United States Court of Appeals

For the First Circuit _____________________

No. 15-2144

UNITED STATES OF AMERICA,

Appellee,

v.

MARK J. ZIMNY,

Defendant, Appellant.

__________________

Before,

Torruella, Thompson, and Kayatta,

Circuit Judges.

__________________

ORDER OF COURT

Entered: May 16, 2017

THOMPSON, Circuit Judge. After this court remanded this case to the district court to 

conduct an inquiry into the colorable claim of juror misconduct raised by the defendant, Mark J. 

Zimny, United States v. Zimny, 846 F.3d 458, 470-72 (1st Cir. 2017),1 Zimny filed a motion in 

the district court for release from custody pending appeal under 18 U.S.C. § 3143(b)(1). The 

district court denied the motion without prejudice, reasoning that, "[u]ntil the court conducts 

further interviews of the other jurors, . . . there is insufficient basis at this time to determine whether 

the investigation will likely result in a reversal or an order for a new trial."2 Zimny then filed with 

this court a motion under Rule 9(b) of the Federal Rules of Appellate Procedure for release from 

custody pending appeal. The government opposes the motion. 

 1 This order assumes familiarity with the above-cited opinion.

2 At the time that the district court denied Zimny's motion for release, the court was 

scheduled to conduct the juror interviews on May 23 and 24, 2017. Those dates subsequently were 

canceled, and, as of the date of this order, new dates for the juror interviews have not yet been 

selected. 
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On our "independent review" of the district court's denial of the motion, see United States

v. Bayko, 774 F.2d 516, 520 (1st Cir. 1985),3 we grant the motion and remand to the district court 

for determination of the appropriate release conditions. And, because of the dearth of authority 

addressing motions for release from custody pending appeal in circumstances like those presented 

by this case, we briefly explain our reasons for granting the motion.

Zimny seeks release from custody pending appeal under § 3143(b)(1). That statute 

provides that, as a general rule, a person convicted of an offense and sentenced to a term of 

imprisonment shall be detained pending appeal, 

unless the judicial officer finds —

(A) by clear and convincing evidence that the person is not likely to flee or pose a 

danger to the safety of any other person or the community if released under section 

3142(b) or (c) of this title; and

(B) that the appeal is not for the purpose of delay and raises a substantial question 

of law or fact likely to result in —

(i) reversal,

(ii) an order for a new trial,

(iii) a sentence that does not include a term of imprisonment, or

(iv) a reduced sentence to a term of imprisonment less than the total of the time 

already served plus the expected duration of the appeal process.

18 U.S.C. § 3143(b)(1). "If the judicial officer makes such findings, such judicial officer shall 

order the release of the person . . . ." Id.4 We conclude that Zimny has met these requirements 

and is therefore entitled to release pending appeal.

Zimny convincingly argues that he is not a flight risk or danger to the community. Indeed, 

the government does not contend otherwise. He remained out on bail during trial, and the district 

court allowed him to self-report to prison following his conviction and the imposition of 

sentence. Cf. United States v. Weiner, No. 92-1708, 1992 WL 180697, at *1 (1st Cir. July 31, 

1992) (unpublished decision) (explaining, in a case where the district court found that the 

 3 That independent review is, of course, "tempered by deference to the district court's 

firsthand judgment of the situation." Id. But our standard of review is more rigorous than abuseof-discretion review. See id. at 519-20.

4 These same standards govern our consideration of Zimny's motion under Rule 9(b). See

Fed. R. App. P. 9(c) ("The court must make its decision regarding release in accordance with the 

applicable provisions of 18 U.S.C. §§ 3142, 3143, and 3145(c).").
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defendant posed no risk of flight but made no explicit finding as to dangerousness, that "[w]hile 

no explicit finding was made as to dangerousness, the fact that defendant was released pending 

sentence necessarily entailed a finding that he was not likely to pose a danger"). And nothing that 

has happened in the time that Zimny has been imprisoned changes this calculus. In fact, Zimny 

has submitted documentation to this court indicating that his security level in prison is 

"MINIMUM" and his custody level is "OUT," the second lowest custody level assigned to an 

inmate. Therefore, Zimny has met his § 3143(b)(1)(A) burden.

We therefore proceed to the requirements imposed by § 3143(b)(1)(B). There is no dispute 

that "the appeal is not for the purpose of delay." 18 U.S.C. § 3143(b)(1)(B). With respect to the 

remainder of that subparagraph, we explained in Bayko that

the provision breaks down into two distinct requirements:

(1) that the appeal raise a substantial question of law or fact [the substantiality 

prong] and

(2) that if that substantial question is determined favorably to defendant on appeal, 

that decision is likely to result in reversal or an order for a new trial of all counts 

on which imprisonment has been imposed [the likelihood prong].

774 F.2d at 522. We are of the opinion that Zimny has met both of these prongs.

1. Zimny has identified a substantial question of fact: whether the alleged juror 

misconduct occurred.5

 In Bayko, we decided that a substantial question means "a 'close' question 

or one that very well could be decided the other way." 774 F.2d at 523 (quoting United States v. 

Giancola, 754 F.2d 898, 901 (11th Cir. 1985)).

Zimny promptly alerted the district court to his colorable allegation of serious juror 

misconduct. There was nothing else Zimny could have done to develop the record on this factual 

question without the district court's assistance. Cf. United States v. Kepreos, 759 F.2d 961, 

967 (1st Cir. 1985) ("[H]enceforth this Circuit prohibits the post-verdict interview of jurors by 

counsel, litigants or their agents except under the supervision of the district court, and then only in 

such extraordinary situations as are deemed appropriate."); see also Bouret-Echevarría v. 

Caribbean Aviation Maint. Corp., 784 F.3d 37, 48 n.8 (1st Cir. 2015) ("[P]ost-verdict contact with 

jurors is prohibited in the First Circuit generally."). Because he came forward with a colorable 

claim of juror misconduct, an investigation was required. In these circumstances, Zimny has met 

his burden on the substantiality prong of § 3143(b)(1)(B): He has shown that this question of fact 

is close enough to warrant some investigation, and this close question cannot be resolved until this 

investigation takes place. At this juncture, therefore, this question of fact "very well could be 

decided [either] way." Bayko, 774 F.2d at 523 (quoting Giancola, 754 F.3d at 901). 

 5 In his motion, Zimny characterizes the question as one of law. This seems mistaken; the 

critical question in this case is whether the alleged juror misconduct occurred, and this is a question 

of fact. 
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We cannot accept the government's position that it's too early to tell whether the question 

is substantial because no investigation has yet taken place. For starters, the government has not

identified any authority to support the position that a motion under § 3143 can be denied because 

the substantiality of the question is not yet ripe. Cf. 18 U.S.C. § 3145(c) (providing that "[a]n 

appeal from a release or detention order . . . shall be determined promptly"). Moreover, even if a 

motion under § 3143(b) could be denied as premature as a general matter, that route seems like a 

poor fit for a case like this one, where the defendant has done everything he can to investigate the 

factual question, and the only reason that the factual question still persists is because the required 

investigation has yet to take place.

Moreover, the government's reliance on portions of the panel's opinion that noted the 

undeveloped record is misplaced. Those passages were concerned with a very different question: 

whether to remand for a new trial at this time. The fact that it might be premature to take the 

drastic step of reversing Zimny's conviction and ordering a new trial before the 

required investigation takes place does not support the government's position that it is also 

premature to decide whether Zimny has identified a substantial question of fact. After all, 

substantiality under § 3143(b) requires only a showing that the question is a close one. At the very 

least, the question is close enough to require an investigation. Zimny has done all he can do under 

our case law to develop the record on this question without the court's assistance, and now all that 

remains is for that investigation to take place.

2. Zimny has also met his burden on the likelihood prong of § 3143(b)(1)(B). As 

Bayko demonstrates, analysis of the likelihood prong proceeds on the assumption that the 

substantial question of law or fact "is determined favorably to defendant on appeal." 774 F.2d at 

522 (framing the likelihood prong as follows: "that if that substantial question is determined 

favorably to defendant on appeal, that decision is likely to result in reversal or an order for a new 

trial of all counts on which imprisonment has been imposed" (emphasis added)). Therefore, the 

question that the likelihood prong poses in this case is not, as the district court stated, "whether the 

investigation will likely result in a reversal or an order for a new trial." (Emphasis added.) Instead,

we must ask whether a reversal or new trial is likely if the substantial question of fact Zimny has 

raised — whether the alleged juror misconduct occurred — "is determined favorably to 

[Zimny]." Id.

Properly understood, the likelihood prong must be resolved in Zimny's favor. If we 

assume, as we must under Bayko, that Juror No. 8 was "spouting about" the highly prejudicial blog 

post and its comments to other jurors "since day one" of trial so much so that the other jurors "told 

her to stfu" and "got annoyed," Zimny, 846 F.3d at 464, it is likely — although not inevitable —

that this juror misconduct was prejudicial and not harmless, see Bayko, 774 F.2d at 523 (explaining 

that "the language in the statute which reads 'likely to result in reversal or an order for a new trial' 

is a requirement that the claimed error not be harmless or unprejudicial"), under our jurormisconduct case law.6

 6 See, e.g., Marshall v. United States, 360 U.S. 310, 311-13 (1959) (per curiam) (reversing 

defendant's conviction and remanding for new trial where jurors were exposed to newspaper 

articles discussing defendant's prior convictions and district court had excluded evidence of 

defendant's prior convictions); United States v. Bristol-Mártir, 570 F.3d 29, 36-37, 45 (1st Cir. 
- 5 -

* * *

For these reasons, we conclude that Zimny has met his burden to show entitlement to 

release from custody pending appeal under § 3143(b)(1). Accordingly, we grant the motion and 

remand to the district court for determination of the appropriate conditions of release.

It is so ordered.

By the Court:

/s/ Margaret Carter, Clerk

cc:

Hon. Rya W. Zobel

Robert Farrell, Clerk, United States District Court for the District of Massachusetts

Kevin J. Reddington

John M. Thompson

Mark J. Zimny

Lori J. Holik

Vijay Shanker

Dina Michael Chaitowitz

Victor A. Wild

Giselle J. Joffre

Doreen M. Rachal

Barbara Gruenthal

John P. McLafferty

 

2009) (vacating defendant's conviction and remanding for new trial where juror conducted internet 

research on meaning of words used in federal statute and, during deliberations, had shared her 

understanding of these words with other jurors); United States v. Rhodes, 556 F.2d 599, 601-02 

(1st Cir. 1977) (reversing defendants' convictions and remanding for new trial where, during trial, 

local newspaper ran article about "seriously prejudicial matter" and, on the day the story ran, a 

reporter saw a juror carrying what appeared to be a newspaper under his arm); United States v. 

Perrotta, 553 F.2d 247, 249-51 (1st Cir. 1977) (reversing defendant's conviction and remanding 

for new trial where, during trial, local evening newspaper ran story about district court's exclusion 

of "extremely prejudicial" evidence and district court refused to poll jurors on whether they saw

article; court concluded that error was not harmless).