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United States v. Lopez

United States District Court, W.D. New York

December 22, 2017

ISMAEL LOPEZ, Defendant.



         Defendant 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).

         Defendant 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.

         Defendant 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.

         For the 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.


         During 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.

         Primarily 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.

         More 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.

         The 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.

         The 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.

         It 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.

         After 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 the shooting.

         Robert 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.

         The 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.

         The 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.

         Some of 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.

         Later 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.

         To 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 safe.”

         Defendant 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.

         As 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.”

         The 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 ...

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