SCOTUS Hears Case Involving Mafia Bookie, Foiled Murder Plot

A New York Mob bookie incarcerated for arranging the attempted murder of a rival claims his conviction should be quashed because his foiled plot did not involve a "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 Allon Kedem of the lawfirm Arnold & Porter.

The US Supreme Court attempted to determine what constitutes a "crime of violence" on Tuesday.

Some other possible scenarios under consideration:

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.

And it all leads to one case involving an infamous jailed mobster.

"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 Genovese crime family associate Salvatore Delligatti.  He is serving a 20-year sentence for other crimes. "This is one case where the law already tracks common sense."

Delligatti was indicted in 2017 on numerous criminal charges after being connected to a murder-for-hire plot.

He was accused of hiring a crew to murder a local "bully" outside his Queen's home, a plot foiled by law enforcement just a few blocks away due to a police wiretap.

According to court papers filed in Manhattan federal court, other public filings, and the evidence presented in court during at the time of the trial:

From at least in or about 2010 through in or about 2015, DELLIGATTI was an associate of the Genovese Organized Crime Family of La Cosa Nostra.  During this period, DELLIGATTI conspired with others to participate in and conduct the affairs of the Genovese Family through a pattern of racketeering activity that included a murder conspiracy, an extortion conspiracy, and the operation of an illegal sports betting business.  In particular, in May and June 2014, DELLIGATTI hired several individuals from the Bronx to ambush DELLIGATTI’s intended victim outside the victim’s home in Queens.  DELLIGATTI offered to pay the individuals several thousand dollars for the murder, and provided them with, among other things, a loaded .38 caliber revolver and a getaway vehicle.  As a result of wiretap surveillance of DELLIGATTI by the Nassau County Police Department and the Nassau County District Attorney’s Office, the individuals hired by DELLIGATTI were apprehended just a few blocks from the intended victim’s residence on June 8, 2014.

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.

More from Law.com's Hoover:

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 Kedem.

"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?"