United States v. Silvia, 032020 FED1, 18-1412

Docket Nº:18-1412
Opinion Judge:BARRON, CIRCUIT JUDGE.
Party Name:UNITED STATES OF AMERICA, Appellee, v. JOHN SILVIA, JR., a/k/a/ JOHN SILVIA, Defendant, Appellant.
Attorney: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.
Judge Panel:Before Howard, Chief Judge, Lynch and Barron, Circuit Judges.
Case Date:March 20, 2020
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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UNITED STATES OF AMERICA, Appellee,

v.

JOHN SILVIA, JR., a/k/a/ JOHN SILVIA, Defendant, Appellant.

No. 18-1412

United States Court of Appeals, First Circuit

March 20, 2020

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. George A. O'Toole, Jr., U.S. District Judge]

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.

Before Howard, Chief Judge, Lynch and Barron, Circuit Judges.

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 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.

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...

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