Amicus Curiae Brief — Salvatore Delligatti, Petitioner v. United States

No. 23-825

IN THE

Supreme Court of the United States

SALVATORE DELLIGATTI,

Petitioner,

v.

UNITED STATES,

Respondent.

On Writ of Certiorari to the United States Court of

Appeals for the Second Circuit

BRIEF OF NATIONAL ASSOCIATION FOR

PUBLIC DEFENSE AS AMICUS CURIAE IN

SUPPORT OF PETITIONER

Emily Hughes

NATIONAL ASSOCIATION

FOR PUBLIC DEFENSE

130 Byington Road

Iowa City, IA 52242

Daniel Woofter

Counsel of Record

GOLDSTEIN, RUSSELL &

WOOFTER LLC

1701 Pennsylvania Ave. NW

Suite 200

Washington, DC 20006

(202) 240-8433

dw@goldsteinrussell.com

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICUS CURIAE ............................ 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ............................................................... 2

ARGUMENT ............................................................... 3

I.

Crimes That Require No Physical Action,

Like New York Second Degree Murder, Are

Not Predicate Offenses Under The Force

Clauses Of Section 924. ........................................ 3

II. Congress Has Not Amended The Force

Clauses Of Section 924 Since This Court

Announced The Categorical Approach Over

Thirty Years Ago. .................................................. 8

CONCLUSION .......................................................... 11

ii

TABLE OF AUTHORITIES

Cases

Bailey v. United States,

516 U.S. 137 (1995)..................................................3

Johnson v. United States,

559 U.S. 133 (2010)...................................... 4, 5, 6, 7

Leocal v. Ashcroft,

543 U.S. 1 (2004).......................................... 3, 4, 5, 7

Mathis v. United States,

579 U.S. 500 (2016)..............................................8, 9

Neal v. United States,

516 U.S. 284 (1996)..................................................9

Shepard v. United States,

544 U.S. 13 (2005)................................................8, 9

Taylor v. United States,

495 U.S. 575 (1990)..............................................2, 9

United States v. Castleman,

572 U.S. 157 (2014).................................. 4, 5, 6, 7, 8

United States v. Covington,

880 F.3d 129 (4th Cir. 2018) ...................................8

United States v. Harris,

289 A.3d 1060 (Pa. 2023) .......................................10

United States v. Harris,

68 F.4th 140 (3d Cir. 2023) .....................................7

United States v. Harris,

88 F.4th 458 (3d Cir. 2023) ................. 2, 7, 9, 10, 11

United States v. Kroll,

918 F.3d 47 (2d Cir. 2019) .....................................11

United States v. Mayo,

901 F.3d 218 (3d Cir. 2018) .....................................7

iii

United States v. Middleton,

883 F.3d 485 (4th Cir. 2018) ...................................4

United States v. Torres-Miguel,

701 F.3d 165 (4th Cir. 2012) ...................................8

Statutes

18 U.S.C. § 16(a) ..........................................................4

18 U.S.C. § 3559(e) ....................................................11

18 U.S.C. § 921(a)(33)(A)(ii) ........................................6

18 U.S.C. § 922(g)(9)....................................................5

18 U.S.C. § 924 ........................ 2, 4, 5, 6, 7, 8, 9, 10, 11

18 U.S.C. § 924(c)(3)(A) ....................................... 2, 3, 5

18 U.S.C. § 924(e) ................................................ 4, 5, 7

N.Y. Penal Law § 125.25 .............................................3

Rules

Supreme Court Rule 37 ...............................................1

1

INTEREST OF AMICUS CURIAE1

The National Association for Public Defense

(NAPD) is an association of more than 28,000

professionals who deliver the right to counsel

throughout all U.S. states and territories. NAPD

members include attorneys, investigators, social

workers, administrators, and other support staff who

are responsible for fulfilling the constitutional right to

effective assistance of counsel. NAPD’s members are

advocates in jails, in courtrooms, and in communities,

and are experts in not only theoretical best practices,

but also in the practical, day-to-day delivery of legal

services. Their collective expertise represents federal,

state, county, and local systems through full-time,

contract, and assigned counsel delivery mechanisms,

dedicated juvenile, capital and appellate offices, and a

diversity of traditional and holistic practice models. In

addition, NAPD hosts annual conferences and

webinars where discovery, investigation, crossexamination, and prosecutorial duties are addressed.

NAPD also provides training to its members

concerning zealous pretrial and trial advocacy and

strives to obtain optimal results for clients both at the

trial level and on appeal.

1

Pursuant to Supreme Court Rule 37, counsel for amicus

represents that he authored this brief in its entirety and that

none of the parties or their counsel, nor any other person or

entity other than amicus or its counsel, made a monetary

contribution intended to fund the preparation or submission of

this brief.

2

INTRODUCTION AND

SUMMARY OF ARGUMENT

NAPD’s members represent a broad cross-section

of the criminal defense bar. All have a strong interest

in this case because the Second Circuit incorrectly

held that a crime that can be committed with no action

at all “has as an element the use, attempted use, or

threatened use of physical force against the person or

property of another.” See Pet. App. 8a, 11a-12a

(quoting 18 U.S.C. § 924(c)(3)(A)). The Second

Circuit’s holding does violence to the text of

Section 924(c)(3)(A) and misapplies this Court’s

precedents—prejudicing NAPD’s members and those

they represent.

As the Third Circuit recently explained, a crime

cannot be a predicate offense under Section 924’s force

clauses when the statute of conviction can be

committed with no physical act at all. Thus, because

first-degree aggravated assault in Pennsylvania, for

example, can be accomplished by “‘omission,’” it “does

not include the use of force as an element. Period.

That should be the end of it.” United States v. Harris,

88 F.4th 458, 464 (3d Cir. 2023) (Jordan, J.,

concurring in denial of rehearing en banc, joined by

Chagares, C.J., and Hardiman, Krause, Bibas, Porter,

and Matey, JJ.) (rejecting government’s contrary

argument). This result may sometimes “be a source of

great frustration for the government.” See id. at 459.

But it is the “outcome” that “is compelled by

precedent” from this Court going back more than

thirty years. Ibid.; id at 466-70; see Taylor v. United

States, 495 U.S. 575 (1990). The government must

turn to Congress if it wants a different statute.

3

ARGUMENT

I.

Crimes That Require No Physical Action,

Like New York Second Degree Murder, Are

Not Predicate Offenses Under The Force

Clauses Of Section 924.

Everyone agrees that New York second degree

murder only counts as a “crime of violence” for

purposes of Section 924(c)(3)(A) if the crime “has as an

element the use, attempted use, or threatened use of

physical force against the person ... of another.” 18

U.S.C. § 924(c)(3)(A); see 18 U.S.C. § 924(e)(2)(B)(i)

(same as to “‘violent felony’”). Everyone also agrees

that the Court looks to the minimum conduct

necessary to be convicted of second degree murder

under New York’s penal statute, which provides that

“[a] person is guilty of murder in the second degree

when,” in various scenarios and with different levels

of intent, “he causes the death” of another person. See

N.Y. Penal Law § 125.25. And no one disputes that

second degree murder in New York can be committed

via omission. See Gov’t BIO 6-8; Pet. App. 12a-15a.

It is important to start, as always, with the text.

An offense is a predicate “crime of violence” for

purposes of Section 924(c)(3)(A) when it “has 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). Crimes that can be

committed by a complete lack of action do not require

a “use” of “physical force.” As this Court has held,

“‘use’” in this context “requires active employment.”

Leocal v. Ashcroft, 543 U.S. 1, 9 (2004) (quoting Bailey

v. United States, 516 U.S. 137, 145 (1995)). One

cannot “use physical force against” another by doing

4

nothing, any more than one can accidentally or even

recklessly “use” such force as the text of the force

clauses of Section 924 requires. See ibid. (holding that

negligently or accidentally causing damage does not

“use” force under analogous “crime of violence”

definition in 18 U.S.C. § 16(a)) (cleaned up); see also

Borden v. United States, 593 U.S. 420, 423 (2021)

(“The question here is whether a criminal offense can

count as a ‘violent felony’” under 18 U.S.C. § 924(e) “if

it requires only a mens rea of recklessness—a less

culpable mental state than purpose or knowledge. We

hold that a reckless offense cannot so qualify.”).

Indeed, describing complete inaction as the “use”

of “physical force” is perplexing—fairly described as a

“comical misfit” for Section 924’s text. See Johnson v.

United States, 559 U.S. 133, 145 (2010) (Johnson I) (so

holding as to nonviolent touching for purposes of

“‘violent felony’” definition in Section 924(e)). As the

Court explained in Johnson I, “the phrase ‘physical

force’ means violent force—that is, force capable of

causing physical pain or injury to another person.” Id.

at 140 (emphasis original). When one does nothing, it

is not a use of force at all, let alone a use of “violent

force.” If “[d]e minim[is] physical force, such as mere

offensive touching, is insufficient to trigger the

ACCA’s force clause because it is not violent,” United

States v. Middleton, 883 F.3d 485, 489 (4th Cir. 2018)

(explaining Johnson I), then no physical force

whatsoever (either direct or indirect) cannot be

considered “violent” force as required for force-clause

predicates under Section 924.

The Second Circuit cited United States v.

Castleman, 572 U.S. 157 (2014), to reason that the

harm to the victim is all that is required to show that

5

the defendant’s crime “involve[d] the use of force.” Pet.

App. 11a-12a. But that misunderstands Castleman.

Castleman did not purport to overrule Johnson I,

Leocal, or the like—which require the “active

employment” of “violent physical force.” On the

contrary, the Court expressly reserved the question.

See Castleman, 572 U.S. at 170 (whether resultant

injury

“necessitate[s]

violent

force,

under

Johnson[ I]’s definition of that phrase” is “a question

we do not decide”).

Rather, Castleman addressed (a) the level of force

necessary for a different statute that, unlike

Section 924(c)(3)(A), does not require violent force,

and (b) whether an active employment of force that

indirectly results in injury constitutes a use of force

against another, in the common-law sense. Castleman

simply doesn’t answer whether a failure to act

satisfies the force-clause requirement of Section 924.

Castleman dealt with the meaning of force as

defined for misdemeanor crimes of domestic violence

under 18 U.S.C. § 922(g)(9). As the Court noted, that

statute does not require the use of violent force, unlike

the force clauses of Section 924. Rather, in

distinguishing Section 924, the Court held that

Section 922(g)(9) only requires the de minimis level of

force that was required at common law. Castleman,

572 U.S. at 163-66 (distinguishing Johnson I, where

the Court “declined to read the common-law meaning

of ‘force’ into [Section 924(e)]’s definition of a ‘violent

felony,’ because we found it a ‘comical misfit with the

defined term’”). The Court explained that the word

“‘violence’ standing alone ‘connotes a substantial

degree of force,’” but domestic violence is not just a

type of “‘violence’” but rather “a term of art

6

encompassing acts that one might not characterize as

‘violent’ in a nondomestic context.” Id. at 164-65

(quoting Johnson I, 559 U.S. at 140). Castleman’s

conclusion that causing bodily injury required the

application of physical force was based on this broader

definition of “physical force,” as the Court repeatedly

emphasized. See, e.g., id. at 170 (“It is impossible to

cause bodily injury without applying force in the

common-law sense.” (emphasis added)); ibid. (“[T]he

common-law concept of ‘force’ encompasses even its

indirect application.” (emphasis added)).

And Castleman dealt with whether a

commission—not total inaction—could meet the force

clause of the misdemeanor crime of domestic violence

definition in 18 U.S.C. § 921(a)(33)(A)(ii), even if that

action injured the victim indirectly. Because, unlike

the force clauses in Section 924, the misdemeanor

crime of domestic violence definition imported the

common-law definition of force (the level rejected in

Johnson I), the Court had to grapple with whether the

common-law concept of force encompassed only direct

applications of force—such as a kick or punch—or

whether it also encompassed indirect applications of

force—such as poisoning someone’s food or drink. 572

U.S. at 170-71. “It was in that context that the Court

concluded, ‘it is impossible to cause bodily injury

without applying force in the common-law sense.’”

Mayo, 901 F.3d at 228 (quoting Castleman, 572 U.S.

at 170) (emphasis added; brackets removed); see also

Castleman, 572 U.S. at 170 (noting that the element

of “force” in common-law battery “need not be applied

directly to the body of the victim”) (citation omitted).

Castleman’s concept of “indirect force” focuses on

commissions—for example, employing poisons or

7

pulling the trigger on a gun—not omissions, and does

so in the context of a statute that only requires the

common-law concept of force, not the violent force

required under the force-clause predicates of

Section 924. Castleman did not address the issue

presented here: Whether causing injury without

applying any force at all, but by inaction, is a use of

violent (not common law) force. Leocal and Johnson I

answer that question in the negative.

Thus, as the Third Circuit recently explained, this

Court’s “Castleman decision involved the common-law

concept of force, and it ‘expressly reserved the

question of whether causing “bodily injury”

necessarily involves the use of “violent force” under

the ACCA.’” United States v. Harris, 68 F.4th 140, 148

(3d Cir. 2023) (quoting United States v. Mayo, 901

F.3d 218, 228 (3d Cir. 2018)); see also Mayo, 901 F.3d

at 230 (citing and quoting Castleman, 572 U.S. at

170-71, as “likening ‘the act of employing poison

knowingly as a device to cause physical harm’ or firing

a bullet at a victim, to ‘a kick or punch,’ as each act

involves the ‘application’ or ‘use of force,’ even though

the resulting harm might occur indirectly”). “[A]n act

of omission does not constitute an act of physical

force.” Id. at 146 (assessing a predicate offense under

Section 924(e)); see also United States v. Harris, 88

F.4th 458, 459 (3d Cir. 2023) (Jordan, J., concurring

in denial of rehearing en banc, joined by Chagares,

C.J., and Hardiman, Krause, Bibas, Porter, and

Matey, JJ.) (same). To conclude otherwise would

“conflate the infliction of bodily injury with physical

force.” Harris, 68 F.4th at 148. Cf. United States v.

Torres-Miguel, 701 F.3d 165, 168 (4th Cir. 2012)

(under sentencing guidelines, holding that “an offense

8

that results in physical injury, but does not involve the

use or threatened use of force, simply does not meet

the” force requirement), abrogated on other grounds

by Castleman as recognized in United States v.

Covington, 880 F.3d 129, 134 n.4 (4th Cir. 2018)

(“Castleman did not however abrogate the causation

aspect of Torres-Miguel ... .”). “Of course, a crime may

result in death or serious injury without involving use

of physical force.” Ibid. The Second Circuit

erroneously conflated the use of violent force—as

required by the force-clause predicates of Section 924

and not for the misdemeanor crime of violence

definition—with the causation of injury.

II. Congress Has Not Amended The Force

Clauses Of Section 924 Since This Court

Announced The Categorical Approach Over

Thirty Years Ago.

Any perceived oddity of the categorical approach

is merely the byproduct of Congress’s chosen text—

language Congress has left undisturbed despite this

Court’s long-standing interpretation and application

of the categorical approach.

The Court has repeatedly found that Section 924’s

text requires the elements-focused inquiry. See, e.g.,

Shepard v. United States, 544 U.S. 13, 19-20 (2005).

Section 924, by its plain terms, enhances the sentence

for a criminal defendant whose predicate offense

satisfies certain elements. See Mathis v. United

States, 579 U.S. 500, 511 (2016). The focus, then, is on

the criminal statute’s elements, not on “what the

defendant had actually done.” Ibid. Congress could

have constructed a different system for establishing

predicate offenses. And had it wished to do something

9

else, “Congress well knows,” for example, “how to

instruct sentencing judges to look into the facts” of

relevant convictions given that “different language” in

other statutory schemes requires as much. Ibid. But

“Congress chose another course” in Section 924(c). See

ibid.

In case there were any doubt of Congress’s intent,

Taylor v. United States, 495 U.S. 575 (1990), which

“set out the essential rule governing [Section 924]

cases,” was decided “more than a quarter century

ago.” Mathis, 579 U.S. at 509 (so reasoning almost a

decade ago). In the time since, Congress has not

legislated around this Court’s interpretation of the

text. See id. at 521 (Kennedy, J., concurring) (noting

that “Congress is capable of amending the ACCA”). Cf.

Shepard, 544 U.S. at 23 (“In this instance, time has

enhanced even the usual precedential force, nearly 15

years having passed since Taylor came down, without

any action by Congress to modify the statute as

subject to our understanding that it allowed only a

restricted look beyond the record of conviction under

a nongeneric statute.”). That absence of contrary

legislation is further evidence of Congress blessing the

categorical approach, warts and all. See, e.g., Neal v.

United States, 516 U.S. 284, 295-96 (1996) (noting

that the Court “give[s] great weight to stare decisis in

the area of statutory construction” because Congress

“has the responsibility for revising its statutes”).

Judges have sometimes expressed frustration

with the results of categorical-approach inquiries.

This is true, for example, of the Third Circuit in its onpoint (and correct) opinion in Harris. It reached that

result because “the Supreme Court of Pennsylvania,”

in answering a certified question directly asking

10

whether the State’s first-degree assault statute has

the required force element, responded: “‘there is no

express element in [the Pennsylvania criminal

statute] requiring the use or attempted use of physical

force, or any reference to force at all.’” Harris, 88 F.4th

at 463 (quoting United States v. Harris, 289 A.3d

1060, 1070 (Pa. 2023)) (Jordan, J., concurring in

denial of rehearing en banc, joined by Chagares, C.J.,

and Hardiman, Krause, Bibas, Porter, and Matey,

JJ.). The Pennsylvania high court “observe[d] that

‘the General Assembly was cognizant of how to codify

the manner of causing a particular bodily injury as an

element of the crime.’” Ibid. (quoting Harris, 289 A.3d

at 1070-71). “‘The legislature did not restrict the

manner of causing or attempting to cause serious

bodily injury’” in the statute, so the Supreme Court of

Pennsylvania “‘decline[d] the invitation to do so by

judicial fiat.’” Ibid. (quoting Harris, 289 A.3d at

1070-71).

The Third Circuit described this as “yet another

absurd result dictated by the categorical approach.”

Harris, 88 F.4th at 465 (Jordan, J., concurring in

denial of rehearing en banc, joined by Chagares, C.J.,

and Hardiman, Krause, Bibas, Porter, and Matey,

JJ.). “How on Earth did we end up here?,” the court

asked. Ibid. It then gave a thorough answer: this is

the result required by this Court’s interpretation of

the plain text of the force-clause predicates of

Section 924. See id. at 465-75. When the defendant’s

previous “crime was violent, even murderous,” it does

not count as a predicate crime of violence under

Section 924(c) so long as the statute of conviction

“encompass[es] acts that do not involve the use of

physical force.” See id. at 473. That is the approach

11

that Congress has chosen to leave in place—and the

one this Court must continue to faithfully apply.

Indeed, the categorical approach has “certain

practical advantages,” for example, avoiding Sixth

Amendment concerns. See United States v. Kroll, 918

F.3d 47, 53-54 (2d Cir. 2019) (applying the categorical

approach under 18 U.S.C. § 3559(e)). Despite

criticizing the method, the Third Circuit recognizes

that “the result of applying the categorical approach

sometimes makes sense.” Harris, 88 F.4th at 459

(Jordan, J., concurring in denial of rehearing en banc,

joined by Chagares, C.J., and Hardiman, Krause,

Bibas, Porter, and Matey, JJ.).

But all this is beside the point. Faithfully

applying the categorical approach and the text of

Section 924, as interpreted by this Court, ought

clearly to lead the Court to conclude that crimes that

can be committed by inaction, as a categorical matter,

simply do not require the use of violent force as an

element.

CONCLUSION

Amicus Curiae NAPD respectfully urges the

Court to reverse.

August 15, 2024

Respectfully submitted,

Emily Hughes

Daniel Woofter

NATIONAL ASSOCIATION

FOR PUBLIC DEFENSE

130 Byington Road

Iowa City, IA 52242

Counsel of Record

GOLDSTEIN, RUSSELL &

WOOFTER LLC

1701 Pennsylvania Ave. NW

Suite 200

Washington, DC 20006

(202) 240-8433

dw@goldsteinrussell.com