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

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.

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

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.

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

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.

The judgment of the district court will be affirmed.