FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Rya W. Zobel, U.S. District
M. Thompson, with whom Linda J. Thompson, Robert F. Hennesey,
and Thompson & Thompson, P.C. were on brief, for
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.
Torruella, Thompson, and Kayatta, Circuit Judges.
THOMPSON, Circuit Judge.
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
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 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. Id. at 461. We'll provide
additional background as necessary in our analysis of the
issues that Zimny raises.
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 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
Juror-Misconduct Investigation 1. Setting the Stage
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. 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].
determined that Zimny, relying on the additional-juror
comment, raised a colorable claim of juror misconduct that
required an 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.
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.
court questioned each of the thirteen other jurors
individually in the presence of the attorneys. The court
developed, with input from both parties, a script for 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 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.
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."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."
the hearing, the district court issued a comprehensive
written decision setting forth its findings and
conclusions. 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.
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.
review the district court's response to allegations of
juror misconduct for abuse of discretion. 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 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
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.
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 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)). 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).
this deferential framework, Zimny's arguments do not
succeed. Generally speaking, he attacks the court's: (a)
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
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
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 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."
The District Court's Findings
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.
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. 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.
leaves three jurors. The answers of two of them were of the
"not that I can recall" variety. 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.
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.
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.
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.
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 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
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. So that's that.
Questioning of Juror No. 1
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.
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.
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
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."
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.
Limitations on Defense Counsel's Involvement
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.
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 ...