(D.C. Criminal No. 72-266) APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Hunter and Weis, Circuit Judges, Miller, District Judge.
This is the appeal of a conviction for various criminal violations of the federal income tax laws.*fn1 While appellant alleges numerous grounds for reversing the district court's verdict, the only claims that require discussion are: 1) that the district court erred in refusing to declare a mistrial because of prejudice that resulted from the publication, during trial, of a news article dealing with appellant's indictment for another offense; and 2) that the district court used improper procedures in dealing with appellant's claim that his telephonic communications were subjected to illegal surveillance by the government and that it or this surveillance was used against him. We have concluded that these two claims, and the others raised by appellant,*fn2 are not meritorious and affirm the judgment of the district court.
Appellant's claim of improper publicity rests on the publication of an article in the Philadelphia Daily News after the conclusion of all evidence in the case but prior to its submission to the jury. The article reported appellant's indictment (in a different jurisdiction) on an assault charge and recited the circumstances of that alleged offense. It also referred to appellant as a "gang figure" (in the headline), and as a "reputed underworld figure" (in the body of the article). One juror and one alternate juror indicated, upon questioning by the district judge, that they had read the article.*fn3 Appellant claims that these circumstances required the declaration of a mistrial. We cannot agree.*fn4
The crucial question in cases such as this is the degree of prejudice created by the improper publicity, since a new trial is required only when substantial prejudice has occurred.*fn5 It is our opinion that under the circumstances involved in this case the requisite prejudice did not occur. To begin with, the arrest giving rise to the indictment reported in the article and the facts that gave rise to it had already been presented to the jury.*fn6 As a result, the possible prejudice was restricted to the characterizations of appellant that appeared in the article.
In addition, while these statements did have prejudicial potential, it was clearly less serious that the prejudice that occurred in United States ex rel. Doggett v. Yeager, 472 F.2d 229 (3d Cir. 1973). In that case, several newspaper articles reported the defendant's likely involvement in an escape attempt just prior to trial; an act which strongly implied consciousness of guilt on the part of the defendant with regard to the very offense for which he was being tried. Further, one article (that was read by several of the jurors) referred to defendant's withdrawal of an earlier guilty plea with regard to the offense being tried. In this case, no such directly incriminating information was contained in the article.
Moreover, the article involved here appeared at a time when its prejudicial impact was likely to be minimal. It was not published until the 35th day of trial, and by that time the jury had already heard all the evidence, including extensive testimony by the appellant himself. As a result the jurors were thoroughly familiar with the defendant and the case, and were less likely to be influenced by the brief characterization of the defendant that appeared in the Daily News article.*fn7
Finally, we note that the juror and the alternate juror who read the article were instructed by the district court to disregard the article in their deliberations and each assured the court that it would not affect his ability to render a fair and impartial judgment.*fn8 In view of all these circumstances, we do not believe that the publicity that occurred requires us to order a new trial.
The second contention of appellant that warrants some discussion involves the claim that his telephone conversations were subjected to illegal electronic surveillance by the United States government and that this surveillance or its fruit was used against him in this proceeding.*fn9 When such a claim is made the government is required to "affirm or deny the occurrence of the alleged unalwful act." 18 U.S.C. § 3504 (a)(1) (Supp. 1973), and in this case the government did deny that it engaged in electronic surveillance. However, appellant claims that the denial was insufficient, and that therefore a hearing on this issue should have been held.
This claim is not meritorious. In a letter dated June 21, 1973, Fred B. Ugast, Acting Assistant Attorney General, indicated that a check had been made of the appropriate agencies*fn10 and that appellant had not been subjected to electronic surveillance by the government.*fn11 Under the law of the circuit, this denial is sufficient and eliminates the necessity for a hearing.
Since appellant's allegation of illegal electronic surveillance was not supported by any facts and was thus totally conclusory in nature, this case is controlled by In re Horn, 458 F.2d 468 (3d Cir. 1968). In that case, as in this one, appellant urged the necessity for a hearing when the government relied solely upon a denial of electronic surveillance. This court held, "that since petitioners had not presented 'any evidence demonstrating that these representations by the Government [were] false,' a hearing was not warranted." Id, at 471 (citations omitted). Since appellant in this case has presented no evidence at all with regard to the alledged surveillance, a fortiori ...