United States v. Zimny, 100317 FED1, 15-2144

Docket Nº:15-2144
Opinion Judge:THOMPSON, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Appellee, v. MARK J. ZIMNY, Defendant, Appellant.
Attorney: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, Ass...
Judge Panel:Before Torruella, Thompson, and Kayatta, Circuit Judges.
Case Date:October 03, 2017
Court:United States Courts of Appeals, Court of Appeals for the First Circuit



MARK J. ZIMNY, Defendant, Appellant.

No. 15-2144

United States Court of Appeals, First Circuit

October 3, 2017


          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."4She 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...

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