36 F.4th 423
2d Cir.2022Background
- Salvatore Delligatti, an associate in the Genovese Crime Family, organized and financed a plot to kill Joseph Bonelli, providing a gun and car and hiring others to carry out the shooting; the plot failed and participants were arrested.
- Delligatti was indicted and convicted on multiple counts including RICO conspiracy, VICAR counts (conspiracy to commit murder in aid of racketeering and attempted murder in aid of racketeering under 18 U.S.C. § 1959(a)(5)), murder-for-hire conspiracy, illegal gambling, and a § 924(c) firearms offense; he was sentenced to 300 months.
- On appeal Delligatti challenged his § 924(c) conviction in light of United States v. Davis (which struck down § 924(c)’s residual clause), arguing the predicate offenses no longer qualify as "crimes of violence" under the elements clause.
- The Second Circuit recognized conspiracies (RICO, murder-for-hire, VICAR conspiracy) do not qualify as crimes of violence under controlling precedent, so the dispositive question was whether the substantive VICAR count for attempted murder (predicated on New York attempted murder) is a categorical crime of violence.
- The court held the modified categorical approach applies to substantive VICAR offenses and that New York attempted second-degree murder (requiring intent and a substantial step toward causing death) is categorically a crime of violence, so the § 924(c) conviction stands.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the modified categorical approach applies to substantive VICAR offenses | Government: Yes — VICAR parallels RICO and identifies underlying predicate acts in the charging instrument | Delligatti: (implicitly) VICAR should not be treated like RICO for divisibility; §924(c) invalid after Davis | Held: Yes — modified categorical approach applies to substantive VICAR offenses |
| Whether attempted murder in aid of racketeering (predicated on NY attempted murder) is a "crime of violence" under §924(c)(3)(A) | Government: Yes — NY attempted murder requires intent and a substantial step toward causing death, thus involves use of physical force | Delligatti: No — attempt can be committed by omissions/alternative means and therefore may not categorically involve force | Held: Yes — NY attempted second-degree murder is categorically a crime of violence; §924(c) conviction affirmed |
Key Cases Cited
- United States v. Davis, 139 S. Ct. 2319 (2019) (striking down §924(c) residual clause as unconstitutionally vague)
- United States v. Laurent, 33 F.4th 63 (2d Cir. 2022) (RICO conspiracy not a crime of violence; modified categorical approach for substantive RICO)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (divisibility and the modified categorical approach)
- United States v. Hill, 890 F.3d 51 (2d Cir. 2018) (explaining categorical approach for §924(c))
- United States v. Castleman, 572 U.S. 157 (2014) (intentional causation of bodily injury involves physical force)
- United States v. Scott, 990 F.3d 94 (2d Cir. 2021) (en banc) (rejecting omission-based arguments to avoid categorical force analysis)
- United States v. Tabb, 949 F.3d 81 (2d Cir.) (explaining New York attempt requires intent and a near act toward completion)
- United States v. Ivezaj, 568 F.3d 88 (2d Cir. 2009) (looking to predicate offense when VICAR conviction hinges on underlying crime)