Somerset fraudster John Silvia denied re-trial

Tentative court sentencing date in Boston set for Thursday

SOMERSET — More than four years since he was arrested and over two years since being convicted in two jury trials on 17 counts of mail, wire and securities fraud, disbarred Somerset lawyer John Silvia Jr. will be sentenced to prison after a U.S. District Court judge denied his petition for a new trial.

Judge George A. O’Toole Jr. ruled Monday Silvia “has failed to satisfy his burden” and it is not “in the interest of justice to vacate his convictions and award a new trial” under federal criminal procedure rules.

O’Toole set a tentative court sentencing date in Boston of Thursday at 2:45 p.m. for the former Somerset teacher and School Committee member who graduated the Somerset schools and raised his three grown children in town.

A five-year jail term was recommended in motions on behalf of U.S. Attorney Andrew E. Lelling.

In seeking 14 months more than the minimum and three months more than the maximum federal sentencing guidelines recommend for these charges, U.S. Attorney prosecutors cited Silvia's "persistent efforts to lie and obstruct justice."

"... The defendant does not respect the law. To this defendant, the laws and regulations to prevent fraud and protect the public are merely obstacles that he can simply outmaneuver," said the the brief by Assistant U.S. Attorney Neil J. Gallagher Jr. and Special Assistant U.S. Attorney Eric Forni.

They said Silvia "has never uttered an ounce of remorse."

They asked the court to immediately remand him to prison upon sentencing.

Silvia’s court-appointed lawyer, Hank Brennan of Boston, submitted a motion to depart substantially from sentencing guidelines with a two-year jail sentence.

He cited Silvia’s age — 68 — the time since his arrest on Feb. 7, 2014, some repayments made and the non-violence of the crimes.

Both the government and defense concurred the jail time be followed by three years of probation.

Brennan said he had no comment on an appeal or any aspect of the case when reached by phone.

Silvia has been free on personal recognizance.

Silvia’s trial convictions stem from the 305 Foley St. resident being charged with defrauding multiple investors of $367,500 on these charges. Some were family and friends, and in one situation in 2013 Silvia convinced a nurse acquaintance caring for his terminally ill wife to invest about $60,000 in a real estate scheme.

Court documents said Silvia repaid the nurse with borrowed funds after being charged.

According to the pre-sentencing report the prosecution cited, Silvia "created multiple false documents, made false representations and coached" a certified public accountant "to provide false details regarding a proposed transaction."

The convictions in two trials in 2016 and 2017 began with a June 30, 2009, "subscription agreement," the prosecution said in their sentencing memorandum filed Monday.

"By its verdict, the jury necessarily found that Silvia created and used this 'scotch-taped' document to convince others of his ability to sell or assign his interest in ASM" (Advanced Space Monitor, a Fall River area investment), they said of charges from the first trial.

In that first case involving three victims being defrauded of approximately $300,000 for purchase of ASM stock, the prosecution said Silvia used "cleverly worded documents" that "appeared to thread a needle."

By that, "Silvia was not selling shares, or even assigning shares, but was instead conveying a 'partial' assignment of their shares."

The prosecution said the sophisticated planning was beyond a typical fraud scheme. He was convicted in February 2016.

"The extent Silvia went to defraud his victims and obstruct justice is truly remarkable," the U.S. attorney's office wrote.

Instead, he used the funds for Red Sox tickets, a timeshare interest and other personal uses, the U.S. Attorney’s office proved in the case.

Silvia, who has a documented history of fraud since the mid-1990s and was disbarred in 2003, was in Fall River District Court in early March in an unrelated civil court judgment against him and his son involving repayment of more than $300,000.

He showed a side of his attitude when he walked over to a reporter to object to a Herald News story labeling him as a "fraudster."

"I have never been a fraudster. When you find anyone who knows me, they know I am not a fraudster," he said inside the adjourned courtroom.

When Brennan, his counsel with the Criminal Justice Appointment program, on Nov. 29 filed a motion for a new trial, he said Silvia "asserts that there were several precipitating factors that resulted in the indictments and charges ..."

Their contention included that Silvia "was deprived of an effective defense and that the defense's failure to prepare and call witnesses and to obtain and introduce necessary documents resulted in an absolute loss of his defense.

"Importantly, the defendant asserts that he repeatedly directed his trial counsel to obtain exculpatory evidence in the form of emails and other documents that existed prior to his trial," it said. He said those repeated requests were ignored.

O’Toole’s decision follows nearly five days of evidentiary hearings last summer on Silvia’s plea for a new trial, followed by many months of the defense and government filing briefs, exhibits and stipulations through the end of last year, court records show.

O’Toole summarized and detailed how Silvia issued “a variety of arguments” contending that his prior and second court-appointed federal public defender was “ineffective.”

O’Toole wrote that Silvia, as a former lawyer, “was very actively involved” in his defense preparation with Assistant Federal Public Defender Joshua Hanye.

He gave examples of why “the defendant has failed to demonstrate that Hanye’s representation under the circumstances was unreasonable.”

"... to the extent that Silvia contends that prevailing professional norms would have required Hanye to comb through every file on the defendant's hard drive to evaluate all for possible relevance to the case, he submits no case law in support of that implausible proposition," O'Toole wrote in his decision. "He regularly provided documents and information to Hanye, and Hanye in turn repeatedly asked the defendant to provide material relevant in the case."

In another part of the 15-page decision, O'Toole wrote: "Let me put it bluntly, Silvia is not a credible witness. I have formed that conclusion based on the content of his testimony at trial and the evidentiary hearing, and on his demeanor while testifying."

He said it was important credible evidence be obtained and corroborated from witnesses and documents, not solely by Silvia's testimony.

The public record documents show no evidence Silvia will be subject to fines and repayment to victims.

"Based on the information now known to the government, it does not appear that Silvia has the means to repay any of his victims," they wrote.

Brennan's filing on Monday listed Silvia's "gross income from business activities" as between $12,000 a year and $24,000, between 2010 and 2015.

Email Michael Holtzman at mholtzman@heraldnews.com or call him at 508-676-2573.