United States District Court, W.D. New York
DECISION AND ORDER
HONORABLE RICHARD J. ARCARA, UNITED STATES DISTRICT COURT
Ismael Lopez was convicted, after a jury trial, of one count
of racketeering conspiracy in violation of 18 U.S.C. §
1962(d) (“RICO conspiracy”), two counts of murder
in aid of racketeering in violation of 18 U.S.C. §
1959(a) (“VICAR murder”), one count of narcotics
conspiracy in violation of 21 U.S.C. § 846, and one
count of possessing firearms in furtherance of a
drug-trafficking crime in violation of 18 U.S.C. §
924(c). The convictions were for conspiracy to participate in
organized criminal activities of a violent street gang in
Buffalo, New York, for an accessorial role in the April 17,
2006 VICAR murders of Brandon MacDonald and Darinell Young,
for gang-related drug-trafficking, and for weapons possession
in furtherance of gang-related drug-trafficking. Each of the
VICAR murder convictions carry a sentence of mandatory life
imprisonment. 18 U.S.C. § 1959(a)(1).
Lopez moves pursuant to Fed. R. Crim. P. 29 for a judgment of
acquittal notwithstanding the jury's verdicts based
primarily upon arguments that, due to errors in the conduct
of the trial, there was insufficient admissible evidence for
a rational jury to find him guilty as an accessory to the
VICAR murders. The Defendant also challenges the sufficiency
of the evidence in support of the other counts of conviction
in conclusory fashion.
Lopez moves in the alternative for a new trial pursuant to
Fed. R. Crim. P. 33 based upon arguments that errors in the
conduct of the trial irredeemably prejudiced him. The
Defendant repeats his contention that he did not
intentionally aid the principals who committed the VICAR
murders while intending that the principals commit acts of
murder. He repeats the conclusory claims that there was
insufficient proof of his guilt of each of the other counts
of conviction, and that he is innocent.
reasons stated below, the Court finds the jury's guilty
verdicts were supported by legally-sufficient evidence, and
were not a miscarriage of justice. Defendant Lopez's
motions pursuant to Rule 29 for a judgment of acquittal and
pursuant to Rule 33 for a new trial are therefore denied.
a trial that lasted approximately five and half weeks,
evidence showed that Defendant Lopez was an associate and
member of the 10th Street Gang, a violent street gang that
operated on the Lower West Side of Buffalo. Members and
associates of the Gang engaged in criminal activities that
supported the Gang, including violence, threats of violence,
and drug-trafficking. Members and associates were involved in
Gang-related distribution of heroin, cocaine, crack cocaine,
marijuana, and ecstasy.
to protect territory that the 10th Street Gang claimed
exclusively as its own for drug dealing, and to assert and
maintain its relative standing in a loose hierarchy of local
street gangs, members and associates of the Gang were
involved in murders, attempted murders, and assaults. Members
and associates of the Gang routinely possessed firearms
during their criminal activities, and evidence showed that
firearms were freely shared among Gang members.
than forty co-defendants and defendants alleged to be members
or associates of the Gang have entered guilty pleas to
related charges. Defendant Lopez and three co-defendants,
each of whom were also found guilty of all charges against
them, were the only persons who sought a trial.
territory of the 10th Street Gang was a neighborhood rife
with poverty and violence. The evidence at trial showed that,
like most street gangs, the Gang was, in the minds of its
members and associates, only partly about crime. The Gang was
for some associates and members more about social acceptance,
support, excitement, and structures that were lacking
elsewhere. The Gang held neighborhood parties. It offered a
hierarchy of leadership and a clear path to gain approval and
respect. One could "put in work" by fighting,
committing crimes, or by making sacrifices for Gang members
or for the Gang, to earn trust and to build a sense of
belonging and higher status.
10th Street Gang was a rival of other street gangs, and it
had a long-standing violent rivalry with the 7th Street Gang,
another neighborhood criminal gang which operated nearby on
the Lower West Side of Buffalo. At times, deadly violence
erupted between the 10th Street Gang and the 7th Street Gang.
The murder victims in this case, Brandon MacDonald and
Darinell Young, were murdered in the early-morning hours on
April 17, 2006, because they were mistaken for associates of
the 7th Street Gang by members and associates of the 10th
Street Gang who were retaliating for an earlier
mistaken-identity shooting by a 7th Street Gang member.
happened on April 16, 2006, as a group that included 10th
Street Gang members was walking to a cookout in the vicinity
of West Avenue and Maryland Street. At approximately 2:48
p.m., while among the group, Robert Sanabria, the younger
brother of Defendant Lopez's co-defendant and fellow 10th
Street Gang member Jonathan Delgado, was shot in the stomach
and seriously injured during a drive-by shooting.
Robert Sanabria was loaded into an ambulance, associates and
members of the 10th Street Gang, including some who had been
at the shooting, gathered at a park on 10th Street. They were
afraid Sanabria might die. They were upset and angry about
Sanabria later identified 7th Street Gang member Luis Medina
as the person who shot him to the Buffalo Police Department.
Others who were present during the drive-by shooting had
immediately recognized Medina.
shooting of Sanabria by Medina was a case of mistaken
identity: Medina meant to shoot a 10th Street Gang member who
had recently been involved in an altercation with 7th Street
Gang members outside a party. Sanabria had borrowed a New
York Yankees jacket from that 10th Street member. Medina
believed he was shooting the owner of the jacket in
retaliation for the earlier incident when he shot Sanabria.
shooting of Robert Sanabria was the first time in the
long-running violence between the 7th Street Gang and the
10th Street Gang that 7th Street Gang members had traveled
across Niagara Street into 10th Street Gang territory to
shoot a 10th Street Gang associate or member. As a result,
the shooting took on added significance as a challenge and an
insult to the 10th Street Gang.
members and associates of the 10th Street Gang gathered in
the park on 10th Street Park in the immediate aftermath of
the shooting began to plan retaliation against the 7th Street
Gang. Some began seeking firearms to use to retaliate.
that evening, members and associates of the 10th Street Gang
who planned to retaliate for the shooting of Robert Sanibria
arranged to congregated at Sam Thurmond's apartment in a
building at the corner of Niagara Street and Carolina Street.
And plans to attack suspected associates of the 7th Street
Gang who were seen in the vicinity of 155 Pennsylvania Street
began to take shape.
participate in the planned retaliation, Defendant Lopez first
drove Derrick Yancey, one of his best friends, a short
distance from Sam Thurmond's apartment to a spot on
Niagara Street to act as a lookout in anticipation of the
attack. After dropping Yancey, the Defendant then made a
U-turn and returned to the apartment where the principal
murders were waiting. Yancey called the Defendant on the
telephone and said, essentially, “tell the boys
it's quiet as hell out here, ya'll boys be
Lopez, having returned to Sam Thurmond's apartment, then
drove the four of the five eventual shooters to the vicinity
of the murders in his vehicle. Sam Thurmond had a shotgun;
Douglas Harville had a .44 caliber handgun; Michael
Corchado-Jamieson had a cut down .22 caliber rifle; and
co-defendant Jonathan Delgado had a .380 caliber handgun.
Three of these shooters, Thurmond, Harville, and Corchado
Jamieson, testified during the trial. The fourth, Delgado,
was convicted with the Defendant.
Defendant Lopez drove the armed shooters down Pennsylvania
Street past the eventual victims, he said, “Don't
shoot from the car.” Shortly thereafter, as Yancey
walked away from his lookout post, he heard shots fired
“like it was the Fourth of July.”
10th Street Gang members and associates who rode to the area
of 155 Pennsylvania Street had met in an nearby alley. They
burst from the alley shooting at people on and near the porch
of 155 Pennsylvania Street. They shot and killed Brandon
MacDonald and Darinell Young. At least five guns were fired
during the attack. Brandon MacDonald was killed by a .380
caliber round that was recovered from his chest. Darinell
Young died after ...