          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


                                   - 5 -
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


                                 - 6 -
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.


                                   - 7 -
               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,


                                      - 8 -
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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