"thirteen to fifteen" times), who were vulnerable and sensitive to the suggestion from Broskie that they could have past failures regraded to passing in return for a cash contribution to Seaman's Scholarship Fund. Seaman, the relator, was vital to the scheme. Only he could regrade. He dealt with the applicants personally, subtly and with sophistication. But no amount of sophistry can obliterate or even blur the unaccountable termination of each of the regrading transactions: the relator accepting from the candidates $1,000. in cash in small bills, without a receipt, without asking for a check, without even an inquiry about how the "donor" had heard of the Scholarship Fund. This is hardly unimpeachable conduct, made even more questionable by the relator's professional qualifications as an experienced accountant and practicing lawyer. The "indicia of reliability" test was more than met.
Finally, as was the case in Dutton (400 U.S. at 78, 91 S. Ct. 210), and Weber (437 F.2d at 340), the relator here had the "full opportunity to crossexamine those witnesses who repeated * * * [Broskie's] extra-judicial statements in order to test the accuracy of their testimony * * *." (See Weber, supra, at 340).
Examining Weber again, now in light of our sifting of Dutton, it is clear that the Third Circuit in Weber did not hold that a State, proceeding as the New Jersey courts in this case did, would thereby violate the Confrontation Clause.
Relator's brief urges that Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), applies. As stated in United States v. American Radiator & Standard Sanitary Corp., 433 F.2d 174 (3 Cir. 1970), and Parness v. United States, 415 F.2d 346 (3 Cir. 1969), Bruton did not "invalidate" the hearsay exception rule in conspiracy cases. Moreover, as pointed out in American Radiator, supra, 433 F.2d at 194, "the United States Supreme Court held in 1924 that the conspiracy exception did not deny a defendant his right of confrontation. Delaney v. United States, 263 U.S. 586, 44 S. Ct. 206, 68 L. Ed. 462." See also, Nelson v. O'Neil, 402 U.S. 622, 91 S. Ct. 1723, 29 L. Ed. 2d 222 (June 1, 1971).
California v. Green, 399 U.S. 149, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970), has also been urged upon us. But Green was a non-conspiracy criminal case and the Court of Appeals of this Circuit has stated that "We do not find that Green alters our conclusion that we are bound by holdings that use of the co-conspirator exception does not violate the Confrontation Clause."
In summary, the coconspirator exception to the Confrontation Clause, along with other hearsay exceptions, still stands; New Jersey's procedures, as applied to the relator, were constitutionally proper; the relator received a fair trial; and there was an abundance of evidence to support the verdict of the jury that he was guilty as charged.
The day may come when a higher court decides that the conspiracy doctrine is to be discarded. Until it does, there is no confrontation issue presented by the admission of hearsay statements of a coconspirator. For under the law of conspiracy, acts, whether they be physical or verbal, by one conspirator in the course of, and in furtherance of, the conspiracy are regarded as the acts of the others in the conspiracy: it is as if those others committed those acts, or made the statements. Van Riper v. United States, 13 F.2d 961, 967 (2 Cir.), cert. denied, Ackerson v. United States, 273 U.S. 702, 47 S. Ct. 102, 71 L. Ed. 848 (1926). How then can there be a constitutional confrontation issue?
On the other hand, there may arise a due process issue, under certain circumstances not present in this case, and of course, on a case by case basis, the courts can continue to permit the co-conspirator exception to survive.
The record has been sufficient for the determination of the petition and no evidentiary hearing is required. Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963). Moreover, the relator's counsel, at oral argument, disclaimed the necessity for taking of testimony in this proceeding.
For the foregoing reasons,
It is, on this 5th day of August, 1971,
Ordered that the petition of Joseph J. Seaman for a writ of habeas corpus be and hereby is denied, and this Court certifies there is no probable cause for appeal from this Order;
And it is further ordered that the Order entered in this proceeding on July 12, 1971, releasing the relator on bail, be and hereby is vacated.