The appeal comes after the high court made it harder to enhance prison terms for a crime of violence.
The Supreme Court seemed unmoved by an alleged Genovese crime family associate’s argument that his conviction for attempted murder does not count as a crime of violence because no physical force was used.
The justices heard during oral argument on Nov. 12 in the case of Salvatore “Fat Sal” Delligatti, who is challenging a conviction that added five years to his prison sentence.
The section authorizes enhanced punishments for using a firearm in connection with a crime of violence.
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As predicates on which to base the charge, the government relied on four of the other charged offenses. A predicate is an event that takes place before an offense and serves as the basis for a conviction or sentence enhancement.
Delligatti moved to dismiss before the trial, arguing that none of the charged predicates qualified as crimes of violence under the law.
The federal district court denied his motion, finding that the other offenses were valid predicates.
A federal jury in New York convicted Delligatti of all charges in March 2018 and he was sentenced to 300 months in prison.
The U.S. Court of Appeals for the Second Circuit affirmed the conviction in October 2023.
Prosecutors said Delligatti hired members of the Crips gang through a third party to carry out a contract killing and provided a revolver for that purpose.
Delligatti argues that the firearms possession count under the Hobbs Act doesn’t count as a crime of violence. While his appeal was pending, the Supreme Court ruled in United States v. Davis (2019) that the relevant section of the Hobbs Act was unconstitutional.
Delligatti’s attorney Allon Kedem told the justices during oral argument on Nov. 12 that a person cannot be convicted of a violent crime based on inaction.
“Using physical force against another requires taking some step to bring force into contact with the victim,” Kedem said. “That can happen directly, as with a kick or a punch, or indirectly, such as giving a gentle push to someone teetering on the edge of a cliff. But it does not involve an offense that can be committed by pure omission, such as failing to render aid to someone suffering from a natural disorder.”
Several justices pushed back.
Justice Elena Kagan said, what if “I knew that there was something in the refrigerator which had gone very bad and it was completely toxic and I said to my worst enemy: why don’t you eat that cake in the refrigerator?”
Kedem replied that “tricking” a person into eating something poisonous “would count as use of violent physical force.”
Justice Neil Gorsuch posed the example of allowing a “little old lady” to fall into an open manhole.
“Would that, in your view, fall within the government’s understanding of what would qualify as … the application of violent force?”
Kedem said, “It would have to.”
“The government’s view essentially is anytime you have a bad result, you know that there must have been violent physical force, which means that not only would the death or other injury in your example be violent physical force, it would also be involved in literally every death since the beginning of time.”
Deputy Solicitor General Eric Feigin told the justices, “It’s hard to believe that we’re actually here debating whether murder is a crime of violence.”
“There’s really no basis in law or logic to draw a distinction between the person who gently sprinkles poison in the cup and the person who, hating the victim, just withholds the antidote,” he said.
Here Delligatti is asking the court “to discard literally two millennia of common law that treat acts of omission just like other acts.”
Justice Clarence Thomas said the court normally thinks “of force as coming from the perpetrator, not from some outside force, like gravity or some internal disease.”
Delligatti’s argument “actually … does have a common-sense value to it,” Thomas said.
Justice Ketanji Brown Jackson asked Feigin if a lifeguard refuses to rescue a child in a swimming pool whom she “hates,” was it the government’s position “that she uses physical force against this kid?”
Feigin answered “yes.”
Kagan told the lawyer the argument that “murder is not a crime of violence … seems pretty absurd.”
That a lifeguard “is just sitting up there watching somebody, is using physical force. That seems pretty weird too,” she said.
The Supreme Court is expected to rule on the case by June 2025.
