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Johnny Joe Desilva, Jr v. United States of America

August 2, 2011

JOHNNY JOE DESILVA, JR., PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Joe Billy McDADE United States Senior District Judge

E-FILED

Tuesday, 02 August, 2011 02:41:42 PM

Clerk, U.S. District Court, ILCD

OPINION & ORDER

This matter is now before the Court on Petitioner Johnny Joe DeSilva, Jr.'s Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. (RII.1).*fn1 For the reasons set forth below, DeSilva's Motion is DENIED.

PROCEDURAL HISTORY

As the highest ranking member, or Regional Enforcer, of the Latin Kings gang in the Quad Cities region, DeSilva was responsible for internal discipline and responding to external threats from rival gangs. On September 16, 2004, DeSilva was indicted with five counts: (I) conspiracy to distribute cocaine and marijuana in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846; (II) 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 alleging that DeSilva attempted to commit assault with a dangerous weapon for the purpose of maintaining his position in the Latin Kings by causing another person to discharge a firearm; (III) using and carrying a firearm in relation to the incident in Count II, in violation of 18 U.S.C. § 924(c)(1)(A) and 18 U.S.C. § 2; (IV) interstate communication of a threat to kidnap in violation of 18 U.S.C. § 875(b); and (V) interstate communication of a threat to injure in violation of 18 U.S.C. § 875(b). Counts IV and V alleged that DeSilva's threatened to kidnap and injure with the intent to recover thirty pounds of marijuana that had been retained by undercover DEA agents. (RI.11).

On October 25, 2005, a jury found DeSilva guilty of all five charges and this Court sentenced him to imprisonment for 360 months on Count I, 36 months on Count II, 120 months on Count III, and 240 months on Counts IV and V, all with the exception of Count III to be served concurrently. (RI.80, RI.90, RI.97). This Court additionally sentenced DeSilva to 18 months to run consecutive to Count I for violation of supervised release on a prior bank fraud as well as five years of supervised release on Counts I and III, three years on Counts IV and V, and one year on Count II to be served concurrently. (RI.97).

On February 9, 2006, DeSilva filed a timely notice of appeal (RI.99) to the Seventh Circuit Court of Appeals in which he alleged: (1) the government failed to present sufficient evidence to convict him for committing a violent crime in aid of racketeering activity and the related firearms charge; (2) the Court erred in applying a two-level enhancement for carrying a firearm when sentencing him under Count I because this constituted double punishment, as he was already sentenced for violation of 18 U.S.C. § 924(c) for carrying a firearm in a drug conspiracy; (3) the Court erred in applying a four-level enhancement for being a leader or organizer of a criminal activity because the participants for whom DeSilva was a leader were not specifically identified; and (4) the government made improper comments in opening and closing statements which deprived DeSilva of a fair trial.

The Seventh Circuit Court of Appeals affirmed the conviction and sentence on October 12, 2007, holding: (1) there is sufficient evidence to support the conviction for committing a violent crime in aid of racketeering activity and for the related firearms charge because a rational trier of fact could have found him guilty beyond a reasonable doubt, United States v. DeSilva, 505 F.3d 711, 715 (7th Cir. 2007); (2) the two-level enhancement is appropriate because it was not based on the use of the same firearm as the one serving as the basis for the 924(c) conviction, id. at 717; (3) the challenge to the four-level enhancement fails because the record provided "overwhelming evidence" that DeSilva was a leader or organizer of criminal activity involving five or more participants or of an otherwise extensive nature, id.; and (4) the government did not make improper opening statement remarks, and even though the prosecutor made some improper remarks during closing, DeSilva failed to meet the plain error burden. Id. at 719.

On April 28, 2008, DeSilva filed a Motion under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence in which he contested the Court's jurisdiction and alleged numerous instances of ineffective assistance of counsel.*fn2 (RII.1) DeSilva's grounds for his ineffective assistance of counsel claim are as follows:

(1) Counsel failed to object to improper comments made by the prosecutor in his opening and closing statements, thereby permitting the jury to consider otherwise inadmissible evidence, depriving DeSilva of a fair trial, and waiving de novo review of the issue on appeal;

(2) Counsel failed to object to the Court's application of a two-level enhancement under U.S.S.G. § 2D1.1(b)(1) and of a four-level enhancement under U.S.S.G. § 3B1.1, thereby exposing DeSilva to an improperly enhanced sentence;

(3) Counsel failed to object to the Court's refusal to grant the jury's request to review a transcript of government witness Manuel Garcia's testimony, which would have increased DeSilva's chance of an acquittal on Counts II and III;

(4) Counsel failed to move for a mistrial or object to the reseating of a juror who had been the recent victim of gang-related vandalism, thereby depriving DeSilva of a fair trial;

(5) Counsel failed to present DeSilva's theory of a defense;

(6) Counsel failed to allow DeSilva to testify to establish ...


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