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 kn