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.
Hennesey, and Thompson & Thompson, P.C. were on brief, for
appellant.
Vijay Shanker, Attorney, Appellate Section, Criminal
Division, United States Department of Justice, with whom Carmen M.
Ortiz, United States Attorney, Victor A. Wild, Assistant United
States Attorney, Leslie R. Caldwell, Assistant Attorney General,
Sung-Hee Suh, Deputy Assistant Attorney General, were on brief,
and William D. Weinreb, Acting United States Attorney, Victor A.
Wild, Assistant United States Attorney, Kenneth A. Blanco, Acting
Assistant Attorney General, and Trevor N. McFadden, Deputy
Assistant Attorney General were on supplemental brief, for
appellee.
October 3, 2017
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THOMPSON, Circuit Judge. This is the third and final
installment in a trilogy of published decisions in the direct
appeal from a judgment of conviction entered against the defendant,
Mark J. Zimny. In the opener, we remanded for the district court
to conduct an investigation into a colorable allegation of juror
misconduct. See United States v. Zimny (Zimny I), 846 F.3d 458,
470-72 (1st Cir. 2017). In the sequel, we addressed Zimny's
request for bail pending appeal. See United States v. Zimny, 857
F.3d 97, 98-101 (1st Cir. 2017). Now, in the finale, we tackle
Zimny's new claim that the district court erred in conducting its
juror-misconduct investigation, as well as the two remaining
issues upon which we reserved judgment in Zimny I, 846 F.3d at 460
& n.1, 472-73. In the end, we affirm Zimny's conviction.
BACKSTORY
The facts giving rise to this case are recounted in
detail in Zimny I and need not be repeated here. Here's the gist
of what happened: While operating an educational-consulting
business, Zimny reached out to the Chows, a couple living in Hong
Kong who hoped to send their two teenage sons to elite boarding
schools. Id. at 460. Zimny told the Chows that the schools that
they were targeting were prejudiced towards Asian applicants and
that, to overcome that prejudice, applicants needed to make
"development contributions" — bribes by another name — to the
schools. Id. To prevent the appearance of malfeasance, Zimny
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explained, these contributions needed to be made through an
intermediary, and his business was the perfect cover. On five
separate occasions, Zimny requested that the Chows wire him money
that he would then pass along to the schools in the form of
development contributions. Id. The Chows did as instructed, but
Zimny didn't hold up his end of the bargain; instead of sending
the funds to the schools as promised, Zimny pocketed the money,
using it for a host of personal expenses. Id. at 460-61. The
Chows eventually discovered Zimny's deceit, and the federal
government initiated this prosecution soon thereafter.1 Id. at
461. We'll provide additional background as necessary in our
analysis of the issues that Zimny raises.
ANALYSIS
In its present form, this appeal raises three issues.
First, Zimny contends that the district court's post-remand juror-
misconduct investigation was inadequate. Second, he argues that
the district court's denial of his pretrial motion for a
continuance deprived him of his Sixth Amendment right to counsel
of choice. Finally, he insists that the bank-fraud counts were
improperly joined and that the district court erred in denying his
motion to sever those counts. We address these issues one by one,
first setting forth the necessary background for each before
1
We'll elaborate on the charges and the procedural history
in a bit.
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providing our take. And just a head's up: Zimny makes several
arguments for each issue, and consideration of all of these
arguments necessitates close examination of the particulars of
this case.
A. Juror-Misconduct Investigation
1. Setting the Stage
Our opinion in Zimny I exhaustively chronicled the
backstory behind the juror-misconduct allegation, see id. at 461-
64, and we see no need to parrot that background here. It suffices
to say that someone who claimed to have been a juror at Zimny's
trial commented on a blog post, suggesting that another juror,
"[Juror No. 8]," had exposed her colleagues to prejudicial
information on the blog during trial. Id. at 464, 467-68.2 The
additional-juror comment, which surfaced after Zimny was
convicted, read as follows:
Boy this is getting comical. I've been following it on
and off, and was also on the jury. Mama June [a
reference to Juror No. 8], and those who were there know
what I'm talking about, 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 and got annoyed.
"[I]diot" doesent [sic] describe the half it [sic].
We determined that Zimny, relying on the additional-juror comment,
raised a colorable claim of juror misconduct that required an
2 In Zimny I, we referred to this blog-post comment as "the
additional-juror comment," 846 F.3d at 464, and we shall do the
same in this opinion.
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investigation by the district court, and, because the court
initially declined to investigate it, we remanded so that the
required investigation could take place. Id. at 470, 472.
On remand, the district court, with the agreement of
both parties, first sought to determine the author of the
additional-juror comment by identifying the device from which that
comment was posted. The postal inspector assigned to this task
reported that the comment had been posted using an internet
protocol (IP) address associated with an internet service provider
in Singapore. Because obtaining the specific IP address user
information would require a lengthy and difficult process, the
court decided that it would instead bring the jurors in for
questioning.
The court questioned each of the thirteen other jurors
individually in the presence of the attorneys.3 The court
developed, with input from both parties, a script for the
interrogation.
At the hearing, the court asked all of the questions,
allowing the parties to submit proposed additional questions at
the conclusion of the court's initial questioning of each juror.
Each juror was shown a copy of the additional-juror comment, and
3
The court declined to question Juror No. 8 — who the court
had initially questioned soon after trial and before we decided
Zimny I — a second time.
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each testified that he or she had never seen it before. Each juror
was also asked whether the events alleged in the additional-juror
comment occurred and whether a juror was spouting about the blog.
Also, because of the Singapore-based IP address used to post the
additional-juror comment, the court asked the jurors whether they
travelled outside the United States since the end of the trial.
Each juror testified either that he or she had not travelled
outside of the United States or that his or her international
travel did not include stops in Asia.
Juror No. 1 testified that, one or two days after the
trial ended, he conducted an internet search that led him to the
blog. He also testified that he did not author any comments to
this blog post. Juror No. 4 testified that, at some point before
deliberations began, she remembered hearing "somebody" — she could
not remember who — say "that there was something posted on a blog."4
She also testified, however, that she "didn't hear what it was
about, or anything" and that she didn't "think [the speaker] said
what it was about."
After the hearing, the district court issued a
comprehensive written decision setting forth its findings and
4
Juror No. 4 testified that she didn't "know whether it was
online or a blog" and that she was using the terms "online" and
"blog" "kind of interchangeably."
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conclusions.5 The court explicitly found that: each juror was
credible; the author of the additional-juror comment was not a
juror; no juror misconduct occurred; Juror No. 8 was not "spouting
about" the blog post to her fellow jurors; and the jurors had not
been exposed to the blog post during their service.
After the district court issued its decision, we
permitted the parties to file supplemental briefs. The parties
did so, and, in his supplemental brief, Zimny raises a host of
issues with the district court's investigation.
2. Our Take
We review the district court's response to allegations
of juror misconduct for abuse of discretion.6 See id. at 464.
This deferential standard of review allows the district court wide
latitude to determine the precise manner in which to investigate
colorable allegations of juror misconduct. Id. at 465, 472. "The
5 Before issuing the decision, the district court provided
the parties with the opportunity to submit proposed findings of
fact and conclusions of law. Despite indicating his desire to do
so, Zimny never filed this document.
6 Although Zimny seems to concede as much in his opening
supplemental brief, he offers a somewhat different argument in his
supplemental reply brief. In that filing, he argues that "the
standard of review is controlled by the mandate rule of the law of
the case doctrine." (Capitalization omitted.) This argument
appears to rest on the mistaken premise that Zimny I imposed an
obligation — independent of conducting the investigation into
whether the allegations of juror misconduct occurred — on the
district court to adequately gauge the jurors' memories; as we
explain below, our opinion in Zimny I did no such thing.
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touchstone is reasonableness: did the trial court fashion, and
then even-handedly implement, a sensible procedure reasonably
calculated to determine whether something untoward has occurred?"
Id. at 465 (quoting United States v. Paniagua-Ramos, 251 F.3d 242,
249-50 (1st Cir. 2001)). In the end,
[s]o long as the district judge erects, and employs, a
suitable framework for investigating the allegation and
gauging its effects, and thereafter spells out [her]
findings with adequate specificity to permit informed
appellate review, [her] "determination that the jury has
not been soured deserves great respect [and] . . . should
not be disturbed in the absence of a patent abuse of
discretion."
United States v. Boylan, 898 F.2d 230, 258 (1st Cir. 1990) (fourth
alteration in original) (citation omitted) (quoting United States
v. Hunnewell, 891 F.2d 955, 961 (1st Cir. 1989)).7
"[A] trial court's findings on issues of juror
credibility and honesty are determinations peculiarly within a
trial judge's province and are accorded great deference." Faria
v. Harleysville Worcester Ins. Co., 852 F.3d 87, 90 (1st Cir. 2017)
(internal quotation marks omitted) (quoting Amirault v. Fair, 968
7 Zimny claims that the phrase "patent abuse of discretion"
is incompatible with the standard of review set out in United
States v. Bradshaw, 281 F.3d 278, 291 (1st Cir. 2002). We
disagree. In Bradshaw, this court explained, citing both Boylan
and Hunnewell (both of which we have just quoted), that we "test
the trial court's handiwork against the abuse-of-discretion
benchmark." Id. We then added that "[i]n this context, however,
review for abuse of discretion connotes a certain rigor." Id. We
see no inconsistency in our case law regarding the governing
standard of review.
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F.2d 1404, 1405 (1st Cir. 1992) (per curiam)). "[A]bsent objective
evidence that contradicts a witness's story or a situation where
the story itself is so internally inconsistent or implausible that
no reasonable factfinder would credit it, 'the ball game is
virtually over' once a district court determines that a key witness
is credible." United States v. Guzmán-Batista, 783 F.3d 930, 937
(1st Cir. 2015) (citation omitted) (quoting Rivera–Gómez v. de
Castro, 900 F.2d 1, 4 (1st Cir. 1990)).8 Along similar lines, we
uphold a district court's findings of fact unless they are clearly
erroneous. See United States v. Tejeda, 481 F.3d 44, 52 (1st Cir.
2007).
Within this deferential framework, Zimny's arguments do
not succeed. Generally speaking, he attacks the court's: (a)
8 Zimny argues — without any citation to authority — that,
because the district court did not say why it credited each of the
jurors, the court's "indiscriminate credibility finding puts this
[c]ourt in as good a position to evaluate credibility as the
district court was." To the extent that Zimny means to suggest
that we need not defer to the court's credibility determinations,
we reject this argument out of hand. Our deference to credibility
determinations reflects the stark differences between district-
court judges — who have a front-row seat in which to observe a
witness's demeanor and inflection while testifying — and the judges
of this court — who are far removed from the action in the trial
court and can review only a cold appellate record — when it comes
to assessing whether a witness is telling the truth. See, e.g.,
Guzmán-Batista, 783 F.3d at 937; United States v. Lowe, 145 F.3d
45, 49 (1st Cir. 1998) ("The trial judge is in the best position
to assess a potential juror's credibility by observing her
demeanor, reaction to questioning, and overall behavior on the
stand."); see also Anderson v. City of Bessemer City, 470 U.S.
564, 575 (1985); United States v. Meader, 118 F.3d 876, 881 (1st
Cir. 1997).
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failure to adequately probe the possibility that juror memories
have faded; (b) factual findings; (c) questioning of Juror No. 1;
(d) limitations on the involvement of defense counsel; and (e)
failure to question Juror No. 8 and the blog's host. We address
each of his several arguments in turn.
a. Faded Memories
Zimny complains that the district court's inquiry of the
jurors was insufficient to explore the possibility that jurors'
memories had faded since trial. He faults the court for declining
his request to "question the jurors about their memories of the
trial events in general, to provide a context and baseline sense
of the robustness of individual memories against which the strength
of their memories of the specific events at issue could be
evaluated." He also complains about the court's failure to "make
any findings regarding the adequacy of the jurors' memories of
what occurred in the jury room during the trial before
deliberations."
But, contrary to Zimny's insistence, the purpose of the
remand was not "to investigate the potential that the jurors'
memories may have faded in the interim since trial." Rather, the
purpose of the remand was to determine whether the juror misconduct
alleged in the additional-juror comment actually occurred. Zimny
I, 846 F.3d at 472 ("We remand with instructions that the district
court conduct an investigation into the juror-misconduct
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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.'" (alterations in original) (quoting United
States v. Rodriguez, 675 F.3d 48, 58 (1st Cir. 2012))). The
district court's inquiry was appropriately focused on this
objective. We viewed the prospect of faded memories in Zimny I as
something that would be confirmed or refuted in the course of
fulfilling the purpose of the remand — not as the purpose in
itself. Id. ("[T]he district court's inquiry will readily reveal
whether memories have faded . . . ."). Even so, Juror No. 4's
testimony that she remembered hearing "somebody" say "that there
was something posted on a blog," but could not remember the speaker
does little to support Zimny's conclusion that Juror No. 8 was
spouting about the blog post given that Juror No. 4 also testified
that she "didn't hear what [the blog post] was about, or anything."
b. The District Court's Findings
(i)
Zimny's first challenge to the district court's findings
is an offshoot of his faded-memories complaint: He argues that
the questioning of the jurors demonstrated that their memories had
faded and that these faded memories undermine the court's finding
that the jurors were not exposed to the blog during their service.
We disagree.
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Each juror was asked whether the events alleged in the
additional-juror comment occurred and whether a juror was spouting
about the blog. Of the thirteen jurors who were questioned, ten
testified unequivocally that the allegations in the additional-
juror comment did not occur. Of these ten, three referenced memory
in the course of answering one or two, but not all, of the critical
questions they were asked.9 We reject Zimny's characterization of
these answers as reflecting a general failure of memory on the
part of these three jurors; read in context, their testimony gives
no hint that the allegations in the additional-juror comment
occurred.
9 When Juror No. 2 was asked whether any of the events alleged
in the additional-juror comment occurred, he responded, "To the
best of my memory, I believe one person did get sick and didn't
come back, one of the jurors." The district court then asked,
"Nothing else that is described there?" Juror No. 2 testified:
"No. The only thing I remember is one of the jurors got sick, I
believe, a couple of times or cancelled one day or couldn't get
here, or something." Along similar lines, when Juror No. 6 was
asked whether another juror was spouting about the blog or whether
any jurors discussed the blog while he was in the jury room, he
testified, "Not that I can remember" and "Not that I remember."
Finally, during the course of Juror No. 11's testimony, the
following exchange occurred:
THE COURT: Was there any discussion in the jury room
of any blog called Shots In The Dark or --
[JUROR]: No, absolutely not.
THE COURT: What was it called? -- Harvard Admissions
Lawsuit?
[JUROR]: No, not that I -- not that I recall, no.
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That leaves three jurors. The answers of two of them
were of the "not that I can recall" variety.10 But nothing in
their testimony suggests in any way that the allegations in the
additional-juror comment actually occurred. Finally, Juror No.
12 simply was unaware of whether a juror was spouting about the
blog because he was reading a magazine and so "wasn't paying
attention . . . until [the jurors] really started to discuss the
case seriously." But even his testimony establishes at least that
Juror No. 8 was not spouting about the blog to him.
In these circumstances, the district court did not
clearly err in concluding that Juror No. 8 was not spouting about
the blog post and that the jurors were not exposed to the blog
post during their service.
10 When Juror No. 1 was asked whether "something like [Juror
No. 8 spouting about the blog] occur[red] in the jury room," he
testified, "Not that I recall, and I didn't give -- I didn't
communicate much with the juror who got sick, whether or not she
was sick in quotes or sick in actuality. I didn't communicate
with her." When the district court asked a follow-up question
about whether Juror No. 1 heard Juror No. 8 "making comments about
Mr. Zimny or about the trial or anything like that," he testified,
"Not that I recall, no." Similarly, when Juror No. 13 was asked
similar questions about whether there was a discussion about what
a juror might have learned from "online activity" or whether there
was any discussion about the blog, she responded with the following
similar answers: "To my knowledge and my remembering, no"; "Not
that I know of"; "No, because I've never heard of that blog"; "Not
that I remember and not that I know of"; and "Not that I know of
and not that I remember or recall."
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(ii)
Zimny next argues that the district court's finding that
the alleged juror misconduct did not occur is unsupported because
the court failed to question the jurors about whether they were
exposed to the substance of what was discussed in the blog-post
comments; instead, the court asked only whether the jurors were
familiar with the "Shots in the Dark blog" or the "Harvard
Admissions Lawsuit blog." For several reasons, we are unpersuaded.
At the outset, it appears to us that Zimny never raised
this issue to the district court. The script — which Zimny
concedes was "developed with input from the parties" — asked the
jurors whether the events described in the additional-juror
comment occurred, and the court's questions of the jurors largely
followed suit. And Zimny has not pointed us to any spot in the
record where he raised this substance-of-the-blog issue with the
district court, and we see nothing in our review of the record to
suggest that he ever did so.
In any event, even if the issue had been preserved, Zimny
mischaracterizes the questions that the district court asked. The
court did not, as Zimny claims, ask merely whether the jurors were
"aware of" or "familiar" with the blog. Instead, the court asked
every single juror whether the events described in the additional-
juror comment occurred and whether there was a juror spouting about
the blog. And we see no abuse of discretion in the court's framing
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of this question. After all, the additional-juror comment did not
say that Juror No. 8 was "spouting about," to use Zimny's words,
"some of the scurrilous things said about Zimny on that blog."
Instead, the additional-juror comment alleged that Juror No. 8 was
"spouting about the 'shots in the dark' blog since day one." It
was not an abuse of discretion to ask the jurors about that precise
allegation.
(iii)
Zimny also takes issue with the district court's finding
that a juror was not the author of the additional-juror comment,
contending it is not supported by the jurors' testimony. We
disagree. Every juror was asked whether they had ever before seen
the additional-juror comment — and the author necessarily saw it
— and each responded that he or she had not.11 So that's that.12
11 And that's not all. After Zimny raised the distinction
between questions about familiarity with the court's exhibit of
the additional-juror comment and questions about familiarity with
the contents of the additional-juror comment — which strikes us as
a hair-splitting gripe — the court explicitly asked several jurors
whether they were familiar with the contents of the additional-
juror comment; once again, each juror who was asked that question
unequivocally testified that he or she was not familiar with the
comment's contents. What's more, the court asked some jurors
whether they knew who may have posted or authored the additional-
juror comment, and those jurors all stated that they did not.
12 In a similar vein, Zimny faults the district court for
declining his request to ask jurors about their computer skills.
Because a user can manipulate the identity of the IP address being
used, the argument goes, "[i]nquiry into computer skills and savvy
rather than [post-trial] travel was much more likely to be
productive." But determining whether a juror was computer savvy
enough to manipulate an IP address was relevant only to determining
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c. Questioning of Juror No. 1
Zimny also nitpicks the court's questioning of Juror No.
1. Although Juror No. 1 testified that he had visited the blog a
day or two after Zimny's trial ended, Zimny argues that the juror's
answer about why he visited the blog — "to find out what was going
on" — suggested that he was not being truthful. Here's what Zimny
has to say about this: "Because [Juror No. 1] knew what had gone
on in the trial[,] his answer implies he expected to see something
about the trial on the blog, suggesting that he was returning
rather than visiting the blog for the first time." And the court,
in Zimny's view, erred in not pursuing this "inviting lead." We
disagree.
Zimny's argument about the truthfulness of Juror No. 1's
testimony is speculative at best. What's more, it runs headlong
into the court's explicit determination that Juror No. 1 was
credible — a determination that we will not disturb. See Faria,
852 F.3d at 90; Guzmán-Batista, 783 F.3d at 937.
Zimny also complains that, despite Juror No. 1's
testimony that he spoke with Juror No. 8 during the trial, the
district court did not ask him about the substance of any of these
whether the juror authored the additional-juror comment, and the
district court's direct questioning on this subject, when coupled
with its determination that each juror was credible, amply grounds
the court's determination that the author of the additional-juror
comment was not a juror.
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conversations. But Juror No. 1 testified that he "didn't
communicate much with" Juror No. 8, and, when asked whether he
heard her make any comments about "Zimny or about the trial or
anything like that," he responded, "Not that I recall, no."
Zimny's final gripe about the court's questioning of
Juror No. 1 is that the court failed to ask him whether he had the
ability to access the internet in his employer's Singapore office.
But Juror No. 1 was asked point-blank whether he posted any
comments on the blog, and he responded that he did not. So enough
said about that.13
d. Limitations on Defense Counsel's Involvement
Zimny also claims that the district court's refusal to
let the attorneys question the jurors directly "was unwarranted."
But "[c]ounsel has no right to pose specific questions to a juror
or to pursue every desired avenue of inquiry. The control and
direction of a court's investigation into juror misconduct is
within the discretion of the district court, not defense counsel."
United States v. Ortiz-Arrigoitia, 996 F.2d 436, 443 (1st Cir.
1993).
13 Zimny also lodges similar complaints about the court's
failure to ask similar follow-up questions to Juror No. 10, who,
like Juror No. 1, spoke with Juror No. 8 during trial and worked
for an employer who had an office in Singapore. But Juror No. 10
testified that he had never heard of the blog before his testimony
and that he had "no idea" who authored the additional-juror
comment, and the court found him to be credible.
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Along similar lines, Zimny complains that counsel's
opportunities to suggest questions were unfairly limited and that
the court unjustifiably refused to pursue some of Zimny's suggested
lines of inquiry. Here's what happened: After the court concluded
its initial questioning of each juror (and, don't forget, the
attorneys had helped formulate the script of questions), the court
permitted defense counsel to submit proposed follow-up questions;
defense counsel did so for each and every juror. And the court
frequently incorporated Zimny's suggestions into its inquiry. On
multiple occasions when the court did not do so, the court made
clear that, in its view, its questions already adequately covered
the subjects with which Zimny was concerned, that Zimny's proposals
were overbroad or irrelevant, or that Zimny had been given ample
opportunity to suggest general questions in the script-drafting
process. Based on our review of the record, we conclude that the
district court's questions adequately covered the relevant remand
inquiry. Therefore, we see no abuse of discretion in either the
district court's assessment of the presented questions or in the
court's refusal to incorporate Zimny's pined-for questions into
its juror probe.
e. Failure to Question Juror No. 8 and Blog Host
Zimny faults the district court for not questioning
Juror No. 8 a second time. The district court stated that it would
call Juror No. 8 "if we need [to]," but deemed further questioning
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of Juror No. 8 — recall the court had questioned her shortly after
the verdict and before Zimny I — to be unnecessary in light of the
testimony of the other thirteen jurors and the court's finding
that no juror misconduct occurred. No hint of discretionary abuse
here.
Relatedly, Zimny argues that the district court
improperly refused to question Richard Bradley, the host of the
blog on which the additional-juror comment was posted. In Zimny's
view, "[i]t is reasonable to infer that Bradley knew, or could
discover, who posted the additional[-]juror comment." That
position appears to be based on the following reasoning:
 On March 24, 2015, an anonymous commenter reported in a
comment to the blog post that Bradley had been subpoenaed by
defense counsel.
 Two days later, in a different blog post, Bradley wrote: "I
did want to let folks know that, yes, as some of you have
figured out, I was subpoenaed because of this blog. The
subpoena . . . came as a result of comments made on a post
about the trial of Mark Zimny . . . ." In this post, Bradley
voiced his frustration about the inconvenience of this
ordeal.
 Therefore, Zimny reasons, "[a] reasonable inference is that
Bradley communicated with one of his commenters about the
[Juror No. 8] investigation."
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We agree with the district court's assessment that there
is "no evidence in the record" to support Zimny's assertion that
Bradley might have knowledge about the identity of the author of
the additional-juror comment. For starters, Zimny's assertion
that Bradley was communicating with one of the commenters seems
speculative; Bradley's blog post indicated that he was simply
confirming what "some of [the followers of his blog] ha[d] figured
out." And, even if it's true that Bradley was communicating with
one of the many commenters, it is once again pure speculation to
assert that, simply because he might have been communicating with
one person who commented on the blog, he therefore knew or could
determine the identity of any of the commenters, including the
author of the additional-juror comment. Moreover, even if Bradley
might have had such knowledge, the district court questioned each
of the jurors, and all denied ever seeing — let alone authoring —
the additional-juror comment. In light of this clear and
consistent testimony, the district court did not abuse its
discretion in refusing to question Bradley.
* * *
Summing up, the district court acted well within its
discretion in conducting its inquiry into the colorable allegation
of juror misconduct, and its finding that the alleged misconduct
did not occur is supportable and will not be disturbed. So we
soldier on to discuss the issues we bypassed in Zimny I.
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B. Denial of Continuance Motion
1. Setting the Stage
Before the grand jury returned the second superseding
indictment in April 2014, Zimny's trial on the first superseding
indictment was initially scheduled for October 28, 2013. The
district court continued the trial date to February 3, 2014, at
the request of Zimny's first attorney because a tax analysis had
not been prepared or produced by the government. Less than two
weeks before the rescheduled trial date, Zimny's first attorney
moved to withdraw.14 The court granted the motion. Attorney Kevin
J. Reddington formally entered his appearance on January 28, 2014,
and, that same day, the district court rescheduled the trial for
July of that year.
After the grand jury returned the second superseding
indictment in April, three additional attorneys — Albert S.
Watkins, Michael D. Schwade, and Anthony S. Bretz — each entered
an appearance on Zimny's behalf. Zimny moved for another
continuance in late June 2014. Although this continuance motion
listed other cases that Reddington and Zimny's other counsel had
been working on, it made no mention of any upcoming murder trial
in Massachusetts Superior Court. In response to the continuance
motion, the district court rescheduled Zimny's trial for March 2,
14
In addition to the attorney moving to withdraw, Zimny was
also represented at this point by Attorney Richard J. Annen.
- 22 -
2015.15 In November 2014, the government filed its own continuance
motion. The district court granted this motion as well,
rescheduling Zimny's trial for March 23.
On February 19, Zimny moved for another continuance.
Zimny offered several reasons for his request, including the
government's failure to provide all discovery in a timely manner,
the inability of Zimny's tax expert to complete his forensic-
accounting examination based on the incomplete discovery provided
by the government, and the tax expert's unavailability for in-
court testimony until April 30. After explaining these reasons,
Zimny's motion offered a fourth reason for delay: Reddington was
scheduled to start a two-week murder trial (the Baptiste trial) in
Massachusetts Superior Court on February 23, leaving him unable to
review the necessary discovery until shortly before Zimny's March
23 trial date. The argument section of the motion, however,
focused exclusively on the unavailability of the tax expert. The
district court denied Zimny's continuance motion in a short order.
About two weeks later, Zimny filed a document that was
captioned, "MOTION TO CONTINUE TRIAL." Despite its caption, the
filing did not request the court to postpone Zimny's trial date.
Instead, Reddington sought to "present[] the following information
to th[e c]ourt and counsel immediately for advice or ruling on a
15 From here on out, all specified dates are from the year
2015 unless otherwise noted.
- 23 -
continuance that may be imminent" and to provide "immediate
notification to the Court" regarding developments in the Baptiste
trial, which Reddington now estimated would be "a week-long trial,
not including deliberations."
Reddington reported that, when he appeared for the
Baptiste trial on February 23, the prosecution moved for a
continuance because it was having difficulty securing the
attendance of a crucial witness. The trial judge granted a one-
day continuance. The prosecution was still unable to obtain the
witness's presence the following day, so the judge continued the
Baptiste trial until March 2. On that date, the prosecution
successfully moved for a third continuance until March 16.
Reddington alerted the Massachusetts trial judge to the potential
conflict with Zimny's trial date, but the Baptiste trial judge
held firm.
After the government opposed Zimny's filing, Zimny filed
a reply in which he stated that "the only reason for the [filing]
was a courtesy notice to th[e c]ourt and the government of a
potential problem in scheduling" and that "[c]ounsel is well aware
of th[e c]ourt's order [scheduling Zimny's trial for March 23] and
in no way is seeking to contravene it." The district court denied
Zimny's motion.
On March 17, Zimny filed a "STATUS REPORT" that presented
"information [about the Baptiste trial] as a courtesy update":
- 24 -
The Baptiste jury was empanelled, as scheduled, on March 16. Zimny
further reported that the prosecution "estimate[d] that the case
will get to the jury no earlier than . . . March 25." This filing
did not request a continuance of Zimny's trial date.
The following day, Zimny filed a continuance motion.
The continuance motion invoked Zimny's Sixth Amendment right to
counsel of choice and argued that a continuance was necessary so
that Reddington — who the motion characterized as Zimny's "lead
counsel and sole local counsel" and essential "within the context
of all aspects of the undertakings by [Zimny's] team of defense
counsel, jury selection, opening statements, and the examination
of witnesses" — could prepare for and participate in Zimny's trial.
The district court denied the continuance motion the
same day for reasons we'll soon discuss in detail. Zimny's trial
began as scheduled five days later. Watkins functioned as Zimny's
lead counsel for the first several days of trial: He handled jury
selection, delivered the opening statement, and cross-examined
Gerald Chow (Gerald), a key government witness, and another
witness.
The next day, Juror No. 8 did not report for jury
service. In the course of excusing the jurors for the day, the
district court explained that the attorneys would spend the day
polishing their evidentiary presentations; in the course of this
explanation, the court stated that, because it had denied the
- 25 -
attorneys' request to postpone the trial, "they are not quite as
prepared as they otherwise would be." The following day, Watkins
requested that the district court clarify for the jurors that Zimny
had not requested a continuance because his attorneys were not
prepared, but had requested one because of Reddington's
involvement in the Baptiste trial. The district court responded,
"I think I was referring to the exhibits," but the court
nonetheless told the jurors that it had not intended to suggest
that counsel were unprepared and that its comments from the day
before were aimed at nudging counsel on both sides "to make sure
that they went over the exhibits and worked out a mechanism that
would move this along a little bit better."
Reddington returned from the Baptiste trial on the sixth
day of Zimny's trial (counting two days — the first and the fourth
— on which no evidence was presented). The district court again
sent the jurors home that day without hearing any evidence because
of juror-attendance issues. Reddington was present in court for
the remainder of trial, and he questioned only four of the
seventeen witnesses who testified after his return. Watkins
continued to function as lead counsel, questioning twelve more
witnesses after Reddington's return and delivering closing
argument.16
16 Annen also questioned one witness.
- 26 -
On appeal, Zimny argues that the district court's denial
of his continuance motion deprived him of his Sixth Amendment right
to counsel of choice.
2. Our Take
We start with the principles. The Sixth Amendment
provides, in pertinent part, that, "[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his [or her] defence." U.S. Const.
amend. VI. "[A]n element of this right" is the right to counsel
of choice — "the right of a defendant who does not require
appointed counsel to choose who will represent him [or her]."
United States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006). And
the erroneous deprivation of the right to counsel of choice is a
structural error not subject to harmless-error analysis. Id. at
150, 152; see also United States v. Robinson, 753 F.3d 31, 39 (1st
Cir. 2014).
The right to counsel of choice, however, is not absolute.
United States v. Maldonado, 708 F.3d 38, 42 (1st Cir. 2013).
Instead, the right "is circumscribed in several important
respects." Gonzalez-Lopez, 548 U.S. at 144 (quoting Wheat v.
United States, 486 U.S. 153, 159 (1988)). The Supreme Court has
recognized, for example, "a trial court's wide latitude in
balancing the right to counsel of choice against the needs of
fairness and against the demands of its calendar." Id. at 152
- 27 -
(internal citation omitted); see also Morris v. Slappy, 461 U.S.
1, 11-12 (1983). Consequently, district courts "have 'broad
discretion' to control their calendars by granting or denying
continuance motions," and "'only an unreasoning and arbitrary
insistence upon expeditiousness in the face of a justifiable
request for delay violates the right to the assistance of
counsel.'" Maldonado, 708 F.3d at 42 (quoting Morris, 461 U.S. at
11-12).
a. Threshold Disputes
Right off the bat, the parties spar over two threshold
issues — our standard of review and whether Zimny must show that
he was prejudiced by the denial of his continuance motion to
establish a deprivation of his right to counsel of choice. We
address each in turn.
The standard-of-review dispute is easily resolved.
Zimny, on the one hand, asserts that we review de novo the issue
of whether the district court deprived him of his Sixth Amendment
right to counsel of choice because the issue presents a mixed
question of fact and law. But, as the government is quick to point
out, our case law makes clear that we review the denial of a
continuance motion — even where the motion may impact a defendant's
choice of counsel — for abuse of discretion. Maldonado, 708 F.3d
at 42. This makes sense: After all, courts have "'broad
discretion,'" as we and our judicial superiors have said, when
- 28 -
ruling on such motions. Id. at 42 (quoting Morris, 461 U.S. at
11); see also id. ("It surely goes without saying — but we say it
anyway — that our review is for abuse of discretion.").17
The dispute about the need to show prejudice in this
context is more vexing. Citing our continuance-denial case law,
the government asserts that it is "essential" for Zimny to show
that he suffered actual prejudice as a result of the denial of his
continuance motion. Zimny, by contrast, maintains that where, as
here, the right to counsel of choice is at stake, requiring a
defendant to show that he or she was prejudiced by the denial of
a continuance motion is incompatible with Gonzalez-Lopez, where
the Court highlighted, in the course of holding that the erroneous
deprivation of this right is a structural error, the difficulties
of showing prejudice in this context. See 548 U.S. at 150-51. At
oral argument, the government shot back that the Court in Gonzalez-
Lopez took pains to emphasize that it was confronted with an
established erroneous deprivation of the right to counsel of choice
17 We note that we are not the only circuit that, post-
Gonzalez-Lopez, reviews the denial of a continuance motion for
abuse of discretion even where the denial of the motion potentially
implicates a defendant's right to counsel of choice. See United
States v. Jones, 733 F.3d 574, 587 (5th Cir. 2013) (rejecting
argument for application of de novo review because Gonzalez-
Lopez's reference to trial court's discretion "is inconsistent
with de novo review"); see, e.g., United States v. Sinclair, 770
F.3d 1148, 1150, 1154 (7th Cir. 2014); United States v. Griffiths,
750 F.3d 237, 241-42 (2d Cir. 2014); United States v. Flanders,
491 F.3d 1197, 1216 (10th Cir. 2007); United States v. Whitehead,
487 F.3d 1068, 1071 (8th Cir. 2007).
- 29 -
and was not faced with the question of a district court's power to
make scheduling and other case-management decisions that may
impact that right. See id. at 151-52. Even so, Zimny parries,
Gonzalez-Lopez teaches that requiring him to demonstrate prejudice
from the continuance denial in order to establish an erroneous
deprivation of his right to counsel of choice imposes an obligation
to "prove what cannot be proven."
The parties' disagreement need not occupy us for long.
Certainly, a court, in deciding whether to grant a continuance,
should consider whether and how a lack of continuance may or may
not impair defense efforts. See United States v. Ottens, 74 F.3d
357, 359-60 (1st Cir. 1996). At the same time, one struggles to
see how a defendant could be required to show that the result of
the trial likely would have differed had a court not abused its
discretion by denying a continuance needed to allow participation
by counsel of choice. See Gonzalez-Lopez, 548 U.S. at 150-51. We
therefore assume, without deciding, that Zimny need only establish
that the denial of his continuance motion erroneously deprived him
of his right to counsel of choice by showing that the denial
amounts to "an unreasoning and arbitrary insistence upon
expeditiousness in the face of a justifiable request for delay."
Maldonado, 708 F.3d at 42 (quoting Morris, 461 U.S. at 11-12).
Zimny has not made this showing (though not for lack of effort),
as we'll now explain.
- 30 -
b. The Merits
Zimny characterizes the district court's denial of his
continuance motion as "arbitrar[y]" and complains that "[t]he
court gave no good reason for" denying the motions. He attacks
the denial every which way, challenging several of the factors
identified by the district court in denying the motion and
sprinkling in, just for good measure, a charge that the court's
consideration of the motion was "fundamentally flawed." Once
again, we tackle Zimny's several arguments one at a time. Spoiler
alert: After careful consideration, we cannot label the district
court's denial of Zimny's continuance motion "an unreasoning and
arbitrary insistence upon expeditiousness in the face of a
justifiable request for delay." Maldonado, 708 F.3d at 42 (quoting
Morris, 461 U.S. at 11-12).
(i)
Just before trial, when Watkins asserted that the
conflict with the Baptiste trial was "something that was out of
[Reddington's] control," the district court disagreed: "I'm not
sure that is absolutely correct. Nobody suggested that the state
judge should call me or I should call the state judge or that we
work out a schedule. It simply happened." Zimny thinks this
justification was suspect. We disagree.
Rule 40.2 of the Local Rules of the United States
District Court for the District of Massachusetts, which is entitled
- 31 -
"Conflict of Court Appearances," imposes clear requirements on
attorneys in Reddington's predicament who have a scheduling
conflict arising from multiple cases. Subsection (d) sets forth
a "scheduling policy" for situations where "counsel have
engagement conflicts with respect to cases pending in the
Massachusetts Superior Court and th[e district] court."18 LR, D.
Mass. 40.2(d). The rule also places the obligation on counsel to
alert the district-court judge and the Massachusetts Superior
Court judge of the conflict and the scheduling policy set forth in
the rule:
Counsel shall notify the presiding Superior Court
Justice and the judicial officer [of the district
18 In particular, the rule sets forth the following scheduling
policy:
(1) Trials shall take precedence over all other
hearings.
(2) Jury trials shall take precedence over nonjury
trials.
(3) Criminal cases shall take precedence over civil
cases.
(4) Criminal cases involving defendants who are in
custody pending trial shall take precedence over
other criminal cases.
(5) Among civil cases, or among criminal cases not
involving defendants in custody, the case having
the earliest docket number shall take precedence
over the others, except that a trial setting
involving numerous parties and counsel will
ordinarily take precedence over other trials.
LR, D. Mass. 40.2(d).
- 32 -
court19] of the scheduling conflict, in writing, not
later than 7 days after the receipt of the scheduling
order giving rise to the conflict. Counsel's
notification shall include (1) the names and docket
numbers of each case, (2) the date and time of the
scheduled proceedings in each case, and (3) a brief
statement as to which case has precedence under this
policy.
Id. (emphases added). Once counsel provides this required written
notice, the rule directs that "[t]he case or cases not having
precedence shall be rescheduled, unless the presiding Superior
Court justice and judicial officer [of the district court] agree
otherwise."20 Id.In this case, although several of Zimny's filings that
preceded the March 18 continuance motion notified the district
court of the impending conflict, none of those filings contained
the requisite "brief statement as to which case has precedence
under th[e] policy" of Local Rule 40.2(d). Indeed, none of the
19 The phrase "judicial officer" in the local rules "refers
to either a United States District Judge or a United States
Magistrate Judge." LR, D. Mass. 81.2.
20 We note that the District of Massachusetts appears to be
the only district in this circuit with a rule that both (1) places
an obligation on counsel to notify the court of a scheduling
conflict and (2) sets a scheduling policy for resolving the
conflict. The District of Rhode Island has a local rule that
imposes a notification obligation on an attorney who has a
conflict, see DRI LR Gen 207(a), but that rule does not set a
scheduling priority. The other districts within this circuit
appear not to have any local rule on this subject. We commend the
District of Massachusetts for promulgating Local Rule 40.2(d);
attorney compliance with it can help eliminate potential counsel-
of-choice dilemmas from materializing.
- 33 -
filings even cited this important rule. The same is true of
Zimny's March 18 continuance motion. Reddington did not seek to
invoke Local Rule 40.2(d), which clearly has been adopted to
reasonably resolve scheduling conflicts.
The record also amply supports the district court's
assessment that Reddington was slow to seek involvement from the
district court. To be sure, Reddington first flagged the Baptiste
trial as a potential conflict back on February 19 — over a month
before Zimny's scheduled March 23 trial date. At that point, the
Baptiste trial was scheduled to begin on February 23. But the
Baptiste trial's start date was delayed several times — first by
one day (to February 24), then by six additional days (to March
2), and then by two more weeks (to March 16). Reddington never
even informed the district court of the continuances in the
Baptiste trial until March 4 — nine days after he first learned of
the delay-causing witness-attendance issue.
The decisions not to invoke Local Rule 40.2(d) or more
promptly update the district court fit hand-in-glove with the fact
that Zimny's filings up until the last minute did not actually
seek a continuance, even when Reddington first learned that the
trials would likely conflict. Instead, Zimny's March 4 filing
merely provided information to the court "for advice or ruling on
a continuance that may be imminent." In fact, Reddington himself
confirmed the limited nature of the March 4 filing in Zimny's reply
- 34 -
to the government's opposition to that filing. In the reply,
Reddington clarified that "the only reason for the [March 4 filing]
was a courtesy notice to th[e court] and the government of a
potential problem in scheduling" and that he "in no way [was]
seeking to contravene" the court's prior order setting a March 23
trial date. We are hard-pressed to fault the district court for
its negative response to the March 4 filing. If Zimny was seeking
a continuance or other relief from the district court, he should
have done so in clear, unmistakable terms. Instead, he did not
make a clear request for a continuance until March 18 — two full
weeks after the March 4 filing and a mere five days before Zimny's
trial date.
In these circumstances, it was not unreasonable for the
district court to find that Zimny delayed in requesting the court's
assistance in navigating the conflict with the Baptiste trial.
See United States v. Francisco, 642 F. App'x 40, 43 (2d Cir. 2016)
(affirming district court's denial of continuance motion where
denial was based, in part, on "defense counsel's failure to bring
the conflict to the court's attention in a timely manner"); cf.
United States v. Flecha-Maldonado, 373 F.3d 170, 175-76 (1st Cir.
2004) (affirming district court's order that denied continuance
motion based on retained counsel's scheduling conflict and imposed
a 5 p.m.-to-9 p.m. trial schedule and rejecting counsel's argument
on appeal that "he assumed the two judges would ascertain there
- 35 -
was a scheduling conflict and work it out" because "the obligation
was on counsel to resolve this conflict"); United States v.
Orlando-Figueroa, 229 F.3d 33, 40 (1st Cir. 2000) (noting, in
affirming district court's denial of continuance motion, that
"[a]lthough the bulk of the complained-about [discovery] materials
[that caused the request for a continuance] were provided to the
defendants on January 13, it was not until six days later, on
January 19, that the defendants filed their first motion for a
continuance[;] [t]here is no explanation in the briefs for this
delay").
(ii)
The court also stressed that there were several members
of the defense team, that "several, if not all, of the specially
admitted counsel have personally participated in one or more
hearings or conferences in the course of these proceedings," and
that Watkins in particular "is known to be experienced, able and
clearly familiar with this case." Zimny offers what we perceive
to be two distinct arguments — one legal and one factual — that
this aspect of the district court's denial was erroneous. First,
on the legal front, he argues that it was improper for the district
court to "replace Zimny's chosen trial counsel with its own
selection." Second, Zimny argues as a matter of fact that the
district court's conclusion that Watkins was prepared to serve as
lead counsel was improper because it was not based on any inquiry
- 36 -
of Watkins and that the record actually shows that Watkins was not
adequately prepared to cross-examine Gerald. We reject both
arguments.
It was not an abuse of discretion for the district court
to place some weight on the fact that Zimny had other counsel ready
to fill the void left by Reddington's scheduling conflict. The
Gonzalez-Lopez Court recognized "a court's power," in some
circumstances, "to make scheduling and other decisions that
effectively exclude a defendant's first choice of counsel." 548
U.S. at 152; see also id. at 155 (Alito, J., dissenting) ("If a
trial judge schedules a trial to begin on a particular date and
defendant's counsel of choice is already committed for other trial
until some time thereafter, the trial judge has discretion under
appropriate circumstances to refuse to postpone the trial date and
thereby, in effect, to force the defendant to forgo counsel of
choice."); Morris, 461 U.S. at 11-12. And where "the counsel who
becomes unavailable for trial has associates adequately prepared
to try the case," that circumstance can be considered. United
States v. Bowe, 221 F.3d 1183, 1190 (11th Cir. 2000); id. at 1188,
1190 (affirming denial of continuance motion based on counsel's
unavailability due to entry into drug rehabilitation program where
district court reasoned that "'[d]efendant has retained several
able lawyers'").
- 37 -
Zimny's factual argument fares no better. For starters,
we can't fault the court's on-the-ground assessment of Watkins's
ability to handle the bulk of the trial responsibilities. The
court had seen Watkins in action at pretrial hearings and
conferences, consulted his website biography, and concluded that
he was "experienced, able and clearly familiar with this case."
And, notwithstanding Zimny's assertions to the contrary,
the record does not belie the court's conclusion. Although Watkins
asked for the court's patience before he cross-examined Gerald, he
also added, "I am prepared as best I can be . . . . I think we've
got it all in order and I think we've got it in shape." Similarly,
although the court told the jurors that the attorneys were able to
use the delay caused by a juror's absence to improve their
evidentiary presentations, it later clarified that this comment
was concerned solely with the handling of exhibits and was not
intended as an assessment of counsel's general lack of
preparedness. Finally, we note that, even when Reddington returned
from the Baptiste trial, Watkins continued to act as Zimny's lead
counsel.
Discerning no abuse of discretion in the court's
reliance on this factor, we march on.
(iii)
The district court also noted that the trial date had
been set for four-and-a-half months. Zimny asserts that this
- 38 -
factor was irrelevant because the conflict "only arose and
developed in the month leading up to the trial" and "could not
have been anticipated when the date was set in November 2014." We
disagree. It was not unreasonable for the district court to
consider the long-standing trial date, especially where, as here,
the continuance request was made shortly before that scheduled
trial date. See United States v. Konstantin, 280 F. App'x 54, 55
(2d Cir. 2008) (explaining, in affirming denial of continuance
motion based on scheduling conflict of new counsel of choice, that
"[t]he defendant asked for the adjournment one week prior to trial,
despite the fact that the trial date had been set for eight months;
it was well within [the district court's] discretion to deny his
request."); cf. United States v. Myers, 294 F.3d 203, 207 (1st
Cir. 2002) (emphasizing, in affirming district court's denial of
motion for substitution of appointed counsel, that "motion came
late in the day: it was filed months after the conflict developed,
and a mere five days before the scheduled sentencing[;] [n]or did
the appellant ever explain his failure to register a complaint
earlier in the proceedings").
(iv)
The district court also observed that it had granted
Zimny's multiple prior continuance requests. Zimny protests that
these continuances "were granted for legitimate reasons that, as
the record shows, were made necessary by circumstances beyond
- 39 -
Zimny's control." But a district court has discretion to weigh
prior considerations in the calculus of whether to grant an
additional continuance. See Maldonado, 708 F.3d at 43. And, even
if the prior continuances did not militate strongly in favor of
denying the continuance motion, there were several other factors
— including the court's supportable assessment that Reddington
failed to request assistance from the court in a timely and
effective manner as provided in Local Rule 40.2(d) — that supported
the denial of the motion. Cf. United States v. Flanders, 491 F.3d
1197, 1216 (10th Cir. 2007) (noting, in case where district court
relied on prior continuances in denying final continuance motion,
that, "[a]lthough we question whether the district court could
entirely fault [d]efendant for the numerous delays in bringing
this case to trial, that was not the only reason provided").
(v)
The district court also noted that the case was "more
than two years old." Zimny argues that the age of the case "had
no bearing on the circumstances that prompted Zimny's request for
a continuance." But case law supports the district court's
assessment of the age of the case as a relevant consideration.
See, e.g., Flanders, 491 F.3d at 1216; see also United States v.
Pineda Pineda, 481 F. App'x 211, 212 (5th Cir. 2012) (per curiam)
(affirming district court's denial of continuance motion where
court based denial, in part, on its assessment that "the case had
- 40 -
been going on for 'a very long time' already"). So we see no abuse
of discretion in the court's decision to add this factor to the
mix.21
(vi)
Apart from his efforts to undermine the factors that the
district court identified, Zimny also paints the district court's
consideration of the continuance motion as "fundamentally flawed."
In particular, Zimny insists that the district court "fail[ed] to
acknowledge that Zimny's Sixth Amendment right to be represented
by counsel was at stake"; "fail[ed] to implement the Wheat[22]
21Zimny also notes that the court did not deny the continuance
motion based on the court's own cluttered docket and that the
government did not argue that it would have been prejudiced if the
continuance motions were granted. True enough, but the fact that
the district court did not invoke these factors does not make its
denial of the continuance motion an abuse of discretion because
the factors that the court did consider show that the court's
denial was neither unreasoning nor arbitrary. Additionally,
because we reject Zimny's arguments that the district court erred
in considering each of the factors it did, we necessarily find no
merit in Zimny's assertion that "[t]he court's reliance on these
factors suggests that it considered any delay to be unacceptable."
22In Wheat, 486 U.S. at 155, 163-64, the Court decided that,
although "[t]he [d]istrict [c]ourt must recognize a presumption in
favor of petitioner's counsel of choice, . . . that presumption
may be overcome not only by a demonstration of actual conflict but
by a showing of a serious potential for conflict." Id. at 164.
The Court added that "[t]he evaluation of the facts and
circumstances of each case under this standard must be left
primarily to the informed judgment of the trial court." Id.- 41 -
presumption"; and "fail[ed] to exercise its judgment within the
limitations of the Sixth Amendment."23
To the extent that Zimny intends this argument to suggest
that the district court abused its discretion because it did not
explicitly acknowledge his Sixth Amendment right to counsel of
choice, we are unpersuaded. Zimny's March 18 continuance motion
clearly invoked his Sixth Amendment right to counsel of choice.
In these circumstances, we will not presume that the district court
wholly disregarded this well-established constitutional right.
The record does not indicate that the district court was operating
under a mistaken assumption about the nature of Zimny's right to
counsel of choice. Cf. United States v. Smith, 618 F.3d 657, 666
(7th Cir. 2010) (concluding that "there [was] some question whether
the district court correctly understood the scope of [the
defendant's] right to counsel of his choice" where, "after [defense
counsel] argued that '[the defendant] has a constitutional right
to choice of counsel,' the court replied, 'No, he does not. He
had a constitutional right to counsel. He doesn't have a
23
In the course of making this argument, Zimny notes that the
district court "pointedly referred to Reddington merely as 'local
counsel.'" But Reddington referred to himself as "local counsel"
in his court filings of March 4, March 5, and March 17. And
Zimny's March 18 continuance motion referred to Reddington as
Zimny's "lead counsel and sole local counsel" and "sole local lead
counsel." So we do not view the district court's reference to
Reddington in the same manner that he referred to himself as
betraying a misunderstanding of Zimny's Sixth Amendment right to
counsel of choice.
- 42 -
constitutional right to pick any person he wanted.'"). Instead,
the district court offered several reasons that, in its view,
warranted the denial of the continuance, and this decision was
neither unreasoning nor arbitrary.
* * *
Make no mistake: The Sixth Amendment right to counsel
of choice is important. Maldonado, 708 F.3d at 42. "But as
important as that right is, it is not absolute." Id. Where, as
here, a claimed violation of that right is based on the district
court's denial of a continuance motion, precedent compels us to
ask not whether we too would deny the motion if we were sitting as
trial judges but instead whether the denial qualifies as "an
unreasoning and arbitrary insistence upon expeditiousness in the
face of a justifiable request for delay." Id. (quoting Morris,
461 U.S. at 11-12).
Because the district court in this case identified
several factors that supported its denial — including Zimny's
failure to seek a continuance until two weeks after the alleged
need arose — we cannot say that it was unreasoning or arbitrary.
Cf. Abby v. Howe, 742 F.3d 221, 227 (6th Cir. 2014) (concluding
that habeas relief was not warranted where trial court denied
continuance motion based on scheduling conflict of one of
defendant's two attorneys; trial court noted "(1) the longstanding
trial date, which already had been reset several times; (2) its
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late notice of the problem; (3) [conflicted counsel's] failure to
alert the court of the conflict or attempt to reschedule either of
his cases; (4) the fact that both [remaining counsel] and
[conflicted counsel] previously had appeared alone in
[defendant's] case without objection or incident; and (5) the fact
that [remaining counsel] was an experienced attorney who was
prepared to proceed with or without [conflicted counsel]").
Therefore, we must reject Zimny's argument that the district court
erroneously deprived him of his counsel of choice. So we trek to
Zimny's final appellate argument.
C. Joinder of Charges and Severance
1. Setting the Stage
The second superseding indictment contained thirteen
counts: counts 1 through 5 charged Zimny with wire fraud; counts
6 through 10 charged Zimny with engaging in unlawful monetary
transactions; counts 11 and 12 charged Zimny with filing false tax
returns; and counts 13 and 14 charged Zimny with bank fraud. Zimny
filed a motion to sever the bank-fraud counts from the remaining
counts, arguing both that the bank-fraud counts were improperly
joined under Rule 8(a) of the Federal Rules of Criminal Procedure
and that they should be severed under Rule 14 of the Federal Rules
of Criminal Procedure.24 The district court denied the motion.
24The motion actually sought to sever the bank-fraud counts
as well as the unlawful-monetary-transactions and false-tax-return
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At trial, the government produced evidence that Zimny
submitted loan applications that both overstated his assets and
failed to disclose all of his debts and that, in connection with
these applications, he submitted forged documents to multiple
lending institutions. Zimny also sent these lenders forged tax
returns indicating that Zimny's income was substantially higher
than the amount he reported to the IRS.
The jury ultimately convicted Zimny on counts 1 through
13 and acquitted him of count 14, the second of the two bank-fraud
counts. On appeal, Zimny argues that the bank-fraud counts were
improperly joined and that the district court erred in denying his
motion to sever those counts.
2. Our Take
We review de novo Zimny's claim that the bank-fraud
counts were improperly joined under Rule 8, and we assess the
district court's denial of Zimny's severance motion under an abuse-
of-discretion standard. See United States v. Ponzo, 853 F.3d 558,
568 (1st Cir. 2017); United States v. Melendez, 301 F.3d 27, 35
(1st Cir. 2002).
The parties squabble over whether the bank-fraud charges
were improperly joined. But even if Zimny prevailed in this
counts. On appeal, however, "Zimny does not challenge the joinder
of counts 1 through 12," and instead challenges only the joinder
of the bank-fraud counts (counts 13 and 14).
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battle, he'd still lose the war, for "a misjoinder is not
reversible if it was harmless," United States v. Edgar, 82 F.3d
499, 503 (1st Cir. 1996), and a misjoinder was harmless if "[i]t
did not result in 'actual prejudice,'" id. at 504 (quoting United
States v. Lane, 474 U.S. 438, 449 (1986)). Actual prejudice in
this context means "the substantial and injurious effect or
influence in determining the jury's verdict." Ponzo, 853 F.3d at
568.
Two features of this case convince us that Zimny did not
suffer actual prejudice from the joinder of the bank-fraud counts:
the court's instruction to the jurors to consider each count
separately, and the jury's not-guilty verdict on count 14, one of
the bank-fraud counts. Thus, even assuming (without deciding)
that misjoinder occurred, Zimny is still not entitled to a new
trial because the error (if any) was harmless. See id. (taking
this same approach); Edgar, 82 F.3d at 504 (same). We explain
briefly.
In its final charge, the district court told the jurors
to "consider the evidence separately as to each of these counts
and decide each separately based on the evidence as to that count."
"And 'the case for prejudice is especially weak' when a court does
precisely that." Ponzo, 853 F.3d at 568 (quoting United States v.
Taylor, 54 F.3d 967, 974 (1st Cir. 1995).
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Hold on, Zimny says: The district court also told the
jurors that the offenses were related, and, in Zimny's view, this
perceived misstep either entirely "negate[d] the minimal limiting
instruction the court gave a few minutes later" or, at the very
least, "likely confused the jury." And, as Zimny sees things,
this confusion was compounded by the government's opening
statement and closing argument, both of which also emphasized the
relatedness of the charges. We are unpersuaded.
For starters, this juror-confusion argument is
substantially undermined by Zimny's failure to object to the now-
complained-of passage of the final charge, despite being given a
clear opportunity to voice any objections at the conclusion of the
charge.25 Moreover, we disagree with Zimny's assessment of the
likelihood of juror confusion. The district court's statement
about the relatedness of the offenses was simply an introductory
remark to the court's brief outline of the indictment.26 This
comment stands in stark contrast to the clear directive that the
25
Nor, for that matter, did Zimny raise any concern with this
statement when the district court previewed its instructions in a
charge conference, despite being given the opportunity to voice
any objections. Zimny similarly failed to lodge any objection to
the prosecutor's opening statement or closing argument.
26
We note, in passing, that the district court's statement
that the offenses were related has some basis in the evidence;
Zimny's purchase of a particular piece of property was facilitated
by a bank loan (charged in count 13), as well as a down payment
(charged in count 10) comprised of funds he received from the Chows
(charged in count 5).
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court gave the jury to consider the evidence separately as to each
count. And "[w]e of course presume that jurors obey a court's
instructions." Id. at 584.
In any event, we need not speculate about whether the
jurors followed the court's instruction in this case; they
demonstrated their ability to "discriminat[e] among the evidence
applicable to each count" when they acquitted Zimny on count 14.
Id. at 569 (alteration in original) (quoting Edgar, 82 F.3d at
504). And such an acquittal "helps undercut an actual-prejudice
claim." Id.27
Finally, Zimny argues that he was prejudiced by the "huge
volume of damaging bank fraud evidence that was irrelevant to the
Chow charges." This argument cannot carry the day. The combo of
the court's instruction and the jury's not-guilty verdict on one
of the bank-fraud counts takes much, if not all, of the wind from
the sails of this argument. Moreover, some of the bank-fraud
27 Zimny appears to attempt to distinguish this case from
Edgar by observing that, in this case, "[n]o contemporaneous
limiting instruction was given when [the bank-fraud] evidence was
admitted." We are puzzled by this apparent attempt at
distinguishing Edgar because the only limiting instruction given
in that case, so far as the opinion lets on, was at the close of
evidence after the court acquitted the defendant of the potentially
improperly joined count; the court told the jurors to disregard
the counts subject to the acquittal and the evidence offered in
support of them. 82 F.3d at 504 & n.6. In any event, as far as
we can tell, Zimny never requested a cautionary instruction when
the bank-fraud evidence was admitted, and, for his part, he hasn't
pointed us to any place in the record where such a request was
made.
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evidence consisting of the forged tax returns and the statements
Zimny made on loan applications about his income would still have
been relevant and admissible to the counts that charged Zimny with
filing false tax returns — the joinder of which Zimny does not
challenge on appeal. See United States v. Griffin, 524 F.3d 71,
74-75 (1st Cir. 2008) (recounting evidence in false-tax-return
prosecution, including tax returns submitted to the IRS that
reported deflated income levels and evidence that defendant "set
up bank accounts in order to store her [unreported] proceeds").
And where, as here, some of the evidence relating to the counts
that were improperly joined is admissible as to the other counts,
that circumstance also undercuts an assertion of prejudice. See
Edgar, 82 F.3d at 504. Finally, the government's independent
evidence on "the Chow charges" was quite strong. See id. at 505(noting, in finding no prejudice from assumed improper joinder,
that "there was substantial independent evidence on the counts of
conviction").
In the end, Zimny is left with nothing more than his
argument that the government's decision to present "a general
course of fraudulent conduct by Zimny[] creat[ed] an unacceptable
likelihood that his conviction on the other counts [was] influenced
by propensity evidence and arguments." But such "[g]arden-variety
arguments of spillover . . . without more, are insufficient to
require severance." Id.- 49 -
For these reasons, we conclude that, even assuming that
the bank-fraud counts were improperly joined, any misjoinder was
harmless and therefore does not amount to reversible error.
THE END
We now wrap up this trilogy of appeals by affirming
Zimny's conviction.
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