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

Nos. 18-2482(L), 18-2610(Con)

UNITED STATES OF AMERICA,

Appellee,

v.

STEVEN PASTORE, SALVATORE DELLIGATTI,

Defendant-Appellant. *

Appeal from the United States District Court for the Southern District of New York No. 18-cv-182, Katherine B. Forrest, Judge.

Before: WALKER, SULLIVAN, Circuit Judges, and NATHAN, District Judge. †

Defendant-Appellant Salvatore Delligatti appeals from a judgment of conviction entered by the United States District Court for the Southern District of

* The Clerk of Court is respectfully directed to amend the caption as set forth above. †Judge Alison J. Nathan, of the United States District Court for the Southern District of New York, sitting by designation at the time this case was heard. New York (Forrest, J.) on charges including attempted murder in aid of racketeering, in violation of

(a)(5), and possession of a firearm in furtherance of a crime of violence, in violation of

(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,

(2019). We conclude that Delligatti’s section 924(c) conviction remains valid even after Davis 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 the accompanying summary order, which disposes 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), Attorneys at Law, South Salem, NY, for Appellant Steven Pastore. LUCAS ANDERSON, Rothman, Schneider, Soloway & Stern, LLP, New York, NY, for Appellant Salvatore Delligati. JORDAN L. ESTES, Assistant United States Attorney (Samson Enzer, Jason M. Swergold, Karl Metzner, Assistant United States Attorneys, on the brief), for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY, for Appellee United States of America.

SULLIVAN, Circuit Judge:

This appeal requires us to determine whether attempted murder in aid of

racketeering, in violation of

(a)(5), is a crime of violence as defined

2 in

(c)(1)(A)(i). 1 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”),

(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 Act (“VICAR”),

(a)(5) (Counts Two and Three); conspiracy to commit murder for hire, in

violation of

(Count Four); operating an illegal gambling business,

in violation of

(Count Five); and using and carrying a firearm

1Decision of this case was delayed by the panel’s need to await its turn in a queue of cases pending in this Circuit resolving questions arising from the Supreme Court’s ruling in United States v. Davis,

(2019), interpreting “crime of violence.” See United States v. Laurent,

, 73 n.3 (2d Cir. 2022).

3 during and in relation to a crime of violence, and possessing a firearm in

furtherance of a crime of violence, in violation of

(c)(1)(A)(i) (Count

Seven). The district court sentenced him to a term of 300 months’ imprisonment.

On appeal, Delligatti raises several challenges to his conviction and

sentence. The Court addresses only one of Delligatti’s challenges in this opinion

and resolves his remaining arguments in a simultaneously issued summary

order. 2 Here we consider only whether, in the wake of United States v. Davis,

(2019), Delligatti’s section 924(c) conviction is still validly based on a

predicate “crime of violence.” We conclude that it is, because one of the predicate

offenses underlying the section 924(c) conviction – attempted murder in aid of

racketeering, premised on attempted murder under New York law – is a crime of

violence. Accordingly, we affirm the judgment of the district court.

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

2Delligatti’s appeal was consolidated with the appeal of his co-defendant, Steven Pastore. Pastore’s challenges are addressed in the summary order issued in in tandem with this opinion.

4 “captains” who run crews made up of “soldiers” and “associates.” While both

soldiers and associates serve the Family, only soldiers are formally inducted – 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 made members of the Family as early as 2008.

[A56.] 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

5 against “known bookies in the neighborhood,” which made him a potential threat

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 personally,

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,

6 however, because too many potential witnesses were in the vicinity. Upon

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-

7 conspirators including DeBello and Ellis. The indictment charged Delligatti with

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. 3 In Davis, the Supreme Court held that

(c)(3)(B), often called

3When 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 considered similarly worded residual clauses in other statutes and held that those clauses were unconstitutionally vague. See, e.g., Sessions v. Dimaya,

(2018) (holding that

(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,

, 597–606 (2015) (holding the same with respect to

(e)(2)(B)(ii), the “residual clause” of the provision defining a “violent felony” under the Armed Career Criminal Act).

8 section 924(c)’s “residual clause,” is unconstitutionally vague.

.

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.”

(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,

(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.”

(second

alteration in original) (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).”

.

Although determining the elements of a particular statute is usually a

straightforward endeavor, that is not always the case. For certain statutes that “list

9 elements in the alternative, and thereby define multiple crimes,” we have deemed

the statute to be divisible and applied a “modified” categorical approach.

Mathis v. United States,

(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,

(2d Cir. 2020) (quoting

Mathis,

); see United States v. Moore,

(2d Cir. 2019)

(explaining that courts may consult “the indictment, jury instructions, or plea

agreement and colloquy” to determine the offense of conviction (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,

.

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,

(2d Cir.), cert. denied,

(2021);

10 see also United States v. Walker,

, 244–45 (2d Cir. 2019). Our most

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.”

(2d Cir. 2022); see United States v. Capers,

, 117–18 (2d Cir.

2021) (holding same); Martinez,

(assuming same, without expressly

so deciding); see also United States v. Heyward,

, 82, 85 (2d Cir. 2021)

(“[C]onspiracy to murder is not a qualifying offense under [section] 924(c).”

(emphasis in original)). Therefore, we must decide whether a substantive VICAR

count for attempted murder in aid of racketeering under

(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

(“[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

11 beyond a reasonable doubt, and (2) sets forth distinct penalties for different

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,

, 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,

.

Applying the modified categorical approach, we further hold that

Delligatti’s substantive VICAR conviction for attempted murder in aid of

racketeering under

(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,

(2d Cir. 2009); see also United States

12 v. White,

(2d Cir. 2021). Delligatti’s superseding indictment

specified that the

(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

(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.” 4 There is no question that intentionally causing the

death of another person involves the use of force. See United States v. Castleman,

(2014) (“[T]he knowing or intentional causation of bodily injury

necessarily involves the use of physical force.”); United States v. Scott,

,

98–99, 110 (2d Cir.) (en banc), cert. denied,

(2021) (holding that first

degree manslaughter under

(1), “a homicide crime second

only to murder [under section 125.25] in its severity,” is categorically a crime of

4Section 125.25 “list[s] elements [for second degree murder] in the alternative,” Mathis,

, and the district court’s jury instructions made clear that Delligatti was convicted under § 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,

; cf. United States v. Scott,

, 99 n.1 (2d Cir.) (en banc), cert. denied,

(2021).

13 violence because it requires intent to cause “serious physical injury” and results in

the death of another).

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,

(2d Cir.)

(internal quotation marks and alterations omitted); cert. denied,

(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.”

(internal quotation marks

omitted); see also United States v. Thrower,

, 776–77 (2d Cir. 2019).

Applying this logic in Tabb, we concluded that because assault in the second

degree under

(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.

14 Delligatti 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

(emphasis in original). This argument fails in light of our recent en banc decision

in United States v. 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.”

. 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

(1)] as a categorically violent crime.”

.

Because Delligatti’s conviction for attempted murder in aid of racketeering

under

(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 necessarily conclude that Delligatti’s

conviction for attempted murder in aid of racketeering under section 1959(a)(5) is

a crime of violence. See White,

& n.75; Ivezaj,

. Since

this conviction for attempted murder in aid of racketeering serves as one of the

15 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. Accordingly, we AFFIRM the

judgment of the district court.

16