The opinion
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 viola-
tion 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 trans-
portation 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 evid-
ence 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 evid-
ence 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 main-
tain 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 in-
cluded 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 re-
sponses, 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 outnum-
bered him substantially, and that they began approach-
ing him. They retreated to their cars when Garcia ap-
proached. 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 main-
tain 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 aggra-
vated 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 com-
manded 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 will-
fully 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 fire-
arms 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 chal-
lenges to the enhancements have been waived. DeSilva
objected generally to allegations of criminal conduct in
the PSR. He also specifically objected to the enhance-
ments 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 at-
torney 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 receiv-
ing 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 coun-
sel 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 contest-
ing 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 chal-
lenge to that enhancement. “A party may not by his own
action lull the court into believing that an express find-
ing 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 transac-
tions, 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 con-
duct. The challenge to the role in the offense enhance-
ment is also unavailing as the record provides overwhelm-
ing 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 bur-
den 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 unsup-
ported 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 demon-
strate 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 im-
properly 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 con-
tends 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 defen-
dant 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 state-
ment; (2) whether the statement was invited by the
conduct of defense counsel; (3) whether the district court
sufficiently instructed the jury to disregard such state-
ment; (4) whether the defense could counter the im-
proper 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 deter-
mination 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 open-
ing and closing statements were not evidence. The
court also instructed the jurors not to allow sympathy,
prejudice, fear or public opinion to influence them. There-
fore, 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 prosecu-
tor to the contrary, and the court’s instructions, signifi-
cantly 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 demonstrat-
ing 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