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United States v. Zimny

United States Court of Appeals, First Circuit

October 3, 2017

MARK J. ZIMNY, Defendant, Appellant.


          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.

          Before Torruella, Thompson, and Kayatta, Circuit Judges.

          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.

         BACK STORY

         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 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.


         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 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 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 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 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 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 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) 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 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


         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.

         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.

          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.


         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 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.


         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]

         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 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).

          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 ...

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