United States v. Nicholas D'AnDreA, 495 F.2d 1170, 3rd Cir. (1974)

495 F.
2d 1170
74-1 USTC P 9451
UNITED STATES of America, Appellee,

v.
Nicholas D'ANDREA, Appellant.
No. 73-1890.
United States Court of Appeals, Third Circuit.

Argued Feb. 26, 1974.
Decided April 24, 1974.
Louis Lipschitz, Lipschitz & Danella, Philadelphia, Pa., for appellant.

Robert E. J. Curran, U.S. Atty., Victor Schwartz, Asst. U.S. Atty.,
Philadelphia, Pa., for appellee.
Before HUNTER and WEIS, Circuit Judges, and MILLER, District
Judge.
OPINION OF THE COURT
PER CURIAM:
This is the appeal of a conviction for various criminal violations of the federal
income tax laws.1 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 its fruit was used against him. We have concluded that these two
claims, and the others raised by appellant,2 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). Onejuror and one alternate juror indicated, upon questioning by the
district judge, that they had read the article.3 Appellant claims that these
circumstances required the declaration of a mistrial. We cannot agree.4
3
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.5 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.6 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 lthan 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.7
Finally, we note that the juror and 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.8 In view of all these circumstances, we do not believe that
the publicity that occurred requires us to order a new trial.
II
7
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.9 When such a claim is made the
government is required to 'affirm or deny the occurrence of the alleged
unlawful 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, Fed B. Ugast,
Acting Assistant Attorney General, indicated that a check had been made of the
appropriate agencies10 and that appellant had not been subjected to electronic
surveillance by the government.11 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. Since
appellant in this case has presented no evidence at all with regard to the alleged
surveillance, a fortiori it has not presented evidence that demonstrates that the
government's representation is false. As a result, Horn is is controlling
precedent and no hearing is required.12
10
Appellant also contends that the court acted improperly when it permitted the
government to make an ex parte, in camera presentation with regard to the
claim of illegal electronic surveillance.13 Once again, his contention lacks
merit.
11
As Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176
(1969) makes clear, there are some situations in which an adversary proceeding
is required in order to protect a defendant's fourteenth amendment rights. In that
case, the Court barred the district court from reviewing illegally obtained
material in camera in order to judge its 'arguable relevance' to the case
presented by the government. Its conclusion was based on the belief that the
complexity of the task made the safeguard of an adversary proceeding

necessary.14
12
In other situations, however, where similar complexity is not presented in

camera proceedings are permissible. Taglianetti v. United States, 394 U.S. 316,
89 S.Ct. 1099, 22 L.Ed.2d 302 (1969); Giordano v. United States, 394 U.S.
310, 89 S.Ct. 1163, 22 L.Ed.2d 297 (1969) (Stewart, J. concurring). This case
clearly falls into this latter category. The in camera proceeding here did not deal
with the question of whether existing illegal taps tainted the proceedings.
Instead, it dealt with the prior question of whether the alleged illegal
surveillance had occurred at all. This is the same question that was the subject
of an in camera hearing in Taglianetti, and in that case the Court held that the
issues presented were not complex enough to require the safeguards of an
adversary proceeding as a matter of law. 394 U.S. at o17-318, 89 S.Ct. 1099.
We feel that the same conclusion is warranted here.
13
The judgment of the district court will be affirmed.
The charges upon which the conviction was based involved the evasion of
income taxes for the years 1966 and 1967; the filing of a false and fraudulent
tax return for 1967; the filing of a perjured tax return for 1967; and aiding
another in the preparation and filing of a false and fraudulent tax return for
1966
These other claims are:

1) that the district court erred by allowing evidence of transactions in years
other than 1966 and 1967;
2) that the district court erred in permitting the cross-examination of character
witnesses a) relating to the endorsement of checks by appellant, and b)
regarding the claim that appellant had assaulted and threatened an individual
and stolen his property;
3) that the district court erred in permitting evidence about the procedures
involved in the institution of the prosecution;
4) that the district court erred in not granting a new trial because of misconduct
of the prosecutor;
5) that the district court committed error in disclosing that defense counsel
objected to the court's jury charge.

3
Though as indicated infra, page 6, they each assured the district court that this
would not affect their ability to render a fair and impartial judgment
Appellant also contends that the prosecution arranged for the publication of this
article. However, since no evidence was offered to support this claim, it must
be rejected
In some cases, the publicity that occurs is so fundamentally prejudicial that

actual prejudice is presumed as a matter of law. In these cases, the mere
occurrence of the event requires declaration of a mistrial. See, e.g., Turner v.
Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1964) (two key
prosecution witnesses acting as attendants for the jurors throughout the trial);
Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963)
(motion picture of ddefendant 'confessing' to the sheriff shown on local
television)
Where the improper publicity is of a less serious nature however, no similar
presumption operates. In these cases, the appellate court (like the district court)
must review the circumstances surrounding the exposure of the jury to the
publicity and order a new trial only when substantial prejudice has occurred.
See United States ex rel. Doggett v. Yeager, 472 F.2d 229, 239 (3d Cir. 1973);
Marshall v. United States, 360 U.S. 310, 312, 79 S.Ct. 1171, 3 L.Ed.2d 1250
(1959). A comparison of the facts of this case to the facts of Turner, Rideau,
and the cases which follow their approach make it clear that this case falls in
this latter category; that is, substantial prejudice must be shown.
While appellant's brief claims that the earlier admission of this evidence was
itself improper, this claim is without merit
In contrast, the first article to appear in Doggett was published two days after
the trial began
We note that the district court's examination of the juror and alternate juror on
the effect of the article took place in open court, despite the indication in United
States ex rel. Doggett v. Yeager, supra, that it is better to conduct such an
examination out of the presence of the other jurors. 472 F.2d at 234-235. While
we adhere to the view expressed in Doggett as a general rule, we do feel that
cases will arise where en banc examination is preferable and should be
permitted
This is such a case. The district court apparently refrained from an extensive
individual interrogation because it felt that that process would only emphasize
the incident and that ultimately it was likely to do more harm than good. This
decision was proper for two reasons. First, since the likelihood of serious
prejudice from the article itself was not great, the decision not to emphasize it
was reasonably calculated to minimize the overall possibility of prejudice.
Second, the defense itself never sought individual interrogation of the jurors.
Instead it seemed to agree with the court that the use of that process presented a
greater danger of prejudice. Appendix to Briefs at 92a; Opinion of district court,
Appendix at 125-26a. Under these circumstances, we cannot say that the
manner in which the examination of the jurors took place was error.
9
This contention was made by a motion that was filed on the 32nd day of trial
and reads, in pertinent part, as follows:
'Upon information and belief, the defendant represents that the United States of
America, through its agents and employees, caused certain telephonic
communications of defendant to be intercepted in violation of the defendant's
rights under the Constitution and laws of the United States.'
10
The agencies contacted were the Federal Bureau of Investigation, the United
States Secret Service, the Bureau of Alcohol, Tobacco and Firearms, the
Inspection Service of United States Postal Service, the Bureau of Narcotics and
Dangerous Drugs, the Bureau of Customs and the Internal Revenue Service
11
Affidavits were also filed by the prosecutor and the various investigators
(seven in all) who had been involved in the case. They each denied the use of
electronic surveillance or its fruit in investigating and prosecuting the case
12
Appellant also suggests that the denial is insufficient because it was not
presented by affidavit. To support this view, he cites to In re Korman v. United
States, 486 F.2d 926 (7th Cir. 1973). While that decision does adopt an affidavit
requirement as the rule for that Circuit, it does so within the context of a case in
which the allegations of illegal wiretapping were supported by facts which
plausibly established the suspicion of illegal conduct. While a more formal
denial may have value in that situation (and may indeed be preferable in all
cases) we refuse to require it in cases such as this, where the appellant has come
forward with no more than a bald accusation of illegality
13
A transcript was made of this proceeding but it was impounded by the district
court
14
As the Court in that case stated,

'An apparently innocent phrase, a chance remark, a reference to what appears to
be a neutral person or event, the identity of a caller of the individual on the
other and of a telephone, or even the manner of speaking or using words may
have special significance to one who knows the more intimate facts of an
accused's life. And yet that information may be wholly colorless and devoid of
meaning to one less well acquainted with all relevant circumstances.
Unavoidably, this is a matter of judgment, but in our view the task is too
complex, and the margin for error too great, to rely wholly on the in camera
judgment of the trial court to identify those records which might have
contributed to the Government's case.'

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495 F.

UNITED STATES of America, Appellee,

United States Court of Appeals, Third Circuit.

Louis Lipschitz, Lipschitz & Danella, Philadelphia, Pa., for appellant.

* Appellant's claim of improper publicity rests on the publication of an article

Since appellant's allegation of illegal electronic surveillance was not supported

complexity of the task made the safeguard of an adversary proceeding

In other situations, however, where similar complexity is not presented in

The judgment of the district court will be affirmed.

These other claims are:

objected to the court's jury charge.

In some cases, the publicity that occurs is so fundamentally prejudicial that

As the Court in that case stated,

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