505 F.3d 711 (7th Cir. 2007), 06-1451, United States v. DeSilva

Docket Nº:06-1451.
Citation:505 F.3d 711
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Johnny J. DeSILVA, Jr., Defendant-Appellant.
Case Date:October 12, 2007
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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505 F.3d 711 (7th Cir. 2007)

UNITED STATES of America, Plaintiff-Appellee,

v.

Johnny J. DeSILVA, Jr., Defendant-Appellant.

No. 06-1451.

United States Court of Appeals, Seventh Circuit.

October 12, 2007

Argued Feb. 5, 2007.

Appeal from the United States District Court for the Central District of Illinois. No. 04 CR 40080-Joe Billy McDade, Judge.

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[Copyrighted Material Omitted]

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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.

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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

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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...

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