18-2482(L) United States v. Pastore
United States Court of Appeals for the Second Circuit
August Term 2019
Argued: November 18, 2019 Decided: June 8, 2022 Amended: October 2, 2023
Nos. 18-2482(L), 18-2610(Con)
UNITED STATES OF AMERICA,
Appellee,
v.
STEVEN PASTORE, SALVATORE DELLIGATTI,
Defendants-Appellants.
Appeal from the United States District Court for the Southern District of New York No. 15-cr-491, Katherine B. Forrest, Judge.
Before: WALKER, SULLIVAN, and NATHAN, Circuit Judges. *
*At the time this case was argued, Judge Nathan was a district judge on the United States District Court for the Southern District of New York, sitting by designation. Defendant-Appellant Salvatore Delligatti appeals from a judgment of conviction entered by the United States District Court for the Southern District of New York (Forrest, J.) on charges including attempted murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5), and possession of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(i). Delligatti argues that his firearms conviction should be vacated because the predicate offenses on which the conviction was based are not “crimes of violence” in light of United States v. Davis, 139 S. Ct. 2319 (2019), and United States v. Taylor, 142 S. Ct. 2015 (2022). We conclude that Delligatti’s section 924(c) conviction remains valid even after Davis and Taylor because one of the predicate offenses underlying the conviction – attempted murder in aid of racketeering – is a categorical crime of violence. For the reasons stated herein and in our prior summary order, United States v. Pastore, Nos. 18-2482(L), 18-2610(Con), 2022 WL 2068434 (2d Cir. June 8, 2022), which disposed of Delligatti’s other challenges along with those of his co-defendant, Steven Pastore, we AFFIRM the judgment of the district court.
AFFIRMED.
VIVIAN SHEVITZ (Larry J. Silverman, on the brief), South Salem, NY, for Appellant Steven Pastore.
LUCAS ANDERSON, Rothman, Schneider, Soloway & Stern, LLP, New York, NY, for Appellant Salvatore Delligatti.
JORDAN L. ESTES (Samson A. Enzer, Jason M. Swergold, Karl N. Metzner, Won S. Shin, on the brief), Assistant United States Attorneys, for Damian Williams, United States Attorney for the Southern District of New York, New York, NY, for Appellee.
2 RICHARD J. SULLIVAN, Circuit Judge:
This appeal requires us to determine whether attempted murder in aid of
racketeering, in violation of 18 U.S.C. § 1959(a)(5), is a crime of violence as defined
in 18 U.S.C. § 924(c)(1)(A)(i). Defendant-Appellant Salvatore Delligatti was
convicted after a jury trial in the United States District Court for the Southern
District of New York (Forrest, J.) on charges arising from his participation in a
well-known racketeering enterprise known as the Genovese Crime Family. The
government established at trial that, as an associate in the enterprise, Delligatti had
participated in a range of criminal conduct that included extortion, conspiracy to
commit murder, attempted murder, and the operation of an illegal gambling
business.
The jury found Delligatti guilty of racketeering conspiracy, in violation of a
provision of the Racketeer Influenced and Corrupt Organizations Act (“RICO”),
18 U.S.C. § 1962(d) (Count One); conspiracy to commit murder in aid of
racketeering and attempted murder in aid of racketeering, in violation of a
provision of the Violent Crimes in Aid of Racketeering (“VICAR”) statute,
18 U.S.C. § 1959(a)(5) (Counts Two and Three); conspiracy to commit murder for
hire, in violation of 18 U.S.C. § 1958 (Count Four); operating an illegal gambling
3 business, in violation of 18 U.S.C. § 1955 (Count Five); and using and carrying a
firearm during and in relation to a crime of violence, and possessing a firearm in
furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count
Seven). The district court sentenced him to an aggregate term of 300 months’
imprisonment.
Delligatti timely appealed, raising several challenges to his conviction and
sentence. On June 8, 2022, we affirmed the district court in all respects in an
opinion and simultaneously issued summary order.1 Our opinion considered
whether, in the wake of United States v. Davis, 139 S. Ct. 2319 (2019), Delligatti’s
section 924(c) conviction was still validly based on a predicate “crime of violence.”
See United States v. Pastore, 36 F.4th 423, 426 (2d Cir. 2022). 2 We concluded that it
was, because one of the predicate offenses underlying his section 924(c)
conviction – attempted murder in aid of racketeering, premised on attempted
murder under New York law – was a crime of violence. See id. at 427–30.
1 Delligatti’s appeal was consolidated with the appeal of his co-defendant, Steven Pastore. Pastore’s challenges were addressed in our June 8, 2022 summary order, which was issued in tandem with the Court’s original opinion. 2 Our prior opinion in this case was delayed by the panel’s need to await its turn in a queue of cases impacted by the Supreme Court’s ruling in Davis interpreting the term “crime of violence” in section 924(c). See United States v. Laurent, 33 F.4th 63, 73 n.3 (2d Cir. 2022).
4 Shortly after our disposition of this appeal, but before the mandate issued,
the Supreme Court issued its decision in United States v. Taylor, 142 S. Ct. 2015
(2022). On June 27, 2022, Delligatti filed a petition for a panel rehearing or
rehearing en banc, arguing primarily that our opinion was inconsistent with the
Supreme Court’s reasoning in Taylor. Thereafter, a hold was placed on Delligatti’s
petition, as the panel waited in a post-Taylor “crime of violence” queue. Although
neither Taylor nor any of our post-Taylor precedents affect the outcome of our prior
opinion, we nevertheless grant Delligatti’s petition for rehearing, withdraw our
original opinion of June 8, 2022, and issue this amended opinion, which includes
only minor changes to address the arguments made by Delligatti in light of Taylor. 3
I. Background
The Genovese Crime Family (the “Family”) is one of five crime families that
make up the larger criminal network known as “La Cosa Nostra” in New York.
The Family operates through a well-defined hierarchical structure. The
“administration,” headed by the “boss,” runs the Family and oversees various
3Delligatti’s petition also raises an additional argument – namely, that the government’s evidence was not sufficient to prove an “enterprise” as required to convict him of his racketeering charges. We have considered this argument, which we reject for the reasons outlined in our June 8, 2022 summary order. See United States v. Pastore, No. 18-2482, 2022 WL 2068434, at *1 (2d Cir. June 8, 2022).
5 “captains” who run crews made up of “soldiers” and “associates.” While both
soldiers and associates serve the Family, only soldiers are formally inducted as –
or “made” – members of the Family; associates are nevertheless involved in illegal
activity with members of the Family and may receive protection from inducted
members.
Delligatti was associated with members of the Family as early as 2008. By
2014, he was working as an associate under Robert DeBello, a soldier who operated
in the Whitestone neighborhood of Queens. DeBello provided protection and
resources to Family members and associates like Delligatti. In return, he received
a cut of the proceeds from their illegal activities. While working under DeBello,
Delligatti participated in a variety of criminal activities along with other members
and associates in the Family, including associates Ryan Ellis and Robert Sowulski.
During this time, Delligatti and others connected to the Family frequented
a local gas station owned by Luigi Romano. Romano was apparently having
problems with Joseph Bonelli, a neighborhood bully who had been “terrorizing”
him and stealing from his gas station. Delligatti App’x at 367; see id. at 341. In
addition to his menacing Romano, Bonelli was also suspected of cooperating
against “known bookies in the neighborhood,” which made him a potential threat
6 to the criminal activities of the Family, its members, and its associates. Id. at 341.
Around May 2014, at Romano’s request, Delligatti organized a plot to murder
Bonelli. Romano paid Delligatti in advance for the hit, and Delligatti shared a
portion of this payment with DeBello after receiving his permission to carry out
the crime.
Although DeBello had given Delligatti permission to kill Bonelli, Delligatti
ultimately paid another man – Kelvin Duke – $5,000 to coordinate the murder with
several members of the “Crips” gang. Delligatti also provided a gun and a car for
Duke and the murder crew to use in their scheme. The car came from Robert
Sowulski, who agreed to give Delligatti his car to do “something illegal” before
disposing of it permanently. Id. at 339. Sowulski planned to report the vehicle as
stolen and collect insurance money after Delligatti finished using it for his own
criminal purposes.
After receiving the car and gun from Delligatti, Duke and his crew drove to
Bonelli’s house and positioned themselves in a nearby parking lot to wait for his
return. As Bonelli arrived home with a female companion, the crew watched and
waited for the right moment to shoot; they eventually abandoned their plan,
however, because too many potential witnesses were in the vicinity. Upon
7 learning that Duke and his men had failed, Delligatti tried to convince them to
return at once to shoot both Bonelli and his companion in Bonelli’s home, but the
crew refused. Delligatti then insisted that the men return the following day to try
again. The crew agreed and drove to the same location the next day, but this
second attempt was thwarted when law enforcement officers who had learned of
the plot arrested the would-be murderers following a car stop.
Shortly after the arrest of the murder crew, Delligatti met with several of his
co-conspirators and others in the Family to discuss the botched murder attempt.
First, he met with Sowulski and Ellis. The three men agreed that Sowulski should
still report his car as stolen, which he did later that night. Delligatti next met up
with Romano and Duke, who had been released on bail. At this meeting, Delligatti
and Romano informed Duke that their intended victim, Bonelli, was “really
[becoming] a problem” and had threatened them after learning of the murder plot.
Id. at 153. Later that day, Delligatti suggested that he and Duke stay in contact so
that “maybe [they] could plan to get rid of [Bonelli] for good.” Id. at 154.
In May 2017, after a series of indictments and arrests, the grand jury
returned a superseding indictment against Delligatti and a number of co-
conspirators including DeBello and Ellis. The indictment charged Delligatti with
8 racketeering conspiracy, conspiracy to commit murder in aid of racketeering and
attempted murder in aid of racketeering, conspiracy to commit murder for hire,
operating an illegal gambling business, and using and carrying a firearm in
relation to – and possessing a firearm in furtherance of – a crime of violence.
Delligatti proceeded to trial and was convicted of all six charges in March 2018.
The district court ultimately sentenced him to a term of 300 months’
imprisonment, to be followed by three years of supervised release.
II. Discussion
On appeal, Delligatti argues that his conviction for possessing a firearm in
furtherance of a crime of violence should be vacated because Counts One through
Four – the predicate offenses upon which that conviction relied – are not “crimes
of violence” in light of United States v. Davis and related decisions of the Supreme
Court. 4 In Davis, the Supreme Court held that 18 U.S.C. § 924(c)(3)(B), often called
section 924(c)’s “residual clause,” is unconstitutionally vague. 139 S. Ct. at 2336.
4When the parties first submitted briefing in this case, Davis had not yet been decided. Delligatti therefore relied on other Supreme Court decisions in which the Court had considered similarly worded residual clauses in other statutes and had held that those clauses were unconstitutionally vague. See, e.g., Sessions v. Dimaya, 138 S. Ct. 1204, 1211, 1223 (2018) (holding that 18 U.S.C. § 16(b), the “residual clause” in the provision defining a “crime of violence” as incorporated into the Immigration and Nationality Act, is unconstitutionally vague); Johnson v. United States, 576 U.S. 591, 597–606 (2015) (holding the same with respect to 18 U.S.C. § 924(e)(2)(B)(ii), the “residual clause” of the provision defining a “violent felony” under the Armed Career Criminal Act).
9 The question now before us is whether any of the predicate crimes underlying
Delligatti’s section 924(c) conviction are “crimes of violence” under
section 924(c)’s remaining “elements” clause.
The elements clause of section 924(c) defines a “crime of violence” as a
felony that “has as an element the use, attempted use, or threatened use of physical
force against the person or property of another.” 18 U.S.C. § 924(c)(3)(A). “To
determine whether an offense is a crime of violence” under the elements clause,
“courts employ what has come to be known as the ‘categorical approach.’” United
States v. Hill, 890 F.3d 51, 55 (2d Cir. 2018). Under this approach, we do not
consider the particular facts before us; rather, we “identify the minimum criminal
conduct necessary for conviction under a particular statute” by “look[ing] only to
the statutory definitions – i.e., the elements – of [the] offense.” Id. (internal
quotation marks omitted). We then evaluate whether this minimum conduct falls
within the definition of “a crime of violence under [section] 924(c)(3)(A).” Id. at
56.
Although determining the elements of a particular statute is usually a
straightforward endeavor, that is not always the case. For certain statutes that “list
elements in the alternative, and thereby define multiple crimes,” we have deemed
10 the statute to be divisible and applied a “modified” categorical approach.
Mathis v. United States, 136 S. Ct. 2243, 2249 (2016). Under the modified categorical
approach, we may review “‘a limited class of documents’ from the record of
conviction to ‘determine what crime, with what elements, a defendant was
convicted of.’” Gray v. United States, 980 F.3d 264, 266 (2d Cir. 2020) (quoting
Mathis, 136 S. Ct. at 2249); see United States v. Moore, 916 F.3d 231, 238 (2d Cir. 2019)
(explaining that courts may consult “the indictment, jury instructions, or plea
agreement and colloquy” to determine the offense of conviction (internal
quotation marks omitted)). We “then return to the categorical analysis and
compare the elements of the offense of conviction with” section 924(c)(3)(A)’s
definition of a crime of violence. Moore, 916 F.3d at 238.
To determine whether Delligatti’s section 924(c) charge is properly based on
a crime of violence, we must determine whether any one of the section 924(c)
predicate offenses listed in his indictment – racketeering conspiracy, conspiracy to
commit murder in aid of racketeering, attempted murder in aid of racketeering,
and murder-for-hire conspiracy – “categorically involve[s] the use of force.”
United States v. Martinez, 991 F.3d 347, 354 (2d Cir.), cert. denied, 142 S. Ct. 179 (2021);
see also United States v. Walker, 789 F. App’x 241, 244–45 (2d Cir. 2019). Our most
11 recent caselaw has made clear that the three conspiracy offenses do not. In United
States v. Laurent, we squarely held that “a RICO conspiracy cannot qualify as a
crime of violence, even if marked by violence or directed to violent objectives.”
33 F.4th 63, 86 (2d Cir. 2022); see United States v. Capers, 20 F.4th 105, 117–18 (2d
Cir. 2021) (holding same); Martinez, 991 F.3d at 354 (assuming same, without
expressly so deciding); see also United States v. Heyward, 3 F.4th 75, 82, 85 (2d Cir.
2021) (“[C]onspiracy to murder is not a qualifying offense under [section] 924(c).”).
Therefore, we must decide whether a substantive VICAR count for attempted
murder in aid of racketeering under 18 U.S.C. § 1959(a)(5) may constitute a valid
predicate crime of violence for purposes of section 924(c).
To answer that question, we must first clarify whether substantive VICAR
offenses should be analyzed under the modified categorical approach after Davis.
We recently held that substantive RICO offenses are subject to the modified
categorical approach. Laurent, 33 F.4th at 87–89; see id. at 89 (“[A]pplying a
modified categorical approach to a substantive RICO conviction makes good sense
given that (1) RICO requires that the specific crimes constituting the ‘pattern’ of
the racketeering enterprise be identified in the charging instrument and proven
beyond a reasonable doubt, and (2) sets forth distinct penalties for different
12 categories of underlying violations.” (citing Martinez, 991 F.3d at 356–57)). And
we see no reason why the same mode of analysis should not apply to substantive
offenses under the related VICAR statute. After all, VICAR complements RICO,
and the statutes are similarly structured. See United States v. Concepcion, 983 F.2d
369, 380–81 (2d Cir. 1992); see also S. Rep. No. 225, 98th Cong., 1st Sess. 304–07
(1983). Accordingly, we now hold that the modified categorical approach applies
to substantive VICAR offenses, and that “a substantive [VICAR] offense is a crime
of violence when predicated on at least one violent [crime in aid of] racketeering
act[s].” Laurent, 33 F.4th at 88.
Applying the modified categorical approach, we further hold that
Delligatti’s substantive VICAR conviction for attempted murder in aid of
racketeering under 18 U.S.C. § 1959(a)(5) – itself predicated, in this case, on
attempted murder in violation of New York law – is a valid predicate crime of
violence under section 924(c). Delligatti’s substantive VICAR offense “hinge[s]
on” the underlying predicate offense, and so “we look to th[at] predicate offense[]
to determine whether” Delligatti was charged with and convicted of a crime of
violence. United States v. Ivezaj, 568 F.3d 88, 96 (2d Cir. 2009); see also United States
v. White, 7 F.4th 90, 104 (2d Cir. 2021). Delligatti’s superseding indictment
13 specified that the 18 U.S.C. § 1959(a)(5) charge was predicated on his having
“knowingly attempted to murder [a victim]” in violation of New York State Penal
Law §§ 20.00, 110.00, 125.25. See Delligatti App’x at 53–54. At trial, Delligatti was
convicted of attempting to commit murder under N.Y. Penal Law § 125.25(1),
which states that a “person is guilty of murder in the second degree” when he has
“intent to cause the death of another person, [and] he causes the death of such
person or of a third person.” 5 There is no question that intentionally causing the
death of another person involves the use of force. See United States v. Castleman,
572 U.S. 157, 169 (2014) (“[T]he knowing or intentional causation of bodily injury
necessarily involves the use of physical force.”); Scott, 990 F.3d at 98–99, 110
(holding that first-degree manslaughter under N.Y. Penal Law § 125.20(1), “a
homicide crime second only to murder [under section 125.25] in its severity,” is
categorically a crime of violence because it requires intent to cause “serious
physical injury” and results in the death of another); Stone v. United States, 37 F.4th
5Section 125.25 “list[s] elements [for second-degree murder] in the alternative,” Mathis, 136 S. Ct. at 2249, and the district court’s jury instructions made clear that Delligatti was convicted under section 125.25(1), see Delligatti App’x at 439 (instructing the jury that “[i]n order . . . to find that a person committed murder under New York law, the government must prove beyond a reasonable doubt that . . . the individual caused the death of [a] victim or aided and abetted the same; and . . . that the individual did so with the intent to cause the death of the victim or another person”). We therefore consider only that provision in our discussion of murder in the second degree. See Moore, 916 F.3d at 238; cf. United States v. Scott, 990 F.3d 94, 99 n.1 (2d Cir.) (en banc), cert. denied, 142 S. Ct. 297 (2021).
14 825, 833 (2d Cir. 2022) (holding that murder in the second degree under N.Y. Penal
Law § 125.25(1) is categorically a crime of violence).
We have already recognized that attempt under New York law requires
both “intent to commit the crime and an action taken by an accused so near [to]
the crime’s accomplishment that in all reasonable probability the crime itself
would have been committed.” United States v. Tabb, 949 F.3d 81, 86 (2d Cir.)
(internal quotation marks and alterations omitted), cert. denied, 141 S. Ct. 2793
(2021). Thus, where an individual attempts to commit a crime of violence, “this
latter element of New York attempt categorically requires that a person take a
substantial step toward the use of physical force.” Id. (internal quotation marks
omitted); see also United States v. Thrower, 914 F.3d 770, 776–77 (2d Cir. 2019).
Applying this logic in Tabb, we concluded that because assault in the second
degree under N.Y. Penal Law § 120.05(2) is a crime of violence involving the use
of force, attempt to commit assault in the second degree is also categorically a crime
of violence. 949 F.3d at 83–86. Likewise, because second-degree murder under
New York law is a crime of violence, there can be no doubt that attempt to commit
second-degree murder under New York law is itself categorically a crime of
violence.
15 The Supreme Court’s recent decision in Taylor does not alter this conclusion.
There, the Supreme Court held that attempted Hobbs Act robbery is not a crime
of violence under the elements clause of section 924(c). Taylor, 142 S. Ct. at 2021.
That is because one element of completed Hobbs Act robbery is that the defendant
must take property “by means of actual or threatened force.” Id. at 2020 (quoting
18 U.S.C. § 1951(b)) (emphasis added). It follows then that attempted Hobbs Act
robbery can be committed through the attempted threat of force – which need not
involve the “use, attempted use, or threatened use of physical force,” 18 U.S.C.
§ 924(c)(3)(A), as is required for a section 924(c) conviction under the elements
clause, see Taylor, 142 S. Ct. at 2021.
Here, unlike Hobbs Act robbery, the crime of second-degree murder cannot
be committed through the mere threat of force and must instead involve the actual
use of force. See Stone, 37 F.4th at 833; Castleman, 572 U.S. at 169; Scott, 990 F.3d at
98–99, 110. Accordingly, a conviction for attempted murder categorically means
that the defendant took a “substantial step toward the use of physical force” – and
not just a substantial step toward the threatened use of physical force. Tabb,
949 F.3d at 86 (internal quotation marks omitted). Since attempted murder
requires both an intent to use physical force and a substantial step towards the use
16 of physical force, it satisfies the “attempted use . . . of physical force” element
under section 924(c), 18 U.S.C. § 924(c)(3)(A), and thereby qualifies as a crime of
violence. Indeed, our decision today is in line with those of our sister Circuits,
which have held that other attempted-murder offenses are crimes of violence
under section 924(c), even in the wake of the Supreme Court’s decision in Taylor.
See Alvarado-Linares v. United States, 44 F.4th 1334, 1346–48 (11th Cir. 2022)
(explaining that, unlike attempted Hobbs Act robbery, VICAR attempted murder
and attempted murder under Georgia law are still crimes of violence because they
necessarily involve the “attempt[] to use force” and not just the “attempt to
threaten” the “use of force”); see also United States v. States, 72 F.4th 778, 787–91
(7th Cir. 2023) (holding that attempted murder of a federal officer under 18 U.S.C.
§§ 1113–14 remains a crime of violence after Taylor); Dorsey v. United States, 76 F4th
1277, 1282–84 (9th Cir. 2023) (holding that witness tampering by “attempt[ing] to
kill another person” under 18 U.S.C. § 1512(a)(1), like “attempted first-degree
murder under Washington state law,” constitutes a crime of violence, and noting
that “Taylor does not hold that attempt crimes are categorically not crimes of
violence” (internal quotation marks omitted)).
17 Delligatti nevertheless argues that attempted murder is not a crime of
violence because it can be committed “by way of affirmative acts or omissions.”
Delligatti Br. at 48. This argument fails in light of our recent en banc decision in
Scott. There, we rejected a similar argument regarding first-degree manslaughter
by omission, explaining that “whether a defendant acts by commission or
omission, in every instance, it is his intentional use of physical force against the
person of another that causes death.” Scott, 990 F.3d at 123. Further, in rejecting
Scott’s argument, this Court specifically pointed out the absurdity of an argument
that, “carried to its logical – or illogical – conclusion, would preclude courts from
recognizing even intentional murder [under N.Y. Penal Law § 125.25(1)] as a
categorically violent crime.” Id. at 100.
Because Delligatti’s conviction for attempted murder in aid of racketeering
under 18 U.S.C. § 1959(a)(5) is premised on the predicate crime of attempted
murder under New York law, which constitutes a crime of violence as defined in
the elements clause of section 924(c), we conclude that Delligatti’s conviction for
attempted murder in aid of racketeering under section 1959(a)(5) is necessarily a
crime of violence. See White, 7 F. 4th at 104 & n.75; Ivezaj, 568 F.3d at 96. Since this
conviction for attempted murder in aid of racketeering serves as one of the
18 predicate offenses underlying Delligatti’s section 924(c) conviction, we uphold the
section 924(c) conviction and affirm the judgment of the district court.
III. Conclusion
For the foregoing reasons, we conclude that Delligatti’s section 924(c)
conviction remains valid in the wake of Davis and Taylor. Accordingly, we
AFFIRM the judgment of the district court.