United States v. Zimny
Decision Date | 16 May 2017 |
Docket Number | No. 15-2144,15-2144 |
Citation | 857 F.3d 97 |
Parties | UNITED STATES of America, Appellee, v. Mark J. ZIMNY, Defendant, Appellant. |
Court | U.S. Court of Appeals — First Circuit |
ORDER OF COURT
After this court remanded this case to the district court to conduct an inquiry into the colorable claim of juror misconduct raised by the defendant, Mark J. Zimny, United States v. Zimny , 846 F.3d 458, 470–72 (1st Cir. 2017),1 Zimny filed a motion in the district court for release from custody pending appeal under 18 U.S.C. § 3143(b)(1). The district court denied the motion without prejudice, reasoning that, "[u]ntil the court conducts further interviews of the other jurors, ... there is insufficient basis at this time to determine whether the investigation will likely result in a reversal or an order for a new trial."2 Zimny then filed with this court a motion under Rule 9(b) of the Federal Rules of Appellate Procedure for release from custody pending appeal. The government opposes the motion.
On our "independent review" of the district court's denial of the motion, see United States v. Bayko , 774 F.2d 516, 520 (1st Cir. 1985),3 we grant the motion and remand to the district court for determination of the appropriate release conditions. And, because of the dearth of authority addressing motions for release from custody pending appeal in circumstances like those presented by this case, we briefly explain our reasons for granting the motion.
18 U.S.C. § 3143(b)(1). "If the judicial officer makes such findings, such judicial officer shall order the release of the person...." Id. 4 We conclude that Zimny has met these requirements and is therefore entitled to release pending appeal.
Zimny convincingly argues that he is not a flight risk or danger to the community. Indeed, the government does not contend otherwise. He remained out on bail during trial, and the district court allowed him to self-report to prison following his conviction and the imposition of sentence. Cf. United States v. Weiner , 972 F.2d 337, at *1 (1st Cir.1992) (unpublished decision) ( ). And nothing that has happened in the time that Zimny has been imprisoned changes this calculus. In fact, Zimny has submitted documentation to this court indicating that his security level in prison is "MINIMUM" and his custody level is "OUT," the second lowest custody level assigned to an inmate. Therefore, Zimny has met his § 3143(b)(1)(A) burden.
774 F.2d at 522. We are of the opinion that Zimny has met both of these prongs.
1. Zimny has identified a substantial question of fact: whether the alleged juror misconduct occurred.5 In Bayko , we decided that a substantial question means "a ‘close’ question or one that very well could be decided the other way." 774 F.2d at 523 (quoting United States v. Giancola , 754 F.2d 898, 901 (11th Cir. 1985) ).
Zimny promptly alerted the district court to his colorable allegation of serious juror misconduct. There was nothing else Zimny could have done to develop the record on this factual question without the district court's assistance. Cf . United States v. Kepreos , 759 F.2d 961, 967 (1st Cir. 1985) (); see also Bouret–Echevarría v. Caribbean Aviation Maint. Corp. , 784 F.3d 37, 48 n.8 (1st Cir. 2015) (). Because he came forward with a colorable claim of juror misconduct, an investigation was required. In these circumstances, Zimny has met his burden on the substantiality prong of § 3143(b)(1)(B) : He has shown that this question of fact is close enough to warrant some investigation, and this close question cannot be resolved until this investigation takes place. At this juncture, therefore, this question of fact "very well could be decided [either] way." Bayko , 774 F.2d at 523 (quoting Giancola , 754 F.2d at 901 ).
We cannot accept the government's position that it's too early to tell whether the question is substantial because no investigation has yet taken place. For starters, the government has not identified any authority to support the position that a motion under § 3143 can be denied because the substantiality of the question is not yet ripe. Cf. 18 U.S.C. § 3145(c) ( ). Moreover, even if a motion under § 3143(b) could be denied as premature as a general matter, that route seems like a poor fit for a case like this one, where the defendant has done everything he can to investigate the factual question, and the only reason that the factual question still persists is because the required investigation has yet to take place.
Moreover, the government's reliance on portions of the panel's opinion that noted the undeveloped record is misplaced. Those passages were concerned with a very different question: whether to remand for a new trial at this time. The fact that it might be premature to take the drastic step of reversing Zimny's conviction and ordering a new trial before the required investigation takes place does not support the government's position that it is also premature to decide whether Zimny has identified a substantial question of fact. After all, substantiality under § 3143(b) requires only a showing that the question is a close one. At the very least, the question is close enough to require an investigation. Zimny has done all he can do under our case law to develop the record on this question without the court's assistance, and now all that remains is for that investigation to take place.
2. Zimny has also met his burden on the likelihood prong of § 3143(b)(1)(B). As Bayko demonstrates, analysis of the likelihood prong proceeds on the assumption that the substantial question of law or fact "is determined favorably to defendant on appeal." 774 F.2d at 522 ( ). Therefore, the question that the likelihood prong poses in this case is not, as the district court stated, "whether the investigation will likely result in a reversal or an order for a new trial." (Emphasis added.) Instead, we must ask whether a reversal or new trial is likely if the substantial question of fact Zimny has raised—whether the alleged juror misconduct occurred—"is determined favorably to [Zimny]." Id.
Properly understood, the likelihood prong must be resolved in Zimny's...
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