By Wesley Holston '25
Part of a blog series:
Question Presented: Supreme Court October Term 2024
On June 3, 2024, the Supreme Court granted certiorari in Delligatti v. United States. The petitioner, Salvatore Delligatti, is an associate in the Genovese Crime Family who hired hitmen to kill Joseph Bonelli, a local "bully," and provided them with firearms. (1) Police learned of the plot and arrested the hitmen near Bonelli’s home, giving rise to Delligatti’s later conviction of “using and carrying a firearm” during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(i). (2) As this suggests, a conviction under this statute requires that the defendant perpetrate an underlying “crime of violence,” which is the basis for a § 924(c) conviction.
The specific crime of violence that formed the predicate for Delligatti’s § 924(c) conviction was his conviction for attempted murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5). § 1959 also requires an underlying predicate offense against “the laws of any State or the United States.” The “law” which Delligatti was found to have violated—forming the predicate for this prior conviction—was New York State Penal Law § 20.00, under which he was liable for second-degree murder. (3) Delligatti is arguing that New York second-degree murder is not a crime of violence for the purposes of § 924(c)—which would require his conviction under that section to be thrown out.
§ 924(c)(3)(A) defines a crime of violence as one that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” In deciding whether a crime meets that definition, the Supreme Court employs a categorical approach, for which “[t]he only relevant question is whether the federal [or state] felony at issue always requires the government to prove…the use, attempted use, or threatened use of force” without reference to the actual facts of the case. (4) If the question is answered in the affirmative, then that crime is a § 924(c) crime of violence and can be a predicate for a conviction thereunder.
Delligatti claims that New York attempted murder can be committed by both the commission (doing) of an act, as well as the omission (failure to do) of an act. (5) Therefore, it does not always require the government to prove “the use, attempted use, or threatened use of force,” and so it does not qualify as a “crime of violence” under § 924(c)(3)(A) and is not a valid predicate, through § 1959, for his § 924(c) conviction. (6)
Does the “use” of force encompass both action and inaction? This is not the first—and certainly will not be the last—time the word “use” will be scrutinized before the Supreme Court. Below is a line of three cases dealing with the meaning of “use” in § 924(c)(1) (one of which is cited in Delligatti’s Petition for Certiorari); they illustrate the development of case law at the Supreme Court, a body of precedent to which Delligatti itself will soon belong. (7)
Smith v. United States
In Smith v. United States (1993), the petitioner had told an undercover officer that “[h]e was willing to trade his MAC-10 [firearm]…for two ounces of cocaine.” (8) He was subsequently arrested and convicted under § 924(c)(1) for “knowingly us[ing] the MAC-10 and its silencer during and in relation to a drug trafficking crime.” (9) The Supreme Court had to determine whether the exchange of a gun for narcotics “constitutes ‘use’ of a firearm ‘during and in relation to ... [a] drug trafficking crime’ within the meaning of 18 U.S.C. § 924(c)(1).” With a 6-3 majority, the Court said it does. (10)
Nothing in the record indicates that the petitioner “fired the MAC-10, threatened anyone with it, or employed it for self-protection.” (11) Yet, offering to trade his gun in exchange for drugs, said the SCOTUS majority, falls within the “everyday meaning of [the word ‘use’].” (12) Although the “ordinary meaning of ‘uses a firearm’ includes using a firearm as a weapon,” since that is the intended purpose of a firearm and the example of “use” that most immediately comes to mind, that should not be the only meaning of the phrase. (13)
In dissent, Justice Antonin Scalia explained that “use” is “not…a technical word or an ‘artfully defined’ legal term…but…[a] common word...inordinately sensitive to context.” (14) It is an “elastic” word; its meanings range all the way from “to partake of” (as in “he uses tobacco’) to “to be wont or accustomed” (as in “he used to smoke tobacco”). (15)
As Justice Scalia wrote, "to use an [instrument] ordinarily means to use it for its intended purpose.” (16) Thus, “to use a firearm” means to use it “for its distinctive purpose, i.e., as a weapon.” (17) Justice Scalia noted how “the Court does not appear to grasp the distinction between how a word can be used and how it ordinarily is used.” (18) Although it is (as the majority says) “both reasonable and normal to say that Petitioner ‘used’ his MAC-10” by trading it, “[i]t would also be reasonable and normal to say that he ‘used’ it to scratch his head” – neither of which examples changes the fact that “[t]he ordinary meaning of ‘uses a firearm’ does not include using it as an article of commerce.” (19)
Bailey v. United States
In Bailey v. United States, 516 U.S. 137 (1995), the Court considered the consolidated cases of two defendants who were convicted under § 924(c)(1). After pulling Petitioner Bailey over for traffic infractions, police discovered “one round of ammunition and 27 plastic bags containing a total of 30 grams of cocaine” in his car and “a large amount of cash and a bag containing a loaded 9-mm. pistol” in his trunk. (20) Among other things, Bailey was charged with “using and carrying a firearm” in violation of 18 U.S.C. § 924(c)(1). (21) The second petitioner, Robinson, was charged with “using or carrying a firearm in violation of §924(c)(1)” after police found an unloaded, holstered .22-caliber derringer, papers and a tax return belonging to her, 10.88 grams of crack cocaine, and a marked $20 bill from an earlier controlled buy. (22)
On appeal, both alleged that the evidence was insufficient to support their conviction under §924(c)(1). (23) The District of Columbia Circuit consolidated the cases and affirmed both convictions, holding that “one uses a gun, i.e., avails oneself of a gun, and therefore violates [§924(c)(1)], whenever one puts or keeps the gun in a particular place from which one (or one’s agent) can gain access to it if and when needed to facilitate a drug crime.” (24) The court determined that “the gun was sufficiently accessible and proximate to the drugs or drug proceeds” that the jury could properly infer that the petitioners had placed the gun to further the drug offenses or to protect the possession of the drugs. (25)
The Supreme Court granted certiorari to clarify “[w]hat must the Government show, beyond mere possession, to establish ‘use’ for the purposes of [§924(c)(1)]?” (26) The Court acknowledged that, as the debate in Smith illustrated, “the word ‘use’ poses some interpretational difficulties because of the different meanings attributable to it…[c]onsider the paradoxical statement: ‘I use a gun to protect my house, but I've never had to use it’… ‘Use’ draws meaning from its context…” (27)
Observing that various dictionary definitions of “use” imply action and implementation, the Court unanimously held that §924(c)(1) “requires evidence sufficient to show an active employment of the firearm by the defendant.” (28) Had Congress wanted to reach the petitioners' conduct, which resembled possession more than active use, it could have used language like “possession” or “intended to be used.” (29)
The Court reversed both judgments because “[n]o evidence showed that [either Petitioner] had actively employed the firearm” and remanded the convictions for consideration under the “carry” prong of the statute. (30)
Watson v. United States
In Watson v. United States, 552 U.S. 74 (2007), Petitioner Watson sold drugs to undercover agents in exchange for a pistol. He was later arrested and the pistol was found in his car. A federal grand jury indicted him for “distributing a Schedule II controlled substance and for ‘using’ the pistol during and in relation to that crime, in violation of §924(c)(1)(A).” (31)
The Court noted that this case posed a question the opposite of the one raised in Smith. (32) “[W]hen Watson handed over the drugs for the pistol, the informant or the agent ‘used’ the pistol to get the drugs, just as Smith held, but regular speech would not say that Watson himself used the pistol in the trade.” (33) No one would say that a person “uses” a firearm simply by receiving it in a barter transaction. (34) Watson, therefore, did not “use” the pistol under §924(c).
Justice Ginsburg concurred, writing that,
“Distinguishing, as the Court does, between trading a gun for drugs and trading drugs for a gun…makes scant sense to me…I am persuaded that the Court took a wrong turn in Smith v. United States…. For reasons well stated by Justice Scalia in his dissenting opinion in Smith, I would read the word “use” in § 924(c)(1) to mean use as a weapon, not use in a bartering transaction. Accordingly, I would overrule Smith, and thereby render our precedent both coherent and consistent with normal usage.” (35)
The Creation of Case Law
In his treatise The Nature of the Judicial Process, then-Judge (future Associate Justice of the Supreme Court) Benjamin Cardozo, describing the process of applying precedent to a present case, says,
“...the problem which confronts the judge is in reality a twofold one: he must first extract from the precedents the underlying principle, the ratio decidendi; he must then determine the path or direction along which the principle is to move and develop, if it is not to wither and die.” (36)
Taking a page from Justice Cardozo’s book, Delligatti cites in his Petition for Certiorari Bailey’s adoption of “a more limited, active interpretation of ‘use’” to support his contention that “[t]his Court’s cases are consistent with construing ‘use’ as referring only to affirmative conduct.” (37) In so doing, he is saying to the Court, at least at the certiorari stage, that by interpreting “use” to exclude inaction, it will be simply applying the rule from Bailey – the implied flipside being that should the Court allow “use” to include inaction, it would be to let Bailey’s rule “wither and die.” (38) Whether the Court, in its ultimate decision, chooses to extend Bailey (from the statutory context with which it treated to the one Delligatti is litigating), or declines to do so, or does not touch it at all remains to be seen.
This is how case law is made. Start with a difficult-to-interpret word, like “use.” Although it seems that we all know what “use” means, when we put that word into different situations, its meaning becomes less obvious. It often is not clear at all: the majority’s opinion in Smith that one can “use” a gun by offering it in barter does not seem more clearly correct than Justice Scalia’s contention that “using a gun” ordinarily—and, for the purposes of the statute, exclusively—means employing it as a weapon. We start with a vague idea of what “use” means and, three cases later, know more concretely what it does and does not mean, at least in the statutory context dealt with. It is like polishing different sides of a stone; when Delligatti is decided, another side of “use” will be polished—yet, there are as many sides to this stone as the number of statutes it can be used in or fact patterns those statutes can be applied to. The work of statutory interpretation will never cease, and case law will continue developing. In law, “[n]othing is stable. Nothing absolute. All is fluid and changeable. There is an endless ‘becoming.’ … The glacier still moves.” (39)
Endnotes
Both quotations from Brief for the United States, 2 (2024), https://www.supremecourt.gov/DocketPDF/23/23-825/308848/20240501190342828_23-825%20Delligatti.pdf.
First quotation from Ibid., 3; second quotation from 4.
Ibid., 6.
United States v Taylor, 20-1459 (S. Ct. June 21, 2022).
For example, see Petition for a Writ of Certiorari (Petition), 20 (2024), https://www.supremecourt.gov/DocketPDF/23/23-825/299120/20240129174338951_Delligatti%20-%20Cert%20Petition%20rtf.pdf (“The State’s courts have…upheld the convictions [for New York attempted murder] of a father who was charged with the ‘omission’ of ‘withholding medical care’ from a fatally sick child…and of a mother who ‘fail[ed] to seek medical attention for [her] boy.’”) (citations omitted) (first alteration added, others original).
United States v Taylor, 20-1459 (S. Ct. June 21, 2022) (emphasis added).
For citation of Bailey in the Petition, see 21, 22; see also infra, “The Creation of Case Law.”
Smith v. United States, 508 U.S. 223, 226 (1993).
Ibid.
For facts and procedural history, see, Ibid., 225-227.
Ibid., 228.
First quote from Ibid., 228; second from Ibid., 229 (referencing dictionary and case law definitions of “to use”).
Ibid., 230.
Ibid., 244-245 (citing Dewsnup v. Timm, 502 U. S. 410, 423 (1992) (SCALIA, J., dissenting)).
Both quotations from Ibid., 241-242 (citing Webster's New International Dictionary 2806 (2d ed. 1950)).
Ibid., 242. See also the next sentence (“When someone asks, ‘Do you use a cane?,’ he is not inquiring whether you have your grandfather's silver-handled walking stick on display in the hall; he wants to know whether you walk with a cane.”).
Ibid.
Ibid. (emphasis original).
First two quotations from Ibid., 242. First quotation quoting ante 230. Third quotation from 242, n. 1. The rest of the note reads: “I think it perfectly obvious, for example, that the objective falsity requirement for a perjury conviction would not be satisfied if a witness answered “no” to a prosecutor's inquiry whether he had ever “used a firearm,” even though he had once sold his grandfather's Enfield rifle to a collector.”
Bailey v. United States, 516 U.S. 137, 139 (1995), Library of Congress, https://tile.loc.gov/storage-services/service/ll/usrep/usrep516/usrep516137/usrep516137.pdf.
Ibid.
Both quotations from Ibid., 140.
Ibid., 139.
Ibid., 141, quoting 36 F. 3d 106, 115 (CADC 1994) (alteration added by SCOTUS).
Ibid., 142. For facts and procedural history, see Ibid., 138-142.
Ibid., 144.
Ibid., 143.
First quotation from Ibid., 145; second quotation from 143 (emphasis original).
For first quotation, see Ibid., 147-148; for second quotation, see Ibid., 146 (discussing § 924(d)(1) which “provides for the forfeiture of any firearm that is ‘used’ or ‘intended to be used’ in certain crimes”). See also the Court’s concerns about allowing the “carry” prong to be swallowed up by a too-expansive reading of “use,” 145-146.
Ibid., 151 (“There was no evidence that Bailey actively employed the firearm in any way…No evidence showed that Robinson had actively employed the firearm.”).
Watson v. United States, 552 U.S. 74, 77 (2007), Library of Congress, https://tile.loc.gov/storage-services/service/ll/usrep/usrep552/usrep552074/usrep552074.pdf. For facts and procedural history, see Ibid., 77-78.
“Smith v. United States, raised the converse of today’s question…” Ibid., 76. (citation omitted).
Ibid., 79 (footnote omitted).
Ibid.
Ibid., 84 (citations omitted). See also her “cf.” citation to Henslee v. Union Planters Nat. Bank & Trust Co., 335 U. S. 595, 600 (1949) (Frankfurter, J., dissenting) (“Wisdom too often never comes, and so one ought not to reject it merely because it comes late.”). But see the majority’s rejection of the Government’s argument that it “would create unacceptable asymmetry with Smith…to penalize one side of a gun-for-drugs exchange but not the other”: “Whatever the tension between the prior result and the outcome here, law depends on respect for language and would be served better by statutory amendment (if Congress sees asymmetry) than by racking statutory language to cover a policy it fails to reach.” (First quotation from Watson, 82; second quotation from Ibid., 83).
Benjamin Cardozo, The Nature of the Judicial Process (New Haven: Yale University Press, 1921), 28, https://en.wikisource.org/wiki/The_Nature_of_the_Judicial_Process.
First quotation from Petition, 21 (quoting Bailey, 146); second quotation from Ibid.
Cardozo, 28.
Ibid., 25.
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