U.S. v. Desilva

• Decision Date: 12 October 2007
• Docket Number: No. 06-1451.,06-1451.
• Citation: 505 F.3d 711
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Johnny J. DeSILVA, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

505 F.3d 711

UNITED STATES of America, Plaintiff-Appellee, v. Johnny J. DeSILVA, Jr., Defendant-Appellant.

No. 06-1451.

United States Court of Appeals, Seventh Circuit.

Argued February 5, 2007.

Decided October 12, 2007.

David E. Risley (argued), Office of the United States Attorney, Springfield, IL, Linda L. Mullen, Office of the United States Attorney, Rock Island, IL, for Plaintiff-Appellee.

William Duffin, Mark E. Schmidt (argued), Godfrey & Kahn, Milwaukee, WI, for Defendant-Appellant.

Before EASTERBROOK, Chief Judge, and ROVNER and SYKES, Circuit Judges.

ROVNER, Circuit Judge.

On October 25, 2005, a jury found Johnny Joe DeSilva, Jr., guilty as to each of the five counts against him. Count I charged DeSilva with participating in a conspiracy among members of the Latin Kings street gang in the Quad Cities area of Illinois and Iowa to distribute cocaine and marijuana in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Count II charged him with attempted aggravated battery in aid of racketeering activity in violation of 18 U.S.C. § 1959(a)(6) and 18 U.S.C. § 2. Specifically, that Count alleged that he attempted to commit assault with a dangerous weapon for the purpose of maintaining or increasing his position in the Latin Kings by causing another person to discharge a firearm. DeSilva was charged in Count III with vicarious use and carrying of a firearm in relation to that incident in Count II, in violation of 18 U.S.C. § 924(c)(1)(A) and 18 U.S.C. § 2. Counts IV and V alleged that DeSilva communicated interstate threats to kidnap and to injure, with the intent to recover 30 pounds of marijuana that had been retained by DEA agents in an undercover operation, in violation of 18 U.S.C. § 875(b). After the conviction, DeSilva filed a motion to vacate the convictions under Counts II and III under Fed. R.Crim.P. 29, which the district court denied. The court then sentenced him to imprisonment for 360 months on Count I, 36 months on Count II, and 240 months on Counts IV and V, all to be served concurrently. The court also sentenced him to 120 months on Count III, to be served consecutively pursuant to 18 U.S.C. § 924(c). Finally, the court imposed a sentence of 18 months consecutive to Count I for violation of supervised release.

The evidence at trial demonstrated that DeSilva was a Regional Enforcer for the Latin Kings in the Quad Cities, a position that placed him as the highest ranking member of the Latin Kings in that area. As a Regional Enforcer, he was responsible for security for the region, which included responding to external threats or slights from rival gangs, as well as internal discipline. The testimony detailed the hierarchical structure of the gang, with members required to follow orders of those holding higher ranks, and with discipline meted out to those who failed to comply. At the local level, the gang members were led by the Inca and the Casique as the first and second in command, and a Chapter Enforcer. The Regional Enforcer position was above those positions in the hierarchy, with responsibility for the whole Quad Cities region. For a member to progress within the organization, he had to demonstrate that he was never weak. The testimony at trial also described the frequent clashes with rival gangs, including the Low Riders, the Surenos and the Outlaw Gangsters. One example of such an incident was a 1995 drive-by shooting in which DeSilva drove the vehicle while fellow Latin Kings fired shots into a group of Low Riders in a grade school parking lot, hitting one victim in the face. Another incident occurred in 2001 in response to the beating of a Latin Kings member by a rival gang, in which the chapter enforcer authorized and participated in a drive-by shooting of the rival member's house.

Evidence was also introduced as to an incident on July 3, 2002. On that date, Manuel Garcia, a member of the Latin Kings, was attending a barbecue in his sister's yard when he spotted DeSilva's vehicle pull into an adjacent alley, followed by two other vehicles. Some members of the rival Outlaw Gangsters gang jumped out of those vehicles and ran toward DeSilva to "get him." Garcia ran toward DeSilva, and DeSilva reentered his vehicle and drove up the alley towards Garcia. As he neared Garcia, DeSilva ordered him to "Go light `em up at the light," which Garcia understood as an order to shoot at the Outlaw Gangsters. Garcia retrieved a gun that he had stored under a garbage can in the alley, and ran through an adjoining yard, catching up with the cars at a traffic light. He fired one shot at the windshield in an attempt to hit the driver, but the gun jammed when he tried to fire a second time. He then ran back into the alley and placed the gun in its previous location. Garcia testified that he was required to follow the order of DeSilva and that he probably would have been beaten had he failed to comply. The Outlaw Gangsters returned that evening and tried to shoot Garcia, but he ran and grabbed another gun and fired at them as they sped away.

Finally, the testimony established that the Latin Kings were involved in a multiple-kilo cocaine and marijuana drug distribution network in the Quad Cities, which DeSilva coordinated. The drug conspiracy involved other suppliers and distributors, included cross-country transportation of drugs, and involved the use of guns. We need not elaborate on that conspiracy, however, because DeSilva raises no challenges to the drug conspiracy conviction.

DeSilva first argues that there was insufficient evidence to convict him for committing a violent crime in aid of racketeering activity, and for the related firearms charge. Where the sufficiency of the evidence to support a conviction is challenged, we review the evidence in the light most favorable to the verdict, and will reverse only if no rational trier of fact could have found him guilty of the charges beyond a reasonable doubt. United States v. Ratliff-White, 493 F.3d 812, 817 (7th Cir.2007).

DeSilva focuses his challenge on the evidence relating to his intent in instructing Garcia to take action against the Outlaw Gangster members. He argues that no evidence was introduced as to his motive in telling Garcia to "light up" the gang members, and that the jury therefore had insufficient evidence from which to find that he acted to maintain or increase his position in the Latin Kings. DeSilva further postulates that Garcia's motive may have been to increase Garcia's own position in the Latin Kings gang, but that there was no direct evidence to indicate that DeSilva ordered the shooting to maintain or increase DeSilva's position in the Latin Kings.

The motive requirement of the offense at issue here is met if the jury could properly infer that "the defendant committed his violent crime because he knew it was expected of him by reason of his membership in the enterprise or that he committed it in furtherance of that membership." United States v. Carson, 455 F.3d 336, 369 (D.C.Cir.2006); United States v. Smith, 413 F.3d 1253, 1277-78 (10th Cir. 2005). There was sufficient evidence to meet that standard here. DeSilva was the Regional Enforcer for the Latin Kings, and it was his duty to ensure internal and external security. The trial testimony included examples of actions taken by Regional Enforcers against Latin Kings members who failed to fulfill their obligations in the Latin Kings, and against rival gang members who engaged in hostile or "disrespectful" actions toward the Latin Kings. The testimony showed that DeSilva was expected to respond, or to authorize responses, to threats from other gangs, including actions by other gangs that showed disrespect for the Latin Kings, or that encroached upon the Latin Kings territory. The testimony further established that the Outlaw Gangsters pulled into the alley behind DeSilva, that they outnumbered him substantially, and that they began approaching him. They retreated to their cars when Garcia approached. A jury could find that the actions of the Outlaw Gangsters were either a direct threat to DeSilva as a Latin Kings member, or at least actions demonstrating disrespect, and that DeSilva would have been expected to respond to that in his position as Regional Enforcer. There was sufficient evidence for a jury to find that DeSilva responded to that hostile action by a rival gang by ordering Garcia to "light `em up," in order to maintain his position as Regional Enforcer in the Latin Kings. Although it is possible to speculate as to alternative motives for the order, as DeSilva would have us do, that is not our role. The only question is whether a rational jury could have found that motive beyond a reasonable doubt, and we agree with the district court that the evidence was sufficient to support that determination.

DeSilva next argues that his action in ordering Garcia to "light `em up" was not a substantial step towards commission of the offense of aggravated battery, and therefore that he could not be guilty of attempted aggravated battery. He bases this argument on the Illinois attempt statute, which states that a person commits an attempt when "with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense." 720 ILCS 5/8-4(a).

DeSilva's argument as to whether DeSilva's actions constituted attempted aggravated battery under Illinois law is misplaced. The issue here is whether DeSilva violated 18 U.S.C. § 1959 and 18 U.S.C. § 2, which require, in relevant part, proof that DeSilva committed (or commanded or caused the commission of) an assault with a dangerous weapon in violation of a state statute, namely the Illinois offense of attempted aggravated battery with a firearm. Therefore, DeSilva need not have discharged a firearm to cause injury to another, or have attempted to do so. Instead, the question is whether DeSilva willfully caused Garcia to do so. There is no question that Garcia...