United States v. Zimny

United States Court of Appeals
For the First Circuit
No. 15-2144
UNITED STATES OF AMERICA,
Appellee,
v.
MARK J. ZIMNY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Torruella, Thompson, and Kayatta,
Circuit Judges.
John M. Thompson, with whom Linda J. Thompson, Robert F.
Hennessy, and Thompson & Thompson, P.C. were on brief, for
appellant.
Vijay Shanker, Attorney, United States Department of Justice,
Criminal Division, Appellate Section, with whom Leslie R.
Caldwell, Assistant Attorney General, Sung-Hee Suh, Deputy
Assistant Attorney General, Carmen M. Ortiz, United States
Attorney, Victor A. Wild, Assistant United States Attorney, and
Giselle Joffre, Assistant United States Attorney, were on brief,
for appellee.
January 24, 2017
THOMPSON, Circuit Judge. A jury found the defendant,
Mark J. Zimny (Zimny), guilty of five counts of wire fraud, five
counts of engaging in unlawful monetary transactions, two counts
of filing false tax returns, and one count of bank fraud. Zimny
appeals, raising several arguments for our review. In this
opinion, we address only one of these contentions: that the
district court's inquiry into Zimny's claims of juror misconduct
was inadequate.1 We agree and remand for an evidentiary hearing,
leaving for another day the other issues that Zimny raises.
Background
We recount only those facts necessary to give context to
the juror-misconduct issue that we consider in this appeal.2
A. The Scheme
Zimny operated an educational-consulting business called
Ivy Admit. Ivy Admit's primary client base consisted of Chinese
and South Korean parents eager to send their children to elite
boarding schools and universities in the United States. In 2007,
1 In addition to this contention, Zimny also argues that the
district court's denial of his motion for a continuance deprived
him of his Sixth Amendment right to counsel of choice and that the
district court erred in denying his challenge to the joinder of
the bank-fraud counts.
2 Because Zimny is not challenging the sufficiency of the
government's evidence and the precise manner in which we chronicle
the backstory has no impact on our decision, we elect to present
the facts in a balanced fashion. See United States v. Vázquez-
Larrauri, 778 F.3d 276, 280 (1st Cir. 2015); United States v.
Rodríguez-Soler, 773 F.3d 289, 290 (1st Cir. 2014).
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Zimny approached Gerald Chow (Gerald), who lived in Hong Kong with
his wife, Lily. Zimny explained that Ivy Admit assists Asian
students applying to boarding schools and colleges in the United
States. Intrigued, the Chows hired Zimny to provide educational-
consulting services to their two teenage sons while the boys
studied in the United States; Zimny was tasked with acting as their
sons' guardian, arranging for tutors, recommending schools, and
accompanying the Chow children on school tours.
But these services were just a small piece of the pie
that Ivy Admit offered. What made Ivy Admit truly valuable, Zimny
explained to Gerald, was its ability to overcome the prejudice
that American boarding schools supposedly exhibit towards Asian
applicants. An Asian student's application goes nowhere, Zimny
explained, unless the school receives a donation, known as a
"development contribution," from the applicant's family. But it's
not that simple, Zimny told Gerald; an applicant's family can't
simply cut the school a check — that looks way too fishy. Instead,
schools will accept development contributions only through an
intermediary that the school knows. Zimny assured Gerald that Ivy
Admit fit this bill.
On five different occasions in 2008, Zimny requested
money to be used as development contributions on behalf of the
Chow children. Each time, the Chows complied, wiring the money to
Zimny. On two of these occasions, the Chows expressed concern
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about the size of the payment requested and the possibility that
the schools might deny one son's applications; Zimny assured the
Chows that, if the schools rejected the applications, the money
would be returned to them. In total, the Chows wired approximately
$675,000 to Zimny for development contributions in 2008.
Instead of delivering the funds to the schools as
promised, Zimny pocketed the money. He used it for a variety of
personal expenses, including transfers to his personal checking
account, payment of credit card bills, and a payment made in
connection with his purchase of an apartment.
By the fall of 2009, the jig was up. Fortuitously, the
head of one of the boarding schools to which Zimny had supposedly
made a development contribution on the Chows' behalf happened to
be in Hong Kong. Gerald met with her, and, when he asked whether
the school had received the Chows' donation from Zimny, she
responded that the school had received no such donation. Soon
after, in February 2010, the Chows ended their relationship with
Zimny and demanded a return of all of the development-contribution
funds that had not been donated as promised. Zimny refused to
refund the money and advised the Chows that, given the sensitive
nature of some of the work that Ivy Admit performed for them, it
would be best not to pursue the matter further "to ensure privacy
for all in the United States and Hong Kong." The Chows thought
otherwise; they sued Zimny later that year.
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B. The Criminal Trial
Zimny's conduct also came across the federal
government's radar. A grand jury issued an indictment that charged
him with five counts of wire fraud, five counts of engaging in
unlawful monetary transactions, two counts of filing false tax
returns, and two counts of bank fraud.3 Zimny elected to stand
trial before a jury. After the jury was impaneled, the district
court admonished the jurors to refrain from discussing the case.
This admonition was repeated (only) twice throughout Zimny's
thirteen-day trial. In addition, the district court instructed
the jury on the twelfth day of trial to avoid any media coverage
of the case. As far as we can tell, this is the only time that
such an instruction was given. Finally, during its final charge
to the jury, the district court admonished the jurors to "decide
the case based on the evidence that has been presented" and that
"[a]nything you may have heard outside the courtroom about this
case is not evidence and should not be considered." The district
court did not expressly instruct the jurors to refrain from
conducting independent internet research on the case or the parties
involved.
3
Given the tack we take in this opinion, we need not chronicle
the facts giving rise to the false-tax-return and bank-fraud
charges or examine the degree to which these offenses are connected
with the other ten counts.
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On several occasions during trial, one or more jurors
did not show up to the courthouse. On the fourth trial day, Juror
No. 8 was unable to report for duty. After conferring with
counsel, the district court elected to recess the trial until the
following morning. As hoped, Juror No. 8 returned the next day,
a Friday, and trial proceeded as scheduled. But Juror No. 8 once
again was unable to make it to the courthouse the following Monday,
this time due to sickness, and the court again recessed for the
day. The court and the parties agreed that, if Juror No. 8 was
absent again the following day, an alternate juror would take her
place. The next morning, Juror No. 8 was absent again, and, as
promised, the court replaced her with an alternate.
The trial proceeded without any more juror-attendance
hiccups. The jury acquitted Zimny of one the bank-fraud charges
and found him guilty on all other counts.
C. The Blog and the Efforts to Obtain a New Trial
A federal district court in Boston was not the only place
where Zimny stood trial. Before, during, and after this criminal
proceeding, comments on a blog post ensured that Zimny's conduct
was also aired in the court of public opinion.
In October 2012 — before Zimny was indicted — the Chows'
ongoing civil litigation against Zimny was discussed in a post
entitled "The Harvard Admissions Lawsuit" on a blog called "Shots
in the Dark." The blog post received several hundred comments,
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the vast majority of which were posted anonymously, from
individuals we shall call commentators.4 The comments began
immediately after the blog entry was posted, and they continued to
roll in for the two-and-a-half years that transpired before Zimny
was convicted. In addition to discussing the criminal case and
the Chows' civil litigation against Zimny, the commentators also
shared details of Zimny's personal life and allegations of similar
fraudulent conduct on his part.
Many of these comments painted Zimny in an unfavorable
light. Here's a small sampling:
 "Zimny's personal life is full of deceits & frauds
. . . . He exploits rich [A]sian women pretending to be
a wealthy Harvard-grad business man."
 "Zimny is a con-man, pure and simple. He is being sued
all over the place for fraud . . . . He is a cancer."
 "I remember this scumbag. Asiaphile creep con artist
with an ultra evil alter ego. Justice awaits."
 "[H]as the criminal already been jailed yet?"
 "This leech has NOT ONE redeeming quality."
 "EVERYTHING that comes out of his filthy mouth is [a]
lie . . . ."
 "[T]here are a lot of [A]sian families watching over
this law suit [sic] just to see him being jailed . . . .
The [C]hows is [sic] just the tip of the huge iceberg."
 "He is quite simply the most vile, despicable human being
I have ever observed. He thinks only of himself and has
absolutely no regard or remorse for other people. He
moves like a Great White Shark, devouring any pray [sic]
4At the time Zimny filed his motion for a new trial, the blog
post garnered over 250 comments. As of this date, over 300
comments have been posted. See Richard Bradley, The Harvard
Admissions Lawsuit, Shots in the Dark (Oct. 9, 2012),
http://www.richardbradley.net/shotsinthedark/2012/10/09/the-
harvard-admissions-lawsuit/ (last visited Jan. 23, 2017).
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he can. He especially likes to victimize Asian people
whether through scams, contrived lawsuits or
womanizing."
 "No punishment is too great for this disgusting piece of
shit."
 "Feds don't bother to indict unless they're pretty sure
of getting somewhere with the charges . . . . It's like
[Zimny] can't NOT be dishonest. Never stops lying, and
never stops attempting to cheat and steal from people
who believe the lies."
 "I honestly cannot find one redeeming quality in Zimny.
He is a wretched human being . . . . Must feel terrible
to be the parents of a human horror like him."
 "The worst part is that now we, the taxpayers, will have
to pay to house/feed this miserable piece of shit on a
[sic] prison. Hopefully, he'll rot away quickly."
 "Zimny is that 1% of the 1% of sociopaths completely
devoid of empathy and conscience. Just an insatiable
black-eyed shark ceaselessly on the hunt for victims. I
feel sorry for his parents. There's no way in hell Zimny
is a bi-product [sic] of some childhood wounds. He's a
genetic defect."
 "I have no doubt that any jury with an IQ above body
temperature will convict Zimhole. I only fear that his
defense undoubtedly tried to seat as many morons as
possible in order to confuse them . . . ."
The comments were so inflammatory that, on two occasions, the
author of the blog post threatened to delete the post and the
accompanying comments; he explained that "[t]his is a blog for
discussion, not hate. And certainly not violence."
Meanwhile, back in federal court, the government was
aware of and occasionally viewed the blog-post comments. And, hot
on the heels of the jury verdict, the government informed Zimny's
defense team of blog-post comments from the night before the
verdict was returned that were authored by an anonymous poster who
claimed to have been a juror in Zimny's criminal trial. In
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response to comments requesting status updates on the trial, an
anonymous commentator responded: "It's gone a week longer than
the judge has hoped dude [sic] to Lily Chows [sic] testimony. When
I left the jury last week due to an illness they were 50/50." When
an intrigued fellow commentator asked "[w]ho was 50/50," this
anonymously posted answer followed: "The jury. Half saw him
guilty and the others didn't."
After learning of these comments, Zimny filed a motion
for a new trial, asking the district court to conduct an inquiry
into whether the jurors were exposed to extraneous information or
engaged in premature deliberations. The government agreed that
the district court should question Juror No. 8 about these
comments, and the court did so.
During the court's examination of Juror No. 8, she
admitted authoring the comments in question. The juror testified,
under oath, that she had not visited the blog — or read anything
else about the case — during her jury service; it was only after
she left the jury that she had found the blog. Juror No. 8 also
testified that she had not discussed the case with any of the other
jurors while she was serving on the jury. Her assessment of the
jurors — that half saw Zimny guilty and the other half viewed him
as not guilty — was instead based on Juror No. 8's interpretation
of "the way that [the jurors] would sigh on certain things" and
jurors' "body language." Finally, Juror No. 8 testified that she
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had not authored any of the other comments on the blog post. After
completing its own questioning of Juror No. 8, the district court
permitted Zimny to propose additional questions for the district
court to ask the juror; Zimny took the district court up on this
offer, proposing several questions that the district court, in
turn, posed to Juror No. 8. At the conclusion of Juror No. 8's
testimony, Zimny requested that the court examine the other jurors;
the court denied that request, concluding that Juror No. 8's
testimony did not necessitate that step.
Zimny filed a motion for reconsideration of the district
court's refusal to examine the jurors. Initially, the motion was
based on a comment that was posted after Zimny filed his motion
for a new trial but before the hearing at which Juror No. 8 was
questioned. This commentator — writing anonymously, like so many
others who commented on the blog post — suggested that, if Juror
No. 8 testified that "it was just her 'impression' or 'feeling'
that the other jurors thought Zimny was guilty[,] then Juror #8
will be sent home with the court's thanks." Zimny argued that,
because Juror No. 8 admitted in her testimony that she reviewed
the blog post shortly before her testimony, the similarity between
her in-court testimony and the suggestion of the anonymous
commentator rendered her testimony "entirely unreliable."
Four days later, Zimny alerted the district court to yet
another anonymous comment on the blog post; this comment had been
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posted earlier that day by someone who claimed to have been a juror
on Zimny's criminal trial. The comment, which we shall call the
additional-juror comment, read as follows:
Boy this is getting comical. I've been following it on
and off, and was also on the jury. Mama June, and those
who were there know what I'm talking about,[5] was
spouting about the "shots in the dark" blog since day
one. Its [sic] why she conveniently got 'sick' and
didn't finish her service. Several other jurors told
her to stfu[6] and got annoyed. '[I]diot' doesent [sic]
describe the half of it.
This comment, Zimny argued, suggested that, contrary to Juror No.
8's in-court testimony, she in fact had discussed the blog with
other jurors. Zimny insisted that this additional-juror comment
required the district court to examine the other jurors.
The district court denied the motion for reconsideration
without explanation. Zimny timely appealed.
Analysis
Zimny argues that the district court failed to
adequately investigate his claims that the jury was exposed to
extraneous prejudicial information — the blog post and its comments
5 For those, like us, who weren't there, Zimny explains that
"Mama June" is the name of a character from the reality show Here
Comes Honey Boo Boo and asserts that Juror No. 8 bore a striking
resemblance to this character. The government does not dispute
this assertion.
6 For those unfamiliar with the term, "stfu" is an acronym
for a particularly emphatic way to tell someone to be quiet: "Shut
the f*** up!" See Stfu, Urban Dictionary,
http://www.urbandictionary.com/define.php?term=stfu (last visited
Jan. 23, 2017).
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— and that the jurors engaged in premature deliberations. We
review the district court's response to these allegations of juror
misconduct for abuse of discretion. See United States v.
Rodriguez, 675 F.3d 48, 58 (1st Cir. 2012); United States v.
Mikutowicz, 365 F.3d 65, 74 (1st Cir. 2004).
A defendant bears the burden of coming forward with an
allegation of juror misconduct that is colorable or plausible.
Mikutowicz, 365 F.3d at 75; see also Rodriguez, 675 F.3d at 58.
Although "courts generally 'should be hesitant[] to haul jurors in
after they have reached a verdict . . . to probe for potential
instances of bias, misconduct, or extraneous influences," Neron v.
Tierney, 841 F.2d 1197, 1205 (1st Cir. 1988) (alteration in
original) (quoting United States v. Moon, 718 F.2d 1210, 1234 (2d
Cir. 1983)), "a trial court has an unflagging duty adequately to
probe a nonfrivolous claim of jury taint," United States v.
Paniagua-Ramos, 251 F.3d 242, 250 (1st Cir. 2001); see also United
States v. Yeje-Cabrera, 430 F.3d 1, 11 (1st Cir. 2005) (quoting
this language). Thus, where a defendant makes a colorable or
plausible claim of juror misconduct, the district court must
investigate it. See Rodriguez, 675 F.3d at 58; Paniagua-Ramos,
251 F.3d at 250; United States v. DeLeon, 187 F.3d 60, 67 (1st
Cir. 1999); United States v. Rogers, 121 F.3d 12, 17 (1st Cir.
1997); United States v. Meader, 118 F.3d 876, 880 (1st Cir. 1997);
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United States v. Boylan, 898 F.2d 230, 258 (1st Cir. 1990); Neron,
841 F.2d at 1201, 1202-03 & n.6.7
In cases where the district court is obliged to
investigate, "the court nonetheless 'has broad discretion to
determine the type of investigation which must be mounted.'"
Rodriguez, 675 F.3d at 58 (quoting Meader, 118 F.3d at 880). While
a "fullblown evidentiary hearing" is an option, one is not
necessarily required. Id. (quoting Boylan, 898 F.2d at 258).
"Instead, the court's 'primary obligation is to fashion a
responsible procedure for ascertaining whether misconduct actually
occurred and if so, whether it was prejudicial.'" Id. (quoting
Boylan, 898 F.2d at 258). "The touchstone is reasonableness: did
the trial court fashion, and then even-handedly implement, a
sensible procedure reasonably calculated to determine whether
7Similarly, we have remarked that an inquiry of the jurors
should be conducted "when 'reasonable grounds for investigation
exist,' i.e., 'there is clear, strong, substantial and
incontrovertible evidence that a specific, nonspeculative
impropriety has occurred which could have prejudiced the trial of
a defendant.'" United States v. Connolly, 341 F.3d 16, 34 (1st
Cir. 2003) (quoting Moon, 718 F.2d at 1234); see also United States
v. Villar, 586 F.3d 76, 83 (1st Cir. 2009) (quoting this language).
And we have recognized that, in some cases, an initial inquiry is
necessary to determine whether reasonable grounds for
investigation exist. See, e.g., Bouret-Echevarría v. Caribbean
Aviation Maint. Corp., 784 F.3d 37, 48-49 & n.9 (1st Cir. 2015)
(concluding that district court should have convened evidentiary
hearing and questioned nonjuror witnesses who reported juror
misconduct in order to determine whether inquiry of jurors was
warranted).
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something untoward had occurred?" Paniagua-Ramos, 251 F.3d at
249-50.
Notwithstanding this broad discretion, however, a
district court "judge does not have discretion to refuse to conduct
any inquiry at all regarding the magnitude of the taint-producing
event and the extent of the resulting prejudice" if confronted
with a colorable claim of juror misconduct. United States v. Lara-
Ramirez, 519 F.3d 76, 87 (1st Cir. 2008). In the last analysis,
"[i]t is the circumstances of each case that will determine the
level of inquiry necessary." Rodriguez, 675 F.3d at 61; see also
Paniaqua-Ramos, 251 F.3d at 250 ("[C]laims of jury taint are almost
always case-specific.").
In this case, Zimny's evidence of juror misconduct did
not come before the district court all at once. Initially, Zimny
requested the district court to conduct an inquiry on the basis of
Juror No. 8's blog-post comments. After hearing her testimony,
Zimny unsuccessfully attempted — both at the hearing and in his
first filing in support of his motion for reconsideration — to
persuade the district court that, because Juror No. 8's testimony
was unworthy of belief, all of the jurors needed to be questioned.
Then, apart from this Juror No. 8 evidence, Zimny argued in a
second filing that the additional-juror comment also necessitated
an inquiry of all of the jurors. In recognition of the staggered
manner in which Zimny presented this evidence to the district
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court, we first review the adequacy of the district court's
treatment of the Juror No. 8 evidence before turning to its
response to the additional-juror comment.
A. Juror No. 8 Evidence
Zimny first argues that the district court's initial
inquiry into Juror No. 8's blog-post comments was deficient. He
insists that the court's refusal to examine the remaining jurors
is unsupportable in the absence of an explicit determination of
Juror No. 8's credibility and explicit findings of fact. We
discern no abuse of discretion in the district court's initial
inquiry.
The district court thoroughly questioned Juror No. 8,
and this questioning focused on both of Zimny's juror-misconduct
claims. The court explored Zimny's allegation of premature
deliberations by repeatedly asking Juror No. 8 whether she
discussed the case with her fellow jurors. When Juror No. 8
steadfastly responded that she had not done so, the district court
pressed further, demanding to know what Juror No. 8's assessment
of the jurors as being "50/50" could possibly be based on if no
discussions took place. The court also asked questions aimed at
addressing Zimny's allegation that the jurors had been exposed to
the blog post and its comments during trial. Juror No. 8
repeatedly assured the court that she had not known of or visited
the blog until after she had left the jury and that she discovered
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the blog not through discussions with other jurors but by
independent research. After observing Juror No. 8's testimony
from the front-row seat that the district court occupied, the judge
concluded that she did "not believe [Juror No. 8's] testimony
requires" questioning the other jurors.
To be sure, the district court did not explicitly declare
that it found Juror No. 8's testimony to be credible. But, after
reviewing the entirety of the court's examination of Juror No. 8,
we are convinced that the district court implicitly reached this
conclusion. Cf. Applewood Landscape & Nursery Co. v.
Hollingsworth, 884 F.2d 1502, 1505 (1st Cir. 1989) (discerning an
implicit credibility finding from a statement of the district
court). Necessarily implicit in the judge's statement that she
did not believe that an examination of the other jurors was
required based on Juror No. 8's testimony was the conclusion that
she believed Juror No. 8, who testified under oath, that (1) no
premature deliberations or discussions about the case occurred and
(2) she did not expose the other jurors to the blog-post comments
because she discovered the blog post only after she left the jury.
Cf. United States v. Newman, 982 F.2d 665, 670 (1st Cir. 1992)
(concluding from district court's stated reasons in support of its
denial of defendant's motion for new trial premised on juror
misconduct that district court "implicitly determin[ed] that there
had been no prejudice to [defendant]"). We will not disturb this
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credibility determination, which was reached after an extensive
inquiry.8 See Meader, 118 F.3d at 881 ("Assessment of [a] juror's
credibility as [the juror] responds to the [court's] questioning
is uniquely the domain of the district court . . . ."). In sum,
the district court's initial response to Zimny's claims of juror
misconduct was, at that juncture, reasonable. Therefore, the
district court's initial inquiry does not constitute an abuse of
discretion. See Paniagua-Ramos, 251 F.3d at 249-50.
Zimny next contends that the district court erred in
refusing to undertake a further investigation when Zimny's motion
for reconsideration alerted the district court to the possibility
that Juror No. 8's testimony was influenced by other blog-post
comments. The government fires back that this argument is sheer
speculation, presumably because (as it argued below) Juror No. 8
received advice from counsel before facing the court's questions.
Neither party's position is entirely free from conjecture, but we
need not dwell on this point because we can affirm the district
8 In support of his argument that Juror No. 8 testified
dishonestly, Zimny notes that she incorrectly stated that her blog-
post comments were not in response to questions when, in fact,
they were. This error was plainly apparent to the district court;
the very next question that the court posed tracked the language
of the blog-post comment that prompted the first of Juror No. 8's
comments: "Did somebody ask whether anybody attended the trial,
would have any information about it?" And, even though the
district court knew that Juror No. 8's comments were prompted by
questions, it nonetheless implicitly found her testimony to be
credible. We will not second-guess that determination.
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court's denial of this aspect of the motion for reconsideration on
any ground supported by the record. See United States v.
Siciliano, 578 F.3d 61, 73 n.7 (1st Cir. 2009); cf. United States
v. Connolly, 504 F.3d 206, 212 (1st Cir. 2007) (explaining that,
"[w]hen the trial court has not expounded its rationale, the court
of appeals will peruse the record, identify the issues and the
controlling legal rules, and review the denial of the motion [for
a new trial] accordingly").
The comments that supposedly influenced Juror No. 8's
testimony were posted before the evidentiary hearing where she
testified. And Zimny knew about the blog post before these
comments were posted. In addition to knowing about the blog post
and its comments in advance of the evidentiary hearing, Zimny was
given the opportunity to propose questions for the court to ask
Juror No. 8. He availed himself of this opportunity, but none of
the questions he proposed related to the potential that Juror No.
8's testimony was slanted by other comments on the blog. In these
circumstances, there was no abuse of discretion in rejecting this
aspect of Zimny's motion for reconsideration. See United States
v. Allen, 573 F.3d 42, 53 (1st Cir. 2009) (explaining that "[w]e
review the denial of a motion for reconsideration for abuse of
discretion" and that such motions "are not to be used as 'a vehicle
for a party to undo its own procedural failures [or] allow a party
to advance arguments that could and should have been presented to
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the district court prior to judgment'" and "are appropriate only
in a limited number of circumstances: if the moving party presents
newly discovered evidence, if there has been an intervening change
in the law, or if the movant can demonstrate that the original
decision was based on a manifest error of law or was clearly
unjust" (second alteration in original) (quoting Iverson v. City
of Bos., 452 F.3d 94, 104 (1st Cir. 2006))).9
B. The Additional-Juror Comment
The district court's response to the additional-juror
comment, on the other hand, is a different story. Zimny argues
that the district court was required to conduct further
investigation after he alerted the court to this evidence. We
agree. In the unique circumstances of this case, the additional-
juror comment raised a colorable claim of juror misconduct: that,
contrary to Juror No. 8's testimony, she discussed the blog post
with other jurors.10
9In yet another effort to challenge Juror No. 8's
credibility, Zimny argues that the district court failed to realize
that still other blog-post comments were similar to Juror No. 8's
testimony, suggesting that, contrary to her testimony, she had
authored other comments. But Zimny never made this argument to
the district court, so we will not entertain its debut on appeal.
See United States v. Salley, 651 F.3d 159, 161 n.2 (1st Cir. 2011)
(refusing to consider an argument raised for the first time on
appeal).
10
We note that, unlike the other evidence that Zimny presented
to the district court after Juror No. 8's testimony, the
additional-juror comment was new evidence; it was posted several
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First, Zimny has made a colorable showing that the author
of this comment was a juror on his trial. Not only did the author
of the comment claim to have been a juror, the comment contained
details that supported the credibility of that assertion. For
example, the comment contained an in-the-know description of Juror
No. 8's appearance that was evidently right on the money. See
supra note 5. Additionally, the comment accurately recounted that
Juror No. 8 did not complete her jury service because of a claimed
sickness. The inclusion of these accurate details suggests that
the author of this comment was someone who was both in the
courtroom during Zimny's trial and intimately familiar with the
manner in which it progressed. Furthermore, there is nothing to
suggest that the comment was authored by the defendant or anyone
acting on his behalf. The comment refers to the post-trial
situation involving Juror No. 8 as "comical" and seeks to downplay
the effect of Juror No. 8's actions by describing how several
jurors told her to "stfu." In sum, aspects of the comment tend to
corroborate the author's assertion that he or she was a juror in
Zimny's trial.11
days after the hearing and Zimny's initial filing in support of
his motion for reconsideration. Cf. Allen, 573 F.3d at 53.
11At oral argument, the government asserted that the author
of the additional-juror comment could have been anyone who was in
attendance in the courtroom during trial, including those in the
gallery. Although true, this assertion does not convince us to
discount the claims made in the additional-juror comment. This
was a situation in which there was already independent reason to
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Second, Zimny has shown a colorable claim that serious
juror misconduct occurred. Many of the comments on the blog post
were highly unfavorable to Zimny. Several of the commentators
left vitriolic messages attacking Zimny's truthfulness and
character and suggesting that Zimny had engaged in a pattern of
similar fraudulent conduct against other Asian families. The blog-
post comments were highly prejudicial to Zimny and, if seen by a
jury, would likely inflame the jurors' passions. And the
additional-juror comment related that Juror No. 8 was "spouting
about" — not merely mentioning in passing — the blog "since day
one." Moreover, Juror No. 8's alleged references to the blog were
troubling enough to cause "[s]everal other jurors" to become
"annoyed" and to tell Juror No. 8 "to stfu." The additional-juror
comment therefore indicates that Juror No. 8 told her fellow jurors
of the blog post and its highly prejudicial comments.
The combination of the comment's credible claim that its
author was a juror and the comment's assertion that Juror No. 8
"spout[ed] about" a blog post containing highly prejudicial
information to her fellow jurors "since day one" of Zimny's trial
convinces us that Zimny has shown a colorable claim of juror
misconduct. In these unique circumstances, the additional-juror
suspect possible contamination of the jury. In such circumstances,
the mere possibility that the new comment might not, as claimed,
have been authored by a juror does not mean, in context, that there
existed no new colorable basis to inquire of the jurors.
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comment constituted clear, strong evidence that a specific,
nonspeculative impropriety occurred that could have been highly
prejudicial to Zimny, such that "reasonable grounds for
investigation exist[ed]." Connolly, 341 F.3d at 34 (quoting Moon,
718 F.2d at 1234). Thus, the district court was required to
investigate this plausible allegation of juror misconduct, see
Rodriguez, 675 F.3d at 58, and abused its discretion in failing to
conduct a further inquiry once Zimny alerted it to the additional-
juror comment. See Paniagua-Ramos, 251 F.3d at 249-50 ("[A] trial
court has an unflagging duty adequately to probe a nonfrivolous
claim of jury taint . . . ."); Lara-Ramirez, 519 F.3d at 87
(explaining that a district court "judge does not have discretion
to refuse to conduct any inquiry at all regarding the magnitude of
the taint-producing event and the extent of the resulting
prejudice" if confronted with a colorable claim of juror
misconduct).
The government disputes this conclusion, arguing instead
that, because the comment was posted anonymously, the district
court was under no obligation to investigate it at all. In support
of this position, the government cites United States v. Caldwell,
776 F.2d 989, 999 (11th Cir. 1985), in which the court stated that
"the anonymity of the call [that reported juror misconduct] in our
minds simply creates no burden to investigate." We do not agree
that, in the circumstances of this case, the anonymous nature of
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the additional-juror comment relieved the district court of its
obligation to investigate this claim of juror misconduct.
For starters, the additional-juror comment provides an
even stronger basis for investigation than Juror No. 8's comments
did. Juror No. 8's comments stated that half of the jurors saw
Zimny as guilty while the other half did not, but those comments
did not explicitly indicate that premature deliberations took
place. The additional-juror comment, by contrast, contains an
explicit assertion of juror misconduct: that Juror No. 8 was
"spouting about" highly prejudicial extraneous information to her
fellow jurors "since day one" of trial.
Additionally, Caldwell is distinguishable. For one
thing, despite the court's suggestion that the anonymity of the
call created no obligation to investigate, the district court
actually investigated the claim, questioning the identified juror
on two occasions and concluding that she was credible and could
remain impartial. Caldwell, 776 F.2d at 994-95. For another,
both the source and the nature of the allegation of juror
misconduct in Caldwell was markedly different from the additional-
juror comment in this case. The anonymous caller in Caldwell did
not claim to be a juror and refused to give his name to the judge,
and his report of juror misconduct was secondhand: the caller
reported that a juror's fiancé told the caller that the fiancé had
been informed by the juror that premature deliberations took place.
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Id. at 994. In this case, by contrast, the anonymous comment was
authored by one who claims to have been a juror on Zimny's trial,
the vast majority of the other comments on the blog post were
anonymous, the comment relays accurate details supporting the
author's assertion of juror status, and the author reports juror
misconduct that he or she observed while sitting on the jury. The
government has not cited (and we have not found) any federal
appellate case supporting the proposition that a district court
need not undertake any inquiry of juror misconduct in a case like
this — where the defendant has come forward with evidence of juror
misconduct that both (1) credibly indicates that its anonymous
source was a juror and (2) suggests, based on the source's personal
knowledge, that the jury was exposed to highly prejudicial
extraneous information — solely because the evidence comes from an
anonymous source. To the extent that the language in Caldwell
upon which the government relies can be read as supporting this
proposition, we decline to follow it.
As a fallback, the government argues that the content of
the additional-juror comment supports the district court's refusal
to investigate it. Even if Juror No. 8 mentioned the blog post to
her fellow jurors, the argument goes, the additional-juror comment
establishes that the jurors actually prevented Juror No. 8 from
revealing any prejudicial information contained in the blog-post
comments; therefore, the government tells us, the district court
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was under no duty to investigate the "de minimis" "mention of the
blog's existence." We cannot go along with this reasoning on this
undeveloped evidentiary record.
The government reads too much into the "stfu" component
of the additional-juror comment and not enough into the comment's
description of Juror No. 8's misconduct. According to the comment,
Juror No. 8 "was spouting about" the blog "since day one." This
description of her conduct implies something more than a single
fleeting reference to the blog post. Moreover, Juror No. 8's
references to the highly prejudicial blog post were pervasive
enough that "[s]everal other jurors" became "annoyed" and told
Juror No. 8 in no uncertain terms that enough was enough. In the
absence of some inquiry into this colorable claim of juror
misconduct, we cannot conclude from the basis of the additional-
juror comment alone that "the jurors stopped Juror No. 8 from
revealing anything" beyond the mere existence of the blog.
For all of these reasons, we hold that, in these
circumstances, Zimny's claim of juror misconduct was a colorable
one in light of the additional-juror comment — which constituted
clear, strong evidence that a serious, specific, and
nonspeculative impropriety occurred — and that the district court
was therefore required to undertake some investigation of that
claim once it was apprised of that evidence. In reaching this
conclusion, we emphasize that our holding in this case, like almost
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all others involving "claims of jury taint," is "case-specific."
Paniagua-Ramos, 251 F.3d at 250. We recognize the danger that a
criminal defendant or someone acting on a defendant's behalf might
author an anonymous posting on the internet while posing as a juror
in the hopes of delaying the finality of the conviction, and we by
no means require a district court judge to automatically undertake
an inquiry every time an anonymous posting authored by someone
claiming to be a juror surfaces.12 Instead, we hold merely that,
in the circumstances of this case, the district court was required
to conduct some further inquiry once it was apprised of the
additional-juror comment.
C. Remedy
Zimny insists that the district court's failure to
undertake an adequate investigation of the potential juror
misconduct compels us to vacate his conviction and remand for a
new trial. We disagree.
None of the cases Zimny cites compel us to vacate his
conviction and remand for a new trial. For example, in United
States v. Rhodes, 556 F.2d 599, 601-02 (1st Cir. 1977), we held
12A criminal defendant may have a motive to cast doubt upon
the integrity of the guilty verdict, and the ability to post
content anonymously on the internet creates an avenue for that
motive to be expressed. But this reality alone is insufficient to
render allegations of juror misconduct implausible in the
circumstances of this case, where the additional-juror comment
followed questionable behavior by another juror.
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that the district court's inquiry into allegations of juror
misconduct was inadequate. Based upon case-specific
considerations, we elected to order a new trial. See id. at 602
("Partly because of the number of possible issues, and partly
because so much time has gone by since the discharge of the jury,
we feel it would be best for the court to set aside the verdicts
and grant defendants a new trial, rather than seeking now to
explore the questions of the jurors' exposure to information
regarding defendants' additional history."). Nothing we said in
Rhodes suggests that a new trial is mandated in these
circumstances. See also United States v. Resko, 3 F.3d 684, 694,
695 (3d Cir. 1993) (electing to order new trial, in lieu of remand
for further investigation, where district court's inquiry into
juror misconduct was inadequate because "there [was] unequivocal
proof of jury misconduct" and appellate court had concerns about
jurors' faded memories).
In United States v. Gastón-Brito, 64 F.3d 11, 13 (1st
Cir. 1995), another case relied upon by Zimny, there was an
allegation of an ex parte communication by a government agent with
jurors. Such a communication "invoke[s] a more stringent
standard," "'is presumptively prejudicial[,]' and obligates the
court to 'conduct a sufficient inquiry to determine whether the
communication was harmless.'" Id. (quoting United States v.
O'Brien, 972 F.2d 12, 14 (1st Cir. 1992)). In this case, however,
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the juror-misconduct allegation contained in the additional-juror
comment concerns juror exposure to extraneous prejudicial
information and not any ex parte communication between a juror and
someone associated with the case. Therefore, the presumption of
prejudice discussed in Gastón-Brito is simply inapplicable here.
See United States v. Bristol-Mártir, 570 F.3d 29, 41-42 n.5 (1st
Cir. 2009).
Like Gastón-Brito, Bristol-Mártir, another case cited by
Zimny to support his request for a new trial, is distinguishable.
In that case, it was established that juror misconduct took place:
a juror had conducted internet research on the meaning of words
used in a federal statute and, during deliberations, had shared
her understanding of these words with the other jurors. Bristol-
Mártir, 570 F.3d at 36-37. The district court conducted an
investigation, which included meeting "with each juror
individually about reading news reports related to the case and
about performing outside research," id. at 38, but, "crucially,
the district court did not inquire, either in a group setting or
on an individual basis, as to whether jury members had been
influenced by the errant juror's improper research and
presentation," id. at 43. This critical failure led us to conclude
that the district court abused its discretion in conducting its
inquiry, id. at 43-44, and, without further elaboration, we vacated
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the defendants' convictions and remanded for a new trial, id. at
45.
Zimny's case is one step removed from Bristol-Mártir;
juror misconduct has not yet been established because the
allegation contained in the additional-juror comment was not
investigated. On this undeveloped record, we are reluctant to
follow the approach that we took in the face of undisputed juror
misconduct.
In sum, although the cases Zimny cites support the
position that we could vacate his conviction and require a new
trial in light of the district court's failure to conduct an
investigation into the allegation of juror misconduct contained in
the additional-juror comment, they do not require us to follow
this course. Moreover, in these circumstances, we possess the
authority to remand for further investigation instead of ordering
a new trial. See, e.g., United States v. Vitale, 459 F.3d 190,
199-200 (2d Cir. 2006); United States v. Brande, 329 F.3d 1173,
1177 (9th Cir. 2003); United States v. Tucker, 137 F.3d 1016, 1031-
33 (8th Cir. 1998); United States v. Brantley, 733 F.2d 1429, 1440-
41 (11th Cir. 1984); see also United States v. Sandalis, 14 F.
App'x 287, 288, 291 & n.7 (4th Cir. 2001).13
13
In an analogous context, we employed this approach in
Villar, 586 F.3d at 78-79, 87, which involved an allegation of
juror misconduct that the district court did not investigate based
on its mistaken belief that it completely lacked authority, by
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In this case, a remand for further investigation is
preferable to vacating Zimny's conviction outright and ordering a
new trial. For one thing, because the additional-juror comment
was not investigated by the district court, we simply do not know
whether its assertions of juror misconduct are true. We are
unwilling to disturb Zimny's conviction on this undeveloped
evidentiary record when an adequate inquiry might reveal that the
alleged juror misconduct did not occur in the first place. For
another, while we acknowledge the potential that the jurors'
memories may have faded in the time since they returned their
verdict, see Resko, 3 F.3d at 695; Rhodes, 556 F.2d at 602, this
possibility does not warrant declaring a new trial at this
juncture. Given the combination of (1) the highly prejudicial
nature of the blog-post comments, (2) that Juror No. 8 was
virtue of the prohibition contained in Federal Rule of Evidence
606(b), from conducting any inquiry into a juror's comments made
during deliberations that indicated ethnic bias. Because the
district court had indicated its desire to conduct an inquiry if
it was permitted, we remanded the case for the district court to
undertake that inquiry if it still desired to do so. Id. at 79,
87-88; cf. United States v. Rowe, 144 F.3d 15, 23-24 (1st Cir.
1998) (remanding "for further argument and record development"
where, after jury returned guilty verdict but before sentencing,
district court received letter from juror but refused to make it
part of record or disclose its contents to attorneys; "if, on
further reflection, the court sees compelling factual and/or legal
reasons which both outweigh the very strong interests [the
defendant] has in reviewing the letter and render inadequate the
measures at the court's disposal for ensuring jury and juror
confidentiality, the court should state those reasons with
particularity to facilitate any further review we may be called
upon to conduct").
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"spouting about" the blog "since day one," and (3) that "[s]everal
other jurors" were so "annoyed" by Juror No. 8's conduct that they
told her to "stfu," it is not at all clear to us that a juror would
soon forget witnessing these strange events unfold in such a tense
environment. In any event, the district court's inquiry will
readily reveal whether memories have faded, and, if they have, the
district court can then determine if a new trial is warranted, see
Rhodes, 556 F.2d at 602. But we will not presume on this record
that further investigation will be fruitless.
Conclusion
We remand with instructions that the district court
conduct an investigation into the juror-misconduct allegations
raised in the additional-juror comment. Specifically, the
district court must ascertain "whether [this alleged] misconduct
actually occurred and[,] if so, determine whether it was
prejudicial." Rodriguez, 675 F.3d at 58. We emphasize the
district court's discretion in determining "the scope of the
resulting inquiry and the mode and manner in which it will be
conducted." Paniagua-Ramos, 251 F.3d at 250; see also United
States v. Ortiz-Arrigoitia, 996 F.2d 436, 443 (1st Cir. 1993) ("The
trial judge is not . . . shackled to a rigid and unyielding set
[of] rules and procedures that compel any particular form or scope
of inquiry."); Boylan, 898 F.2d at 258 ("So long as the district
judge erects, and employs, a suitable framework for investigating
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the allegation and gauging its effects, and thereafter spells out
[her] findings with adequate specificity to permit informed
appellate review, [the court's] 'determination . . . deserves great
respect [and] . . . should not be disturbed in the absence of a
patent abuse of discretion.'" (third alteration in original)
(citation omitted) (quoting United States v. Hunnewell, 891 F.2d
955, 961 (1st Cir. 1989))); cf. Rogers, 121 F.3d at 15, 17 (finding
no abuse of discretion with respect to district court's inquiry of
colorable claim of juror misconduct that surfaced after trial where
court questioned two jurors most closely involved and determined
that, although juror misconduct occurred, it was not prejudicial
to defendant). After conducting this inquiry, the district court
should next decide whether the information unearthed in the
investigation warrants granting Zimny a new trial and, in doing
so, should indicate its findings and rationale supporting that
conclusion "with adequate specificity to permit informed appellate
review." Boylan, 898 F.2d at 258.
In the meantime, we retain jurisdiction over the case
and the remaining issues that Zimny has raised on appeal. See
Brande, 329 F.3d at 1178 (remanding case to district court for
further investigation of juror-misconduct allegation while
retaining jurisdiction over case and remaining issues). In the
event that the district court orders a new trial and the government
chooses to appeal from that order, see 18 U.S.C. § 3731, we will
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consolidate the government's appeal with this case and proceed
accordingly. If, on the other hand, the district court still
believes that a new trial is not warranted, it shall transmit a
copy of its written findings and conclusions to the Clerk of this
court. Counsel for both parties shall notify this court after the
district court reaches its conclusions, at which time we will issue
any orders that we deem appropriate.
REMANDED.
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