court. Avery was tried in 1938 for a murder alleged to have been committed in 1932. He was arraigned on Monday; two practicing attorneys were appointed to defend him; pleas of not guilty and not guilty by reason of insanity were entered and the case was set for trial on Wednesday. The case was not reached on Wednesday but the trial actually commenced on Thursday. Appointed counsel moved for a continuance on the ground they had not had sufficient time and opportunity to investigate the case and prepare a defense. One of the appointed attorneys supported the motion for continuance on the ground that he had been substantially engaged in court on Monday, Tuesday and Wednesday. Under these facts the Supreme Court concluded:

“Under the circumstances of this case we cannot say that the trial judge, who concluded a fairly conducted trial by carefully safeguarding petitioner’s rights in a clear and fair charge, deprived petitioner of his constitutional right to assistance of counsel. The Supreme Court of Alabama having found that petitioner was afforded that right, its judgment is Affirmed.”

308 U.S. at 453, 60 S.Ct. at 325, 84 L.Ed. at 383.

Again in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the Court evidenced a profound respect for the judgment of a state appellate court. In Brady it is important to remember that the Court only held that the suppression of the accomplice’s confession violated the due process clause of the Fourteenth Amendment. The Court also concluded that neither the due process clause nor the equal protection clause of that amendment was violated by restricting the new trial, which it ordered, to the question of punishment only. Justice Douglas aptly stated:

“We usually walk on treacherous ground when we explore state law, for state courts, state agencies, and state legislatures are its final expositors under our federal regime.” (footnote omitted)

373 U.S. at 90, 83 S.Ct. at 1198, 10 L.Ed.2d at 220.

WISDOM, Circuit Judge,

with whom GOLDBERG, GODBOLD, SIMPSON and RONEY, Circuit Judges, join, dissenting:

I reaffirm the views expressed in the panel opinion. 5 Cir., 493 F.2d 923. I join in my brother Thornberry’s dissenting opinion. I add a few words of my own because the majority opinion shows an egregious misunderstanding of the Confrontation Clause.

The only links between Park and the murder are the hearsay statements Pinion and Worley are supposed to have made to Seay. The majority opinion blithely dismisses the significance of this fact in one paragraph with a quick wave of the pen:

“As to this, Seay was subjected to the most rigorous and .searching cross-examination. This is exactly what the Confrontation Clause guarantees.”

Incredible! Of course, what the Confrontation Clause guarantees is Park’s right to examine Pinion and Worley— not just Seay.

Continuing on its errant way, the majority states:

“The issue was whether Pinion and Worley had made the statements. Seay was the only witness who swore that they had. He was cross-examined at length and in detail. That puts an end to the confrontation argument in this case.”

But the issue was not whether Pinion and Worley had made the statements. They may have done so. They may have wished to lighten their burden by shifting the heaviest part of it to someone else; Park was a logical choice. The issue was the truth or falsity of their statements. Park was entitled to confront these accusers. The United States Constitution guarantees him this right, regardless of the willingness of Georgia courts to admit the statements by attenuating the co-conspirator exception to the bar against hearsay.

The utility of an exception to the rule against hearsay depends on the reliability of the hearsay and the need for such evidence. The reliability of a co-conspirator’s out-of-court statement is shaky at best. It is shakier when the only conspiracy proved was to commit a misdemeanor, here to sell liquor in a dry county. To allow Park to be found guilty of murder on the crucial, devastating out-of-court statements of two men who were never brought into court to testify, although they were in prison and therefore available to testify, shocks me. I doubt that this could happen in any other civilized country. I had thought that it could not happen here.

THORNBERRY, Circuit Judge,

with whom WISDOM, GOLDBERG, GOD-BOLD, SIMPSON and RONEY, Circuit Judges, join, dissenting:

I cannot subscribe to the majority opinion’s analysis and respectfully register my dissent.

The majority opinion properly looks to the Georgia court decisions in this case to determine the elements of proof required to convict Park of murder. ' Yet the opinion does not follow that analysis through to its logical conclusion. The net result is an opinion that, in my view, ignores the very first principles of the Supreme Court’s confrontation clause decisions.

The Georgia Supreme Court’s first opinion attempts to set out the elements of proof under Georgia law required to convict Park. Park v. State, 224 Ga. 467, 162 S.E.2d 359 (1968). It is clear that the State’s theory of the case was that the murder was committed in furtherance of the liquor conspiracy. Under that theory, the State had only to show beyond a reasonable doubt that Park participated in the liquor conspiracy. Then, applying the principle of Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), Park was guilty of murder without regard to his actual knowledge of or his active participation in the murder plot.

Arguably the Georgia Supreme Court adopted the State’s theory, and the majority opinion here apparently construes the state court opinion in that fashion. Under that theory, I do not feel this ease presents a significant confrontation problem. There was a wealth of evidence to connect Park with the liquor conspiracy. If the State could obtain a murder conviction merely by showing Park’s connection with the liquor conspiracy, then Pinion’s statements were neither “crucial” to the prosecution’s case nor “devastating” to Park’s defense. The case would present a confrontation question very similar to Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 276 L.Ed.2d 213 (1970), and I would think the confrontation question here properly resolved under the rationale of the Dutton plurality, or on a harmless error theory.

I think Park might raise due process objections to the validity of his murder conviction on the Pinkerton theory. See Developments in the Law — Conspiracy, 72 Harv.L.Rev. 920, 993-98 (1959). However, as the majority notes, the confrontation clause issue is the only question ripe for habeas corpus disposition, and Park should first present any due process arguments to the Georgia courts.

My reading of the Georgia Supreme Court opinion, however, convinces me that the Georgia Supreme Court required proof of Park’s connection with the murder plot for conviction. The court rejects Park’s claim of entitlement to a directed verdict of acquittal on the basis that there was evidence of Park’s participation “in a conspiracy to murder Hoard.” Park v. State, 224 Ga. 467, 468, 162 S.E.2d 359, 361 (1968). Further the court required corroboration of Seay’s testimony since he was an accomplice to the murder. In summarizing the evidence on corroboration the court states, “The evidence relied upon by the State as corroborating the testimony of the accomplice Seay tended to connect Park with the murder and was sufficient to support his conviction.” 224 Ga. at 477, 162 S.E.2d at 366. If the Georgia court only required proof of Park’s participation in the liquor conspiracy, corroboration of Seay’s testimony would not be essential to sustain the conviction.

If the Georgia opinion required proof of Park’s participation in the murder plot, then I feel this case presents a confrontation problem significantly different from Dutton. The out of court statements of Pinion and Worley provided the only evidence linking Park to the murder conspiracy. The Georgia Supreme Court’s decision there allowed the State to use out of court statements against Park to establish an essential element of its case. Those statements

were clearly crucial to the prosecution’s case, and Park never had the opportunity to confront and cross-examine the makers of those statements.

The majority feels the confrontation clause requirements are met here. The opinion states:

The confrontation attack is centered upon the admission, through the testimony of Lloyd Seay, of statements made by co-conspirators Douglas Pinion, and George Worley before the murder was committed. As to this, Seay was subjected to the most rigorous and searching cross-examination. This is exactly what the Confrontation Clause guarantees, see, e. g., Nelson v. O’Neil, 402 U.S. 622, 91 S.Ct. 1723, 29 L.Ed.2d 222 (1971).

I most vigorously disagree. Park’s opportunity to cross-examine Seay does not satisfy the confrontation clause. Seay did not make the inculpatory statements, and therefore cross-examining him as to their meaning is fruitless. It is Pinion and Worley who are the witnesses against Park for Sixth Amendment purposes. The situation in Nelson v. O’Neil was completely different. There, Runnels, the out of court declarant, took the stand, and was subject to cross examination. Here Pinion and Worley, the makers of the extrajudicial statements, never testified, and could not be examined as to their perception, memory, narration, and sincerity. See Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 62 Harv.L.Rev. 177, 218 (1948). The majority feels that Seay’s status as a co-conspirator makes him the agent of Pinion and Worley. The majority reasons that Park’s opportunity to cross-examine the “agent” was the confrontation clause equivalent of cross examining the declarants. This is a novel confrontation clause concept to which I do not subscribe.

I think Judge Wisdom’s panel opinion, makes the proper confrontation clause analysis in this case. For the reasons given in that opinion, I would reverse the district court’s denial of Park’s habeas corpus petition.

      . See F. Heller, The Sixth Amendment 104 (1901).

      . R. Raby, Fifty Famous Trials 17 (1937).

      . As the panel opinion noted, Pinion and Worley were not shown to be unavailable. Each had either exhausted his appellate remedies, or failed to appeal his murder conviction. I do not believe that either man could validly have claimed a fifth amendment privilege. The mere possibility of future collateral attack should not give rise to a valid claim of privilege after final conviction. See Reina v. United States, 364 U.S. 507, 513, 81 S.Ct. 260, 5 L.Ed.2d 249 (1960); United States v. Romero, 249 F.2d 371, 375 (2d Cir. 1957); 8 Wigmore, Evidence § 2279 (McNaughton Rev. 1961).