In Mafia Case, Justices Ponder: Is Murder Always Violent?
From poisoning to hiding life-saving medicine, the Supreme Court considered a series of dastardly hypotheticals about what constitutes a "crime of violence."
November 12, 2024 at 05:13 PM
6 minute read
A "little old lady" falls down a manhole. No one stops to help her. A toxic cake sits in the fridge. Someone tells you to eat it. A septuagenarian falls into a coma. The nurse doesn't start the feeding tube.
Should these be considered "crimes of violence" subject to an enhanced prison sentence under the federal Armed Career Criminal Act? The U.S. Supreme Court struggled to come up with an answer during Tuesday's hearing in the case of a mafia associate convicted of a murder-for-hire plot.
"It's hard to believe we're actually here debating whether murder is a 'crime of violence'," said Deputy U.S. Solicitor General Eric Feigin, who was defending an additional five years in prison for an associate of the Genovese crime family already serving a 20-year sentence for other crimes. "This is one case where the law already tracks common sense."
Salvatore Delligatti was indicted in 2017 on numerous criminal charges after being connected to a murder-for-hire plot. According to the U.S. attorney's office in Manhattan, Delligatti hired a murder crew from the Bronx to kill a local "bully" outside his Queen's home, a plot foiled by law enforcement just a few blocks away due to a police wiretap.
In addition to other attempted murder, conspiracy and gambling charges, Delligatti was convicted under Section 924(c) of ACCA for committing a "crime of violence" with a firearm, and was sentenced to those additional five years in prison.
In determining whether something qualifies as a "crime of violence," the Supreme Court has instructed courts not to look to the specific allegations against a criminal defendant like Delligatti, but rather the elements of the felony that serves as the predicate to the Section 924(c) charge. Delligatti's lawyer argued to the Supreme Court that the only predicate for the "crime of violence" charge was a charge for second-degree murder under New York Penal Law.
And because that law extends to acts of omission as well as affirmative acts, according to Delligatti, it fails to satisfy the "elements clause" of Section 924(c) requiring that a crime of violence “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.”
"In the instance in which someone expires because they don't have the right medication, usually you would not describe that as involving violent physical force," argued Allon Kedem of Arnold & Porter.
"If a septuagenarian slips into a coma and then doesn't eat and as a result dies, no one is going to describe that death as involving physical violent force," Kedem added. "So the question is, would you describe it as involving violent physical force because there was someone who was supposed to be there feeding the nutrition tube but failed to do so?"
Kedem fielded a variety of hypotheticals from the bench about the types of behavior that would be excluded due to his reading of "crime of violence."
"If I take a hostage and then just let the hostage starve, which side of the line does that fall on for you?" asked Justice Amy Coney Barrett.
Locking a sleeping person in a room and letting them "slowly expire" would not "involve application of violent physical force," answered Kedem.
Justice Neil Gorsuch asked about a "little old lady" who had slipped into an open manhole and was left there to die by a passerby who happened to have "animus toward little old ladies."
"Now [that was] an extreme hypothetical: Justice [Stephen] Breyer might be proud," added Gorsuch, in reference to Breyer's penchant for posing similarly bizarre scenarios to advocates before his recent retirement.
Gorsuch asked whether that would that fall within the government's understanding of crime of violence.
"It would have to," answered Kedem, because the government's definition encompasses any "bad result" leading to death. "It would also be involved in literally every death since the beginning of time because, in every death, something bad happens because you either are injured or run out of cellular inputs necessary to sustain life."
Justice Elena Kagan seemed skeptical about Kedem's position, especially in light of the Supreme Court's 2014 ruling in U.S. v. Castleman that poisoning someone includes use of force. To make her point, Kagan dreamt up a deadly confection.
"How about if, instead of putting poison in, I knew that there was something in the refrigerator which had gone bad and was completely toxic," Kagan said. "And I said to my worst enemy, 'Why don't you eat the cake in the refrigerator.' Where does that fall on your... which side of the line?"
That, Kedem said, "would count as use of violent physical force."
"Even though now you haven't really done anything?" replied Kagan.
Kedem said that that would require some step to put the victim in "contact" with the cake.
Kagan seemed unsatisfied with the answer, saying there would be "some step" required in any act of omission case.
Justice Samuel Alito Jr., for his part, tried to draw the court's attention back to the facts at hand.
"These are some fascinating legal arguments," Alito said. "Some of the people who have come here to hear this case may not know much about the facts of the case. So what was the offense for which your client was convicted?"
"Hiring someone in order to commit a murder," answered Kedem.
"And that, in your submission, is not a crime of violence?" asked Alito.
"It does not have as an element the use of violent physical force," the lawyer replied.
By the time the government's attorney stepped up to the lectern, he seemed almost in disbelief by the tenor of the conversation.
"There’s really no basis in law or logic to draw a distinction between the person who gently sprinkles poison in the cup, or the person who, hating the victim, just withholds the antidote," Feigin said. "By urging that distinction, [Delligatti] is asking this court to discard literally two millenia of common law that treat acts of omission just like other acts.”
Feigin's position, however, ran into skepticism from some members of the court, including Gorsuch and Justice Ketanji Brown Jackson.
Jackson raised the scenario of a lifeguard who let a child whom she "hates" drown in a pool.
"[S]he is using physical force against the person of another because, again, she could stop it, she is legally required to stop it, and she doesn't stop it because she wants the victim to die," Feigin said.
"It's only her mental state that is doing the work of her using physical force?" replied Jackson.
"No, Your Honor. It's the combination of those things," Feigin said. "Under just a plain dictionary definition of 'use,' she has availed herself of the force, she has had enjoyment of the force, she's made the force her instrument to accomplish her purpose."
The Supreme Court's decision in the case is expected by July.
The case is Delligatti v. U.S., No. 23-825.
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