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Federal judge acquits defendant in 2010 slaying of East Side store clerk

Nearly five years later, the slaying of Charles Myles-Jones remains unsolved.

Myles-Jones, a store clerk at the Super Stop on Kensington Avenue in Buffalo, was an innocent bystander who, by most accounts, was killed by one of two men as part of an East Side gang feud.

One of those two men pleaded guilty to a lesser charge two years ago.

On Monday, the other went free.

Tre Smitherman, the gang member accused of killing Myles-Jones, was acquitted by a federal judge who cited a lack of proof linking the slaying to Smitherman’s efforts to join the Bailey Boys, a street gang in the city’s Kensington-Bailey section.

In a decision read from the bench, U.S. District Judge William M. Skretny described the slaying of Myles-Jones as tragic but said federal prosecutors failed to provide adequate evidence that his death was tied to a larger criminal enterprise, namely the Bailey Boys.

Smitherman, who was 17 at the time, was accused of shooting Myles-Jones in order to gain entry into the gang.

“It’s refreshing when a judge shows the courage to follow the law even when there’s a tragic aspect to the case,” said defense attorney Andrew C. LoTempio.

Prosecutors from the office of U.S. Attorney William J. Hochul Jr. declined to comment on Skretny’s ruling or the possibility of an appeal.

During the trial, LoTempio repeatedly questioned the existence of a criminal enterprise and, at every opportunity, raised the possibility that someone else – Dwight Mitchell – fired the gun in the Myles-Jones slaying.

It was Mitchell, LoTempio told the jury, who was beaten up by members of the Midway Crew, a rival gang and the target of the shooting that night, and it was Mitchell who was definitely carrying a gun that night in November of 2010.

Mitchell, who was 16 at the time, admits that he and Smitherman were at the Super Stop but, in his plea deal with prosecutors, says he simply held open the door to the store and that it was Smitherman, not him, who fired two, maybe three shots inside.

Currently in state prison for robbery, Mitchell admitted playing a role in Myles-Jones’ death but pleaded guilty two years ago to a lesser charge, aiding and abetting a violent crime committed in aid of a racketeering enterprise. He is currently awaiting sentencing.

In his decision, Skretny did not comment on who was responsible for the slaying and instead limited his ruling to what the government could – and could not – prove about Smitherman’s ties to the Bailey Boys, a key element in the murder-conspiracy charge against him.

Under that federal murder charge, the prosecution had to first prove that Smitherman was connected to the Bailey Boys and that Myles-Jones’ was killed in support of the organization.

The judge found that while Smitherman may have had ties to the Davidson Boys, a smaller, newer and more loosely formed organization, there was no proof that he wanted to gain entry into the Bailey Boys, the criminal enterprise described in the indictment against him.

“I think the facts bear out that the Davidson crew were simply a bunch of teenagers from the neighborhood,” LoTempio said.

The story of the Myles-Jones slaying and the allegation that he was killed as part of a gang initiation, an effort by Smitherman to prove himself, unfolded over the course of a weeklong trial in federal court.

The trial, which included testimony from several gang members, provided a glimpse into how Buffalo’s street gangs thrive. Prosecutors contend that the Bailey Boys, like other violent gangs across the city, were a criminal enterprise that relied on drug dealing and robberies to operate, and robbery and murder to protect its turf.