United States v. Silvia ( 2020 )

United States Court of Appeals
For the First Circuit
No. 18-1412
UNITED STATES OF AMERICA,
Appellee,
v.
JOHN SILVIA, JR.,
a/k/a/ JOHN SILVIA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Howard, Chief Judge,
Lynch and Barron, Circuit Judges.
Henry B. Brennan for appellant.
Alexia R. De Vincentis, Assistant United States Attorney,
with whom Andrew E. Lelling, United States Attorney, was on brief,
for appellee.
March 20, 2020
BARRON, Circuit Judge. John Silvia, Jr. appeals from
the denial of his motion for a new trial, in which he sought to
vacate the seventeen convictions that he received and that resulted
from two separate trials, each of which were held in the District
of Massachusetts before the same judge in, respectively, 2016 and
2017. We affirm.
I.
We begin with the rather involved procedural history so
that we may properly frame the issues before us. In March of 2014,
the United States charged Silvia in an eighteen-count indictment.
The indictment included nine counts of securities fraud in
violation of 15 U.S.C. §§ 78j(b), 78ff(a), and 17 C.F.R.
§ 240.10b-5; four counts of wire fraud in violation of 18 U.S.C.
§ 1343; and five counts of mail fraud in violation of 18 U.S.C.
§ 1341.
Silvia moved, in March of 2015, to sever his trial on
the nine securities fraud counts and two of the wire fraud counts
from his trial on the other two wire fraud counts and the five
mail fraud counts. The District Court granted the motion to sever
in January of 2016. As a result, Silvia faced trial, initially,
on the nine securities fraud counts and only two of the four wire
fraud counts. Before his trial on those eleven counts began,
however, the government dropped one of the nine counts of
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securities fraud. Thus, Silvia faced, in the first trial, eight
securities fraud counts and two wire fraud counts.
The trial on those ten counts began soon thereafter,
and, on February 11, 2016, a jury found Silvia guilty of each of
the eight counts of securities fraud but not guilty of the two
counts of wire fraud. Before a judgment of conviction had been
entered on any of the eight securities fraud counts, however,
Silvia filed, on February 24, 2016, a motion for the appointment
of new counsel and a motion for a new trial. He based the motion
for a new trial on a claim of ineffective assistance of trial
counsel in violation of his right to counsel under the Sixth
Amendment to the federal Constitution.
The District Court granted Silvia's motion for new
counsel on March 15, 2016. But, on January 9, 2017, the District
Court denied without prejudice Silvia's motion for a new trial.
In the interim, on July 19, 2016, a grand jury handed up
a superseding indictment that set forth the counts that Silvia was
slated to face in the second trial, which had not yet begun. The
superseding indictment charged Silvia with one count of
structuring transactions to evade reporting requirements in
violation of 31 U.S.C. § 5324(a)(3); one count of witness tampering
in violation of 18 U.S.C. § 1512(b)(1); and the two counts of wire
fraud and five counts of mail fraud that had been set forth in the
initial indictment but for which he had not yet been tried.
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On January 5, 2017, Silvia filed a motion in limine
concerning the trial on the nine counts set forth in that
superseding indictment that loomed. In that motion, he sought to
preclude his guilty verdicts from the first trial -- for which no
judgment of conviction yet had been entered -- from being used to
impeach him, should he testify, in his upcoming trial. Silvia
argued, in part, that the ineffective assistance of trial counsel
that he claimed that he had received at his first trial had so
tainted those guilty verdicts that they could not be used to
impeach his testimony at the upcoming trial. Silvia also argued,
though, that those guilty verdicts could not be used to impeach
his testimony at the upcoming trial for the distinct reason that
no judgment of conviction yet had been entered on any of them.
The District Court denied Silvia's motion in limine on
January 9, 2017. The trial on the nine counts in the superseding
indictment then began, and on February 15, 2017, the jury rendered
guilty verdicts on each of those counts.
Following those verdicts in the second trial, Silvia, on
February 28, 2017, filed a motion for a new trial. The District
Court held an evidentiary hearing on this motion. The District
Court appeared to treat that motion as challenging not only the
nine counts for which he had been found guilty in the most recent
trial but also the eight counts for which he had been found guilty
in the first trial, but for which no judgment of conviction had
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yet been entered. The District Court denied this motion in a
written opinion on April 23, 2018. This appeal then followed.
II.
The parties -- in briefing before the District Court and
in briefing before this Court -- appear to proceed on the
understanding that the District Court treated the motion for a new
trial that Silvia filed on February 28, 2017 as challenging all
seventeen of the convictions that resulted from the two separate
trials. We follow suit in considering the merits of Silvia's
challenge to the District Court's denial of that motion.
We begin with Silvia's contention that the District
Court erred in denying the motion because it erred in finding that
he failed to show that he received ineffective assistance of
counsel at his first trial. We see no merit to the argument.
A District Court may "grant a new trial if the interest
of justice so requires." Fed. R. Crim. P. 33(a). When a motion
for a new trial is premised on a claim of ineffective assistance
of trial counsel, we apply the two-part test laid out in Strickland
v. Washington, 466 U.S. 668 (1984), to determine whether the
district court erred in denying the motion. United States v.
Wilkerson, 251 F.3d 273, 279 (1st Cir. 2001). Thus, to succeed in
his challenge to the District Court's denial of that motion, Silvia
must show that: (1) his "counsel's performance fell below an
objective standard of reasonableness," id. (citing Strickland, 466
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U.S. at 687); and (2) that this deficient performance prejudiced
the defense such that "there was a reasonable probability that,
but for counsel's unprofessional errors, the result of the
proceeding would have been different," id. (quoting Strickland,
466 U.S. at 693-94). The parties agree that our review of the
District Court's legal conclusions with respect to the ineffective
assistance of counsel claim is de novo and that our review of its
findings of fact with respect to that claim is for clear error.
See Turner v. United States, 699 F.3d 578, 584 (1st Cir. 2012).
We ordinarily do not consider an ineffective assistance
of trial counsel claim, however, on direct appeal. See United
States v. Miller, 911 F.3d 638, 642 (1st Cir. 2018). But, we may
do so where, as here, a district court has taken steps "to marshal
and evaluate evidentiary facts required to place the adequacy of
a defendant's representation into proper perspective." United
States v. Natanel, 938 F.2d 302, 309 (1st Cir. 1991); see also
United States v. Colón-Torres, 382 F.3d 76, 85 (1st Cir. 2004)
(explaining that this Court can hear ineffective assistance of
counsel claims on direct appeal "where the critical facts are not
genuinely in dispute and the record is sufficiently developed to
allow reasoned consideration" of the claim (quoting Natanel, 938
F.2d at 309)).
Silvia asserts that the record shows that his trial
counsel failed to obtain exculpatory evidence, interview and call
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witnesses on his behalf, retain and consult with a securities
expert, review discovery, adequately prepare the defendant to
testify, and that his trial counsel created an adversarial
relationship with Silvia that prevented the counsel from
adequately and zealously representing Silvia. On that basis, he
contends that he has satisfied the Strickland standard.
For substantially the same reasons that the District
Court set forth in the order issued on April 23, 2018, however, we
conclude that Silvia has not satisfied his burden under Strickland
to support his claim that he received ineffective assistance of
counsel at his first trial. We thus reject Silvia's challenge to
the District Court's denial of his February 28, 2017 motion for
new trial, insofar as it is premised on that claim of ineffective
assistance of trial counsel. See Loc. R. 27(c).
That still leaves, though, Silvia's challenge to the
District Court's denial of that motion, insofar as it is premised
on the contention that it was error for the District Court to deny
his motion in limine for reasons independent of his assertions of
ineffective assistance of trial counsel and that this error unduly
prejudiced his ability to testify on his own behalf at his second
trial. Silvia premises this contention on the argument that the
jury's guilty verdicts from the first trial could not be used for
impeachment purposes at his second trial because those verdicts
were not final convictions at the time of that second trial.
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Silvia provides no authority from this court or any other
to support his premise that, because no judgment of conviction had
been entered on any of the counts for which the jury at the first
trial had rendered guilty verdicts, the District Court erred in
denying his motion in limine to preclude those guilty verdicts
from being used to impeach him at his second trial. Nor does he
address the substantial contrary authority from other circuits
that indicates that the guilty verdicts from the first trial could
have been used to impeach him at the second. See, e.g., United
States v. Vanderbosch, 610 F.2d 95, 96-97 (2d Cir. 1979)
(explaining that "there is no distinction between a jury's finding
of guilty and the entry of judgment for impeachment purposes" and
upholding the district court's determination that the defendant
could have been impeached with the guilty verdict, had he
testified); United States v. Klein, 560 F.2d 1236, 1239-41 (5th
Cir. 1977) (finding that "[a] jury's verdict of guilty prior to
entry of judgment is no less final than a conviction during the
pendency of an appeal," and that "[i]n both cases the finding of
guilt should be competent as impeachment evidence," and upholding
the district court's determination that the defendant could have
been impeached with a guilty verdict if he had testified).
In addition, Silvia fails to respond persuasively to the
government's assertion that, because he did not testify at his
second trial, his challenge must fail under Luce v. United States,
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469 U.S. 38, 43 (1984). Silvia contends in response only that an
exception to Luce should be made because he testified to the
charges that he faced at his first trial and at the hearing for
his motion for a new trial and thus that "there is a sufficient
record of [his] potential testimony and his reasoning for not
testifying." But, the charges that Silvia faced at his first trial
concerned a distinct fraudulent scheme, while the testimony that
he points to from his hearing on the motion for new trial amounted
to little more than a representation that he would have testified
at the second trial if the guilty verdicts from the first trial
could not have been used against him. Thus, we do not see how
Silvia's testimony either from his first trial or from his hearing
on the motion for a new trial enables us "to determine the impact
any erroneous impeachment may have had in light of the record as
a whole," id. at 42, such that, even if we were to assume that
Luce might allow for an exception for a non-testifying defendant
in some circumstance, we could conclude that he is entitled to the
exception to Luce that he asks us to make.
III.
The District Court's denial of Silvia's motion for a new
trial is affirmed.
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