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December 30, 1959

Harry J. ALKER, Jr

The opinion of the court was delivered by: KRAFT

Defendant was tried to a jury and found guilty on all three counts of the indictment. Count one charged him with violating Section 894(b)(2)(C) of the Internal Revenue Code of 1939, *fn1" by willfully attempting to evade part of the estate tax due on the estate of Winfred S. Hurst, deceased. The second and third counts of the indictment charged violations of Section 7207 of the Internal Revenue Code of 1954, *fn2" by the submission of false and fraudulent documents to the Secretary of the Treasury.

On appeal, the judgment was affirmed as to count one of the indictment, and reversed, with the Government's acquiescence, as to counts two and three. 3 Cir., 1958, 255 F.2d 851. The Supreme Court denied certiorari. 1958; 358 U.S. 817, 79 S. Ct. 27, 3 L. Ed. 2d 59.

 The case is now before us on defendant's motion for a new trial on the ground of newly discovered evidence.

 The evidence chiefly relied upon is unusual in character, and presents an important question bearing on the administration of criminal justice. Many months after the defendant's conviction in this case and during the pendency of his appeal therefrom, we received credible information which appeared to indicate that, before the rendition of the verdict, one or more of the trial jurors had had knowledge or information of the defendant's former conviction for income tax evasion, from which an appeal was then pending.

 We became concerned whether the defendant might have been deprived of a fundamentally fair trial by the failure of one or more jurors to disclose pertinent information responsively to the voir dire examination, or by the impropriety of consideration, by one or more jurors, of information about defendant's prior conviction, inadvertently acquired during this trial. In the interest of justice we determined that an inquiry should be conducted. After conferences with the United States Attorney and defendant's counsel, the defendant and all counsel agreed that we should conduct such an inquiry without participation by or the presence of the defendant or any counsel.

 At defendant's trial each juror and alternate juror had been carefully examined on voir dire before acceptance, and each had disavowed any knowledge about the defendant.

 For the purposes of the inquiry all the trial jurors and alternates, except one who was then in Texas and unavailable, were summoned and interrogated by the trial judge. The interrogation was taken stenographically by the official court report and thereafter transcribed. Decision was deferred until the defendant's appeal, then pending, and his subsequent petition for writ of certiorari to the Supreme Court of the United States, had been determined.

 We were satisfied from the interrogation that, at the time the jury was sworn, no juror was aware of the defendant's prior conviction. The interrogation did reveal, however, that four jurors had become aware of that conviction during the trial. One juror read a mention of the former conviction in a newspaper article. The other three jurors heard a juror make casual mention of the former conviction. There was no other or further discussion of the subject.

 We prepared and filed a memorandum in which we recited the facts substantially as above stated. For the reasons set forth in the memorandum, we reached the conclusion that the verdict should not be disturbed.

 Thereafter, defendant filed the present motion, based partially upon the facts appearing in our memorandum. At the oral argument, we withdrew our conclusions, since, as we then stated, we felt that, insofar as the motion was based upon the ground of the jury 'problem', defendant should not be faced with a prejudgment on the serious question presented.

 At oral argument, we also received and made a part of the record two news articles which appeared in the Philadelphia newspaper in which the one juror had seen mention of the previous conviction. The articles appeared in the issues of March 27 and 28 (1957), respectively, while the jury was sitting on the case. The article of March 27 appeared under a one-column headline reading: 'Alker on trial for second time in tax fraud.' The opening paragraph stated:

 'Harry J. Alker, Jr., 72, Philadelphia and Norristown attorney convicted last fall of a $ 185,000 income tax fraud, went on trial yesterday in U.S. District Court here on charges of conspiring to defraud the Government of Federal estate taxes.'

 The last three paragraphs, under the sub-headline, 'sentenced to year,' read:

 'Last October Alker was sentenced to a year and a day in prison and fined $ 30,000 following his conviction by a jury of evading $ 185,000 in income ...

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