United States v. Zimny, 15-2144

• Decision Date: 24 January 2017
• Docket Number: No. 15-2144,15-2144
• Citation: 846 F.3d 458
• Parties: UNITED STATES of America, Appellee, v. Mark J. ZIMNY, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

846 F.3d 458

UNITED STATES of America, Appellee,

v.Mark J. ZIMNY, Defendant, Appellant.

No. 15-2144

United States Court of Appeals, First Circuit.

January 24, 2017

John M. Thompson , with whom Linda J. Thompson , Robert F. Hennessy , and Thompson & Thompson, P.C. , Springfield, MA, were on brief, for appellant.

Vijay Shanker , Attorney, United States Department of Justice, Criminal Division, Appellate Section, with whom Leslie R. Caldwell , Assistant Attorney General, Sung–Hee Suh , Deputy Assistant Attorney General, Carmen M. Ortiz , United States Attorney, Victor A. Wild , Assistant United States Attorney, and Giselle Joffre , Assistant United States Attorney, were on brief, for appellee.

Before Torruella, Thompson, and Kayatta, Circuit Judges.

THOMPSON, Circuit Judge.

A jury found the defendant, Mark J. Zimny (Zimny), guilty of five counts of wire fraud, five counts of engaging in unlawful monetary transactions, two counts of filing false tax returns, and one count of bank fraud. Zimny appeals, raising several arguments for our review. In this opinion, we address only one of these contentions: that the district court's inquiry into Zimny's claims of juror misconduct was inadequate.¹ We agree and remand for an evidentiary hearing, leaving for another day the other issues that Zimny raises.

Background

We recount only those facts necessary to give context to the juror-misconduct issue that we consider in this appeal.²

A. The Scheme

Zimny operated an educational-consulting business called Ivy Admit. Ivy Admit's primary client base consisted of Chinese and South Korean parents eager to send their children to elite boarding schools and universities in the United States. In 2007, Zimny approached Gerald Chow (Gerald), who lived in Hong Kong with his wife, Lily. Zimny explained that Ivy Admit assists Asian students applying to boarding schools and colleges in the United States. Intrigued, the Chows hired Zimny to provide educational-consulting services to their two teenage sons while the boys studied in the United States; Zimny was tasked with acting as their sons' guardian, arranging for tutors, recommending schools, and accompanying the Chow children on school tours.

But these services were just a small piece of the pie that Ivy Admit offered. What made Ivy Admit truly valuable, Zimny explained to Gerald, was its ability to overcome the prejudice that American boarding schools supposedly exhibit towards Asian applicants. An Asian student's application goes nowhere, Zimny explained, unless the school receives a donation, known as a "development contribution," from the applicant's family. But it's not that simple, Zimny told Gerald; an applicant's family can't simply cut the school a check—that looks way too fishy. Instead, schools will accept development contributions only through an intermediary that the school knows. Zimny assured Gerald that Ivy Admit fit this bill.

On five different occasions in 2008, Zimny requested money to be used as development contributions on behalf of the Chow children. Each time, the Chows complied, wiring the money to Zimny. On two of these occasions, the Chows expressed concern about the size of the payment requested and the possibility that the schools might deny one son's applications; Zimny assured the Chows that, if the schools rejected the applications, the money would be returned to them. In total, the Chows wired approximately $675,000 to Zimny for development contributions in 2008.

Instead of delivering the funds to the schools as promised, Zimny pocketed the money. He used it for a variety of personal expenses, including transfers to his personal checking account, payment of credit card bills, and a payment made in connection with his purchase of an apartment.

By the fall of 2009, the jig was up. Fortuitously, the head of one of the boarding schools to which Zimny had supposedly made a development contribution on the Chows' behalf happened to be in Hong Kong. Gerald met with her, and, when he asked whether the school had received the Chows' donation from Zimny, she responded that the school had received no such donation. Soon after, in February 2010, the Chows ended their relationship with Zimny and demanded a return of all of the development-contribution funds that had not been donated as promised. Zimny refused to refund the money and advised the Chows that, given the sensitive nature of some of the work that Ivy Admit performed for them, it would be best not to pursue the matter further "to ensure privacy for all in the United States and Hong Kong." The Chows thought otherwise; they sued Zimny later that year.

B. The Criminal Trial

Zimny's conduct also came across the federal government's radar. A grand jury issued an indictment that charged him with five counts of wire fraud, five counts of engaging in unlawful monetary transactions, two counts of filing false tax returns, and two counts of bank fraud.³ Zimny elected to stand trial before a jury. After the jury was impaneled, the district court admonished the jurors to refrain from discussing the case. This admonition was repeated (only) twice throughout Zimny's thirteen-day trial. In addition, the district court instructed the jury on the twelfth day of trial to avoid any media coverage of the case. As far as we can tell, this is the only time that such an instruction was given. Finally, during its final charge to the jury, the district court admonished the jurors to "decide the case based on the evidence that has been presented" and that "[a]nything you may have heard outside the courtroom about this case is not evidence and should not be considered." The district court did not expressly instruct the jurors to refrain from conducting independent internet research on the case or the parties involved.

On several occasions during trial, one or more jurors did not show up to the courthouse. On the fourth trial day, Juror No. 8 was unable to report for duty. After conferring with counsel, the district court elected to recess the trial until the following morning. As hoped, Juror No. 8 returned the next day, a Friday, and trial proceeded as scheduled. But Juror No. 8 once again was unable to make it to the courthouse the following Monday, this time due to sickness, and the court again recessed for the day. The court and the parties agreed that, if Juror No. 8 was absent again the following day, an alternate juror would take her place. The next morning, Juror No. 8 was absent again, and, as promised, the court replaced her with an alternate.

The trial proceeded without any more juror-attendance hiccups. The jury acquitted Zimny of one the bank-fraud charges and found him guilty on all other counts.

C. The Blog and the Efforts to Obtain a New Trial

A federal district court in Boston was not the only place where Zimny stood trial. Before, during, and after this criminal proceeding, comments on a blog post ensured that Zimny's conduct was also aired in the court of public opinion.

In October 2012—before Zimny was indicted—the Chows' ongoing civil litigation against Zimny was discussed in a post entitled "The Harvard Admissions Lawsuit" on a blog called "Shots in the Dark." The blog post received several hundred comments, the vast majority of which were posted anonymously, from individuals we shall call commentators.⁴ The comments began immediately after the blog entry was posted, and they continued to roll in for the two-and-a-half years that transpired before Zimny was convicted. In addition to discussing the criminal case and the Chows' civil litigation against Zimny, the commentators also shared details of Zimny's personal life and allegations of similar fraudulent conduct on his part.

Many of these comments painted Zimny in an unfavorable light. Here's a small sampling:

• "Zimny's personal life is full of deceits & frauds.... He exploits rich [A]sian women pretending to be a wealthy Harvard-grad business man."

• "Zimny is a con-man, pure and simple. He is being sued all over the place for fraud.... He is a cancer

."

• "I remember this scumbag. Asiaphile creep con artist with an ultra evil alter ego. Justice awaits."

• "[H]as the criminal already been jailed yet?"

• "This leech has NOT ONE redeeming quality."

• "EVERYTHING that comes out of his filthy mouth is [a] lie...."

• "[T]here are a lot of [A]sian families watching over this law suit [sic] just to see him being jailed.... The [C]hows is [sic] just the tip of the huge iceberg."

• "He is quite simply the most vile, despicable human being I have ever observed. He thinks only of himself and has absolutely no regard or remorse for other people. He moves like a Great White Shark, devouring any pray [sic] he can. He especially likes to victimize Asian people whether through scams, contrived lawsuits or womanizing."

• "No punishment is too great for this disgusting piece of shit."

• "Feds don't bother to indict unless they're pretty sure of getting somewhere with the charges.... It's like [Zimny] can't NOT be dishonest. Never stops lying, and never stops attempting to cheat and steal from people who believe the lies."

• "I honestly cannot find one redeeming quality in Zimny. He is a wretched human being.... Must feel terrible to be the parents of a human horror like him."

• "The worst part is that now we, the taxpayers, will have to pay to house/feed this miserable piece of shit on a [sic] prison. Hopefully, he'll rot away quickly."

• "Zimny is that 1% of the 1% of sociopaths completely devoid of empathy and conscience. Just an insatiable black-eyed shark ceaselessly on the hunt for victims. I feel sorry for his

parents. There's no way in hell Zimny is a bi-product [sic] of some childhood wounds

. He's a genetic defect."

• "I have no doubt that any jury with an IQ above body temperature will convict Zimhole. I only fear that his defense undoubtedly tried to seat as many morons as possible in order to confuse them...."

The comments were so inflammatory that, on two occasions, the author of the blog post...