United States v. Zimny, 857 F.3d 97

Defendant Mark J. Zimny was convicted and sentenced; this court previously remanded to the district court for an inquiry into a colorable allegation of juror misconduct.
Zimny moved in district court for release pending appeal under 18 U.S.C. § 3143(b)(1); the district court denied the motion without prejudice pending juror interviews.
Zimny then filed a Rule 9(b) motion in this Court for release pending appeal; the government opposed release.
The appellate court conducted an independent review and concluded Zimny satisfied § 3143(b)(1) requirements and granted release, remanding to the district court to set release conditions.
The court found Zimny is not a flight risk or danger (government did not contest), and that he raised a substantial question of fact (whether juror misconduct occurred) that, if resolved in his favor, is likely to result in reversal or a new trial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Zimny is likely to flee or pose a danger if released	Zimny: not a flight risk; allowed bail during trial and self-reported to prison	Government: did not contest non-flight/non-dangerousness	Held: Zimny met § 3143(b)(1)(A) (not likely to flee or pose danger)
Whether Zimny raised a "substantial question" under § 3143(b)(1)(B)	Zimny: colorable, close factual question whether juror misconduct (exposure to prejudicial blog/comments) occurred; district court must investigate	Government: too early to say substantial because investigation not yet done; reliance on district court's view of undeveloped record	Held: Question is close enough to be "substantial"; denial for prematurity unsupported when defendant did all he could and investigation is required
Whether a favorable resolution of the substantial question is likely to result in reversal or new trial	Zimny: if juror misconduct (Juror No. 8 repeatedly communicated prejudicial material) is proven, prejudice likely so reversal/new trial likely	Government: argued district court correctly reserved judgment until investigation	Held: Under Bayko framework, assuming the question is decided for defendant, reversal or new trial is likely (error would not be harmless); Zimny met the § 3143(b)(1)(B) likelihood prong

United States v. Bayko, 774 F.2d 516 (1st Cir.) (explains two-prong § 3143(b)(1)(B) test and standard for appellate independent review)
United States v. Giancola, 754 F.2d 898 (11th Cir.) (definition of a "substantial" question as a close question)
United States v. Kepreos, 759 F.2d 961 (1st Cir.) (prohibition on post-verdict juror interviews except under court supervision)
Bouret-Echevarría v. Caribbean Aviation Maint. Corp., 784 F.3d 37 (1st Cir.) (noting general prohibition on post-verdict juror contact)
Marshall v. United States, 360 U.S. 310 (U.S.) (juror exposure to prejudicial press requires reversal/new trial)
United States v. Rhodes, 556 F.2d 599 (1st Cir.) (reversal where juror likely exposed to prejudicial newspaper article)
United States v. Perrotta, 553 F.2d 247 (1st Cir.) (reversal where juror saw prejudicial media and court failed to poll)
United States v. Bristol-Mártir, 570 F.3d 29 (1st Cir.) (discussing juror exposure to prejudicial information and prejudice analysis)