it pronounced orally at the end of the May 25, 2005 sentencing

This case will be set for a prompt status date for that

Chloe errot—

Milton I. Shadur
Senior United States District Judge

hearing.

purpose.

Date: July 12, 2005


that ruling by Judge Lefkow would be “clear abuse” of her

“considerable discretion” (United States v. Harris, 914 F.2d 927,

932 (7 Cir. 1990))--and no such abuse has been shown. And as
the United States correctly states in a belt-and-suspenders
supplement to that point (which is itself sufficient to dispatch
Jung’s contention), any conceivable error in that respect was
harmless in all events in the context of the entire trial.’

As for the jury instruction issue, the government points out
both that Jung failed to make full disclosure to his accountant,
thus causing the figures provided to the accountant to be
fraudulently inflated, and that nothing in the record supported a
basis for good faith reliance on any advice Jung could have
obtained from the accountant. In both respects United States v.
Brimberry, 961 F.2d 1286, 1290 (7° Cir. 1992) torpedoes Jung’s
contention. And to drive another nail into the coffin of that
argument, the United States correctly points out that the test
for jury instructions is that they be fair and adequate as a
whole, a matter as to which Jung has no arguable dispute.

Conclusion

For the reasons stated here, this Court denies Jung’s motion

to be released pending appeal. It is therefore prepared to issue

a judgment and commitment order conforming to the sentence that

2 Jung's argument based on Evid. R. 403 and his position
that the claimed error was of constitutional magnitude have no

force.


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA,

Plaintiff,

EDWARD THOMAS JUNG,

)
)
)
)
v. ) No. 03 CR 172
)
)
)
Defendant. )

MEMORANDUM OPINION AND ORDER

This case was assigned to this Court’s calendar post-trial
and pre-sentencing in conjunction with the reassignment of a
number of cases from the calendar of this Court’s colleague
Honorable Joan Lefkow to other judges of this District Court.
After this Court had then received substantial input from counsel
for defendant Edward Thomas Jung (“Jung”) and for the government
to supplement the thorough presentence investigation report
provided by the probation officer assigned to the case, it
imposed a sentence that included in part a custodial sentence for
an aggregate term of 109 months.

As was indicated at the conclusion of the sentencing
hearing, Jung’s counsel has presented a submission in support of
a request for release pending appeal--see 18 U.S.C.

§3143(b) (“Section 3143(b)”). In turn the government has filed
its response to that request, so that the issue is ripe for
decision.

To begin with, one nonissue may be put aside: whether, as


called for in part by Section 3143(b) (1) (A), there is clear and
convincing evidence that Jung is not likely to pose a danger to
the safety of any other person or the community if released. No
such risk has been put in issue by the government, and this Court
finds that aspect of a possible release order has been satisfied.

As to the other component of Section 3143(b) (1) (A)--whether
there is clear and convincing evidence that Jung is unlikely to
flee--the government points to a number of factors that it says
demonstrate a risk of flight. For his part, Jung contests that
vigorously, and he also offers to abide by any additional
conditions that this Court might consider reasonably necessary to
assure his surrender if his custodial sentence stands. Under the
circumstances, however, this Court finds it unnecessary to
resolve that disputed issue.

That is so because Jung clearly fails to satisfy the other
essential precondition to release, as imposed by Section
3143 (b) (1) (B). In relevant part that subsection requires this
Court to find:

that the appeal is not for the purpose of delay and

raises a substantial question of law or fact likely to

result in--

(i) reversal,

(ii) an order for a new trial....!

1 [Footnote by this Court] Neither of the other two
alternatives spelled out in that subsection is arguably in play.

2


In that respect both sides cite to and seek to rely on United
States v. Bilanzich, 771 F.2d 292, 298-99 (7° Cir. 1985), which
places on Jung the burden of showing that an issue raised on
appeal is likely to result in reversal or an order for a new
trial--a probability test that depends on the existence of a
substantial question of law or fact: “one that is in ‘close
question’ or one that very well could be decided the other way”
(id. at 298 (some internal quotation marks omitted)).

As stated earlier, this Court was not present during the
trial, so that it lacks the obvious advantage that Judge Lefkow
would have had if the two issues now raised by Jung’s counsel had
been posed to her. But both sides have provided the detailed
input needed to evaluate those issues, which are:

1. whether it was reversible error for Judge Lefkow to
have admitted, pursuant to the nonhearsay provision of Fed.

R. Evid. (“Evid. R.”) 801(d)(2)(D), the statement of Jung's

then attorney James Fox; and

2. whether Judge Lefkow erroneously refused to give a
proposed jury instruction that Jung had relied on his
accountant Roger Householder for his advice on accounting
and reporting matters.
Jung fails to carry his burden as to either of those issues.
As for the Fox statement, it satisfies all of the criteria

under Evid. R. 801(d)(2)(D). On appeal the standard of review of