Supreme Court Rules in Mob Case That Crimes of Violence May Be Committed Through Inaction

Salvatore Delligatti argued unsuccessfully that an act of omission doesn’t make him guilty of violent crime.

Supreme Court Associate Justice Clarence Thomas poses for an official portrait at the East Conference Room of the Supreme Court building in Washington on Oct. 7, 2022. Alex Wong/Getty Images

The U.S. Supreme Court ruled 7–2 on March 21 that crimes committed through inaction can nonetheless be violent, rejecting an alleged mobster’s argument he was innocent because he did not use physical force.

In oral arguments on Nov. 12, 2024, Salvatore “Fat Sal” Delligatti challenged a conviction that added five years to his prison sentence. Delligatti argued that a crime leading to death or bodily injury through omissions cannot be considered a crime of violence.

Delligatti was indicted in 2017 on charges 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 in furtherance of a crime of violence under Section 924(c) of the Hobbs Act, his petition states.

Prosecutors said Delligatti hired members of the Crips gang through a third party to carry out a contract killing and provided a revolver for that purpose.

Delligatti argued that the firearms possession count under the Hobbs Act doesn’t count as a crime of violence. While his appeal was pending, the Supreme Court ruled in United States v. Davis (2019) that the relevant section of the Hobbs Act was unconstitutional.

The Hobbs Act is a federal statute that prohibits actual or attempted robbery or extortion affecting interstate or foreign commerce as well as conspiracies to do so. Section 924(c) authorized enhanced punishments for using a firearm in connection with a crime of violence.

As predicates on which to base the charge, the government relied on four of the other charged offenses. A predicate is an event that takes place before an offense and serves as the basis for a conviction or sentence enhancement.

Delligatti moved to dismiss before the trial, arguing that none of the charged predicates qualified as crimes of violence under the law.

The federal district court denied his dismissal motion, finding that the other offenses were valid predicates.

A federal jury in New York convicted Delligatti of all charges in March 2018 and he was sentenced to 300 months in prison.

The U.S. Court of Appeals for the Second Circuit affirmed the conviction in October 2023.

Justice Clarence Thomas wrote the majority opinion in Delligatti v. United States.

“Intentional murder is the prototypical ‘crime of violence,’ and it has long been understood to incorporate liability for both act and omission,” wrote Thomas, whose opinion was joined by Chief Justice John Roberts, along with Justices Samuel Alito, Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, and Amy Coney Barrett.

When the law was enacted, “it was widely accepted that one could commit murder by refusing to perform a legal duty, like feeding one’s child.”

As the government pointed out, “this view had deep roots in the common law,” Thomas wrote.

Common law refers to the body of law developed over centuries by court rulings, as opposed to statutes passed by legislatures.

Justice Neil Gorsuch wrote a dissenting opinion, which was joined by Justice Ketanji Brown Jackson.

Gorsuch gave the example of a lifeguard at a beach who sees a swimmer in danger. The lifeguard fails to act and watches the swimmer perish, possibly knowing that his inaction will lead to the swimmer’s death.

“In many States, he may be guilty of a serious crime for failing to fulfill his legal duty to help the swimmer. But does the lifeguard’s offense also qualify under [the Hobbs Act] as a ‘crime of violence’ involving the ‘use … of physical force against the person … of another?’” he wrote.

“The Court thinks so. I do not. Section 924(c)(3)(A) may reach many crimes, but it does not reach crimes of omission.”

The Supreme Court’s majority opinion affirmed the judgment of the Second Circuit.