By Jack Queen

Law360 (April 13, 2020, 5:02 PM EDT ) Federal prosecutors on Monday pushed back on a twice-convicted former attorney's request for early release from prison in light of the COVID-19 pandemic, saying the 70-year-old had not cleared the bar for getting out less than halfway through his sentence for securities fraud.

Prosecutors told a Massachusetts federal court that John Silvia Jr. had also failed to exhaust administrative avenues for early release with the warden at FMC Devens, a minimum-security prison that prosecutors noted does not yet have a positive case of COVID-19.

"The United States is cognizant of inmate concerns stemming from COVID-19," prosecutors said. "This unique situation is being diligently monitored."

Prison officials have in recent months taken "aggressive" steps to limit the spread of the novel coronavirus, including suspending outside visits, quarantining infected inmates and screening prisoners and staff, according to the government's filing.

"Taken together, these measures are designed to sharply mitigate the risks of COVID-19 transmission in a BOP institution," the government said.

Thus far, 352 inmates and 189 staffers have tested positive for COVID-19 across the country, according to the BOP's latest count. But FMC Devens has reported no cases, prosecutors said.

At any rate, prosecutors said, Silvia is required to first seek release through a 30-day administrative process with the prison warden before turning to the courts. His request was therefore premature and prohibited by statute, prosecutors said.

Silvia has served just shy of two years on his 57-month prison sentence for securities fraud and a separate conviction for witness tampering, wire fraud, mail fraud and evading financial reporting.

On March 20, the First Circuit denied Silvia's request for a new trial, finding he failed to prove he had been inadequately represented by a public defender. The court also rejected Silvia's argument that prosecutors shouldn't have been able to bring up his first conviction at his second trial in 2017.

In his emergency motion for compassionate release Friday, Silvia said he was at high risk of developing a serious or even fatal case of COVID-19 due to his age and pre-existing conditions, including high blood pressure.

Silvia said it is impossible for him to socially distance from other inmates while living in a bunk room shared by 100 other prisoners. He also cited news reports sounding the alarm over a possible explosion of cases in the prison system and statements by U.S. Attorney General William Barr acknowledging the risk.

"While the Bureau of Prisons at times, and even federal prosecutors have argued that prisoners 'might be safer' within the prison confines, such an argument now has been shown to defy any logical reasoning," Silvia said.

At his first trial in 2016, Silvia was convicted in connection with a scheme to sell shares in a company he did not own and steal more than $300,000 from friends and family.

In the second trial the next year, Silvia was found guilty of taking $60,000 from a nurse treating his wife. Prosecutors said he promised the nurse he was investing in a real estate venture, but instead used the money to buy Boston Red Sox season tickets and a Marriott timeshare.

Silvia, who worked in the South Coast city of Fall River, was licensed to practice law in Massachusetts in 1975 and disbarred in 2003.

Counsel for Silvia and the government did not immediately respond to requests for comment Monday.

Silvia is represented by Hank Brennan.

The government is represented by Neil J. Gallagher Jr. of the U.S. Attorney's Office for the District of Massachusetts.

The case is U.S. v. Silvia, case number 1:14-cr-10082, in U.S. District Court for the District of Massachusetts.

--Additional reporting by Brian Dowling. Editing by Peter Rozovsky.

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