In a downtown Buffalo courtroom, with a phalanx of U.S. marshals standing watch, the chilling details of one of the biggest organized-crime cases in decades are starting to unfold.
Five murders, including the slayings of two innocent neighbors caught in a crossfire, are at the heart of the 10th Street Gang prosecution. It is a case unlike anything this community has seen since the crackdown on Laborers Local 91 a decade ago and gang leader Donald “Sly” Green 10 years before that.
Twenty-two reputed gang members face felony charges, and 11 are charged with murder or attempted murder. Sixteen of the original 38 already have taken plea deals.
It’s a case that involves an unusually large number of defendants and the allegation that they acted collectively, as part of a criminal enterprise, to terrorize a West Side neighborhood for nearly a decade.
A trial is still months away, but seven days of pretrial hearings that began more than a week ago have provided a glimpse into the confessions and statements that are the foundation of the prosecution’s case and that defense lawyers claim are either false or coerced.
Most of the defendants have been in handcuffs, watching from the jury box.
“OK, I was there,” Jonathan “Jmag” Delgado allegedly told police about the shooting that killed two innocent bystanders in 2006.
Delgado’s confession is just one of many statements that came to light last week as one defense lawyer after another challenged police tactics.
“The intent was not to kill innocent people,” Delgado allegedly said in his interview with investigators. “I regret even being there. I regret that it even happened.”
Brandon McDonald and Darinell Young were the innocent victims caught in a bloody turf war between the 10th and Seventh street gangs that day in April 2006.
McDonald, 16, happened to be visiting with friends when the shooting broke out, believed to be in retaliation for the killing of Delgado’s younger brother earlier that day.
Young, 45, lived next door and was caught in the stray gunfire while returning home from the store after buying snacks for his pregnant girlfriend.
Delgado, who was 17 at the time of the shooting, is one of five defendants charged in the double murder and, according to police, not the only one who has admitted his role in the killings.
Samuel “Set” Thurmond, another 10th Street Gang member, came clean after his arrest in February 2012 and implicated three others, including Delgado, investigators said.
“What do you want to know?” he allegedly told police.
Thurmond claims that, as he and the rest of the gang approached the house at 155 Pennsylvania St., he noticed the people in front were not Seventh Street Gang members.
“Listen, I don’t know any of these people,” he told the others, according to police reports. “I don’t recognize anybody. Something is wrong.”
But then the shooting started.
By some accounts, Thurmond’s admissions may have been the first inkling to his fellow defendants, most of whom were in the courtroom, that he had cooperated with police. It is an impression that his defense lawyer tried to combat by challenging the credibility of the investigators who questioned Thurmond.
“Did it occur to you to record my client’s interview?” Jeffrey Wicks, a Rochester attorney, asked State Police Investigator Josh P. Keats during one of the hearings.
“And at no point did you seek to have him sign it?”
Keats answered, “No” to both questions and suggested that his report was simply an account of his interview with Thurmond, not a formal written statement.
“Those are oral statements you documented later?” Assistant U.S. Attorney Joseph M. Tripi asked Keats.
“Yes,” said Keats.
The murders of McDonald and Young are just two of many violent acts, including three other homicides, that investigators have linked to the 10th Street Gang,
A federal indictment charging the 22 defendants also ties the gang to the 2008 murder of Omar Fraticello-Lugo on Busti Avenue and the 2009 killings of Christian Portes on Whitney Place and Anthony “Ace” Colon on Ullman Street in Riverside.
Kyle Eagan, a 10th Street Gang member described by investigators as the “worst of the worst,” has already pleaded guilty to killing Fraticello-Lugo, a 16-year-old rival gang member.
Another 10th Street member, Saul Santana, also has pleaded guilty to murder for his role in the Colon killing. A third gang member, Miguel Moscoso, is charged in the Portes killing.
Formed in the late 1980s, the 10th Street Gang dominated the West Side neighborhood bounded by Niagara Street on the west, Richmond Avenue on the east, Auburn Avenue on the north and Carolina Street on the south.
Gang members were known for “tagging” buildings and signs with graffiti to demonstrate their control of the neighborhood. They also were known for wearing plain white T-shirts and tattoos with “MOB” or “10” in the design.
Defense lawyers have challenged the statements, confessions and other evidence gathered as part of a three-year investigation by the FBI’s Safe Streets Task Force, a coalition that includes investigators from the State Police and Buffalo Police Department.
For five days, Tripi, the lead prosecutor, called law enforcement officials to testify in an effort to prove their work was beyond reproach.
The defense countered by arguing that their clients’ statements were either false or coerced or otherwise unconstitutional.
Like Wicks, defense attorneys Terry Granger and Paul Dell wanted to know why investigators, in this day and age, didn’t record their interviews with their clients, Matthew “Matt Nasty” Smith and Desmond “Dez” Ford. Both men are accused of murder.
“Was it tape-recorded?” Dell asked a detective at one point during Ford’s hearing. “And why not?”
Granger also posed the question to investigators and, later during an interview, contended that all interviews and interrogations should be documented on video or audio tape.
“They should all be recorded,” he said.
“They would show that the statements and confessions are accurate, and accuracy and truth are the linchpins of these hearings.”
For many of the defense attorneys, the most important legal question facing the court – U.S. Magistrate Judge Hugh B. Scott is overseeing the hearings – is whether a conspiracy even exists in the 10th Street case.
They dispute the notion that the 10th Street Gang was a criminal enterprise that committed crimes to further the enterprise, an allegation the government needs to prove in order to prosecute gang members under the RICO (Racketeering Influenced and Corrupt Organizations) law.
The RICO charges are central to the prosecution’s overall case and are crucial to turning what could be nominal prison sentences for selling drugs into significantly longer sentences.
“I don’t think there was a conspiracy,” said Angelo Musitano, a lawyer for one of the defendants, Cody Busch. “I think it was a bunch of kids out there doing their own thing.”
Originally used to go after the Mafia in the 1970s, the RICO law is now being used by federal prosecutors to dismantle violent street gangs.
“The racketeering act allows the government to charge a group of people involved in multiple crimes,” said U.S. Attorney William J. Hochul Jr. “And when we get to trial, it will be incumbent on the government to show there was an enterprise.”
There is no trial date in the 10th Street case, and it’s likely there will be more than one trial if the number of defendants remains as high as 22 as it is now.
The federal appeals court in New York City has ruled that no more than 10 criminal defendants should be tried at one time.