Mafia Case Tests Supreme Court on Crime of Violence Limits (1)

US Supreme Court justices struggled to figure out whether a defendant can ever “use” physical force when they don’t actually do anything.

Arguments on Tuesday in a mob-related attempted murder case were part of an ongoing debate about what counts as a crime of violence for purposes of federal firearms charges. The charge carries a five-year mandatory-minimum prison sentence with the possibility of life, which must be served concurrently to any other sentence.

The Supreme Court in recent terms has narrowed what counts as a violent crime. It’s done so by invaliding catch-all clauses, meaning that federal prosecutors must now point to a more specific provision to support a harsher sentence.

From lifeguards refusing to save kids to elderly women falling through manholes, the justices turned to extreme hypotheticals to try to help them figure out if crimes of omission fall within that more specific provision. It requires the “use, attempted use, or threatened use of physical force against the person or property of another.”

The justices commented more than once that the hypotheticals were somewhat “absurd,” in that the defendant in the case before them, Salvatore Delligatti, was convicted of an attempted murder-for-hire.

Delligatti, a former Genovese crime family associate, was convicted in connection with a failed murder plot of a New York man seen as a potential threat to the family’s illegal sports gambling operation. He was sentenced to 25 years in prison, including five for the firearms charge.

“It’s hard to believe that we’re actually here debating whether murder is a crime of violence,” said Justice Department lawyer Eric Feigin.

Avoiding Absurdity

Justice Elena Kagan said it was odd to say a defendant uses physical force when they don’t do anything.

She pointed to a hypothetical raised by Justice Ketanji Brown Jackson in which a lifeguard refuses to save a drowning child because the lifeguard “hates” her.

Saying the lifeguard used physical force “seems pretty weird,” she said.

But the other way is weird, too, Kagan said.

“You started with one absurdity,” Kagan told Feigin, that “we would say that murder is not a crime of violence. That seems pretty absurd.”

“But here’s another absurdity,” Kagan said of the lifeguard example. “So it’s almost as though we have to pick our absurdity.”

Jackson pointed out that the absurdity comes from the so-called categorical approach that the court uses to determine whether a crime falls within a certain category, including a crime of violence. Under that approach, courts don’t look at the defendant’s particular behavior to see if it was violent, but instead whether the least culpable conduct chargeable under the crime involves violence.

Delligatti isn’t arguing that his crime was non-violent, but instead that attempted murder doesn’t always have to involve violence.

“I think it’s fair to say, though, that we are discussing something that bears no factual relationship to your case,” Justice Clarence Thomas told Delligatti’s lawyer Allon Kedem of Arnold & Porter.

Jackson told Kedem that he wasn’t talking about his client. “You’re talking about the statute,” she said.

“You may have culpable conduct under the law, but what we’re looking for for the purpose of this enhancement is violent conduct, violent criminal conduct,” Jackson said.

Justice Neil Gorsuch suggested to avoid the absurdity, the court should separate murders done though omissions from those done though affirmative acts, even though the statute itself doesn’t do so.

Failing to save someone is very “different than killing somebody or ordering a hit on somebody by act,” Gorsuch said.

“I mean, giving them a pistol in a brown paper bag is a little different,” he added. “It’s like out of a movie.”

The case is Delligatti v. United States, U.S., No. 23-825, argued 11/12/24.