Maahi Sethi | Delligatti v. United States

INTRODUCTION

Title 18 of the United States Code states that an offense may qualify as a “crime of violence” if it “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). Commonly referred to as the use-of-force clause, this language appears in multiple other statues, such as in the Armed Career Criminal Act’s definition of “violent felony” and the Immigration and Nationality Act’s definition of “aggravated assault.” ​​

Delligatti v. United States presents a question about how to apply the use-of-force clause for crimes that can be committed through inaction or omission. In March of 2018, Salvatore Delligatti was convicted of racketeering conspiracy, conspiracy to commit murder in aid of racketeering, attempted murder in aid of racketeering, conspiracy to commit murder for hire, operating an illegal gambling business, and possessing a firearm to further a crime of violence under Title 18’s section 924(c). While his appeal was pending, the Second Circuit held that the use-of-force clause is not satisfied in conspiracy offenses. See United States v. Laurent, 33 F.4th 63 (2d Cir. 2022). Therefore, the underlying offenses could not be supported under Section 924(c). Delligatti then argued that his offense did not constitute a “crime of violence” because it could be committed by way of “affirmative acts or omissions.” The Second Circuit Court of Appeals rejected this argument based on en banc review in United States v. Scott concerning a similar argument. See United States v. Scott, 990 F.3rd 94, 123 (2d Cir. 2021). After rehearing was denied by the Court of Appeals, Delligatti then appealed to the Supreme Court and certiorari was granted.

ISSUE PRESENTED

Does a crime that requires proof of bodily injury or death, but can be committed by failing to act, have as an element the use, attempted use, or threatened use of physical force?

ARGUMENTS

As it currently stands, two different verdicts can apply based on where prosecutions take place. Eight circuit courts have held that a crime resulting in bodily injury “necessarily” involves the use of violent force, even in crimes of inaction. Scott, 990 F. 3d at 112–13.

However, the Third and Fifth Circuits have held that crimes that can be committed by inaction may not serve as underlying offenses for a charge under Title 18th Section 924(c). The Third Circuit held that a crime committed by omission or inaction logically cannot involve violent physical force. The rule of lenity was also referenced which states that in ambiguity a law should apply in the favor of the defendant or against the state. In United States v. Mayo, the Third Circuit stated that if a crime which involves bodily injury or death can be committed through inaction, then it does not involve an element of “physical force.” F.3rd 218, 227 (3d Cir. 2018). The Fifth Circuit has also held that an offense is “not categorically a crime of violence [if it] may be committed by both acts and omissions.” United States v. Martinez-Rodriguez, 857 F.3d 282, 286 (5th Cir. 2017). Delligatti argues that this circuit split may not resolve itself on the applications of the use-of-force clause, leading to inconsistent verdicts.

Additionally, Delligatti argues that a use of force clause must “have as an element the use, attempted use, or threatened use of physical force.” 18 U.S.C. § 924(c)(3)(A). In crimes that can be committed by omission, such as predicate offenses, no physical force may be exerted on the victim. Unite States v. Harris, 88 F. 4th 458, 464 (Jordan J., in the denial rehearing en banc). Delligatti also states, “When a crime is committed by failing to take any action, it cannot be said that the defendant used physical force against the victim.”

LOOKING FORWARD

Implications of this case are widespread on other statutes that include the same use-of-force language defining crimes of violence. The Armed Career Criminal Act’s use of force clause is one such example; it contains materially the same language with respect to the elements clause. 18 U.S.C. § 924(e)(2)(B). Another example can be seen in the Immigration and Nationality Act’s definition of “aggravated assault” which asks whether a crime is a “crime of violence.” ​​8 U.S.C. § 1101(a)(43)(F). Because all of these statutes discuss whether the elements clause defining “crimes of violence” can be satisfied through inaction, courts may apply their own approach to interpreting these provisions pending decision by the Supreme Court.

Further, if the Supreme Court sides with Delligatti on this case, this could lead to a retrial or reduced sentencing. However, if the Supreme Court decides to side with the government and, this could lead to a stricter interpretation of the statutes, especially Section 924 of Title 18.

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