In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-1451

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOHNNY J. DESILVA, JR.,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 04 CR 40080—Joe Billy McDade, Judge.

____________

ARGUED FEBRUARY 5, 2007—DECIDED OCTOBER 12, 2007

____________

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
2 No. 06-1451

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
No. 06-1451 3

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
4 No. 06-1451

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
No. 06-1451 5

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
6 No. 06-1451

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 at a minimum took a substantial step towards

committing aggravated battery with a firearm, in that he

intentionally discharged a firearm at the individuals in

the car with the intent to cause injury. It does not matter

that Garcia, rather than DeSilva, fired the gun, because

it was done on DeSilva’s order, and that is sufficient

for liability under the federal statutes at issue here.

Because we reject DeSilva’s challenge to the conviction for

attempted aggravated battery, his challenge to the firearms charge in Count III fails as well, as it was premised

entirely on reversal of the attempted aggravated battery

conviction.

DeSilva also challenges the district court’s application

of two sentence enhancements. He argues that the court

erred in applying a two-level enhancement under U.S.S.G.

§ 2D1.1(b)(1) for carrying a firearm, in sentencing him

under Count I for the drug conspiracy. DeSilva asserts

that the enhancement constituted double punishment for

the same conduct because he was also sentenced for

violation of 18 U.S.C. § 924(c), which punishes those

who use or carry a firearm “during and in relation to any
No. 06-1451 7

crime of violence or drug trafficking crime.” In addition,

DeSilva argues that the district court erred in imposing

a 4-level enhancement under U.S.S.G. § 3B1.1 for being

an “organizer or leader of a criminal activity that involved

five or more participants or was otherwise extensive.”

DeSilva argues that the district court failed to specifically

identify the participants for whom he was a leader or

organizer.

The government persuasively argues that those challenges to the enhancements have been waived. DeSilva

objected generally to allegations of criminal conduct in

the PSR. He also specifically objected to the enhancements for firearms and for role in the offense as violative

of the principles of Apprendi. Neither of the objections

raised in this court, however, were made at that time.

That alone would indicate forfeiture, rather than waiver.

The district court, however, asked DeSilva and his attorney whether they had any other objections, and they

both affirmatively represented that there were no other

objections to the PSR recommendation.

That is similar to the situation presented to this court

in United States v. Walton, 255 F.3d 437 (7th Cir. 2001). In

Walton, the defendant objected to an enhancement which

prescribed a four-level increase for the offense of receiving child pornography “if the offense involved material

that portrays sadistic or masochistic conduct or other

depictions of violence.” U.S.S.G. § 2G2.2(b)(3). Walton

objected to the enhancement in the district court on the

ground that the guidelines provision applied only if the

defendant received more than one qualifying image. On

appeal, he sought to argue that the enhancement was

improper because the district court failed to make a

finding on the record that the image in question depicted

sadistic, masochistic or violent conduct. Id. at 441-42. We

noted in Walton that the defense attorney, when asked

by the district court whether that was the sole objection
8 No. 06-1451

to that enhancement, declared that the objection made

was “the whole issue.” Id. at 442. Because Walton’s counsel disavowed any other objections, we held that he had

waived any other objections. We noted that the district

court’s failure to develop the factual record with respect

to the nature of the photographs was a direct result of

defense counsel’s implication that he was not contesting that factual basis. Id.

That is similar to this case, in that DeSilva asserts that

the district court failed to identify the participants in the

role in the offense enhancement, yet defense counsel

clearly indicated that he was not making any such challenge to that enhancement. “A party may not by his own

action lull the court into believing that an express finding is unnecessary and then object when it makes no

such finding.” Id.

Even if we were to find that the arguments were merely

forfeited, DeSilva would fare no better. The firearms

enhancement did not enact a double punishment because

it reflected the use of a firearm that was different from

the firearm use relied upon for the § 924(c) count. The

§ 924(c) charge was based on testimony establishing the

presence of a firearm in numerous drug-related transactions, whereas the firearms enhancement related to the

incident in which DeSilva ordered Garcia to shoot at the

gang members who had followed him into the alley.

Therefore, he is not being punished twice for the same

conduct, but is being held accountable for separate conduct. The challenge to the role in the offense enhancement is also unavailing as the record provides overwhelming evidence that DeSilva, as Regional Enforcer for the

Latin Kings, was an organizer or leader of a criminal

activity that involved five or more participants or was

otherwise extensive.

DeSilva’s final challenge relates to remarks made by

the prosecutor in opening and closing arguments. Defense
No. 06-1451 9

counsel did not object to any of those statements when

they were made, and therefore we review his claim for

plain error. Under that standard, DeSilva has the burden of demonstrating that the prosecutor’s remarks

were improper, that they denied him a fair trial, and

that the outcome of the proceedings would have been

different absent the improper statements. United States v.

Sandoval, 347 F.3d 627, 631 (7th Cir. 2003). In the course

of opening arguments, the prosecutor referred to a 1995

drive-by shooting in which DeSilva was involved, targeting

a rival gang. DeSilva argues that statement was an

impermissible reference to prior bad acts in violation of

Fed. R. Crim. P. 404(b). DeSilva’s trial counsel, however,

stipulated to the admission of the 1995 incident at trial.

The 1995 incident was relevant as an act in furtherance

of the racketeering enterprise, to establish the existence

of the Latin Kings as a RICO enterprise, its nature, and

DeSilva’s membership in it. DeSilva acknowledges that

evidence of a defendant’s prior bad acts may be admitted

for such limited purposes in general. United States v.

James, 464 F.3d 699, 709-10 (7th Cir. 2006); United States

v. Hernandez, 330 F.3d 964, 971 (7th Cir. 2003); United

States v. Diaz, 176 F.3d 52, 79, 103 (2d Cir. 1999). Given

the stipulation as to its admissibility, DeSilva has no

basis for challenging the government’s reference to it

in opening statements. DeSilva attempts to dismiss that

stipulation as occurring after the damage had been done,

when an objection could not “unring the bell.” That

characterization of the stipulation is not only unsupported in the record, it is nonsensical. Because opening

statements are not evidence, an objection could have

prevented the jury from considering it at all, whereas

the stipulation placed it before the jury as evidence that

it could properly consider. DeSilva has failed to demonstrate error in the government’s opening statement.
10 No. 06-1451

The government’s statements in closing arguments

are more troubling. The first challenged statement, in its

context, came during closing arguments, and the second

was voiced during rebuttal:

Consider and carefully weigh the evidence. Evaluate

it using your own common sense and reasoning.

When you do that, and when you apply the facts to the

law, you will know in your minds and your heart that

the defendant is guilty. And when you reach that

conclusion, I ask you, on behalf of the people of the

United States, do not flinch, do your duty. Knock this

Latin King off his throne by returning verdicts of

guilty. Send the message to the Latin Kings and every

other gang in this community that the streets of the

Quad Cities are ruled by a power stronger than the

gangs, and that is they are ruled by the law, not by

drug dealers and not by the leaders of violent gangs

like the defendant.

You just can’t ignore the evidence in this case, One

thing I agree upon with defense counsel is that folks

like you make the system work. By applying the law to

the facts in this case and returning a guilty verdict,

what you are doing is protecting something. You’re

protecting this community from drug dealers like the

defendant and gang leaders like the defendant that

inflict violence upon this community.

The defendant objects to the italicized portions of the

closing and rebuttal arguments, arguing that it improperly invites the jury to convict the defendant in

order to punish or deter other persons not on trial. The

government—wisely—does not defend the comments as

proper. Similar statements have consistently been found

improper. United States v. Weatherspoon, 410 F.3d 1142,

1150 (9th Cir. 2005); United States v. Badger, 983 F.2d

1443, 1456 (7th Cir. 1993); United States v. Solivan, 937
No. 06-1451 11

F.2d 1146 (6th Cir. 1991). Instead, the government contends that those isolated statements did not rise to the

level of plain error.

Once a statement, considered in isolation, is deemed

improper, we consider whether those statements, taken

in the context of the record as a whole, deprive the defendant of a fair trial. United States v. Sandoval, 347 F.3d

627, 631 (7th Cir. 2003). In making that determination,

we consider: (1) the nature and seriousness of the statement; (2) whether the statement was invited by the

conduct of defense counsel; (3) whether the district court

sufficiently instructed the jury to disregard such statement; (4) whether the defense could counter the improper statement through rebuttal; and (5) whether

the weight of the evidence was against the defendant.

Id. Because no objection was made to those remarks

when made, DeSilva additionally needs to meet the

plain error standard which requires him “to ‘establish not

only that the remarks denied him a fair trial but also

that the outcome of the proceedings would have been

different absent the remarks.’ ” Id., quoting United States

v. Anderson, 303 F.3d 847, 854 (7th Cir. 2002) and United

States v. Durham, 211 F.3d 437, 442 (7th Cir. 2000). That

added burden ultimately dooms this claim.

The evidence was overwhelming for most of the Counts,

although more limited as to Counts II and III relating to

the incident in the alley. Other factors, however, are

less favorable to DeSilva. The improper comments were

relatively brief and isolated, defense counsel had an

opportunity to respond in closing argument, and the

context ameliorates their impact. Although the comments

could be construed as inviting a determination of guilt

based on community-wide deterrence, the prosecutor

specifically directed the jury to consider the evidence,

weigh the law and make its determination based on that

law. Once a determination of guilt was made based on that
12 No. 06-1451

law and evidence, the prosecutor urged the jury to abide

by its duty and return that verdict of guilt and thus

send the message to the community. That is slightly less

prejudicial than a statement that implied the guilt determination itself should be based on a desire to send a

message, although, as the government has conceded, it

is still improper.

Moreover, the court instructed the jury that it must

decide guilt or innocence based on the evidence, that

evidence consisted only of testimony of witnesses, exhibits

admitted into evidence, and stipulations, and that opening and closing statements were not evidence. The

court also instructed the jurors not to allow sympathy,

prejudice, fear or public opinion to influence them. Therefore, both the prosecutor’s statement in context and the

court’s instructions alerted the jury to decide guilt or

innocence based solely on the evidence and the law.

Although the problematic statements about sending a

message are improper because a jury could consider that

in deciding guilt, the preceding statements by the prosecutor to the contrary, and the court’s instructions, significantly ameliorated that potential danger. Although an

argument can certainly be made that the error was

significant enough to impact the fairness of the trial,

taking the record as a whole we cannot conclude that he

has met the difficult plain error burden of demonstrating that the outcome of the proceedings would have

been different absent the remarks.

The decision of the district court is AFFIRMED.
No. 06-1451 13

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—10-12-07