United States v. Pastore

83 F.4th 113

UNITED STATES of America, Appellee, v. Steven PASTORE, Salvatore Delligatti, Defendants-Appellants.

No. 18-2482(L)

No. 18-2610(Con)

August Term 2019

United States Court of Appeals, Second Circuit

Argued: November 18, 2019

Amended: October 2, 2023

Decided: June 8, 2022

Appeal from the United States District Court for the Southern District of New York, No. 15-cr-491, Katherine B. Forrest, Judge.

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.

Before: Walker, Sullivan, and Nathan, Circuit Judges.^*

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 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, — U.S. —, 139 S. Ct. 2319, 204 L.Ed.2d 757 (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.

Shortly after our disposition of this appeal, but before the mandate issued, the Supreme Court issued its decision in United States v. Taylor, — U.S. —, 142 S. Ct. 2015, 213 L.Ed.2d 349 (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 out-come 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 "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 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 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 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. 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...