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United States v. Zimny

United States District Court, D. Massachusetts

July 28, 2017

UNITED STATES OF AMERICA
v.
MARK J. ZIMNY

          FINDINGS AND CONCLUSIONS

          RYA W. ZOBEL, JUDGE

         On January 24, 2017, the United States Court of Appeals for the First Circuit remanded the case United States v. Zimny to this court with instructions to conduct further investigation into a juror misconduct allegation raised by defendant. The additional alleged misconduct was described in a comment posted on June 29, 2015, 12:24 am, on the "Shots in the Dark" biog (the "additional comment"). See United States v. Zimny, 846 F.3d 458, 472 (1st Cir. 2017). Specifically, the Court of Appeals directed this court to: (1) ascertain whether the events described in the additional comment actually occurred; (2) if so, determine whether it was prejudicial; and (3) decide whether the information unearthed from the investigation warrants granting defendant a new trial. See Id. at 472.

         I. Background

         As relevant to the instant inquiry, on April 8, 2015, after a thirteen-day trial, a jury found defendant, Mark J. 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. See Docket # 220. Defendant initially moved for a new trial and requested the court to conduct an interrogation of Juror # 8 about potential jury misconduct after learning of a comment posted on the "Shots in the Dark" blog. Docket # 225. This comment, dated April 7, 2015, stated, "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." at 5. On June 23, 2015, 1 conducted an inquiry of Juror # 8 and determined that based on her testimony no jury misconduct had occurred. See infra Part II.B. Four days later, on June 29, 2015, a second anonymous comment that is the subject of the current investigation was posted on the same blog.

         This comment stated:

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, was spouting about the 'shots in the dark' blog since day one. Its [sic] why she conveniently got 'sick' and didn't finish her service. Several other jurors told her to stfu and got annoyed. '[I]diof doesent [sic] describe the half of it.

Zimny, 846 F.3d at 464. Defendant moved for reconsideration and a new trial in light of this additional comment. Docket # 259. I denied the motion, Docket # 283, which defendant timely appealed, Docket # 301. Pursuant to the remand order of the Court of Appeals, below are the findings and conclusions of the investigation regarding this additional alleged jury misconduct.[1]

         II. The Initial Investigation

         A. Postal Inspector Investigation

         Following the remand order, the court convened the parties on February 2, 2017, to discuss the direction of the investigation. The parties agreed as a first step to task a postal inspector with identifying the author of the comment by identifying the device from which the additional comment was sent. See Docket # 338, at 15-21. On March 15, 2017, the government reported the postal inspector's initial findings. See Docket # 345. The inspector determined that the comment had an internet protocol address ("IP address") associated with an internet service provider located in Singapore. See Docket ## 345, 348, 349.

         The government reported that trying to obtain the specific IP address user information would be a difficult and lengthy process under the laws of Singapore.[2]Docket # 352, at 4. After hearing both parties, the court determined that the search for the author of the additional comment through identification of the IP address user from which the comment was sent was both uncertain and likely time consuming. See Docket # 352. Both parties agreed. See jg\ at 5-6 ("MR. THOMPSON: I don't oppose the government pursuing the matter [in Singapore] further, but my understanding is that we're talking about an investigation that might take more than a year, and I don't think that it's appropriate to continue this investigation for that long."); Id. at 33 ("MR. WILD: I suggest to the Court, you're correct, the only further record possible to be made at this point, pending some information, is inquiry of the jurors ....").

         B. Decision to Bring Back the Jurors

         Consequently, on March 29, 2017, the court decided to move the investigation forward by interrogating all of the jurors, with the exception of Juror # 8, individually to determine the questions raised by the Court of Appeals. See Docket ## 352, 356.

         Defendant requested that the court summon Juror # 8 because she "may establish that the additional juror comment reflects events that actually occurred-----" Docket # 348, at 2.[3] I decided that it would be most appropriate to proceed with summoning the other thirteen jurors first for several reasons. First, I had already questioned Juror # 8 on June 23, 2015, to ask about the initial comment posted on April 7, 2015, and asked her whether she had discussed the blog with any of the jurors and whether the jury had engaged in premature deliberations. See Docket # 256. She testified that although she had seen the blog and authored the April 7 comment, she had done so only after she was excused from the jury. Id. at 9-10. She further testified that she never engaged in premature deliberations with any of the jurors. Id. at 11-15. Second, even if she were now to testify to the contrary and state that she had told the jurors about the blog, the court would still need to interrogate each juror to determine whether the alleged misconduct indeed transpired, and if so, what the jurors had heard and when. Thus, in order to expeditiously conduct the investigation, the court denied defendant's request, but noted that it would call Juror # 8 "if we need to, " Docket # 352, after conducting the examination of the other thirteen jurors.[4]

         III. Preparing the Juror Investigation Questions

         A. Drafting The Script

         In response to both counsel's conflicting schedules, the court initially set the juror interrogation to proceed on May 23 and 24, 2017. See Docket # 352, at 44-45. In preparation for the interrogation, the court ordered the parties to submit, by the latter part of April, a joint proposed explanatory letter that would accompany the summons and a joint proposed script for the interrogation. See Id. at 46-48. The court intended to issue the summons to the jurors by May 1, 2017. See ]g\ Both parties failed to submit the joint proposed documents by late April.[5] This resulted in delaying the juror inquiry, which was subsequently rescheduled to June 21-23, 2017. The court issued a second order on May 8, 2017, directing the parties to again submit a joint proposed explanatory letter by May 19, 2017, and a joint proposed script by May 26, 2017. See Docket # 360. The parties ultimately made separate submissions, albeit defendant's was untimely. See Docket ## 373, 375.

         The court convened the parties on May 31, 2017, "to receive counsels' suggestions, objections, and arguments concerning the conduct of the interrogation of the jurors" Docket # 379, at 1. Based on counsel's input during this hearing, the court issued its Juror Investigation Script and ordered the parties to provide reasonable and appropriate suggestions by June 12, 2012. See Docket # 382. The government timely provided its proposals, Docket # 384; defendant submitted his proposals on June 13, 2017, Docket #387.[6]

         On June 20, 2017, the day prior to the examinations, defendant submitted two additional proposals to the juror script. See Docket # 389. The first proposal was to ask the jurors whether they had heard of the "Shots in the Dark" blog under the heading of the "Harvard Admissions Lawsuit" to avoid missing affirmative responses from jurors who may be familiar only with the latter title. The court adopted this proposal. The second proposal related to jurors' potential connections with Singapore. At the hearing, the court explained that its questions about international travel accounted for this concern. See Docket # 393, at 7.

         B. The Script

         In its final version of the script, the court adopted defendant's request to advise the jurors, out of an abundance of caution, of their Fifth Amendment right not to incriminate themselves and to remain silent. In compliance with Federal Rule of Evidence 606(b), the court further advised each juror that it would not ask him or her about the jury's deliberative processes. The court tailored its questions to ensure that it would not ask any subjective questions. The script was limited to questions about whether the jurors had heard of the "Shots in the Dark" or "Harvard Admissions Lawsuit" blog, and whether the events described in the additional comment had transpired. As noted above, the initial findings by the postal inspector uncovered that the comment had an IP address associated with a company located in Singapore. Accordingly, the court included questions about jurors' travel after their service was completed.

         IV. Juror Questioning

         The summoned jurors all appeared for interrogation. They were questioned individually over the course of three mornings. The jury clerk impeccably carried out the logistics such that jurors were isolated from one another prior to and after each appeared. The court questioned each juror consistent with the script that had been developed with counsel's input. After the court completed its questions, both parties' had the opportunity to submit additional proposed questions to the court, some of which the court put to the juror.

         I credit the testimony of each juror and, based on that ...


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