Mafia case tests US Supreme Court on limits of violent crime

U.S. Supreme Court justices have had difficulty determining whether a defendant can ever “use” physical force when he actually does nothing.

Tuesday's arguments in a mob-related attempted murder case were part of an ongoing debate over what counts as a violent crime under federal firearms charges. The charge carries a sentence of at least five years in prison, with the possibility of life in prison, to be served concurrently with any other sentence.

From lifeguards refusing to save children to elderly women falling through manholes, the judges resorted to extreme hypotheticals to help them set the limit.

Judge Elena Kagan said it was strange to say a defendant used physical force when he did nothing. To say the lifeguard used physical force was “strange,” she said.

Chief Justice John Roberts agreed that the lifeguard did nothing in this scenario.

However, Judge Clarence Thomas said the lifeguard situation had “no factual connection” to the Salvatore Delligatti case.

The former Genovese crime family member argues that attempted murder is not a “crime of violence” that can be the basis for federal firearms charges.

Delligatti was convicted in connection with a failed murder plot against a New York man who was seen as a potential threat to the family's illegal sports betting operation. He was sentenced to 25 years in prison, including five years on the firearms charge.

Judge Amy Coney Barrett said it seemed “counter-intuitive” to say that murder is not a violent crime.

Judge Ketanji Brown Jackson pointed out that the absurdity stems from the so-called categorical approach that the court uses to determine whether a crime falls into a certain category, including a violent crime. Under this approach, courts examine not the defendant's specific conduct to determine whether it was violent, but rather whether the least delinquent conduct that can be held accountable in the crime involves violence.

Delligatti's argument is not that his crime was nonviolent, but rather that attempted murder does not always have to involve violence.

It was a kind of “pun,” Kagan said.

Justice Neil Gorsuch suggested that the court separate murders committed by acts of omission from murders committed by positive acts to avoid puns, even if the law itself does not require this.

Jackson agreed. She said omissions are simply different than actions.

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