Case 1:14-cr-10082-GAO Document 194 Filed 11/29/16 Page 1 of 14

UNITED STATES OF AMERICA DISTRICT OF MASSACHUSETTS

UNITED STATES OF AMERICA ) ) ) V. ) ) JOHN SILVIA, JR. )

No. 14-10082-GAO

DEFENDANT’S FURTHER SUPPLEMENT IN SUPPORT OF HIS MOTION FOR NEW TRIAL AND MOTION FOR JUDGMENT OF ACQUITTAL WITH MEMORANDUM OF LAW IN SUPPORT On February 11, 2016, the defendant was convicted on Counts 2-9 (and found not guilty on counts 10-11) of the above docketed case. On February 24, 2016, the defendant filed a Motion for a new trial (Dk. 162); and a Motion for Judgment of Acquittal (Dk.163). On May 23, 2016, undersigned counsel, on behalf of the defendant, filed a Supplementary Motion in Support of the prior motions filed (The Court reserved ruling on the Motions for new trial. See Dk. Entry 173 dated 5/24/16). The defendant files this further supplement in support of his motion for a new trial. (Dk.162). Background The defendant asserts that there were several precipitating factors that resulted in the indictments and charges brought against him and that his trial counsel failed to preserve and obtain evidence that would have been dispositive and exculpatory at his trial. The defendant asserts Dale Tommer, a key witness called by the prosecution, and person involved with the day to day activities of the Defendant from 2009-2012, after “having words” and an argument with the estate lawyer for “F.S.” in June or July of 2012, began a course of 1

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action to shield his own “substantial assets” from any possible “F.S.” estate claims or from any other possible creditors. The defendant asserts that Dale Tommer thereafter gave false and perjured testimony before the Secretary of State’s Securities Division in October of 2012. Further, after testifying before the Securities Division, as the Defendant maintains, Dale Tommer then tampered and altered the original “Stock Subscription Agreement” that Richardson Consulting had with ASM, which was solely in his possession, submitted the tampered agreement to the Securities Division, and then said that the altered document was previously altered by the Defendant, and that he never signed the “written” Stock Subscription Agreement. The defendant asserts that Dale Tommer later gave three different versions as to where he found the “tampered and altered” Stock Subscription Agreement as part of his testimony before the Secretary of State and later during separate FBI interviews. Further, the defendant asserts that Dale Tommer then gave a fourth version during his trial testimony. The defendant asserts that the original signed June 30, 2009 Stock Subscription was in the ASM Corporate Book, and Dale Tommer, who had repeated contact with the signed document, never denied the existence of the June 30, 2009 agreement until October of 2012. Despite Mr. Tommer’s testimony that he was unaware of the document, instead, from 2009-2012 Dale Tommer submitted the original, unaltered document as an attachment in emails sent from his email account ([email protected]) to several institutional and private investors, including GreenHills Ventures of New York. (Dale Tommer later stated that a verbal Stock Subscription Agreement with Richardson Consulting existed, but continued to deny the existence of the original signed document).

Defendant’s claim for claim of ineffective assistance of counsel:

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The defendant contends that his he was deprived of an effective defense and that the defense’s failure to prepare and call critical witnesses and to obtain and introduce necessary documents resulted in an absolute loss of his defense. Importantly, the defendant asserts that there were numerous witnesses that his trial counsel was aware of that were not interviewed or alternatively, called as defense witnesses at trial. Also, 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. The defendant asserted that his repeated requests were ignored by trial counsel. In consequence, he does not have possession of the emails and documents he believes to be exculpatory and there are no orders in place to preserve any of the asserted exculpatory evidence. The defendant’s claims are as follows: 1.

Counsel’s performance was deficient and prejudiced defendant;

2.

Counsel’s serious errors deprived defendant of a fair trial;

3.

Counsel’s performance fell below an objective standard of

reasonableness; 4.

Counsel’s representation failed to conduct an adequate investigation, raise

certain legal issues at trial, and to introduce exculpatory evidence; 5.

Counsel was ineffective in investigation and preparation;

6.

Counsel was not prepared within the requisite range of competence;

7.

Counsel’s failure to investigate mitigating evidence which was provided

to him by the defendant; 8.

Counsel’s failure to subject prosecution’s case to meaningful adversarial

testing;

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9.

Counsel’s failure to retain necessary expert witnesses;

10.

Counsel’s failure to file timely disclosures;

11.

Counsel’s failure to advocate the defendant’s theory of the case;

12.

Counsel provided bad advice throughout the pre-trial, trial, and post-

verdict stages of the trial; 13.

Counsel’s failure to maintain adequate communications with defendant;

14.

Counsel and defendant developed strong and substantial irreconcilable

differences; 15.

Counsel had a conflict of interests because of his vacation schedule

planned; and 16.

Representation was so inadequate and deficient that it denies Sixth

Amendment rights. Facts as to the allegations of ineffective assistance of Counsel: 1.

The Defendant asserts that he requested of both of his lawyers at the Federal

Public Defenders Office, beginning in August of 2014 that a Securities Law Expert Witness should be retained in order to give expert opinion as to three subject matter areas. First, that it was not in violation of any securities law that close family or long time personal and business individuals "pool" money in order to fund a privately held stock subscription agreement. Second, where an individual contacted the Securities Division of the state of residence of an individual prior to assigning interests as "collateral" to loans, and where all state exemption regulations were identified and discussed, that such an act was not a violation of any state securities law. 4

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Third, even if a "partial assignment of interests" document was regarded as a "sale" of a security, such an action (for amounts under $IM for all alleged "non-accredited investors" and under $5m for "accredited investors") is exempt under Federal Securities law under Section 4 (2) as well as Regulation D, Rules 504-506. Also, the States of Rhode Island ("F.S." and "G.S.") and New Hampshire ("J.C.") exempt such transactions under its rules and regulations. In this case, the Defendant asserts that he visited the Securities Division in Rhode Island, and called the Securities Division in New Hampshire, as well as in Massachusetts, before issuing the "partial assignment of interest documents. Also all three of the individuals who were issued these documents were "sophisticated investors” who had a pre-existing relationship with the Defendant for 25 -60 years. Given the reliance of the Government that these documents themselves were a violation of Federal Securities Law, the necessity of obtaining and calling such a witness would appear to be obvious to almost any trial practitioner. However, the Federal Public Defenders Office did not contact, retain, identify, or call such an Expert Witness. The reason given to the Defendant for not calling such an expert witness was that it "was not needed" and that it was "too late" under the Federal Rules to so identify at that time just prior to trial. Defense Counsel never raised nor discussed this crucial legal defense to the securities fraud charges. 2.

The defendant asserts that the Federal Public Defender’s office failed to take

steps necessary to obtain and preserve crucial defense evidence, necessary to the defense of the Defendant, as well as to prove the falsity of statements made by the central and key government witness, Dale Tommer. On or about May 12, 2014 and after the Indictment was returned on the alleged Securities Fraud allegations, the Defendant asserts that he informed his then assigned counsel of 5

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the Federal Public Defender’s Office that there were two very important matters that should be done immediately, in order to prove that Dale Tommer was lying about the existence of the June 30, 2009 Stock Subscription Agreement. First, the defendant asserts that he advised his first assigned Counsel in the Federal Public Defender’s Office, that a copy of the original signed June 30, 2009 Stock Subscription agreement had been emailed by Dale Tommer and “uploaded” into the GreenHills Ventures’ records vault in September of 2009. The Defendant asserts that he informed his counsel that this would prove that Pages 1 and 6 of the document that Dale Tommer produced in December of 2012 to the Securities Division was different from the original document signed. The defendant asserts that he warned counsel that records should be secured from a named third party as soon as possible in that it was their business practice to destroy records after the closing of a client matter after so many years, and the records being sought were 2009-2010 records. The defendant asserts that the Public Defender’s office did not send a letter to the third party in 2014 and did not contact the third party until late November of 2015. The defendant asserts that the third party informed his attorney that the records were no longer available. The defendant asserts that he then requested two employees from the third party to be subpoenaed and called as witnesses. Neither witness was called to testify as part of the Defense. 3.

Second, the Defendant asserts that he advised his Attorney in April of 2014 that a

copy of the original signed June 30, 2009 Stock Subscription agreement had been sent out by Dale Tommer on numerous occasions, by way of his personal and business “Gmail” account, being [email protected], and that this email account should be immediately subpoenaed. This defendant asserts that this request was made at almost every meeting that the Defendant had at the Federal Public Defender’s Office over the almost 2 years of representation. The defendant 6

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asserts that throughout 2015, the Defendant requested of his subsequent counsel that the personal and business “Gmail” account of Dale Tommer be subpoenaed and that it was not until a month before trial that the Defendant was notified by his counsel that this email account was not to be subpoenaed. The defendant asserts that the “Gmail account” of Dale Tommer would verify and prove the existence and validity of several documents which Dale Tommer testified did not exist. The defendant asserts that the documents would also show that Dale Tommer would repeatedly notify potential investors that ASM “already had a $500,000 private placement” in existence, which was the Richardson Consulting private placement, something that Dale Tommer always had said existed and then later testified did not exist. The defendant alleges that it was not until after the Secretary of State proceedings in December of 2012 that Dale Tommer came up with a new story, denying the existence of the documents. 4.

In May of 2014, the defendant asserts that he requested of his Attorney that the

monthly Bank records of ASM, Dale Tommer and Mansfield Consulting (Dale Tommer’s consulting company) for years 2009-2012 be subpoenaed. The defendant believes that these records would verify the capital contributions made to ASM by Richardson Consulting and also to verify the use of the funds by ASM and Dale Tommer. These records were never subpoenaed by the Federal Public Defender’s Office. The defendant asserts that these records would show that Dale Tommer took from ASM as a “LLC Member draw” the total sum of $227,000, being $93,000 in 2010 and $134,000 in late 2011. The 2011 draw taken in the amount of $134,000 was to purchase for himself 26 weeks of timeshares with the Marriott Corporation. This 2011 draw created a serious problem for ASM in early February of 2012, leaving ASM without the necessary funds available to pay the CALTECH (NASA) licensing fees due. The defendant asserts that these documents would contradict Dale Tommer’s trial testimony that the license was

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terminated because of the problem that the lawyer for the “F.S.” estate caused. The defendant asserts that the documents would further impeach Dale Tommer’s testimony, that the lawyer for the “F.S.” estate did not contact Dr. Adrian Ponce until late June or July of 2012, some 4 months after the license was already terminated. The defendant asserts that defense counsel did not obtain the necessary records to properly cross examine Dale Tommer on this crucial issue, nor did not even cross-examine Dale Tommer on this issue at all. 5.

The Defendant asserts that he made requests of both lawyers at the Federal Public

Defenders Office that counsel for Caltech on the NASA license agreement be comprehensively interviewed and called as a witness as to events relating to the termination of the ASM license matter on February 22, 2012 because it would contradict Mr. Tommer’s previous before the Securities Division. The defendant asserts that the Federal Public Defenders Office did not contact or interview this witness. 6.

Except for the Defendant, Defense counsel called no other witnesses in the

Defense of this complex matter. The jury saw thirteen witnesses called for the prosecution, including 3 FBI witnesses and no witnesses, (other than Defendant) were called on behalf of the Defendant to support his testimony or to refute the testimony of Dale Tommer and/or to offer contradictory facts and documents which were known to exist. 7.

The defendant asserts that he requested both lawyers at the Federal Public

Defenders Office to interview one of the Managing Directors at NASA Jet Propulsion Laboratories in Pasadena, California, and be called as a witness as to events relating to his receipt from Dale Tommer of an “outside Consultant Contract” signed and emailed by Dale Tommer to him on November 11, 2009, as well as to his knowledge as to the termination of the ASM license matter on February 22, 2012. This request was made to impeach Dale Tommer’s

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testimony before the Securities Division and trial testimony. The defendant asserts that the witness would verify that he was informed in 2009 by Dale Tommer that GreenHills Ventures required Employment contracts for Dale Tommer and the Defendant, as well as a “Consultant Contract” required for him, and that Dale Tommer signed all three on November 11, 2009, and that the witness was required to sign and get right back to Dale Tommer in order that all three could be submitted to GreenHills Ventures. Dale Tommer had denied the existence of these documents in his testimony before the Securities Division and then later at trial. The Federal Public Defenders Office did not contact, interview, or call the witness. 8.

The defendant asserts that he requested both lawyers at the Federal Public

Defenders Office on numerous occasions since April of 2014 that an attorney should be interviewed and called as a witness as to events in May of 2012, to contradict Dale Tommer’s testimony before the Secretary of State Securities Division, and later rebut the testimony to be given by Dale Tommer at trial. Additionally the attorney would be able to testify that Dale Tommer knew in May 2012 of the cancellation of the CALTECH (NASA) license. The defendant asserts that the attorney would have been available to testify he was provided an “Accounts Payable” summary schedule in May of 2012 which showed the deferred salary owed to the Defendant, which Dale Tommer denied existed. The defendant asserts that the attorney was contacted by the Federal Public Defense Office but he was not called to testify for the Defense. 9.

The Defendant asserts that he requested of both lawyers at the Federal Public

Defenders Office on numerous occasions that a professor from New Jersey should be interviewed and called as a witness as to events to which he was aware from 2008-2012, to contradict the testimony of Dale Tommer before the Securities Division and later rebut the

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testimony given by Dale Tommer at trial. The defendant asserts this professor would contradict the testimony given by Dale Tommer at trial that the Richardson Consultants Employment Contract did not exist. The defendant asserts that this professor was contacted by the Federal Public Defense Office, but was not called to testify for the Defense. 10.

The Defendant asserts that he requested of both lawyers at the Federal Public

Defenders Office that a named employee of Dale Tommer should be interviewed and called as a witness as to events to which he was aware from 2008-2012. The employee worked for Dale Tommer, initially as a production line worker and later in the office for 15-20 years. The defendant asserts that the employee would testify that Dale Tommer was extremely protective of his personal computer and access thereto (always password protected for access) and also that Dale Tommer maintained substantial personal assets, held in his retirement accounts for monies obtained when Dale Tommer retired from GTE and Lincoln Laboratories. The defendant asserts that these issues were important because Dale Tommer gave false and misleading testimony on these matters at trial. The defendant asserts that the employee was never contacted, interviewed, or subpoenaed as a witness for trial. 11.

The defendant asserts that the Federal Public Defender Office did not provide the

Defendant the proper attention or proper trial preparation. The defendant asserts that except for pre-trial motions and hearings held, from April of 2014 until October of 2015, he is unaware of any significant trial preparation as to witnesses and exhibits requested to be introduced by the Defendant was conducted. 12.

The Defendant further asserts that his Defense Counsel did not submit proposed

Jury Instructions as requested by the Defendant. (Please see “Proposed Jury Instruction” attached hereto as was submitted by the Defendant to his Defense Counsel) 10

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Relevant case law and argument: In order to establish a claim of ineffective assistance of counsel, petitioner must show that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687 (1984). The essence of an ineffective assistance claim is that "counsel's unprofessional errors so upset the adversarial balance between defense and prosecution that the trial was rendered unfair and the verdict rendered suspect." United States v. De La Cruz, 514 F.3d 121, 140 (1st Cir. 2008) (internal citations omitted). The Constitution does not guarantee to any defendant a perfect defense or a successful defense. See Moreno-Espada v. United States, 666 F.3d 60, 65 (Ist Cir. 2012). Rather, "the performance standard is that of reasonably effective assistance under the circumstances." United States v. Natanel, 938 F.2d 302, 309-10 (1st Cir. 1991). To succeed on a claim of ineffective assistance of counsel, a petitioner must show both (1) deficient performance by counsel and (2) resulting prejudice. Peralta v. United States, 597 F.3d 74, 79 (1st Cir. 2010) (citing Strickland, 466 U.S. at 687). An insufficient showing on either prong will defeat an ineffective assistance of counsel claim. See, e.g., Malone v. Clarke, 536 F.3d 54, 64 (1st Cir. 2008). To show deficient performance, petitioner must demonstrate that counsel's performance fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687-88. Counsel's performance is to be evaluated "from counsel's perspective at the time of the alleged error and in light of all the circumstances .... " Kimmelman v. Morrison, 477 U.S. 365, 374 (1986). A court making this evaluation "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689. Among other things, "[t]rial counsel is under no obligation to raise meritless claims," and "[failure to do so does not constitute ineffective assistance of counsel." Acha v.

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United States, 910 F.2d 28, 32 (1st Cir. 1990). To establish resulting prejudice, petitioner must show that, but for counsel's error, there is a reasonable probability that the result of the proceeding would have been different. Strickland, 466 U.S. at 694. An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. Id. at 692. The defendant has a right to expect that his attorney will use every skill, expend every energy, and tap every legitimate resource in exercise of independent professional judgment on behalf of defendant and in undertaking representation. Frazer v. United States, 18 F.3d 778, 779 (9th Cir. 1994); U.S.C.A. Const. Amend 6. Counsel owes defendant duty of loyalty, unhindered by state or by counsel’s constitutionally deficient performance. On post-trial claims of ineffectiveness, any question as to whether a hearing is needed should be resolved in favor of conducting a hearing. A hearing must be held unless the claims are vague, wholly incredible, or even if true, would merit no relief. Claims can be made in a section 2255 motion or motion for a new trial. (See https:// libertyinternational.wordpress.com/criminaldefendants-handbook/§12-claim-for-ineffective-assistance-of-counsel). “First, the defendant must show that counsel’s performance was deficient…Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland v. Washington, 466 U.S. 668, 687 (1984). Under Strickland, a defendant claiming ineffective assistance of counsel must demonstrate both that his attorney’s performance fell below an objective standard of reasonable professional conduct and that the deficient performance resulted in prejudice to the defendant.

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“Counsel has a constitutional duty to make reasonable investigations or to make reasonable decisions that make particular investigation unnecessary.” Strickland, 466 U.S. at 691. The Sixth Amendment requires investigation and preparation, not only to exonerate, but also to secure and protect the rights of the accused. Such constitutional rights are granted to the innocent and guilty alike, and failure to investigate and file appropriate motions is ineffectiveness. Kimmelman v. Morrison, 477 U.S. 365 (1986). Adversarial process will not function normally unless defense team has done proper investigation, and counsel thus has duty to make reasonable investigations or to make reasonable decision that makes particular investigations unnecessary.” Siripongs v. Calderon, 133 F.3d 732 (9th Cir. 1998). “A lawyer’s duty to investigate is virtually absolute, regardless of a client’s expressed wishes.” Silva v. Woodford, 279 F.3d 825 (9th Cir. 2002). Claims should be raised for the first time in section 2255 proceedings and not on direct appeal for ineffective assistance. Chappell v. United States, 494 U.S. 1075, 108 L.Ed.2d 931, 110 S.Ct. 1800 (1990).

Conclusion Given the failure to interview and call witnesses for trial including the failure to consult and call a securities expert and the failure to subpoena and obtain exculpatory and impeachment evidence known to counsel, the defendant has met his burden of demonstrating grounds for a new trial. John Silvia, Jr. By his attorney /s/ Hank Brennan Hank Brennan BBO # 634036 20 Park Plaza, Suite 400 Boston, MA 02116 Dated: November 29, 2016 13

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Certificate of Service I hereby certify that this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non-registered participants on or before the above date. /s/ Hank Brennan Hank Brennan

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