United States v. Zimny

15-2144P

2017 | Cited 0 times | First Circuit | January 24, 2017

United States Court of Appeals For the First Circuit

No. 15-2144

UNITED STATES OF AMERICA,

Appellee,

v.

MARK J. ZIMNY,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Torruella, Thompson, and Kayatta, Circuit Judges.

John M. Thompson, with whom Linda J. Thompson, Robert F. Hennessy, and Thompson & Thompson, P.C. 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.

January 24, 2017

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,

1 In addition to this contention, Zimny also argues that the district court's denial of his motion for a continuance deprived him of his Sixth Amendment right to counsel of choice and that the district court erred in denying his challenge to the joinder of the bank-fraud counts. 2 Because Zimny is not challenging the sufficiency of the government's evidence and the precise manner in which we chronicle the backstory has no impact on our decision, we elect to present the facts in a balanced fashion. See United States v. Vázquez- Larrauri, 778 F.3d 276 , 280 (1st Cir. 2015); United States v. Rodríguez-Soler, 773 F.3d 289 , 290 (1st Cir. 2014).

- 3 -

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

- 4 -

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.

- 5 -

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.

3 Given the tack we take in this opinion, we need not chronicle the facts giving rise to the false-tax-return and bank-fraud charges or examine the degree to which these offenses are connected with the other ten counts.

- 6 -

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,

- 7 -

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]

4At the time Zimny filed his motion for a new trial, the blog post garnered over 250 comments. As of this date, over 300 comments have been posted. See Richard Bradley, The Harvard Admissions Lawsuit, Shots in the Dark (Oct. 9, 2012), http://www.richardbradley.net/shotsinthedark/2012/10/09/the- harvard-admissions-lawsuit/ (last visited Jan. 23, 2017).

- 8 -

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 threatened to delete the post and the

accompanying comments; he explained that "[t]his is a blog for

discussion, not hate. And certainly not violence."

Meanwhile, back in federal court, the government was

aware of and occasionally viewed the blog-post comments. And, hot

on the heels of the jury verdict, the government informed Zimny's

defense team of blog-post comments from the night before the

verdict was returned that were authored by an anonymous poster who

claimed to have been a juror in Zimny's criminal trial. In

- 9 -

response to comments requesting status updates on the trial, an

anonymous commentator responded: "It's gone a week longer than

the judge has hoped dude [sic] to Lily Chows [sic] testimony. When

I left the jury last week due to an illness they were 50/50." When

an intrigued fellow commentator asked "[w]ho was 50/50," this

anonymously posted answer followed: "The jury. Half saw him

guilty and the others didn't."

After learning of these comments, Zimny filed a motion

for a new trial, asking the district court to conduct an inquiry

into whether the jurors were exposed to extraneous information or

engaged in premature deliberations. The government agreed that

the district court should question Juror No. 8 about these

comments, and the court did so.

During the court's examination of Juror No. 8, she

admitted authoring the comments in question. The juror testified,

under oath, that she had not visited the blog — or read anything

else about the case — during her jury service; it was only after

she left the jury that she had found the blog. Juror No. 8 also

testified that she had not discussed the case with any of the other

jurors while she was serving on the jury. Her assessment of the

jurors — that half saw Zimny guilty and the other half viewed him

as not guilty — was instead based on Juror No. 8's interpretation

of "the way that [the jurors] would sigh on certain things" and

jurors' "body language." Finally, Juror No. 8 testified that she

- 10 -

had not authored any of the other comments on the blog post. After

completing its own questioning of Juror No. 8, the district court

permitted Zimny to propose additional questions for the district

court to ask the juror; Zimny took the district court up on this

offer, proposing several questions that the district court, in

turn, posed to Juror No. 8. At the conclusion of Juror No. 8's

testimony, Zimny requested that the court examine the other jurors;

the court denied that request, concluding that Juror No. 8's

testimony did not necessitate that step.

Zimny filed a motion for reconsideration of the district

court's refusal to examine the jurors. Initially, the motion was

based on a comment that was posted after Zimny filed his motion

for a new trial but before the hearing at which Juror No. 8 was

questioned. This commentator — writing anonymously, like so many

others who commented on the blog post — suggested that, if Juror

No. 8 testified that "it was just her 'impression' or 'feeling'

that the other jurors thought Zimny was guilty[,] then Juror #8

will be sent home with the court's thanks." Zimny argued that,

because Juror No. 8 admitted in her testimony that she reviewed

the blog post shortly before her testimony, the similarity between

her in-court testimony and the suggestion of the anonymous

commentator rendered her testimony "entirely unreliable."

Four days later, Zimny alerted the district court to yet

another anonymous comment on the blog post; this comment had been

- 11 -

posted earlier that day by someone who claimed to have been a juror

on Zimny's criminal trial. The comment, which we shall call the

additional-juror comment, read as follows:

Boy this is getting comical. I've been following it on and off, and was also on the jury. Mama June, and those who were there know what I'm talking about,[5] 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[6] and got annoyed. '[I]diot' doesent [sic] describe the half of it.

This comment, Zimny argued, suggested that, contrary to Juror No.

8's in-court testimony, she in fact had discussed the blog with

other jurors. Zimny insisted that this additional-juror comment

required the district court to examine the other jurors.

The district court denied the motion for reconsideration

without explanation. Zimny timely appealed.

Analysis

Zimny argues that the district court failed to

adequately investigate his claims that the jury was exposed to

extraneous prejudicial information — the blog post and its comments

5 For those, like us, who weren't there, Zimny explains that "Mama June" is the name of a character from the reality show Here Comes Honey Boo Boo and asserts that Juror No. 8 bore a striking resemblance to this character. The government does not dispute this assertion. 6 For those unfamiliar with the term, "stfu" is an acronym for a particularly emphatic way to tell someone to be quiet: "Shut the f*** up!" See Stfu, Urban Dictionary, http://www.urbandictionary.com/define.php?term=stfu (last visited Jan. 23, 2017).

- 12 -

— and that the jurors engaged in premature deliberations. We

review the district court's response to these allegations of juror

misconduct for abuse of discretion. See United States v.

Rodriguez, 675 F.3d 48 , 58 (1st Cir. 2012); United States v.

Mikutowicz, 365 F.3d 65 , 74 (1st Cir. 2004).

A defendant bears the burden of coming forward with an

allegation of juror misconduct that is colorable or plausible.

Mikutowicz, 365 F.3d at 75; see also Rodriguez, 675 F.3d at 58.

Although "courts generally 'should be hesitant[] to haul jurors in

after they have reached a verdict . . . to probe for potential

instances of bias, misconduct, or extraneous influences," Neron v.

Tierney, 841 F.2d 1197 , 1205 (1st Cir. 1988) (alteration in

original) (quoting United States v. Moon, 718 F.2d 1210 , 1234 (2d

Cir. 1983)), "a trial court has an unflagging duty adequately to

probe a nonfrivolous claim of jury taint," United States v.

Paniagua-Ramos, 251 F.3d 242 , 250 (1st Cir. 2001); see also United

States v. Yeje-Cabrera, 430 F.3d 1 , 11 (1st Cir. 2005) (quoting

this language). Thus, where a defendant makes a colorable or

plausible claim of juror misconduct, the district court must

investigate it. See Rodriguez, 675 F.3d at 58; Paniagua-Ramos,

251 F.3d at 250; United States v. DeLeon, 187 F.3d 60 , 67 (1st

Cir. 1999); United States v. Rogers, 121 F.3d 12 , 17 (1st Cir.

1997); United States v. Meader, 118 F.3d 876 , 880 (1st Cir. 1997);

- 13 -

United States v. Boylan, 898 F.2d 230 , 258 (1st Cir. 1990); Neron,

841 F.2d at 1201, 1202-03 & n.6.7

In cases where the district court is obliged to

investigate, "the court nonetheless 'has broad discretion to

determine the type of investigation which must be mounted.'"

Rodriguez, 675 F.3d at 58 (quoting Meader, 118 F.3d at 880). While

a "fullblown evidentiary hearing" is an option, one is not

necessarily required. Id. (quoting Boylan, 898 F.2d at 258).

"Instead, the court's 'primary obligation is to fashion a

responsible procedure for ascertaining whether misconduct actually

occurred and if so, whether it was prejudicial.'" Id. (quoting

Boylan, 898 F.2d at 258). "The touchstone is reasonableness: did

the trial court fashion, and then even-handedly implement, a

sensible procedure reasonably calculated to determine whether

7Similarly, we have remarked that an inquiry of the jurors should be conducted "when 'reasonable grounds for investigation exist,' i.e., 'there is clear, strong, substantial and incontrovertible evidence that a specific, nonspeculative impropriety has occurred which could have prejudiced the trial of a defendant.'" United States v. Connolly, 341 F.3d 16 , 34 (1st Cir. 2003) (quoting Moon, 718 F.2d at 1234); see also United States v. Villar, 586 F.3d 76 , 83 (1st Cir. 2009) (quoting this language). And we have recognized that, in some cases, an initial inquiry is necessary to determine whether reasonable grounds for investigation exist. See, e.g., Bouret-Echevarría v. Caribbean Aviation Maint. Corp., 784 F.3d 37 , 48-49 & n.9 (1st Cir. 2015) (concluding that district court should have convened evidentiary hearing and questioned nonjuror witnesses who reported juror misconduct in order to determine whether inquiry of jurors was warranted).

- 14 -

something untoward had occurred?" Paniagua-Ramos, 251 F.3d at

249-50.

Notwithstanding this broad discretion, however, a

district court "judge does not have discretion to refuse to conduct

any inquiry at all regarding the magnitude of the taint-producing

event and the extent of the resulting prejudice" if confronted

with a colorable claim of juror misconduct. United States v. Lara-

Ramirez, 519 F.3d 76 , 87 (1st Cir. 2008). In the last analysis,

"[i]t is the circumstances of each case that will determine the

level of inquiry necessary." Rodriguez, 675 F.3d at 61; see also

Paniaqua-Ramos, 251 F.3d at 250 ("[C]laims of jury taint are almost

always case-specific.").

In this case, Zimny's evidence of juror misconduct did

not come before the district court all at once. Initially, Zimny

requested the district court to conduct an inquiry on the basis of

Juror No. 8's blog-post comments. After hearing her testimony,

Zimny unsuccessfully attempted — both at the hearing and in his

first filing in support of his motion for reconsideration — to

persuade the district court that, because Juror No. 8's testimony

was unworthy of belief, all of the jurors needed to be questioned.

Then, apart from this Juror No. 8 evidence, Zimny argued in a

second filing that the additional-juror comment also necessitated

an inquiry of all of the jurors. In recognition of the staggered

manner in which Zimny presented this evidence to the district

- 15 -

court, we first review the adequacy of the district court's

treatment of the Juror No. 8 evidence before turning to its

response to the additional-juror comment.

A. Juror No. 8 Evidence

Zimny first argues that the district court's initial

inquiry into Juror No. 8's blog-post comments was deficient. He

insists that the court's refusal to examine the remaining jurors

is unsupportable in the absence of an explicit determination of

Juror No. 8's credibility and explicit findings of fact. We

discern no abuse of discretion in the district court's initial

inquiry.

The district court thoroughly questioned Juror No. 8,

and this questioning focused on both of Zimny's juror-misconduct

claims. The court explored Zimny's allegation of premature

deliberations by repeatedly asking Juror No. 8 whether she

discussed the case with her fellow jurors. When Juror No. 8

steadfastly responded that she had not done so, the district court

pressed further, demanding to know what Juror No. 8's assessment

of the jurors as being "50/50" could possibly be based on if no

discussions took place. The court also asked questions aimed at

addressing Zimny's allegation that the jurors had been exposed to

the blog post and its comments during trial. Juror No. 8

repeatedly assured the court that she had not known of or visited

the blog until after she had left the jury and that she discovered

- 16 -

the blog not through discussions with other jurors but by

independent research. After observing Juror No. 8's testimony

from the front-row seat that the district court occupied, the judge

concluded that she did "not believe [Juror No. 8's] testimony

requires" questioning the other jurors.

To be sure, the district court did not explicitly declare

that it found Juror No. 8's testimony to be credible. But, after

reviewing the entirety of the court's examination of Juror No. 8,

we are convinced that the district court implicitly reached this

conclusion. Cf. Applewood Landscape & Nursery Co. v.

Hollingsworth, 884 F.2d 1502 , 1505 (1st Cir. 1989) (discerning an

implicit credibility finding from a statement of the district

court). Necessarily implicit in the judge's statement that she

did not believe that an examination of the other jurors was

required based on Juror No. 8's testimony was the conclusion that

she believed Juror No. 8, who testified under oath, that (1) no

premature deliberations or discussions about the case occurred and

(2) she did not expose the other jurors to the blog-post comments

because she discovered the blog post only after she left the jury.

Cf. United States v. Newman, 982 F.2d 665 , 670 (1st Cir. 1992)

(concluding from district court's stated reasons in support of its

denial of defendant's motion for new trial premised on juror

misconduct that district court "implicitly determin[ed] that there

had been no prejudice to [defendant]"). We will not disturb this

- 17 -

credibility determination, which was reached after an extensive

inquiry.8 See Meader, 118 F.3d at 881 ("Assessment of [a] juror's

credibility as [the juror] responds to the [court's] questioning

is uniquely the domain of the district court . . . ."). In sum,

the district court's initial response to Zimny's claims of juror

misconduct was, at that juncture, reasonable. Therefore, the

district court's initial inquiry does not constitute an abuse of

discretion. See Paniagua-Ramos, 251 F.3d at 249-50.

Zimny next contends that the district court erred in

refusing to undertake a further investigation when Zimny's motion

for reconsideration alerted the district court to the possibility

that Juror No. 8's testimony was influenced by other blog-post

comments. The government fires back that this argument is sheer

speculation, presumably because (as it argued below) Juror No. 8

received advice from counsel before facing the court's questions.

Neither party's position is entirely free from conjecture, but we

need not dwell on this point because we can affirm the district

8 In support of his argument that Juror No. 8 testified dishonestly, Zimny notes that she incorrectly stated that her blog- post comments were not in response to questions when, in fact, they were. This error was plainly apparent to the district court; the very next question that the court posed tracked the language of the blog-post comment that prompted the first of Juror No. 8's comments: "Did somebody ask whether anybody attended the trial, would have any information about it?" And, even though the district court knew that Juror No. 8's comments were prompted by questions, it nonetheless implicitly found her testimony to be credible. We will not second-guess that determination.

- 18 -

court's denial of this aspect of the motion for reconsideration on

any ground supported by the record. See United States v.

Siciliano, 578 F.3d 61 , 73 n.7 (1st Cir. 2009); cf. United States

v. Connolly, 504 F.3d 206 , 212 (1st Cir. 2007) (explaining that,

"[w]hen the trial court has not expounded its rationale, the court

of appeals will peruse the record, identify the issues and the

controlling legal rules, and review the denial of the motion [for

a new trial] accordingly").

The comments that supposedly influenced Juror No. 8's

testimony were posted before the evidentiary hearing where she

testified. And Zimny knew about the blog post before these

comments were posted. In addition to knowing about the blog post

and its comments in advance of the evidentiary hearing, Zimny was

given the opportunity to propose questions for the court to ask

Juror No. 8. He availed himself of this opportunity, but none of

the questions he proposed related to the potential that Juror No.

8's testimony was slanted by other comments on the blog. In these

circumstances, there was no abuse of discretion in rejecting this

aspect of Zimny's motion for reconsideration. See United States

v. Allen, 573 F.3d 42 , 53 (1st Cir. 2009) (explaining that "[w]e

review the denial of a motion for reconsideration for abuse of

discretion" and that such motions "are not to be used as 'a vehicle

for a party to undo its own procedural failures [or] allow a party

to advance arguments that could and should have been presented to

- 19 -

the district court prior to judgment'" and "are appropriate only

in a limited number of circumstances: if the moving party presents

newly discovered evidence, if there has been an intervening change

in the law, or if the movant can demonstrate that the original

decision was based on a manifest error of law or was clearly

unjust" (second alteration in original) (quoting Iverson v. City

of Bos., 452 F.3d 94 , 104 (1st Cir. 2006))).9

B. The Additional-Juror Comment

The district court's response to the additional-juror

comment, on the other hand, is a different story. Zimny argues

that the district court was required to conduct further

investigation after he alerted the court to this evidence. We

agree. In the unique circumstances of this case, the additional-

juror comment raised a colorable claim of juror misconduct: that,

contrary to Juror No. 8's testimony, she discussed the blog post

with other jurors.10

9In yet another effort to challenge Juror No. 8's credibility, Zimny argues that the district court failed to realize that still other blog-post comments were similar to Juror No. 8's testimony, suggesting that, contrary to her testimony, she had authored other comments. But Zimny never made this argument to the district court, so we will not entertain its debut on appeal. See United States v. Salley, 651 F.3d 159 , 161 n.2 (1st Cir. 2011) (refusing to consider an argument raised for the first time on appeal). 10 We note that, unlike the other evidence that Zimny presented to the district court after Juror No. 8's testimony, the additional-juror comment was new evidence; it was posted several

- 20 -

First, Zimny has made a colorable showing that the author

of this comment was a juror on his trial. Not only did the author

of the comment claim to have been a juror, the comment contained

details that supported the credibility of that assertion. For

example, the comment contained an in-the-know description of Juror

No. 8's appearance that was evidently right on the money. See

supra note 5. Additionally, the comment accurately recounted that

Juror No. 8 did not complete her jury service because of a claimed

sickness. The inclusion of these accurate details suggests that

the author of this comment was someone who was both in the

courtroom during Zimny's trial and intimately familiar with the

manner in which it progressed. Furthermore, there is nothing to

suggest that the comment was authored by the defendant or anyone

acting on his behalf. The comment refers to the post-trial

situation involving Juror No. 8 as "comical" and seeks to downplay

the effect of Juror No. 8's actions by describing how several

jurors told her to "stfu." In sum, aspects of the comment tend to

corroborate the author's assertion that he or she was a juror in

Zimny's trial.11

days after the hearing and Zimny's initial filing in support of his motion for reconsideration. Cf. Allen, 573 F.3d at 53. 11At oral argument, the government asserted that the author of the additional-juror comment could have been anyone who was in attendance in the courtroom during trial, including those in the gallery. Although true, this assertion does not convince us to discount the claims made in the additional-juror comment. This was a situation in which there was already independent reason to

- 21 -

Second, Zimny has shown a colorable claim that serious

juror misconduct occurred. Many of the comments on the blog post

were highly unfavorable to Zimny. Several of the commentators

left vitriolic messages attacking Zimny's truthfulness and

character and suggesting that Zimny had engaged in a pattern of

similar fraudulent conduct against other Asian families. The blog-

post comments were highly prejudicial to Zimny and, if seen by a

jury, would likely inflame the jurors' passions. And the

additional-juror comment related that Juror No. 8 was "spouting

about" — not merely mentioning in passing — the blog "since day

one." Moreover, Juror No. 8's alleged references to the blog were

troubling enough to cause "[s]everal other jurors" to become

"annoyed" and to tell Juror No. 8 "to stfu." The additional-juror

comment therefore indicates that Juror No. 8 told her fellow jurors

of the blog post and its highly prejudicial comments.

The combination of the comment's credible claim that its

author was a juror and the comment's assertion that Juror No. 8

"spout[ed] about" a blog post containing highly prejudicial

information to her fellow jurors "since day one" of Zimny's trial

convinces us that Zimny has shown a colorable claim of juror

misconduct. In these unique circumstances, the additional-juror

suspect possible contamination of the jury. In such circumstances, the mere possibility that the new comment might not, as claimed, have been authored by a juror does not mean, in context, that there existed no new colorable basis to inquire of the jurors.

- 22 -

comment constituted clear, strong evidence that a specific,

nonspeculative impropriety occurred that could have been highly

prejudicial to Zimny, such that "reasonable grounds for

investigation exist[ed]." Connolly, 341 F.3d at 34 (quoting Moon,

718 F.2d at 1234). Thus, the district court was required to

investigate this plausible allegation of juror misconduct, see

Rodriguez, 675 F.3d at 58, and abused its discretion in failing to

conduct a further inquiry once Zimny alerted it to the additional-

juror comment. See Paniagua-Ramos, 251 F.3d at 249-50 ("[A] trial

court has an unflagging duty adequately to probe a nonfrivolous

claim of jury taint . . . ."); Lara-Ramirez, 519 F.3d at 87

(explaining that a district court "judge does not have discretion

to refuse to conduct any inquiry at all regarding the magnitude of

the taint-producing event and the extent of the resulting

prejudice" if confronted with a colorable claim of juror

misconduct).

The government disputes this conclusion, arguing instead

that, because the comment was posted anonymously, the district

court was under no obligation to investigate it at all. In support

of this position, the government cites United States v. Caldwell,

776 F.2d 989 , 999 (11th Cir. 1985), in which the court stated that

"the anonymity of the call [that reported juror misconduct] in our

minds simply creates no burden to investigate." We do not agree

that, in the circumstances of this case, the anonymous nature of

- 23 -

the additional-juror comment relieved the district court of its

obligation to investigate this claim of juror misconduct.

For starters, the additional-juror comment provides an

even stronger basis for investigation than Juror No. 8's comments

did. Juror No. 8's comments stated that half of the jurors saw

Zimny as guilty while the other half did not, but those comments

did not explicitly indicate that premature deliberations took

place. The additional-juror comment, by contrast, contains an

explicit assertion of juror misconduct: that Juror No. 8 was

"spouting about" highly prejudicial extraneous information to her

fellow jurors "since day one" of trial.

Additionally, Caldwell is distinguishable. For one

thing, despite the court's suggestion that the anonymity of the

call created no obligation to investigate, the district court

actually investigated the claim, questioning the identified juror

on two occasions and concluding that she was credible and could

remain impartial. Caldwell, 776 F.2d at 994-95. For another,

both the source and the nature of the allegation of juror

misconduct in Caldwell was markedly different from the additional-

juror comment in this case. The anonymous caller in Caldwell did

not claim to be a juror and refused to give his name to the judge,

and his report of juror misconduct was secondhand: the caller

reported that a juror's fiancé told the caller that the fiancé had

been informed by the juror that premature deliberations took place.

- 24 -

Id. at 994. In this case, by contrast, the anonymous comment was

authored by one who claims to have been a juror on Zimny's trial,

the vast majority of the other comments on the blog post were

anonymous, the comment relays accurate details supporting the

author's assertion of juror status, and the author reports juror

misconduct that he or she observed while sitting on the jury. The

government has not cited (and we have not found) any federal

appellate case supporting the proposition that a district court

need not undertake any inquiry of juror misconduct in a case like

this — where the defendant has come forward with evidence of juror

misconduct that both (1) credibly indicates that its anonymous

source was a juror and (2) suggests, based on the source's personal

knowledge, that the jury was exposed to highly prejudicial

extraneous information — solely because the evidence comes from an

anonymous source. To the extent that the language in Caldwell

upon which the government relies can be read as supporting this

proposition, we decline to follow it.

As a fallback, the government argues that the content of

the additional-juror comment supports the district court's refusal

to investigate it. Even if Juror No. 8 mentioned the blog post to

her fellow jurors, the argument goes, the additional-juror comment

establishes that the jurors actually prevented Juror No. 8 from

revealing any prejudicial information contained in the blog-post

comments; therefore, the government tells us, the district court

- 25 -

was under no duty to investigate the "de minimis" "mention of the

blog's existence." We cannot go along with this reasoning on this

undeveloped evidentiary record.

The government reads too much into the "stfu" component

of the additional-juror comment and not enough into the comment's

description of Juror No. 8's misconduct. According to the comment,

Juror No. 8 "was spouting about" the blog "since day one." This

description of her conduct implies something more than a single

fleeting reference to the blog post. Moreover, Juror No. 8's

references to the highly prejudicial blog post were pervasive

enough that "[s]everal other jurors" became "annoyed" and told

Juror No. 8 in no uncertain terms that enough was enough. In the

absence of some inquiry into this colorable claim of juror

misconduct, we cannot conclude from the basis of the additional-

juror comment alone that "the jurors stopped Juror No. 8 from

revealing anything" beyond the mere existence of the blog.

For all of these reasons, we hold that, in these

circumstances, Zimny's claim of juror misconduct was a colorable

one in light of the additional-juror comment — which constituted

clear, strong evidence that a serious, specific, and

nonspeculative impropriety occurred — and that the district court

was therefore required to undertake some investigation of that

claim once it was apprised of that evidence. In reaching this

conclusion, we emphasize that our holding in this case, like almost

- 26 -

all others involving "claims of jury taint," is "case-specific."

Paniagua-Ramos, 251 F.3d at 250. We recognize the danger that a

criminal defendant or someone acting on a defendant's behalf might

author an anonymous posting on the internet while posing as a juror

in the hopes of delaying the finality of the conviction, and we by

no means require a district court judge to automatically undertake

an inquiry every time an anonymous posting authored by someone

claiming to be a juror surfaces.12 Instead, we hold merely that,

in the circumstances of this case, the district court was required

to conduct some further inquiry once it was apprised of the

additional-juror comment.

C. Remedy

Zimny insists that the district court's failure to

undertake an adequate investigation of the potential juror

misconduct compels us to vacate his conviction and remand for a

new trial. We disagree.

None of the cases Zimny cites compel us to vacate his

conviction and remand for a new trial. For example, in United

States v. Rhodes, 556 F.2d 599 , 601-02 (1st Cir. 1977), we held

12A criminal defendant may have a motive to cast doubt upon the integrity of the guilty verdict, and the ability to post content anonymously on the internet creates an avenue for that motive to be expressed. But this reality alone is insufficient to render allegations of juror misconduct implausible in the circumstances of this case, where the additional-juror comment followed questionable behavior by another juror.

- 27 -

that the district court's inquiry into allegations of juror

misconduct was inadequate. Based upon case-specific

considerations, we elected to order a new trial. See id. at 602

("Partly because of the number of possible issues, and partly

because so much time has gone by since the discharge of the jury,

we feel it would be best for the court to set aside the verdicts

and grant defendants a new trial, rather than seeking now to

explore the questions of the jurors' exposure to information

regarding defendants' additional history."). Nothing we said in

Rhodes suggests that a new trial is mandated in these

circumstances. See also United States v. Resko, 3 F.3d 684 , 694,

695 (3d Cir. 1993) (electing to order new trial, in lieu of remand

for further investigation, where district court's inquiry into

juror misconduct was inadequate because "there [was] unequivocal

proof of jury misconduct" and appellate court had concerns about

jurors' faded memories).

In United States v. Gastón-Brito, 64 F.3d 11 , 13 (1st

Cir. 1995), another case relied upon by Zimny, there was an

allegation of an ex parte communication by a government agent with

jurors. Such a communication "invoke[s] a more stringent

standard," "'is presumptively prejudicial[,]' and obligates the

court to 'conduct a sufficient inquiry to determine whether the

communication was harmless.'" Id. (quoting United States v.

O'Brien, 972 F.2d 12 , 14 (1st Cir. 1992)). In this case, however,

- 28 -

the juror-misconduct allegation contained in the additional-juror

comment concerns juror exposure to extraneous prejudicial

information and not any ex parte communication between a juror and

someone associated with the case. Therefore, the presumption of

prejudice discussed in Gastón-Brito is simply inapplicable here.

See United States v. Bristol-Mártir, 570 F.3d 29 , 41-42 n.5 (1st

Cir. 2009).

Like Gastón-Brito, Bristol-Mártir, another case cited by

Zimny to support his request for a new trial, is distinguishable.

In that case, it was established that juror misconduct took place:

a juror had conducted internet research on the meaning of words

used in a federal statute and, during deliberations, had shared

her understanding of these words with the other jurors. Bristol-

Mártir, 570 F.3d at 36-37. The district court conducted an

investigation, which included meeting "with each juror

individually about reading news reports related to the case and

about performing outside research," id. at 38, but, "crucially,

the district court did not inquire, either in a group setting or

on an individual basis, as to whether jury members had been

influenced by the errant juror's improper research and

presentation," id. at 43. This critical failure led us to conclude

that the district court abused its discretion in conducting its

inquiry, id. at 43-44, and, without further elaboration, we vacated

- 29 -

the defendants' convictions and remanded for a new trial, id. at

45.

Zimny's case is one step removed from Bristol-Mártir;

juror misconduct has not yet been established because the

allegation contained in the additional-juror comment was not

investigated. On this undeveloped record, we are reluctant to

follow the approach that we took in the face of undisputed juror

misconduct.

In sum, although the cases Zimny cites support the

position that we could vacate his conviction and require a new

trial in light of the district court's failure to conduct an

investigation into the allegation of juror misconduct contained in

the additional-juror comment, they do not require us to follow

this course. Moreover, in these circumstances, we possess the

authority to remand for further investigation instead of ordering

a new trial. See, e.g., United States v. Vitale, 459 F.3d 190 ,

199-200 (2d Cir. 2006); United States v. Brande, 329 F.3d 1173 ,

1177 (9th Cir. 2003); United States v. Tucker, 137 F.3d 1016 , 1031-

33 (8th Cir. 1998); United States v. Brantley, 733 F.2d 1429 , 1440-

41 (11th Cir. 1984); see also United States v. Sandalis, 14 F.

App'x 287, 288, 291 & n.7 (4th Cir. 2001).13

13 In an analogous context, we employed this approach in Villar, 586 F.3d at 78-79, 87, which involved an allegation of juror misconduct that the district court did not investigate based on its mistaken belief that it completely lacked authority, by

- 30 -

In this case, a remand for further investigation is

preferable to vacating Zimny's conviction outright and ordering a

new trial. For one thing, because the additional-juror comment

was not investigated by the district court, we simply do not know

whether its assertions of juror misconduct are true. We are

unwilling to disturb Zimny's conviction on this undeveloped

evidentiary record when an adequate inquiry might reveal that the

alleged juror misconduct did not occur in the first place. For

another, while we acknowledge the potential that the jurors'

memories may have faded in the time since they returned their

verdict, see Resko, 3 F.3d at 695; Rhodes, 556 F.2d at 602, this

possibility does not warrant declaring a new trial at this

juncture. Given the combination of (1) the highly prejudicial

nature of the blog-post comments, (2) that Juror No. 8 was

virtue of the prohibition contained in Federal Rule of Evidence 606(b), from conducting any inquiry into a juror's comments made during deliberations that indicated ethnic bias. Because the district court had indicated its desire to conduct an inquiry if it was permitted, we remanded the case for the district court to undertake that inquiry if it still desired to do so. Id. at 79, 87-88; cf. United States v. Rowe, 144 F.3d 15 , 23-24 (1st Cir. 1998) (remanding "for further argument and record development" where, after jury returned guilty verdict but before sentencing, district court received letter from juror but refused to make it part of record or disclose its contents to attorneys; "if, on further reflection, the court sees compelling factual and/or legal reasons which both outweigh the very strong interests [the defendant] has in reviewing the letter and render inadequate the measures at the court's disposal for ensuring jury and juror confidentiality, the court should state those reasons with particularity to facilitate any further review we may be called upon to conduct").

- 31 -

"spouting about" the blog "since day one," and (3) that "[s]everal

other jurors" were so "annoyed" by Juror No. 8's conduct that they

told her to "stfu," it is not at all clear to us that a juror would

soon forget witnessing these strange events unfold in such a tense

environment. In any event, the district court's inquiry will

readily reveal whether memories have faded, and, if they have, the

district court can then determine if a new trial is warranted, see

Rhodes, 556 F.2d at 602. But we will not presume on this record

that further investigation will be fruitless.

Conclusion

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." Rodriguez, 675 F.3d at 58. We emphasize the

district court's discretion in determining "the scope of the

resulting inquiry and the mode and manner in which it will be

conducted." Paniagua-Ramos, 251 F.3d at 250; see also United

States v. Ortiz-Arrigoitia, 996 F.2d 436 , 443 (1st Cir. 1993) ("The

trial judge is not . . . shackled to a rigid and unyielding set

[of] rules and procedures that compel any particular form or scope

of inquiry."); Boylan, 898 F.2d at 258 ("So long as the district

judge erects, and employs, a suitable framework for investigating

- 32 -

the allegation and gauging its effects, and thereafter spells out

[her] findings with adequate specificity to permit informed

appellate review, [the court's] 'determination . . . deserves great

respect [and] . . . should not be disturbed in the absence of a

patent abuse of discretion.'" (third alteration in original)

(citation omitted) (quoting United States v. Hunnewell, 891 F.2d

955 , 961 (1st Cir. 1989))); cf. Rogers, 121 F.3d at 15, 17 (finding

no abuse of discretion with respect to district court's inquiry of

colorable claim of juror misconduct that surfaced after trial where

court questioned two jurors most closely involved and determined

that, although juror misconduct occurred, it was not prejudicial

to defendant). After conducting this inquiry, the district court

should next decide whether the information unearthed in the

investigation warrants granting Zimny a new trial and, in doing

so, should indicate its findings and rationale supporting that

conclusion "with adequate specificity to permit informed appellate

review." Boylan, 898 F.2d at 258.

In the meantime, we retain jurisdiction over the case

and the remaining issues that Zimny has raised on appeal. See

Brande, 329 F.3d at 1178 (remanding case to district court for

further investigation of juror-misconduct allegation while

retaining jurisdiction over case and remaining issues). In the

event that the district court orders a new trial and the government

chooses to appeal from that order, see 18 U.S.C. § 3731, we will

- 33 -

consolidate the government's appeal with this case and proceed

accordingly. If, on the other hand, the district court still

believes that a new trial is not warranted, it shall transmit a

copy of its written findings and conclusions to the Clerk of this

court. Counsel for both parties shall notify this court after the

district court reaches its conclusions, at which time we will issue

any orders that we deem appropriate.

REMANDED.

- 34 -

United States Court of Appeals For the First Circuit

No. 15-2144

UNITED STATES OF AMERICA,

Appellee,

v.

MARK J. ZIMNY,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Torruella, Thompson, and Kayatta, Circuit Judges.

John M. Thompson, with whom Linda J. Thompson, Robert F. Hennessy, and Thompson & Thompson, P.C. 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.

January 24, 2017

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,

1 In addition to this contention, Zimny also argues that the district court's denial of his motion for a continuance deprived him of his Sixth Amendment right to counsel of choice and that the district court erred in denying his challenge to the joinder of the bank-fraud counts. 2 Because Zimny is not challenging the sufficiency of the government's evidence and the precise manner in which we chronicle the backstory has no impact on our decision, we elect to present the facts in a balanced fashion. See United States v. Vázquez- Larrauri, 778 F.3d 276 , 280 (1st Cir. 2015); United States v. Rodríguez-Soler, 773 F.3d 289 , 290 (1st Cir. 2014).

- 3 -

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

- 4 -

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.

- 5 -

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.

3 Given the tack we take in this opinion, we need not chronicle the facts giving rise to the false-tax-return and bank-fraud charges or examine the degree to which these offenses are connected with the other ten counts.

- 6 -

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,

- 7 -

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]

4At the time Zimny filed his motion for a new trial, the blog post garnered over 250 comments. As of this date, over 300 comments have been posted. See Richard Bradley, The Harvard Admissions Lawsuit, Shots in the Dark (Oct. 9, 2012), http://www.richardbradley.net/shotsinthedark/2012/10/09/the- harvard-admissions-lawsuit/ (last visited Jan. 23, 2017).

- 8 -

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 threatened to delete the post and the

accompanying comments; he explained that "[t]his is a blog for

discussion, not hate. And certainly not violence."

Meanwhile, back in federal court, the government was

aware of and occasionally viewed the blog-post comments. And, hot

on the heels of the jury verdict, the government informed Zimny's

defense team of blog-post comments from the night before the

verdict was returned that were authored by an anonymous poster who

claimed to have been a juror in Zimny's criminal trial. In

- 9 -

response to comments requesting status updates on the trial, an

anonymous commentator responded: "It's gone a week longer than

the judge has hoped dude [sic] to Lily Chows [sic] testimony. When

I left the jury last week due to an illness they were 50/50." When

an intrigued fellow commentator asked "[w]ho was 50/50," this

anonymously posted answer followed: "The jury. Half saw him

guilty and the others didn't."

After learning of these comments, Zimny filed a motion

for a new trial, asking the district court to conduct an inquiry

into whether the jurors were exposed to extraneous information or

engaged in premature deliberations. The government agreed that

the district court should question Juror No. 8 about these

comments, and the court did so.

During the court's examination of Juror No. 8, she

admitted authoring the comments in question. The juror testified,

under oath, that she had not visited the blog — or read anything

else about the case — during her jury service; it was only after

she left the jury that she had found the blog. Juror No. 8 also

testified that she had not discussed the case with any of the other

jurors while she was serving on the jury. Her assessment of the

jurors — that half saw Zimny guilty and the other half viewed him

as not guilty — was instead based on Juror No. 8's interpretation

of "the way that [the jurors] would sigh on certain things" and

jurors' "body language." Finally, Juror No. 8 testified that she

- 10 -

had not authored any of the other comments on the blog post. After

completing its own questioning of Juror No. 8, the district court

permitted Zimny to propose additional questions for the district

court to ask the juror; Zimny took the district court up on this

offer, proposing several questions that the district court, in

turn, posed to Juror No. 8. At the conclusion of Juror No. 8's

testimony, Zimny requested that the court examine the other jurors;

the court denied that request, concluding that Juror No. 8's

testimony did not necessitate that step.

Zimny filed a motion for reconsideration of the district

court's refusal to examine the jurors. Initially, the motion was

based on a comment that was posted after Zimny filed his motion

for a new trial but before the hearing at which Juror No. 8 was

questioned. This commentator — writing anonymously, like so many

others who commented on the blog post — suggested that, if Juror

No. 8 testified that "it was just her 'impression' or 'feeling'

that the other jurors thought Zimny was guilty[,] then Juror #8

will be sent home with the court's thanks." Zimny argued that,

because Juror No. 8 admitted in her testimony that she reviewed

the blog post shortly before her testimony, the similarity between

her in-court testimony and the suggestion of the anonymous

commentator rendered her testimony "entirely unreliable."

Four days later, Zimny alerted the district court to yet

another anonymous comment on the blog post; this comment had been

- 11 -

posted earlier that day by someone who claimed to have been a juror

on Zimny's criminal trial. The comment, which we shall call the

additional-juror comment, read as follows:

Boy this is getting comical. I've been following it on and off, and was also on the jury. Mama June, and those who were there know what I'm talking about,[5] 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[6] and got annoyed. '[I]diot' doesent [sic] describe the half of it.

This comment, Zimny argued, suggested that, contrary to Juror No.

8's in-court testimony, she in fact had discussed the blog with

other jurors. Zimny insisted that this additional-juror comment

required the district court to examine the other jurors.

The district court denied the motion for reconsideration

without explanation. Zimny timely appealed.

Analysis

Zimny argues that the district court failed to

adequately investigate his claims that the jury was exposed to

extraneous prejudicial information — the blog post and its comments

5 For those, like us, who weren't there, Zimny explains that "Mama June" is the name of a character from the reality show Here Comes Honey Boo Boo and asserts that Juror No. 8 bore a striking resemblance to this character. The government does not dispute this assertion. 6 For those unfamiliar with the term, "stfu" is an acronym for a particularly emphatic way to tell someone to be quiet: "Shut the f*** up!" See Stfu, Urban Dictionary, http://www.urbandictionary.com/define.php?term=stfu (last visited Jan. 23, 2017).

- 12 -

— and that the jurors engaged in premature deliberations. We

review the district court's response to these allegations of juror

misconduct for abuse of discretion. See United States v.

Rodriguez, 675 F.3d 48 , 58 (1st Cir. 2012); United States v.

Mikutowicz, 365 F.3d 65 , 74 (1st Cir. 2004).

A defendant bears the burden of coming forward with an

allegation of juror misconduct that is colorable or plausible.

Mikutowicz, 365 F.3d at 75; see also Rodriguez, 675 F.3d at 58.

Although "courts generally 'should be hesitant[] to haul jurors in

after they have reached a verdict . . . to probe for potential

instances of bias, misconduct, or extraneous influences," Neron v.

Tierney, 841 F.2d 1197 , 1205 (1st Cir. 1988) (alteration in

original) (quoting United States v. Moon, 718 F.2d 1210 , 1234 (2d

Cir. 1983)), "a trial court has an unflagging duty adequately to

probe a nonfrivolous claim of jury taint," United States v.

Paniagua-Ramos, 251 F.3d 242 , 250 (1st Cir. 2001); see also United

States v. Yeje-Cabrera, 430 F.3d 1 , 11 (1st Cir. 2005) (quoting

this language). Thus, where a defendant makes a colorable or

plausible claim of juror misconduct, the district court must

investigate it. See Rodriguez, 675 F.3d at 58; Paniagua-Ramos,

251 F.3d at 250; United States v. DeLeon, 187 F.3d 60 , 67 (1st

Cir. 1999); United States v. Rogers, 121 F.3d 12 , 17 (1st Cir.

1997); United States v. Meader, 118 F.3d 876 , 880 (1st Cir. 1997);

- 13 -

United States v. Boylan, 898 F.2d 230 , 258 (1st Cir. 1990); Neron,

841 F.2d at 1201, 1202-03 & n.6.7

In cases where the district court is obliged to

investigate, "the court nonetheless 'has broad discretion to

determine the type of investigation which must be mounted.'"

Rodriguez, 675 F.3d at 58 (quoting Meader, 118 F.3d at 880). While

a "fullblown evidentiary hearing" is an option, one is not

necessarily required. Id. (quoting Boylan, 898 F.2d at 258).

"Instead, the court's 'primary obligation is to fashion a

responsible procedure for ascertaining whether misconduct actually

occurred and if so, whether it was prejudicial.'" Id. (quoting

Boylan, 898 F.2d at 258). "The touchstone is reasonableness: did

the trial court fashion, and then even-handedly implement, a

sensible procedure reasonably calculated to determine whether

7Similarly, we have remarked that an inquiry of the jurors should be conducted "when 'reasonable grounds for investigation exist,' i.e., 'there is clear, strong, substantial and incontrovertible evidence that a specific, nonspeculative impropriety has occurred which could have prejudiced the trial of a defendant.'" United States v. Connolly, 341 F.3d 16 , 34 (1st Cir. 2003) (quoting Moon, 718 F.2d at 1234); see also United States v. Villar, 586 F.3d 76 , 83 (1st Cir. 2009) (quoting this language). And we have recognized that, in some cases, an initial inquiry is necessary to determine whether reasonable grounds for investigation exist. See, e.g., Bouret-Echevarría v. Caribbean Aviation Maint. Corp., 784 F.3d 37 , 48-49 & n.9 (1st Cir. 2015) (concluding that district court should have convened evidentiary hearing and questioned nonjuror witnesses who reported juror misconduct in order to determine whether inquiry of jurors was warranted).

- 14 -

something untoward had occurred?" Paniagua-Ramos, 251 F.3d at

249-50.

Notwithstanding this broad discretion, however, a

district court "judge does not have discretion to refuse to conduct

any inquiry at all regarding the magnitude of the taint-producing

event and the extent of the resulting prejudice" if confronted

with a colorable claim of juror misconduct. United States v. Lara-

Ramirez, 519 F.3d 76 , 87 (1st Cir. 2008). In the last analysis,

"[i]t is the circumstances of each case that will determine the

level of inquiry necessary." Rodriguez, 675 F.3d at 61; see also

Paniaqua-Ramos, 251 F.3d at 250 ("[C]laims of jury taint are almost

always case-specific.").

In this case, Zimny's evidence of juror misconduct did

not come before the district court all at once. Initially, Zimny

requested the district court to conduct an inquiry on the basis of

Juror No. 8's blog-post comments. After hearing her testimony,

Zimny unsuccessfully attempted — both at the hearing and in his

first filing in support of his motion for reconsideration — to

persuade the district court that, because Juror No. 8's testimony

was unworthy of belief, all of the jurors needed to be questioned.

Then, apart from this Juror No. 8 evidence, Zimny argued in a

second filing that the additional-juror comment also necessitated

an inquiry of all of the jurors. In recognition of the staggered

manner in which Zimny presented this evidence to the district

- 15 -

court, we first review the adequacy of the district court's

treatment of the Juror No. 8 evidence before turning to its

response to the additional-juror comment.

A. Juror No. 8 Evidence

Zimny first argues that the district court's initial

inquiry into Juror No. 8's blog-post comments was deficient. He

insists that the court's refusal to examine the remaining jurors

is unsupportable in the absence of an explicit determination of

Juror No. 8's credibility and explicit findings of fact. We

discern no abuse of discretion in the district court's initial

inquiry.

The district court thoroughly questioned Juror No. 8,

and this questioning focused on both of Zimny's juror-misconduct

claims. The court explored Zimny's allegation of premature

deliberations by repeatedly asking Juror No. 8 whether she

discussed the case with her fellow jurors. When Juror No. 8

steadfastly responded that she had not done so, the district court

pressed further, demanding to know what Juror No. 8's assessment

of the jurors as being "50/50" could possibly be based on if no

discussions took place. The court also asked questions aimed at

addressing Zimny's allegation that the jurors had been exposed to

the blog post and its comments during trial. Juror No. 8

repeatedly assured the court that she had not known of or visited

the blog until after she had left the jury and that she discovered

- 16 -

the blog not through discussions with other jurors but by

independent research. After observing Juror No. 8's testimony

from the front-row seat that the district court occupied, the judge

concluded that she did "not believe [Juror No. 8's] testimony

requires" questioning the other jurors.

To be sure, the district court did not explicitly declare

that it found Juror No. 8's testimony to be credible. But, after

reviewing the entirety of the court's examination of Juror No. 8,

we are convinced that the district court implicitly reached this

conclusion. Cf. Applewood Landscape & Nursery Co. v.

Hollingsworth, 884 F.2d 1502 , 1505 (1st Cir. 1989) (discerning an

implicit credibility finding from a statement of the district

court). Necessarily implicit in the judge's statement that she

did not believe that an examination of the other jurors was

required based on Juror No. 8's testimony was the conclusion that

she believed Juror No. 8, who testified under oath, that (1) no

premature deliberations or discussions about the case occurred and

(2) she did not expose the other jurors to the blog-post comments

because she discovered the blog post only after she left the jury.

Cf. United States v. Newman, 982 F.2d 665 , 670 (1st Cir. 1992)

(concluding from district court's stated reasons in support of its

denial of defendant's motion for new trial premised on juror

misconduct that district court "implicitly determin[ed] that there

had been no prejudice to [defendant]"). We will not disturb this

- 17 -

credibility determination, which was reached after an extensive

inquiry.8 See Meader, 118 F.3d at 881 ("Assessment of [a] juror's

credibility as [the juror] responds to the [court's] questioning

is uniquely the domain of the district court . . . ."). In sum,

the district court's initial response to Zimny's claims of juror

misconduct was, at that juncture, reasonable. Therefore, the

district court's initial inquiry does not constitute an abuse of

discretion. See Paniagua-Ramos, 251 F.3d at 249-50.

Zimny next contends that the district court erred in

refusing to undertake a further investigation when Zimny's motion

for reconsideration alerted the district court to the possibility

that Juror No. 8's testimony was influenced by other blog-post

comments. The government fires back that this argument is sheer

speculation, presumably because (as it argued below) Juror No. 8

received advice from counsel before facing the court's questions.

Neither party's position is entirely free from conjecture, but we

need not dwell on this point because we can affirm the district

8 In support of his argument that Juror No. 8 testified dishonestly, Zimny notes that she incorrectly stated that her blog- post comments were not in response to questions when, in fact, they were. This error was plainly apparent to the district court; the very next question that the court posed tracked the language of the blog-post comment that prompted the first of Juror No. 8's comments: "Did somebody ask whether anybody attended the trial, would have any information about it?" And, even though the district court knew that Juror No. 8's comments were prompted by questions, it nonetheless implicitly found her testimony to be credible. We will not second-guess that determination.

- 18 -

court's denial of this aspect of the motion for reconsideration on

any ground supported by the record. See United States v.

Siciliano, 578 F.3d 61 , 73 n.7 (1st Cir. 2009); cf. United States

v. Connolly, 504 F.3d 206 , 212 (1st Cir. 2007) (explaining that,

"[w]hen the trial court has not expounded its rationale, the court

of appeals will peruse the record, identify the issues and the

controlling legal rules, and review the denial of the motion [for

a new trial] accordingly").

The comments that supposedly influenced Juror No. 8's

testimony were posted before the evidentiary hearing where she

testified. And Zimny knew about the blog post before these

comments were posted. In addition to knowing about the blog post

and its comments in advance of the evidentiary hearing, Zimny was

given the opportunity to propose questions for the court to ask

Juror No. 8. He availed himself of this opportunity, but none of

the questions he proposed related to the potential that Juror No.

8's testimony was slanted by other comments on the blog. In these

circumstances, there was no abuse of discretion in rejecting this

aspect of Zimny's motion for reconsideration. See United States

v. Allen, 573 F.3d 42 , 53 (1st Cir. 2009) (explaining that "[w]e

review the denial of a motion for reconsideration for abuse of

discretion" and that such motions "are not to be used as 'a vehicle

for a party to undo its own procedural failures [or] allow a party

to advance arguments that could and should have been presented to

- 19 -

the district court prior to judgment'" and "are appropriate only

in a limited number of circumstances: if the moving party presents

newly discovered evidence, if there has been an intervening change

in the law, or if the movant can demonstrate that the original

decision was based on a manifest error of law or was clearly

unjust" (second alteration in original) (quoting Iverson v. City

of Bos., 452 F.3d 94 , 104 (1st Cir. 2006))).9

B. The Additional-Juror Comment

The district court's response to the additional-juror

comment, on the other hand, is a different story. Zimny argues

that the district court was required to conduct further

investigation after he alerted the court to this evidence. We

agree. In the unique circumstances of this case, the additional-

juror comment raised a colorable claim of juror misconduct: that,

contrary to Juror No. 8's testimony, she discussed the blog post

with other jurors.10

9In yet another effort to challenge Juror No. 8's credibility, Zimny argues that the district court failed to realize that still other blog-post comments were similar to Juror No. 8's testimony, suggesting that, contrary to her testimony, she had authored other comments. But Zimny never made this argument to the district court, so we will not entertain its debut on appeal. See United States v. Salley, 651 F.3d 159 , 161 n.2 (1st Cir. 2011) (refusing to consider an argument raised for the first time on appeal). 10 We note that, unlike the other evidence that Zimny presented to the district court after Juror No. 8's testimony, the additional-juror comment was new evidence; it was posted several

- 20 -

First, Zimny has made a colorable showing that the author

of this comment was a juror on his trial. Not only did the author

of the comment claim to have been a juror, the comment contained

details that supported the credibility of that assertion. For

example, the comment contained an in-the-know description of Juror

No. 8's appearance that was evidently right on the money. See

supra note 5. Additionally, the comment accurately recounted that

Juror No. 8 did not complete her jury service because of a claimed

sickness. The inclusion of these accurate details suggests that

the author of this comment was someone who was both in the

courtroom during Zimny's trial and intimately familiar with the

manner in which it progressed. Furthermore, there is nothing to

suggest that the comment was authored by the defendant or anyone

acting on his behalf. The comment refers to the post-trial

situation involving Juror No. 8 as "comical" and seeks to downplay

the effect of Juror No. 8's actions by describing how several

jurors told her to "stfu." In sum, aspects of the comment tend to

corroborate the author's assertion that he or she was a juror in

Zimny's trial.11

days after the hearing and Zimny's initial filing in support of his motion for reconsideration. Cf. Allen, 573 F.3d at 53. 11At oral argument, the government asserted that the author of the additional-juror comment could have been anyone who was in attendance in the courtroom during trial, including those in the gallery. Although true, this assertion does not convince us to discount the claims made in the additional-juror comment. This was a situation in which there was already independent reason to

- 21 -

Second, Zimny has shown a colorable claim that serious

juror misconduct occurred. Many of the comments on the blog post

were highly unfavorable to Zimny. Several of the commentators

left vitriolic messages attacking Zimny's truthfulness and

character and suggesting that Zimny had engaged in a pattern of

similar fraudulent conduct against other Asian families. The blog-

post comments were highly prejudicial to Zimny and, if seen by a

jury, would likely inflame the jurors' passions. And the

additional-juror comment related that Juror No. 8 was "spouting

about" — not merely mentioning in passing — the blog "since day

one." Moreover, Juror No. 8's alleged references to the blog were

troubling enough to cause "[s]everal other jurors" to become

"annoyed" and to tell Juror No. 8 "to stfu." The additional-juror

comment therefore indicates that Juror No. 8 told her fellow jurors

of the blog post and its highly prejudicial comments.

The combination of the comment's credible claim that its

author was a juror and the comment's assertion that Juror No. 8

"spout[ed] about" a blog post containing highly prejudicial

information to her fellow jurors "since day one" of Zimny's trial

convinces us that Zimny has shown a colorable claim of juror

misconduct. In these unique circumstances, the additional-juror

suspect possible contamination of the jury. In such circumstances, the mere possibility that the new comment might not, as claimed, have been authored by a juror does not mean, in context, that there existed no new colorable basis to inquire of the jurors.

- 22 -

comment constituted clear, strong evidence that a specific,

nonspeculative impropriety occurred that could have been highly

prejudicial to Zimny, such that "reasonable grounds for

investigation exist[ed]." Connolly, 341 F.3d at 34 (quoting Moon,

718 F.2d at 1234). Thus, the district court was required to

investigate this plausible allegation of juror misconduct, see

Rodriguez, 675 F.3d at 58, and abused its discretion in failing to

conduct a further inquiry once Zimny alerted it to the additional-

juror comment. See Paniagua-Ramos, 251 F.3d at 249-50 ("[A] trial

court has an unflagging duty adequately to probe a nonfrivolous

claim of jury taint . . . ."); Lara-Ramirez, 519 F.3d at 87

(explaining that a district court "judge does not have discretion

to refuse to conduct any inquiry at all regarding the magnitude of

the taint-producing event and the extent of the resulting

prejudice" if confronted with a colorable claim of juror

misconduct).

The government disputes this conclusion, arguing instead

that, because the comment was posted anonymously, the district

court was under no obligation to investigate it at all. In support

of this position, the government cites United States v. Caldwell,

776 F.2d 989 , 999 (11th Cir. 1985), in which the court stated that

"the anonymity of the call [that reported juror misconduct] in our

minds simply creates no burden to investigate." We do not agree

that, in the circumstances of this case, the anonymous nature of

- 23 -

the additional-juror comment relieved the district court of its

obligation to investigate this claim of juror misconduct.

For starters, the additional-juror comment provides an

even stronger basis for investigation than Juror No. 8's comments

did. Juror No. 8's comments stated that half of the jurors saw

Zimny as guilty while the other half did not, but those comments

did not explicitly indicate that premature deliberations took

place. The additional-juror comment, by contrast, contains an

explicit assertion of juror misconduct: that Juror No. 8 was

"spouting about" highly prejudicial extraneous information to her

fellow jurors "since day one" of trial.

Additionally, Caldwell is distinguishable. For one

thing, despite the court's suggestion that the anonymity of the

call created no obligation to investigate, the district court

actually investigated the claim, questioning the identified juror

on two occasions and concluding that she was credible and could

remain impartial. Caldwell, 776 F.2d at 994-95. For another,

both the source and the nature of the allegation of juror

misconduct in Caldwell was markedly different from the additional-

juror comment in this case. The anonymous caller in Caldwell did

not claim to be a juror and refused to give his name to the judge,

and his report of juror misconduct was secondhand: the caller

reported that a juror's fiancé told the caller that the fiancé had

been informed by the juror that premature deliberations took place.

- 24 -

Id. at 994. In this case, by contrast, the anonymous comment was

authored by one who claims to have been a juror on Zimny's trial,

the vast majority of the other comments on the blog post were

anonymous, the comment relays accurate details supporting the

author's assertion of juror status, and the author reports juror

misconduct that he or she observed while sitting on the jury. The

government has not cited (and we have not found) any federal

appellate case supporting the proposition that a district court

need not undertake any inquiry of juror misconduct in a case like

this — where the defendant has come forward with evidence of juror

misconduct that both (1) credibly indicates that its anonymous

source was a juror and (2) suggests, based on the source's personal

knowledge, that the jury was exposed to highly prejudicial

extraneous information — solely because the evidence comes from an

anonymous source. To the extent that the language in Caldwell

upon which the government relies can be read as supporting this

proposition, we decline to follow it.

As a fallback, the government argues that the content of

the additional-juror comment supports the district court's refusal

to investigate it. Even if Juror No. 8 mentioned the blog post to

her fellow jurors, the argument goes, the additional-juror comment

establishes that the jurors actually prevented Juror No. 8 from

revealing any prejudicial information contained in the blog-post

comments; therefore, the government tells us, the district court

- 25 -

was under no duty to investigate the "de minimis" "mention of the

blog's existence." We cannot go along with this reasoning on this

undeveloped evidentiary record.

The government reads too much into the "stfu" component

of the additional-juror comment and not enough into the comment's

description of Juror No. 8's misconduct. According to the comment,

Juror No. 8 "was spouting about" the blog "since day one." This

description of her conduct implies something more than a single

fleeting reference to the blog post. Moreover, Juror No. 8's

references to the highly prejudicial blog post were pervasive

enough that "[s]everal other jurors" became "annoyed" and told

Juror No. 8 in no uncertain terms that enough was enough. In the

absence of some inquiry into this colorable claim of juror

misconduct, we cannot conclude from the basis of the additional-

juror comment alone that "the jurors stopped Juror No. 8 from

revealing anything" beyond the mere existence of the blog.

For all of these reasons, we hold that, in these

circumstances, Zimny's claim of juror misconduct was a colorable

one in light of the additional-juror comment — which constituted

clear, strong evidence that a serious, specific, and

nonspeculative impropriety occurred — and that the district court

was therefore required to undertake some investigation of that

claim once it was apprised of that evidence. In reaching this

conclusion, we emphasize that our holding in this case, like almost

- 26 -

all others involving "claims of jury taint," is "case-specific."

Paniagua-Ramos, 251 F.3d at 250. We recognize the danger that a

criminal defendant or someone acting on a defendant's behalf might

author an anonymous posting on the internet while posing as a juror

in the hopes of delaying the finality of the conviction, and we by

no means require a district court judge to automatically undertake

an inquiry every time an anonymous posting authored by someone

claiming to be a juror surfaces.12 Instead, we hold merely that,

in the circumstances of this case, the district court was required

to conduct some further inquiry once it was apprised of the

additional-juror comment.

C. Remedy

Zimny insists that the district court's failure to

undertake an adequate investigation of the potential juror

misconduct compels us to vacate his conviction and remand for a

new trial. We disagree.

None of the cases Zimny cites compel us to vacate his

conviction and remand for a new trial. For example, in United

States v. Rhodes, 556 F.2d 599 , 601-02 (1st Cir. 1977), we held

12A criminal defendant may have a motive to cast doubt upon the integrity of the guilty verdict, and the ability to post content anonymously on the internet creates an avenue for that motive to be expressed. But this reality alone is insufficient to render allegations of juror misconduct implausible in the circumstances of this case, where the additional-juror comment followed questionable behavior by another juror.

- 27 -

that the district court's inquiry into allegations of juror

misconduct was inadequate. Based upon case-specific

considerations, we elected to order a new trial. See id. at 602

("Partly because of the number of possible issues, and partly

because so much time has gone by since the discharge of the jury,

we feel it would be best for the court to set aside the verdicts

and grant defendants a new trial, rather than seeking now to

explore the questions of the jurors' exposure to information

regarding defendants' additional history."). Nothing we said in

Rhodes suggests that a new trial is mandated in these

circumstances. See also United States v. Resko, 3 F.3d 684 , 694,

695 (3d Cir. 1993) (electing to order new trial, in lieu of remand

for further investigation, where district court's inquiry into

juror misconduct was inadequate because "there [was] unequivocal

proof of jury misconduct" and appellate court had concerns about

jurors' faded memories).

In United States v. Gastón-Brito, 64 F.3d 11 , 13 (1st

Cir. 1995), another case relied upon by Zimny, there was an

allegation of an ex parte communication by a government agent with

jurors. Such a communication "invoke[s] a more stringent

standard," "'is presumptively prejudicial[,]' and obligates the

court to 'conduct a sufficient inquiry to determine whether the

communication was harmless.'" Id. (quoting United States v.

O'Brien, 972 F.2d 12 , 14 (1st Cir. 1992)). In this case, however,

- 28 -

the juror-misconduct allegation contained in the additional-juror

comment concerns juror exposure to extraneous prejudicial

information and not any ex parte communication between a juror and

someone associated with the case. Therefore, the presumption of

prejudice discussed in Gastón-Brito is simply inapplicable here.

See United States v. Bristol-Mártir, 570 F.3d 29 , 41-42 n.5 (1st

Cir. 2009).

Like Gastón-Brito, Bristol-Mártir, another case cited by

Zimny to support his request for a new trial, is distinguishable.

In that case, it was established that juror misconduct took place:

a juror had conducted internet research on the meaning of words

used in a federal statute and, during deliberations, had shared

her understanding of these words with the other jurors. Bristol-

Mártir, 570 F.3d at 36-37. The district court conducted an

investigation, which included meeting "with each juror

individually about reading news reports related to the case and

about performing outside research," id. at 38, but, "crucially,

the district court did not inquire, either in a group setting or

on an individual basis, as to whether jury members had been

influenced by the errant juror's improper research and

presentation," id. at 43. This critical failure led us to conclude

that the district court abused its discretion in conducting its

inquiry, id. at 43-44, and, without further elaboration, we vacated

- 29 -

the defendants' convictions and remanded for a new trial, id. at

45.

Zimny's case is one step removed from Bristol-Mártir;

juror misconduct has not yet been established because the

allegation contained in the additional-juror comment was not

investigated. On this undeveloped record, we are reluctant to

follow the approach that we took in the face of undisputed juror

misconduct.

In sum, although the cases Zimny cites support the

position that we could vacate his conviction and require a new

trial in light of the district court's failure to conduct an

investigation into the allegation of juror misconduct contained in

the additional-juror comment, they do not require us to follow

this course. Moreover, in these circumstances, we possess the

authority to remand for further investigation instead of ordering

a new trial. See, e.g., United States v. Vitale, 459 F.3d 190 ,

199-200 (2d Cir. 2006); United States v. Brande, 329 F.3d 1173 ,

1177 (9th Cir. 2003); United States v. Tucker, 137 F.3d 1016 , 1031-

33 (8th Cir. 1998); United States v. Brantley, 733 F.2d 1429 , 1440-

41 (11th Cir. 1984); see also United States v. Sandalis, 14 F.

App'x 287, 288, 291 & n.7 (4th Cir. 2001).13

13 In an analogous context, we employed this approach in Villar, 586 F.3d at 78-79, 87, which involved an allegation of juror misconduct that the district court did not investigate based on its mistaken belief that it completely lacked authority, by

- 30 -

In this case, a remand for further investigation is

preferable to vacating Zimny's conviction outright and ordering a

new trial. For one thing, because the additional-juror comment

was not investigated by the district court, we simply do not know

whether its assertions of juror misconduct are true. We are

unwilling to disturb Zimny's conviction on this undeveloped

evidentiary record when an adequate inquiry might reveal that the

alleged juror misconduct did not occur in the first place. For

another, while we acknowledge the potential that the jurors'

memories may have faded in the time since they returned their

verdict, see Resko, 3 F.3d at 695; Rhodes, 556 F.2d at 602, this

possibility does not warrant declaring a new trial at this

juncture. Given the combination of (1) the highly prejudicial

nature of the blog-post comments, (2) that Juror No. 8 was

virtue of the prohibition contained in Federal Rule of Evidence 606(b), from conducting any inquiry into a juror's comments made during deliberations that indicated ethnic bias. Because the district court had indicated its desire to conduct an inquiry if it was permitted, we remanded the case for the district court to undertake that inquiry if it still desired to do so. Id. at 79, 87-88; cf. United States v. Rowe, 144 F.3d 15 , 23-24 (1st Cir. 1998) (remanding "for further argument and record development" where, after jury returned guilty verdict but before sentencing, district court received letter from juror but refused to make it part of record or disclose its contents to attorneys; "if, on further reflection, the court sees compelling factual and/or legal reasons which both outweigh the very strong interests [the defendant] has in reviewing the letter and render inadequate the measures at the court's disposal for ensuring jury and juror confidentiality, the court should state those reasons with particularity to facilitate any further review we may be called upon to conduct").

- 31 -

"spouting about" the blog "since day one," and (3) that "[s]everal

other jurors" were so "annoyed" by Juror No. 8's conduct that they

told her to "stfu," it is not at all clear to us that a juror would

soon forget witnessing these strange events unfold in such a tense

environment. In any event, the district court's inquiry will

readily reveal whether memories have faded, and, if they have, the

district court can then determine if a new trial is warranted, see

Rhodes, 556 F.2d at 602. But we will not presume on this record

that further investigation will be fruitless.

Conclusion

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." Rodriguez, 675 F.3d at 58. We emphasize the

district court's discretion in determining "the scope of the

resulting inquiry and the mode and manner in which it will be

conducted." Paniagua-Ramos, 251 F.3d at 250; see also United

States v. Ortiz-Arrigoitia, 996 F.2d 436 , 443 (1st Cir. 1993) ("The

trial judge is not . . . shackled to a rigid and unyielding set

[of] rules and procedures that compel any particular form or scope

of inquiry."); Boylan, 898 F.2d at 258 ("So long as the district

judge erects, and employs, a suitable framework for investigating

- 32 -

the allegation and gauging its effects, and thereafter spells out

[her] findings with adequate specificity to permit informed

appellate review, [the court's] 'determination . . . deserves great

respect [and] . . . should not be disturbed in the absence of a

patent abuse of discretion.'" (third alteration in original)

(citation omitted) (quoting United States v. Hunnewell, 891 F.2d

955 , 961 (1st Cir. 1989))); cf. Rogers, 121 F.3d at 15, 17 (finding

no abuse of discretion with respect to district court's inquiry of

colorable claim of juror misconduct that surfaced after trial where

court questioned two jurors most closely involved and determined

that, although juror misconduct occurred, it was not prejudicial

to defendant). After conducting this inquiry, the district court

should next decide whether the information unearthed in the

investigation warrants granting Zimny a new trial and, in doing

so, should indicate its findings and rationale supporting that

conclusion "with adequate specificity to permit informed appellate

review." Boylan, 898 F.2d at 258.

In the meantime, we retain jurisdiction over the case

and the remaining issues that Zimny has raised on appeal. See

Brande, 329 F.3d at 1178 (remanding case to district court for

further investigation of juror-misconduct allegation while

retaining jurisdiction over case and remaining issues). In the

event that the district court orders a new trial and the government

chooses to appeal from that order, see 18 U.S.C. § 3731, we will

- 33 -

consolidate the government's appeal with this case and proceed

accordingly. If, on the other hand, the district court still

believes that a new trial is not warranted, it shall transmit a

copy of its written findings and conclusions to the Clerk of this

court. Counsel for both parties shall notify this court after the

district court reaches its conclusions, at which time we will issue

any orders that we deem appropriate.

REMANDED.

- 34 -

Case Summary:
To generate a summary for United States v. Zimny click here.
Back to top