The opinion of the court was delivered by: John F. Grady, United States District Judge
MEMORANDUM OPINION AND ORDER
The court has under advisement the motion of the defendant, John T. Ambrose, for release pending appeal. The parties agree on what he must show in order to be entitled to release. The applicable statute provides that a defendant who has been sentenced to a term of imprisonment shall be detained pending appeal unless he can show that the appeal "raises a substantial question of law or fact likely to result in - (I) reversal [or] (ii) an order for a new trial...." 18 U.S.C. § 3143(b)(1)(B). A question is "substantial" if it "presents a close question or one that very well could be decided the other way." United States v. Shoffner, 791 F.2d 586, 589 (7th Cir. 1986) (internal quotation marks omitted). If the defendant demonstrates the existence of a substantial question, he must go on to demonstrate that if the question is decided in his favor "the appellate court is more likely than not to reverse the conviction or order a new trial." United States v. Bilanzich, 771 F.2d 292, 298 (7th Cir. 1985).
The effect of the statute, then, is that the defendant must show that the appellate court is more likely than not to find the errors affecting his conviction were so prejudicial that the appropriate remedy is either an outright reversal or a new trial. Before discussing the specific errors alleged by the defendant, we will examine the strength of the evidence regarding his guilt, because that has an obvious connection to the question of whether the alleged errors were prejudicial at all, let alone so prejudicial as to require a reversal or a new trial.
Some of the errors asserted by the defendant have to do with the constitutionality of the statute involved in Count Two and the constitutionality of the interrogations which took place at the FBI headquarters. Should the Court of Appeals rule in the defendant's favor on these constitutional questions, he would be entitled to appellate relief regardless of the weight of the evidence of his guilt. But assuming the constitutional questions are resolved in the government's favor (a matter we will discuss infra), it is our view that none of the other alleged errors are likely to result in a reversal or a new trial because they were not prejudicial in the sense that they arguably brought about the defendant's conviction. This is because the defendant's presentation at trial admitted his guilt under both counts of conviction, and, considering that presentation, it is highly unlikely that the jury could have found him not guilty on either count. We will explain what we mean.
Count I of the superseding indictment charges that the defendant stole certain information regarding the witness Nicholas Calabrese, who was in the witness protection program. All that the statute involved in Count I (18 U.S.C. § 641) requires is that the defendant knowingly converted the protected information to his own use or the use of another. It does not require any particular "motive," and certainly does not require that the defendant steal the information for the purpose of selling it. Count II of the superseding indictment charges that, without the authorization of the Attorney General, the defendant knowingly disclosed that same protected information. Again, the statute involved in Count II (18 U.S.C. § 3521(b)(3)) does not require any venal motive for the disclosure; it requires only that the disclosure be made knowingly and without authorization.
In our view, the defendant, through his counsel, admitted his guilt of each of the violations alleged, albeit arguing that he lacked "criminal intent" (but a type of intent not required by either count of conviction). In his opening statement to the jury, referring to the defendant's interview with Messrs. Fitzgerald and Grant, defendant's counsel stated:
Let there be no doubt about it. John did say repeatedly to them, "I messed up. I screwed up. I fucked up, but it's not what you think."
John did make a mistake. He made a big mistake in his job, but we submit the evidence will show that John did not act with any criminal intent to commit any of the charged crimes. (Trial Tr. ("Tr."), Vol. I, at 21.)*fn1
A few minutes later, counsel continued: Now, let me just cover with you a couple of other additional pieces of evidence, some things that Mr. Funk [the prosecutor] raised. Sadly, John's dad did die in prison after being convicted in the so-called Marquette 10 case. John's dad was a Chicago Police Department officer who was convicted. He was sent to prison, and he died in prison.
Another member of the Chicago Police Department was Bill Guide, and Bill Guide worked in the Marquette district.
He was convicted in that case, and he was sent to prison. When he was released from prison -- and by the way, when John's father was convicted and died in prison, John was very young. He's 42 today. Yesterday was his birthday.
He was very young, a young kid.
When Guide got out of prison, Guide became somewhat of a father figure to John. He became -- John became very close to Guide over the years. And what happened here is they shared -- they shared a relationship based on their background and based on their mutual love of amateur wrestling, kid wrestling, where they both were active.
And they had a lot of time to spend talking about that.
And they also talked about the job, which police officers and agents do.
And John got caught up in this because he was boasting about what he had done and what he was doing. But nothing he said was sensitive or put anybody in any danger. (Tr., Vol. I, at 27-28(emphasis added).) From the outset of the trial, then, the defendant admitted that he converted the information and disclosed it to Mr. Guide by way of a boast to a friend. But the statutes involved in this case make no exception for boasting. If the information is knowingly converted and knowingly disclosed without authorization, the statutes are violated. We suppose there could be an unlimited variety of possible motives, including the desire to ...