author: BARBADORO, District Judge.

text:
    SOUTHCOAST HOSPITALS GROUP, INC., Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.
    Nos. 15-2146, 15-2258
    United States Court of Appeals, First Circuit.
    January 20, 2017

      Joseph D. Whelan, with whom Matthew H. Parker and Whelan, Corrente, Flanders, Kinder & Siket LLP were on brief, for Petitioner/Cross-Respondent.
    Barbara Sheehy, Counsel, with whom Robert J. Englehart, Supervising Attorney, Matthew Bruenig, Attorney, Richard F. Griffin, Jr., General Counsel, Jennifer Abruzzo, Deputy General Counsel, John H. Ferguson, Associate General Counsel, and Linda Dreeben, Deputy Associate General Counsel, were on brief, for Respondent/Cross-Petitioner.
    Before THOMPSON and KAYATTA, Circuit Judges, and BARBADORO, District Judge.

       Of the District of New Hampshire, sitting by designation.

   BARBADORO, District Judge.

Southcoast Hospitals Group, Inc. was created through a merger of three hospitals. One of the hospitals has a union workforce, and the union’s collective-bargaining agreement grants its members a hiring preference when filling union positions. In an effort to produce more even-handed hiring practices across its three hospitals, Southcoast adopted a policy that grants nonunion employees a similar hiring preference for nonunion positions. The union challenged the nonunion hiring policy, contending that it discriminates against union members in violation of section 8(a)(3) and (1) of the National Labor Relations Act (“NLRA”), 29 U.S.C. § 158(a)(3), (1). A divided three-member panel of the National Labor Relations Board (“Board”) determined that the policy was invalid because it was not supported by a legitimate and substantial business justification. We vacate the Board’s order and remand the case for further proceedings consistent with this opinion.

I. BACKGROUND

A. Southcoast’s Hiring Policies

Southcoast was created through a 1996 merger of St. Luke’s Hospital, Charlton Hospital, and Tobey Hospital. Only employees at Tobey are represented by a union.. The union, 1199 Service Employees International Union United Health Care Workers East (“1199 SEIU”), represents approximately 215 technical, clerical, service, and maintenance employees out of a total of 550 employees at Tobey. St. Luke’s has approximately 2,700 nonunion employees, and Charlton has approximately 2,100 nonunion employees.

Union members have enjoyed a hiring preference when applying for union jobs at Tobey since at least the time of the merger. The union’s 2011 collective-bargaining agreement, which was in effect during the relevant time period, provides in section 8.2 that “[vacancies in bargaining unit positions [i.e., union positions] ... shall be filled on the basis of available qualified applicants. Among such qualified applicants, the most senior qualified applicant shall be selected.” Section 8.1 defines seniority in terms of time spent in union positions. When these provisions are read together, they bar Southcoast from considering any nonunion applicant for a union position unless all union applicants are unqualified for the position.

Southcoast developed its current policy for filling vacancies in nonunion positions in 1999. That policy—HR 4.06—divides applicants into two broad categories. “Internal Applicants” include all nonunion, regular-status employees, all temporary and per diem employees, and union members who belong to a union that “provides reciprocal opportunity to employees who are not members of the union for open positions at the unionized site.” All other applicants are treated as “External Applicants.” Among Internal Applicants, HR 4.06 provides that regular-status employees “will be given first consideration for job postings providing the regular status employee’s qualifications substantially equal the qualifications of external candidates.” Temporary and per diem applicants are considered after regular-status employees but before External Applicants. The policy bars Southcoast from recruiting or considering any External Applicant for a nonunion position until all qualified Internal Applicants have been interviewed. Because the union’s collective-bargaining agreement includes a hiring preference for union members, they are'treated as External Applicants under HR 4.06.

Southcoast’s actual practice when filling vacancies in nonunion positions differs somewhat from the process specified in HR 4.06. Job openings are posted and advertised for all applicants at the same time. Applications are screened and qualified applicants are placed into one of three groups by the company’s human resources department. Nonunion, regular-status applicants are considered in the first round. If no one is selected from the first round, union applicants are considered together with temporary and per diem applicants in the second round. All other applicants are considered in the third round if no one is selected from the first two rounds.

David DeJesus, a human resources official at Southcoast, was responsible for creating HR 4.06. DeJesus claims that he had received complaints from unnamed employees about union hiring preferences both while working at Southcoast and in a prior job at another company where union members enjoyed a similar preference. He asserts that the company adopted HR 4.06 as a “matter of equity.” From his perspective, if the union excludes nonunion employees from the first round of consideration for union positions at Tobey, then “it should work the same way in the other direction.”

B. Enforcement of HR 4.06

Christopher Souza, a union worker employed at Tobey, applied for a building superintendent position at St. Luke’s in May 2011. The following month, human resources coordinator Lucilia Darosa notified Souza that Southcoast had chosen another applicant. When Souza inquired as to why he had not been selected for an interview, Darosa provided a citation to HR 4.06 and explained that “[Southcoast] would not be able to consider you for the first round interviews as you currently work at Tobey in a [bargaining-unit] position.” After reviewing HR 4.06, Souza made a complaint to Lisa Lemieux, the union’s organizer at Tobey from 2006 to 2012.

Union members had been complaining to Lemieux about their inability to obtain positions at St. Luke’s and Charlton since 2005, but Souza was the first to direct Lemieux’s attention to HR 4.06. Believing that HR 4.06 discriminated against union workers, Lemieux contacted approximately 100 members of the union to find any other individuals who had been denied employment at St. Luke’s or Charlton. Three employees eventually responded. Two relayed information about their own experiences and the third pointed Lemieux to Noelia Nunes, a union member who had unsuccessfully tried to transfer to a nonunion position.

From July 2011 through December 2011, Nunes submitted six applications for positions at St. Luke’s. For various reasons—controverted below but not relevant here—her first five applications produced no interview requests. Her sixth application resulted in an interview and a job offer in January 2012. Nunes accepted the position.

C. Administrative Proceedings

The union commenced this action by filing an unfair labor practice charge with the Board’s Regional Director. After investigating the charge, the Regional Director filed a complaint with the Board, claiming that HR 4.06 illegally discriminates against union members in violation of section 8(a)(3) and (l). An Administrative Law Judge (“ALJ”) held an evidentiary hearing and issued a decision sustaining the charge in June 2013. A divided three-member panel of the Board largely affirmed the ALJ’s ruling on September 16, 2015. Accordingly, the Board ordered Southcoast to rescind HR 4.06 and provide affirmative relief to Souza, Nunes, and other similarly situated members of the union. This appeal followed.

II. STANDARD OF REVIEW

Decisions of the Board must be based on a solid legal foundation, they must be supported by substantial evidence, and they must bp the product of reasoning that is neither arbitrary nor capricious. See Boch Imports, Inc. v. NLRB, 826 F.3d 558, 565 (1st Cir. 2016).

Substantial evidence exists where there is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” NLRB v. Hotel Emps. & Rest. Emps. Int’l Union Local 26, 446 F.3d 200, 206 (1st Cir. 2006) (quoting McGaw of P.R., Inc. v. NLRB, 135 F.3d 1, 7 (1st Cir. 1997)); see also Allentown Mack Sales & Serv., Inc, v. NLRB, 522 U.S. 359, 366-67, 118 S.Ct. 818, 139 L.Ed.2d 797 (1998) (“[W]e must decide whether on this record it would have been possible for a reasonable jury to reach the Board’s conclusion.”). When determining whether substantial evidence supports the Board’s conclusions, “[w]e must take contradictory evidence in the record into account.” NLRB v. Int’l Bhd. of Teamsters, Local 251, 691 F.3d 49, 55 (1st Cir. 2012) (alteration in original) (quoting Howard Johnson Co. v. NLRB, 702 F.2d 1, 2 (1st Cir. 1983)). “[W]e may not ‘displace the Board’s choice between two fairly conflicting views, even though [we] would justifiably have made a different choice had the matter been before [us] de novo.’” NLRB v. NSTAR Elec. Co., 798 F.3d 1, 11 (1st Cir. 2015) (second and third alterations in original) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951)). Nevertheless,- “the Board ‘is not free to prescribe what inferences from the evidence it will accept and reject, but must draw all those inferences that the evidence fairly demands.’” Local 251, 691 F.3d at 55 (quoting Allentown Mack,, 522 U.S. at 378,118 S.Ct. 818).

The Board’s reasoning must also conform to the Administrative Procedure Act’s “scheme of ‘reasoned decisionmak-ing.’ ” Allentown Mack, 522 U.S. at 374, 118 S.Ct. 818 (quoting Motor Vehicle Mfrs. Assn. of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 52, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). Under this scheme, we must reject the Board’s reasoning where it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see also. Sig Sauer, Inc. v. Brandon, 826 F.3d 598, 601 (1st Cir. 2016). “A decision is arbitrary and capricious ‘if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.’ ” Craker v. Drug Enf't Admin., 714 F.3d 17, 26 (1st Cir. 2013) (quoting State Farm, 463 U.S. at 43, 103 S.Ct. 2856). A Board decision cannot survive review unless the Board “articulate[s] a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’” Grosso v. Surface Transp. Bd., 804 F.3d 110, 116 (1st Cir. 2015) (quoting State Farm, 463 U.S. at 43, 103 S.Ct. 2856). In the end, “[r]eview under the arbitrary and capricious standard is narrow and [we] may not substitute [our] judgment for that of the agency, even if [we] disagree[ ] with the agency’s conclusions.” River St. Donuts, LLC v. Napolitano, 558 F.3d 111, 114 (1st Cir. 2009).

III. ANALYSIS

This case is founded on a claim that HR 4.06 improperly discriminates against union workers at Southcoast in violation of section 8(a)(3) and (1) of the NLRA. Southcoast argues on appeal that the Board acted arbitrarily and without substantial evidence when it rejected South-coast’s contention that HR 4.06 serves its legitimate and substantial business interests. We resolve such disputes by using the analytical framework established by the Supreme Court in NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 87 S.Ct. 1792, 18 L.Ed.2d 1027 (1967). See NLRB v. Borden, Inc. (Borden I), 600 F.2d 313, 320 (1st Cir. 1979). Accordingly, we begin by describing the Great Dane framework and then delve into the details of the parties’ respective arguments.

The Court explained in Great Dane that “discrimination and a resulting discouragement of union membership” are necessary but not sufficient conditions to support a claim under section 8(a)(3) and (1). See id. at 32-33, 87 S.Ct. 1792. A viable discrimination claim also ordinarily requires proof that “the discriminatory conduct was motivated by an antiunion purpose." H. at 33, 87 S.Ct. 1792; see also Radio Officers’ Union of Commercial Telegraphers Union v. NLRB, 347 U.S. 17, 44, 74 S.Ct. 323, 98 L.Ed. 455 (1954) (“That Congress intended the employer’s purpose in discriminating to be controlling is clear.”). The general rule, however, is subject to exceptions. If the employer’s conduct is “inherently destructive” of union members’ rights under section 7 of the NLRA, 29 U.S.C. § 157, a violation may be proved without evidence of improper motive if the employer fails to prove that its actions can be justified as “something different than they appear on their face.” Great Dane, 388 U.S. at 33, 87 S.Ct. 1792 (quoting NLRB v. Erie Resistor Corp., 373 U.S. 221, 228, 83 S.Ct. 1139, 10 L.Ed.2d 308 (1963)). Even if a business justification has been proved, an inference of improper motive may be drawn from the inherently destructive conduct itself and the Board remains free to “strike the proper balance between the asserted business justifications and the invasion of employee rights in light of the Act and its policy.” Id. at 33-34, 87 S.Ct. 1792.

If instead the harm to union members’ interests is “comparatively slight,” an employer must respond to a discrimination charge with evidence that the challenged conduct serves “legitimate and substantial” business interests. Id. at 34, 87 S.Ct. 1792. A failure to meet this burden will result in a finding of liability without the need for evidence of improper motive. Id. But if a satisfactory business justification is proved, a violation cannot be established without proof of antiunion motivation. Id. Thus, when a challenged employment policy has only a comparatively slight effect on section 7 rights, a legitimate and substantial business justification has been proved, and no evidence of a discriminatory motive has been presented, the Board must allow the policy to stand without attempting to balance business justifications against employee interests.

Here, the Board does not argue that HR 4.06 is inherently destructive of union members’ section 7 rights. Nor does the Board contend that the policy is the product of antiunion bias. Instead, it defends its ruling solely by claiming that Southcoast failed to prove that HR 4.06 serves a legitimate and substantial business interest. Accordingly, it is to this issue that we now turn.

Southcoast justifies HR 4.06 principally by claiming that it helps level the playing field between union and nonunion workers. Because a nonunion employee cannot be considered for a union position unless no qualified union member applies for the position, Southcoast argues, it is only fair to grant nonunion employees a similar hiring preference when filling nonunion positions.

The Board did not question Southcoast’s • contention that HR 4.06 treats nonunion workers more like union workers than would otherwise be the case. Instead, it rejected Southcoast’s level-playing-field justification because it determined that the policy goes too far and instead “does the opposite of ‘level the playing field’ ” by disproportionately favoring nonunion employees over their union counterparts. Southcoast Hosps. Grp., 363 N.L.R.B. No. 9, 2015 WL 5451459, at *3 (Sept. 16, 2015). The Board based this determination on two subsidiary factual findings. First, it noted that the number of positions covered by HR 4.06 “pales in comparison” to the number of positions covered by the union hiring policy. Id. Second, the Board determined that HR 4.06 is unfair because it grants nonunion workers a hiring preference for vacant jobs at two facilities whereas the union hiring preference only covers jobs at a single facility. Id. These facts are significant, the Board reasoned, because they leave union members with a more limited “universe of job opportunities.” Id. at *3 n.5. We conclude that these findings cannot serve as substantial evidence for the Board’s decision.

HR 4.06 covers many more positions than the union hiring policy but it is by no means clear that this difference unfairly disadvantages union workers. As Board Member Miseimarra correctly noted in his dissent below, the probability that a covered employee will obtain a successful transfer under either policy cannot be determined by considering the number of positions covered by the policy without also accounting for the number of employees that the policy covers. See .id. at *8 (Miseimarra, Member, dissenting in part). Because the ratio of covered positions to covered employees is substantially the same under both HR 4.06 and the union hiring policy, one cannot say that a nonunion employee is necessarily more likely than a union employee to obtain a successful transfer simply because HR 4.06 covers more positions. The Board appeared to concede this point in responding to the dissent when it stated that “HR 4.06 has a negative effect on represented employees, not because it makes it more difficult to be selected for a transfer, but because it limits the universe of job opportunities.” W. at *3 n.5.

' The problem with the Board’s reasoning is that it failed to further explain why union workers are ■ disproportionately harmed by HR 4.06 simply because it , covers more positions than are covered by the union hiring policy. As far as the record reflects, HR 4.06 discriminates against union employees just as the union hiring preference discriminates against nonunion employees. If the fact that HR 4.06 covers more positions than are covered under the union hiring policy does not leave a nonunion worker with a higher probability of a successful transfer than her union counterpart, it is not apparent from the record that this aspect of HR 4.06 unfairly disfavors union workers. Accordingly, a finding that HR 4.06 covers more positions than are covered by the union hiring policy cannot by itself justify the Board’s conclusion that the policy tilts the playing field too far in favor of nonunion workers.

The Board also determined that HR 4.06 benefits nonunion workers at the expense of union workers because it gives nonunion workers a hiring preference for jobs at two facilities, whereas the union hiring preference covers only a single facility. Here again, the Board did not disclose its reasoning in its decision, except by noting that HR 4.06 “limits the universe of job opportunities” for union workers. Id. at *3 n.5. On appeal, however, it attempts to fill the gap with two arguments. First, it suggests that the dual-facility preference unfairly penalizes union workers because they are impeded from transferring to two facilities, whereas nonunion workers are only impeded from transferring to one. Second, the Board argues that a single-facility preference would be more beneficial to union members than the current dual-facility preference because “it would reduce the number of applicants who receive a preference over them for vacant positions at St. Luke’s and Charlton.”

On this sparse record, the Board’s observation that HR 4.06 provides nonunion workers with preference at two facilities is simply another form of its observation that HR 4.06 provides preference for more positions. One might equally observe that HR 4.06 provides preference for more floors. In each case, the logical inquiry should be whether the ratio of material opportunities overall as compared to the number of people competing for those opportunities (and thus the chances of a given worker to benefit equally from his or her respective preference) is greater for nonunion workers than for union workers. As we have explained, merely noting that there are more opportunities—whether expressed in units of positions, floors, or facilities—by itself says little of relevance where the competitors for those opportunities are correspondingly aggregated. Thus, while nonunion workers get preference at two hospitals, they must also compete with workers from two hospitals, while the union workers, with preference at only one hospital, need compete only with workers from that hospital.

It is also troubling that the Board concluded that HR 4.06 tipped the playing field too far in favor of nonunion workers without making any attempt to determine how its judgment might be affected by other aspects of the hiring policies that leave union members at a comparative advantage. For example, HR 4.06 entitles Southcoast to select the best qualified candidate for a vacant nonunion position, even though qualified nonunion employees have also applied for the position. In contrast, Southcoast is required under the union hiring preference to hire the most senior, qualified union applicant for a vacant union position even if more qualified nonunion applicants have applied. Southcoast also grants union members preferential consideration over nonemployee applicants when filling nonunion jobs, whereas the record contains limited, if any, evidence that Southcoast affords nonunion employees a similar preference when filing union positions. In addition, HR 4.06 gives the union the right to have its members treated as regular-status Internal Applicants by-agreeing to surrender its hiring preference for union positions.

In rejecting HR 4.06, the Board focused its analysis solely on the greater number of employees and facilities covered by the nonunion hiring preference without also considering aspects of the policy that continue to leave nonunion employees less well off than their union counterparts. Two minor differences between HR 4.06 and the union’s hiring policy that have little, if any, adverse effect on union members cannot serve as substantial evidence for a determination that HR 4.06 tilts the playing field too far in favor of nonunion employees when other unexamined differences between the policies continue to leave union members with a comparative advantage when they apply for vacant positions.

The Board nevertheless defends its decision by claiming in its brief on appeal that “[w]here an employer’s discriminatory action is not necessary to achieve its stated goal, it lacks a legitimate and substantial business justification.” It then argues that it was entitled to reject Southcoast’s level-playing-field justification because South-coast could have achieved its stated goal through less restrictive means by limiting its nonunion workers to only a single-facility hiring preference. We reject this argument because, as we have already explained, nothing in the record supports the conclusion that nonunion workers are given greater or more opportunities than union workers.

In Borden I, we reminded the Board that “it is neither our function nor the Board’s to second-guess business decisions.” Id. at 321. While the Board remains free to reject a proffered business justification on the ground that it is “illogical,” NLRB v, Borden, Inc. (Borden II), 645 F.2d 87, 88 (1st Cir. 1981), or that is not “reasonably adapted to the achievement of a legitimate end,” NLRB v. Brown, 380 U.S. 278, 289, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965), it may not invalidate an employment policy that accomplishes a legitimate goal in a nondiscriminatory manner merely because the Board might see other ways to do it.

Southcoast adopted HR 4.06 in an effort to treat its union and nonunion workers more even-handedly when filling vacant positions. HR 4.06 achieves this goal by treating nonunion employees more like union members than they otherwise would be treated. Because Southcoast’s chosen method was reasonably adapted to achieve its stated goal, the Board lacked the power to reject HR 4.06 simply because it is not identical to the union hiring policy or because Southcoast might have achieved its goal through alternative means that were more beneficial to its union employees.

IV. CONCLUSION

The Board’s Decision and Order requiring Southcoast to rescind HR 4.06 and granting affirmative relief to affected employees is not supported by substantial evidence. Accordingly, the decision is vacated and the case is remanded for further proceedings consistent with this opinion.

      . Union workers at Tobey belong to one of three bargaining units: technical workers, licensed practical nurses, and registered nurses. 1199 SEIU represents both technical workers and licensed practical nurses. Each bargaining unit is protected by a separate collective-bargaining agreement. References in this opinion to the “union” refer to 1199 SEIU. When we refer to "union members,” we mean members of 1199 SEIU’s technical workers’ bargaining unit.

      . The complaint also asserted that Southcoast independently violated section 8(a)(1) of the NLRA but the charge was not sustained by the Board and it has no bearing on this appeal. '

      . Southcoast also asserts it enacted HR 4.06 to reduce complaints from nonunion employees about the union’s hiring preference. In rejecting this proposed justification, the Board branded HR 4,06 a “solution in search of a problem" because Southcoast was unable to identify any nonunion employee who had complained about the union hiring policy. Southcoast Hosps. Grp., 363 N.L.R.B. No. 9, 2015 WL 5451459, at *3 (Sept. 16, 2015). We need not evaluate the Board’s conclusion on this point because, as we explain below, the Board improperly rejected Southcoast’s alternative justification for HR 4.06.

      . We note here that if there were evidence in the record of a substantial qualitative difference between the jobs available at Tobey and the other facilities, for example, this might be a different case—but no such evidence was presented to the Board.

      . The fact that the union did not so elect may well suggest that it sees the current playing field as still slightly tipped in its direction.

      . The Board contends that we disavowed Borden I in Statler Indus., Inc, v. NLRB, 644 F.2d 902, 905 n.4 (1st Cir. 1981) (subsequent history omitted). Our criticism of Borden I in Statler, however, was limited to a single sentence in the opinion that purported to address how the Board should resolve the claim on remand that the employer acted with an improper motivation if the employer was able to demonstrate that the challenged policy also serves a legitimate and substantial business interest. Here, the Board does not seek to defend its decision by arguing that HR 4.06 was the product of antiunion motivation. Accordingly, our criticism of Borden I in Statler, has no bearing on the resolution of the present case.


source: Caselaw Access Project

author: THOMPSON, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Mark J. ZIMNY, Defendant, Appellant.
    No. 15-2144
    United States Court of Appeals, First Circuit.
    January 24, 2017

      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.
    Before TORRUELLA, THOMPSON, and KAYATTA, Circuit Judges.
   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 Zim-ny’s claims of juror misconduct was inadequate. We agree and remand for an evi-dentiary 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.

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, 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, Zim-ny 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, Zim-ny 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 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 Zim-ny 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.

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. 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 “[ajnything 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.

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, the vast majority of which were posted anonymously, from individuals we shall call commentators. 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 [Ajsian 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.... ”
• “[Tjhere are a lot of [Ajsian 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] 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 Zim-ny 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 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 When an intrigued fellow commentator asked “[w]ho was this anonymously posted answer followed: “The jury. Half saw him guilty and the others didn’t.”

After learning of these comments, Zim-ny 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 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 posted earlier that day by someone who claimed to have been a juror on Zim-ny’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, 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]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. Zim-ny 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—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 hesitantf ] 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 nonfrivo-lous 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); United States v. Boylan, 898 F.2d 230, 258 (1st Cir. 1990); Neron, 841 F.2d at 1201,1202-03 & n.6.

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 evenhandedly implement, a sensible procedure reasonably calculated to determine whether 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 Paniagua-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 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 could possibly be based on if no discussions took place. The court also asked questions aimed at addressing Zim-ny’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 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 credibility determination, which was reached after an extensive inquiry. 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 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 eviden-tiary 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 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))).

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.

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.

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 “[sjeveral 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 col-orable claim of juror misconduct. In these unique circumstances, the additional-juror 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 existed].” 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-Ba-mos, 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 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. 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 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 “[sjeveral 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 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. 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 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, 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 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 Fed. Appx. 287, 288, 291 & n.7 (4th Cir. 2001).

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 Zim-ny’s conviction on this undeveloped eviden-tiary 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, 8 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 “spouting about” the blog “since day one,” and (3) that “[sjeveral 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 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 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.

      . 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.

      . 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. Vazquez-Larrauri, 778 F.3d 276, 280 (1st Cir. 2015); United States v. Rodríguez-Soler, 773 F.3d 289, 290 (1st Cir. 2014).

      . 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.

      . At 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.richard bradley.net/shotsinthedark/2012/10/09/the-harvard-admissions-lawsuit/ (last visited Jan. 23, 2017).

      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).

      . Similarly, 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, nonspecu-lative 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-Echevarria v. Caribbean Aviation Maint. Corp., 784 F.3d 37, 48-49 & n.9 (1st Cir. 2015) (concluding that district court should have convened evi-dentiary hearing and questioned nonjuror witnesses who reported juror misconduct in order to determine whether inquiry of jurors was warranted).

      . 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.

      , In 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).

      . 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 days after the hearing and Zimny’s initial filing in support of his motion for reconsideration. C£ Allen, 573 F.3d at 53.

      . At 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 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.

      . A 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.

      . 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 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”).


author: KAYATTA, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Hernando MARÍN-ECHEVERRI, Defendant, Appellant.
    No. 15-2187
    United States Court of Appeals, First Circuit.
    January 25, 2017

      Victoria M. Bonilla-Argudo on brief for appellant.
    Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana E. Bauzá-Al-monte, Assistant United States Attorney, Chief, Appellate Division, and Juan Carlos Reyes-Ramos, Assistant United States Attorney, on brief for appellee.
    Before KAYATTA, SELYA, and BARRON, Circuit Judges.
   KAYATTA, Circuit Judge.

The defendant, Hernando Marin-Echev-erri, pled guilty to violating 21 U.S.C. §§ 952(a) and 963 and 18 U.S.C. § 1956(a)(l)(B)(i) and 1956(h), by participating in a conspiracy to import one or more kilograms of heroin into the United States and to launder the proceeds of that activity. The district court sentenced Marin to 262 months in prison. Marin appeals, arguing that the government violated the plea agreement during the sentencing hearing and that he received constitutionally ineffective assistance of counsel. We affirm the sentence and dismiss the ineffective assistance of counsel claim without prejudice to its reassertion in a collateral proceeding.

I. Background

This appeal does not turn on the details of the crime, so we only briefly sketch the facts, drawing from “the uncontested portions of the change-of-plea colloquy, pre-sentence report, and sentencing hearing.” United States v. Gall, 829 F.3d 64, 67 n.1 (1st Cir. 2016). We set out the procedural background at greater length because it is central to Marin’s arguments on appeal.

Between August 2012 and April 2013, Marin participated in a conspiracy to import between ten and thirty kilograms of heroin into Puerto Rico. Members of the conspiracy packed suitcases full of heroin in Colombia and transported those suitcases to couriers in Venezuela. The couriers brought those suitcases into the United States. Members of the conspiracy also sent heroin to Puerto Rico via the U.S. Postal Service. Sometimes they physically transported the proceeds from the sale of the drugs from Puerto Rico back to Venezuela and Colombia, and sometimes they sent- the proceeds via wire transfers. They disguised the nature of these transfers by sending and receiving the proceeds using the names of individuals who were not part of the conspiracy.

A grand jury returned a three-count indictment against Marin, charging conspiracy to possess one kilogram or more of heroin with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(l)(A)(i), and 846 (count I), conspiracy to import one kilogram or more of heroin into the United States, in violation of 21 U.S.C. §§ 952(a) and 963 (count II), and conspiracy to launder the proceeds of these controlled substance offenses,- in violation of 18 U.S.C. § 1956(a)(1)(B)© and 1956(h) (count III). Marin agreed to plead guilty to counts II and III and the government agreed to dismiss count I. The resulting written plea agreement contains two sections germane to this appeal.

Section 7, captioned “Sentencing Guidelines Calculations,” explains that because the sentencing court is required to consider the guidelines sentencing range, “the United States and the defendant submit the following advisory Sentencing Guidelines calculations as to COUNTS TWO and THREE of the Indictment,” directing the reader to “U.S. Sentencing Commission Worksheets A, B and D attached to the instant Plea Agreement.” Those worksheets calculate Marin’s total offense level to be thirty-four. The worksheets report the guidelines sentencing range as 151 to 188 months because, as the plea agreement explains, “[t]he sentencing guideline calculation contained [in the worksheets] is assuming a criminal history category I but there is no stipulation as to the defendant’s criminal history category.”

Section 8, captioned “Sentence Recommendation,” states that “[t]he parties agree and recommend that the Court sentence the defendant to a term of imprisonment at the lower end of the applicable guideline range determined by the Court.”

At Marin’s change-of-plea hearing, both the Assistant U.S. Attorney (AUSA) and the magistrate judge mentioned the guidelines calculation in the worksheets. After submitting the worksheets to the court and explaining how they reached a total offense level of thirty-four, the AUSA confirmed that “[t]he recommendation in this case ... would be that the defendant will serve a term of imprisonment at the lower end of the applicable guideline range determined by the Court, depending on the defendant’s criminal history category.” The magistrate judge later made sure Marin understood that “[i]n determining your sentence, the presiding judge will consider but may not follow the guidelines calculations, those calculations contained in your agreement in those worksheets.... [T]hese guidelines are of an advisory nature ... and the presiding judge may follow or may not follow them.... ”

The presentence report (PSR) filed after the change-of-plea hearing but prior to the sentencing hearing placed Marin in criminal history category III. At the same time, it disagreed with the total offense level calculation in the worksheets submitted with the plea agreement. The PSR instead calculated the total offense level as thirty-seven.

The disagreement between the worksheets and the PSR as to the total offense level derives from a difference in the calculation of the adjusted offense level for the money laundering count. Both documents concluded that the total offense level for the two crimes together would be equal to the higher of the two adjusted offense levels, reduced by three levels for acceptance of responsibility. The parties’ worksheets calculated the adjusted offense level for the conspiracy to import count to be thirty-seven, the sum of a base offense level of thirty-four and a three-level upward adjustment for playing a managerial role in the offense under U.S.S.G. § 3Bl.l(b). They calculated the adjusted offense level for the money laundering count to be twenty-two by applying U.S.S.G. § 281.1(a)(2). The PSR, by contrast, calculated the adjusted offense level for money laundering to be forty by applying U.S.S.G. § 2Sl.l(a)(l). Section 2Sl.l(a)(l) produced a base offense level of thirty-four, which was enhanced by four levels for playing a leadership role in the offense, U.S.S.G. § 3Bl.l(a), and by two levels because the money laundering conviction was under 18 U.S.C. § 1956, per U.S.S.G. § 281.1(b)(2)(B). ■

At the sentencing hearing, defense counsel challenged the PSR calculation of the adjusted offense level for money laundering. She argued that the calculation in the worksheets was correct and that the role-in-the-offense adjustment should have been three levels for a managerial role rather than four levels for a leadership role. The district court rejected these arguments and adopted the calculation in the PSR. Defense counsel did not challenge the determination that Marin was in criminal history category III, and the district court also adopted this conclusion from the PSR. A total offense level of thirty-seven and criminal history category III yielded a guidelines sentencing range of 262 to 327 months, rather than the range of 151 to 188 months reported in the parties’ worksheets.

After reaching this conclusion and questioning defense counsel and the defendant further, the district court asked to hear from the government. The AUSA began, “The United States abides by the sentencing recommendation contained in the plea agreement in that the parties agreed to recommend to the Court a sentence at the lower end of the applicable guideline range....” She then answered four questions about the facts of the case.

The district court sentenced Marin to 262 months in prison on count II, which was at the low end of the guidelines sentencing range determined by the court. If the district court had agreed that the total offense level was thirty-four, as calculated on the worksheets, but still applied criminal history category III, the ■ guidelines sentencing range would have been 188 to 235 months. U.S.S.G. ch. 5, pt. A (Sentencing Table). As mentioned above, the guidelines sentencing range reported in the worksheets for a total offense level of thirty-four and criminal history category I is 151 to 188 months. Id.

II. Discussion

On appeal, Marin does not argue that the district court erred in concluding that the calculations in the PSR were correct: he was in criminal history category III and had a total offense level of thirty-seven. Instead, he argues that the government breached the plea agreement. He also argues that he received ineffective assistance of counsel during plea negotiations.

The government contends that a waiver-of-appeal provision in the plea agreement bars all of Marin’s arguments on appeal other than the ineffective assistance of counsel claim. We sidestep the waiver issue, instead disposing of this appeal on the merits. See United States v. Sánchez-Maldonado, 737 F.3d 826, 827-28 (1st Cir. 2013) (“When the resolution of the underlying appeal plainly dictates affirmance, we often have elected to avoid the murky waters surrounding the waiver’s scope and proceeded to consider the merits of the appeal on the arguendo assumption that the waiver does not apply.”).

A. Breach of Plea Agreement

When interpreting a plea agreement, “we construe the terms and conditions ... in accordance with traditional principles of contract law, looking outside the document only as necessary to provide illuminating context or resolve ambiguities in the writing.” United States v. Marchena-Silvestre, 802 F.3d 196, 202 (1st Cir. 2015) (citations omitted). At the same time, in assessing compliance with a plea agreement, we frown on technical compliance that undercuts the substance of the deal. “A defendant who enters a plea agreement waives a panoply of constitutional rights and, therefore, we hold prosecutors to ‘the most meticulous standards of both promise and performance.’” United States v. Almonte-Nuñez, 771 F.3d 84, 89 (1st Cir. 2014) (quoting United States v. Riggs, 287 F.3d 221, 224 (1st Cir. 2002)). “Such standards require more than lip service to, or technical compliance with, the terms of a plea agreement.” Id. For that reason, “it is possible for a prosecutor to undercut a plea agreement while paying lip service to its covenants.” Id. at 90-91. “We consider the totality of the circumstances in determining whether a prosecutor engaged in impermissible tactics.” Id. at 91.

Marin ambitiously argues that the plea agreement bound the government to advocate for a sentence within the guidelines sentencing range calculated on the worksheets attached to the agreement. This argument gets nowhere because the agreement.expressly makes clear that the worksheet calculations simply “assum[e] a criminal history category I but there is no stipulation as to the defendant’s criminal history category.” Thus, the agreed recommendation eschewed reference to the range reflected on the worksheet, and used as its object “the lower end of the applicable guideline range determined by the Court.”

Marin drops back to arguing that the agreement at least bound the government to recommending a sentence within a guidelines sentencing range based on the total offense level used in the worksheets, allowing movement upward only for changes in calculating the criminal history category. Marin did not raise this , argument in the district court, and so we review for plain error. See id. at 89. Like a judo move, this argument accepts the force of the government’s point that the agreement states that there is no stipulation as to criminal history category and flips it into a negative inference that there was a stipulation as to the offense level. In Marchena-Silvestre, we were impressed with such an argument in the context of a plea agreement that confirmed a commitment to recommend a sentence within the “applicable guidelines range,” observing that the “applicable guidelines range” seemed to refer to the array of alternative ranges that were set forth in the agreement and that varied based only on alternative possibilities for the criminal history category. 802 F.3d at 198, 203. Here though, the plea agreement did not state that the government would recommend a sentence within the “applicable guidelines range,” but rather within the “applicable guideline range determined by the Court.” So while one could well argue that an uncounseled defendant might assume that he was exposed to an upward movement' in the recommendation based only on an upward movement in his criminal history category, we cannot find—especially on plain error review—that a fair reading of the agreement plainly binds the government to such an interpretation. See Marchena-Sil-vestre, 802 F.3d at 204 (“[T]he second prong of plain-error review ... will often have some ‘bite’ in plea-agreement cases. Not all breaches will be clear or obvious. Plea agreements are not always models of draftsmanship, so the scope of the Government’s commitments will on occasion be open to doubt.” (alteration in original) (quoting Puckett v. United States, 556 U.S. 129, 142, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009))).

Finally, Marin’s argument that the AUSA breached the plea agreement by answering the district court’s factual questions about the crime or by not challenging the admittedly correct guidelines calculations tendered in the PSR is foreclosed by Almonte-Nuñez. As we said there:

We repeatedly have emphasized that prosecutors have a ... solemn obligation to provide relevant information to the sentencing court and that a plea agreement may not abridge that obligation— [T]here is a material difference between answering questions asked by a sentencing court or bringing facts to the court’s attention and affirmatively supporting an adjustment.

771 F.3d at 90 (citations omitted); see also United States v. Canada, 960 F.2d 263, 270 n.7 (1st Cir. 1992) (“It is necessary at all times that the government ‘level’ with the court as to the correct facts and calculations relevant to guideline sentencing.”).

B. Ineffective Assistance of Counsel Marin also contends that he received ineffective assistance of counsel during the negotiation of the plea agreement and at the sentencing hearing, in violation of the Sixth Amendment. See Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (applying Strickland to claim of ineffective assistance of counsel during plea negotiation).

“Under Strickland, we first determine whether counsel’s representation ‘fell below an objective standard of reasonableness.’ We then inquire whether ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,’ ” Parsley v. United States, 604 F.3d 667, 671 (1st Cir. 2010) (citations omitted). “With regard to plea agreements, counsel has a critical obligation ...-. to advise the client of the advantages and disadvantages of a plea agreement.” Id. (alteration in original) (citations omitted).

Marin argues that he received ineffective assistance of counsel because his attorney negotiated his plea agreement, and made recommendations as to whether he should accept or reject that agreement, without understanding the relevant sentencing guidelines. This misunderstanding persisted, he claims, even when she was objecting to the PSR and arguing at the sentencing hearing.

In Marin’s view, the arguments that his attorney advanced in the objection to the PSR and at sentencing make clear that she did not understand the guidelines. Her arguments assumed that the difference in total offense level between the worksheets and the PSR arose from the application of the offense grouping guideline and the two-level enhancement under U.S.S.G. § 2Sl.l(b)(2)(B). Neither the objection nor the argument at the sentencing hearing so much as mentioned the distinction between U.S.S.G. § 2Sl.l(a)(l) and (a)(2). Even after the district court explained at the sentencing hearing that the PSR. calculated the adjusted offense level for money laundering using U.S.S.G. § 2Sl.l(a)(l), defense counsel continued to press an argument based on grouping.

Nevertheless, we decline Marin’s request that we evaluate his ineffective assistance claim on this appeal. “As a general rule, this court does not review ineffective assistance of counsel claims on direct appeal.” United States v. Vázquez-Larrauri, 778 F.3d-276, 293 (1st Cir. 2015). This general rule results from.the fact that such claims are usually not raised in the original district court proceedings in which the defendant is represented by the lawyer said to be ineffective, and therefore the record is usually insufficient for meaningful review. Id. at 293-94. We see no reason to make an exception here. Marin has not yet raised the claim in the district court. Nor is this otherwise a situation in which “the critical facts are not genuinely in dispute and the record is sufficiently developed to allow reasoned consideration of an ineffective assistance claim.” United States v. Natanel, 938 F.2d 302, 309 (1st Cir. 1991). To the contrary, “why counsel acted as [s]he did” is undeveloped, Vázquez-Larrauri, 778 F.3d at 294 (citation omitted), and the record does not rule out the possibility that defense counsel noticed the potential problem in the calculation of the total offense level for the money laundering count during plea negotiations and chose not to bring it to the government’s attention in the hope that it would go unnoticed, to the benefit of her client. Thus, we dismiss the ineffective assistance .claim without prejudice to its reassertion, if the defendant so chooses, in a collateral proceeding under 28 U.S.C. § 2255. See United States v. Cardoza, 790 F.3d 247, 248 (1st Cir. 2015) (per curiam).

We do think that the form of plea agreement used in this case created a nontrivial risk that the defendant would misread it unless well counseled. A pleading defendant is usually most interested in two things concerning the meaning of a plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(B): the length of the sentences in the guidelines sentencing range and the recommendation that the government will make. While we agree, as explained above, that a lawyerly reading of the agreement reveals that all it really says is that the government will recommend the low end of the range as determined by the court, whatever that may be, a lay person could easily look at this plea agreement and assume that it says something more. After all, why bother with the worksheets otherwise—especially since they grossly underestimated the range, provided no examples of the higher ranges possible, and might have been read as implying that criminal history was the only variable? With such an agreement, the government may well risk its ability to sustain the voluntariness of the plea should the evidence support a claim that defense counsel did not explain the bait-and-switch potential.

III. Conclusion

For the forgoing reasons, we affirm Marin’s sentence and dismiss his ineffective assistance of counsel claim without prejudice.

      . In 21 U.S.C. § 952, an amount of “heroin” means that amount of "a mixture or substance containing a detectable amount of heroin.” 21 U.S.C. § 960(a)(1), (b)(1)(A).

      . Section 9 of the plea agreement repeats that the parties have not agreed to a stipulation as to Marin's criminal history category.

      . The PSR reached this conclusion by grouping the two counts together under U.S.S.G. § 3D1.2(c) and applying U.S.S.G. § 3D1.3(a). The worksheets reached this conclusion by treating each count as a separate group but assigning zero units to count III under U.S.S.G. § 3D1.4(c) based on their calculation of the offense level for that count.

      . The district court appears to have named the wrong count when imposing the sentence. The guidelines range of 262 to 327 months was for the money laundering count, count III. The defendant does not raise this issue on appeal.

      . Section 10 of the plea agreement reports that "[t]he defendant knowingly and voluntarily waives the right to appeal the judgment and sentence in this case, provided that the defendant is sentenced in accordance with the terms and conditions set forth in the Sentence Recommendation provisions in this Plea Agreement.”