Delligatti v. United States

LII note: The U.S Supreme Court has now decided Delligatti v. United States

Issues

Is attempted murder a crime of violence under the Armed Career Criminal Act of 1984?

Oral argument:
November 12, 2024
Court below:
United States Court of Appeals for the Second Circuit

This case asks the Supreme Court to decide whether one can commit attempted murder without using, attempting to use, or threatening to use physical force against another person or their property. If no, attempted murder is a “crime of violence” and can serve as the basis for sentence enhancement under 18 U.S.C. § 924(c); if yes, it cannot—regardless of whether an individual defendant actually used physical force against another person. Salvatore Delligatti, who was convicted of attempted murder and seeks to challenge the enhancement of his sentence for that offense, argues that attempted murder does not inherently involve the action of using physical force because even completed murder can be committed through inaction. The United States counters that intentionally causing the death of another person, even through inaction, inherently involves the use of whatever physical force causes that other person’s death. The outcome of this case will determine the continued viability of Congress’s four-decade-old mechanism to crack down on gun violence, the Armed Career Criminal Act.

Questions as Framed for the Court by the Parties

Whether a crime that requires proof of bodily injury or death, but can be committed by failing to take action, has as an element the use, attempted use, or threatened use of physical force.

Facts

The federal criminal code provides for heightened minimum sentences when someone uses or possesses a firearm “in relation to any crime of violence.” That same section defines a “crime of violence” as a felony that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” To determine if a felony is a crime of violence, courts look to the elements that establish the felony and see if the minimum requirements to satisfy those elements necessarily constitute a crime of violence.

In the United States District Court for the Southern District of New York , Salvatore Delligatti was convicted of several crimes relating to his involvement in the Genovese Crime Family. Prosecutors alleged that Delligatti hired members of a different criminal organization to murder Joseph Bonelli because Bonelli had been stealing from a local gas station owner connected with the Genovese Family and because Bonelli had been interfering with local illegal bookmakers. Delligatti, upon receiving approval for the murder of Bonelli from a more senior member of the Genovese Family hired Kevin Duke and members of his gang to commit the murder. In addition to paying Duke $5,000, Delligatti provided Duke with a gun and a car. Duke and his associates were twice unsuccessful in carrying out the crime—the first time because they abandoned the plan when seeing witnesses at Bonelli’s house, and the second time because law enforcement had become aware of the plot and had arrested them during a traffic stop.

The jury in the District Court found Delligatti guilty of, among other things, attempting or conspiring to commit murder in furtherance of racketeering activity under 18 U.S.C. § 1959(a)(5) , and the use or possession of a firearm in furtherance of a crime of violence under 18 U.S.C. § 924(c)(1)(A)(i). He was then sentenced to 300 months in prison. The United States Court of Appeals for the Second Circuit affirmed the District Court’s sentence, including affirming that conspiracy to commit attempted murder in aid of racketeering was a crime of violence because attempted murder was a crime of violence under New York State law. Delligatti issued a petition for the Second Circuit to rehear Delligatti’s case in light of the recent Supreme Court of the United States decision in United States v. Taylor . In that case, the Supreme Court found that one element of an attempted robbery under 18 U.S.C. § 1951 could be satisfied through the attempted threat of force. The Court also found that attempted threat of force could theoretically not require the use, or attempted use, of physical force. Therefore, the Supreme Court held that an attempted robbery under 18 U.S.C. 1951 was not a crime of violence under 18 U.S.C. § 924(c). Although the Second Circuit agreed to rehear Delligatti’s appeal, the Second Circuit case distinguished United States v. Taylor because attempted murder, unlike attempted robbery, “requires both an intent to use physical force and a substantial step towards the use of physical force.” The Second Circuit thus affirmed its holding that attempted murder in furtherance of racketeering activity under 18 U.S.C. § 1959(a)(5) qualified as a crime of violence and the conviction under 18 U.S.C. § 924(c) remained valid.

On January 29, 2024, Delligatti petitioned the Supreme Court to hear this case. The Supreme Court granted certiorari on June 3, 2024.

Analysis

THE ORDINARY MEANING OF THE ELEMENTS CLAUSE’S TEXT

Part of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924 makes it a federal crime to use or to carry a firearm during or in relation to, or to possess a firearm in furtherance of, a crime of violence. Section 924(c)(3)(A) of the ACCA, referred to as the “elements clause,” states that any offense which requires “the use, attempted use, or threatened use of physical force against the person or property of another” is a crime of violence. Delligatti maintains that the plain meaning of those words controls the outcome of the case, and he contends that meaning excludes even murder, and therefore all the more merely attempted murder. With respect to the verb “use,” Delligatti emphasizes that under Smith v. United States , “to use” can mean “to convert to one’s service” or “to employ.” And to employ something, Delligatti argues, means to make active use of it, not to engage in inaction. Regarding the noun phrase “physical force,” Delligatti notes that under Johnson v. United States , “physical force” means “violent force,” contending that violent force must be external force. As such, the caregiver who intentionally allows a patient to die from an internal disease commits murder without using physical force. Moreover, the resulting definition of what it means to “use physical force” enables Delligatti to attempt to distinguish the example of a murderer who poisons their victim’s drink—which the Supreme Court offered as an example of the use of physical force in United States v. Castleman —from the caregiver example and other instances of murder through inaction. The poisoner makes some active use of the poison by sprinkling it into their victim’s drink, whereas the caregiver does nothing to introduce the disease into their patient’s body. Finally, concerning the phrase “against the person or property of another,” Delligatti argues that to use force against another is to engage in action to direct force against another. For example, the driver who purposely hits a pedestrian with his car directs the car’s force and thus uses it against the pedestrian; by contrast, someone who through inaction fails to divert a force set into motion by something else has done nothing to direct that force, and thus cannot be said to use that force against anyone, Delligatti insists.

The government does not contest the importance of plain meaning; rather, it responds that the elements clause’s text supports its own position that intentionally causing bodily injury or death always involves the use of physical force against the person or property of another. First, emphasizing that under Smith “to use” can also mean “to make use of,” the government asserts that it is perfectly natural to say that a lifeguard who allows another person to drown makes use of the water in that person’s lungs, or to say that the caregiver who withholds medication from a patient who will die without it makes use of that patient’s disease. Secondly, although agreeing with Delligatti that “physical force” means “violent force,” the government counters that violent force is just force capable of causing physical pain or injury to another person and, further, that the relevant force is not a defendant’s action or inaction, but the cause of the injury. The government thus argues that Castleman ’s poisoner is indistinguishable from the caregiver who merely allows their patient to die. The relevant violent force in the caregiver example is the patient’s disease, which is what causes the patient to succumb, and the caregiver uses that force by allowing the patient to die from the disease by withholding medication. Likewise, the relevant violent force in the poisoner example is the poison itself, which is what causes the patient to die, and the poisoner uses that force by allowing the victim to drink the poison. Finally, the government maintains that “against the person or property of another” operates only to require that an offender have a mens rea worse than recklessness . An offender must have it as their conscious object that the relevant force harm their victim, or at least know that it will.

OTHER CONSIDERATIONS IN INTERPRETING THE ELEMENTS CLAUSE

Delligatti proposes that the structure and purposes of the ACCA also support his position that the elements clause does not encompass crimes that can be committed through inaction. With respect to the structure of the ACCA, Delligatti contends that to include crimes of omission within the ACCA’s scope would be to expand the reach of that statute beyond its purpose of enhancing the sentences of those who use, carry or possess a firearm in connection with a crime of violence. This interpretation expands the ACCA, Delligatti argues, because unlike crimes like armed robbery—which have a clear place for a firearm as a tool of coercion—crimes committed by inaction have no clear place for the use of a firearm. With respect to legislative purpose, Delligatti notes that Congress passed the ACCA primarily to combat the “violent, aggressive, and purposeful” conduct of armed career criminals and argues that crimes of omission do not fit within that mold. While a career criminal is likely to commit the same kind of offense repeatedly, and therefore is a fit subject for a sentence enhancement, one who offends the law through inaction cannot easily recidivate because crimes of inaction require outside forces to fortuitously work in the offender’s favor.

Regarding the ACCA’s structure, the government rejoins that, while the elements clause itself does not consider a defendant’s actual conduct, determining if the ACCA applies in the first place does involve asking if that individual defendant used, carried, or possessed a firearm during their crime. That consideration of individual conduct, the government argues, makes it highly unlikely that murders committed by inaction would be swept up and into the ACCA’s scope. Next, the government counters Delligatti’s argument from legislative purposes with similar attention to the fact that the ACCA can only apply when an individual defendant actually uses, carries, or possesses a firearm in connection with their crime. The government argues that “[e]nvisioning an ‘omission’ based murder that involves” the use, possession, or carriage of a firearm “is difficult, if not impossible” and that Congress would not have wanted to exclude murder from the elements clause “in light of such an unrealistic hypothetical.” Doing so, the government maintains, would also exclude gang-related gun violence, which plainly does implicate the ACCA’s purposes, from the ACCA’s scope by removing murder from the elements clause’s scope.

In case the Court finds the elements clause too ambiguous to accept either side’s position, Delligatti cautions that such an ambiguity must be resolved in his favor as a criminal defendant under the rule of lenity , which requires that ambiguous criminal statutes be interpreted in favor of defendants.

But the government warns that only “grievous ambiguity . . . such that the Court must simply guess as to what Congress the ACCA is clear.

Discussion

POSSIBILITY OF INCREASING PRISON SENTENCES WITHOUT REGARD TO CASE-SPECIFIC FACTS

In support of Delligatti, the National Association of Criminal Defense Lawyers (NACDL) and Families Against Mandatory Minimums (FAMM) argue that ignoring a plain definition of use of physical force would allow a more expansive reading of definitions in statutes generally. Specifically, this approach would result in longer sentences across criminal law by increasing the number of cases to which these minimum sentences apply. NACDL and FAMM argue that increasing the scope of mandatory minimum sentences would allow judges to impose more lengthy prison sentences without consideration of the facts of the case or individual characteristics of the offender. According to NACDL and FAMM, this rigid approach removes the discretion of judges and leads to longer sentences than what the facts call for. Also in support of Delligatti, the Federal Public Defender Offices in the Second Circuit argue that there is no need to increase the applicability of § 924(c) because, even without the minimums prescribed in § 924(c), judges can “still sentence dangerous people to long prison terms.” The Public Defenders say that judges can base these longer sentences on the conduct of the offender and can avoid the inflexibility of required minimum sentences when the merits of the case call for shorter sentences. Additionally, the National Association for Public Defense, in support of Delligatti, posits that if the Supreme Court allowed a lack of action to satisfy the use of physical force element in the crime of violence definition, then could further criminalize refraining from action, or omissions , under § 924(c).

The government argues that Delligatti’s position that the elements clause does not encompass crimes that can be committed through inaction “would eviscerate § 924(c)(3)(A) and similarly worded elements clauses” by forcing courts to treat plainly violent offenders as nonviolent ones. The government insists that Delligatti’s position would require prosecutors to reduce the capital murder charges pending against Payton Gendron, who committed a racially motivated mass shooting in Buffalo in 2022, wounding three and killing ten. In fact, the government notes, a district court in the Third Circuit—the only Circuit Court of Appeals to adopt Delligatti’s position—removed a § 924(c) charge brought against Robert Bowers, who opened fire in Pittsburgh’s Tree of Life Synagogue in 2018, wounding six and killing eleven, reasoning that its predicate offense, a hate crime charge, did not satisfy the elements clause because it could be committed through inaction. Additionally, the government contends that Delligatti’s position, if adopted generally, would exclude other paradigmatically violent crimes like assault and robbery from the scope of the elements clause and thereby free those who have committed such crimes from the ACCA’s accompanying sentencing enhancement regardless of their own violent actions. As to the risk Delligatti’s position poses to similarly worded elements clauses in other statutes, the government points to 18 U.S.C. § 922(g)(9) , which forbids domestic abusers—defined in part as those who have committed a crime that “has, as an element, the use or attempted use of physical force”—from possessing firearms. On Delligatti’s logic, the government appears to suggest, that an individual who assaulted, attempted to murder, or even murdered their partner would not count as a “domestic abuser” under § 922(g)(9) because such crimes can be committed through inaction.

Conclusion

Authors


Written by: Andrew W. Carpenter and Domnick Q. Raimondo

Edited by: Alex Strohl

Additional Resources