4/30/25: Invited error

In United States v. Turrey, --- F.4th ---, No. 23-1956 (9th Cir. 2025), the Court granted the government’s request to publish an unpublished Memorandum disposition affirming Joseph Anthony Turrey’s conviction on multiple counts of sexual abuse in Indian Country.

The case is about the defense inviting error, so it is no wonder the government sought publication.  

“The doctrine of invited error prevents a defendant from complaining of an error that was his own fault.” United States v. Magdaleno, 43 F.4th 1215, 1219 (9th Cir. 2022) (citation omitted). “If a defendant has both (1) invited the error and (2) relinquished a known right, then the alleged error is considered waived.” Id. at 1219–20 (cleaned up). A defendant invites error when he “induces or causes the error.” Id. at 1220 (cleaned up). When evaluating whether a defendant intentionally relinquished a known right, we look for “evidence in the record that the defendant was aware of, i.e., knew of, the relinquished or abandoned right.”

Turrey contends that testifying Minor Victim 2’s (“MV2”) prior forensic interviews were inadmissible under the Federal Rules of Evidence (“FRE”). To the extent admission of the full videotaped interviews was an error, however, Turrey waived this claim by inviting error. See Magdaleno, 43 F.4th at 1220. Although Turrey initially contended in a motion in limine that MV2’s videotaped interviews were not admissible under FRE 801(d)(1)(B), Turrey changed course in a subsequent hearing and asked the district court to admit her interviews in full under FRE 106. By asking the district court to admit MV2’s full interviews, Turrey caused the error he now alleges. 

Because Turrey did not object each time an interview video was admitted at trial, Turrey relinquished his known right to object to the evidence. See id. The record shows that Turrey knew he was relinquishing this right, see Perez, 116 F.3d at 845, because Turrey’s counsel said, “I have not objected to a great deal of hearsay evidence. That is just a strategic choice . . . I would like the whole interview[s].”  

The opinion then continues in this same vein, finding another alleged error waived under the invited error doctrine.  The moral of the story .... Object!

4/28/25: Two cases today - one on U.S.S.G. § 4C1.1 and the other on sovereign immunity.

Beginning with the Guidelines case, in United States v. Gonzalez-Loera, --- F.4th ---, No. 24-1013 (9th Cir. 2025), the Court affirmed the district court’s denial of Gonzalez-Loera’s motion for a sentence reduction under the new zero-point offender provision of U.S.S.G. § 4C1.1.

Roberto Gonzalez-Loera appeals from the district court’s order denying his motion for a sentencing reduction under the new zero-point offender provision of the United States Sentencing Guidelines (“U.S.S.G.”) § 4C1.1. 1 Section 4C1.1 allows a court to adjust a defendant’s offense level downward if he “meets all of the [listed] criteria.” U.S.S.G. § 4C1.1(a). Here, we are concerned only with the criteria in § 4C1.1(a)(10) (“subsection (10)”): “[T]he defendant did not receive an adjustment under [U.S.S.G.] § 3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848.” Id. § 4C1.1(a)(10). 

Because of subsection (10)’s plain and unambiguous text, we hold that it contains two distinct requirements, and a defendant must satisfy both to obtain relief. Thus, a defendant is ineligible for relief under § 4C1.1 if he either received an adjustment under § 3B1.1 or engaged in a continuing criminal enterprise. Because Gonzalez-Loera received an adjustment under § 3B1.1, he is ineligible for relief, and we affirm the district court’s denial of his motion to reduce his sentence.

Of note, "Effective November 1, 2024, the Commission amended § 4C1.1 by dividing the criteria in subsection (10) into two subsections. U.S.S.G. supp. app. C, amend. 831, at 287 (Nov. 2024) (striking paragraph (10) and inserting two new paragraphs: “(10) the defendant did not receive an adjustment under § 3B1.1 (Aggravating Role); and (11) the defendant was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848”). The Commission explained that the purpose of the amendment was “[t]o clarify the Commission’s intention that a defendant is ineligible for the adjustment if the defendant meets either of the disqualifying conditions.” Id. at 288. The Commission’s clarifying amendment makes clear that subsection (10) sets forth two separate requirements."

Next, in United States v. Pangang Group Company, Ltd., --- F.4th ---, No. 22-10058 (9th Cir. 2025), the Court  affirmed the district court’s denial of a motion to dismiss an indictment charging four affiliated companies (“the Pangang Companies”) with economic espionage in connection with their alleged efforts to steal from DuPont trade secrets relating to the production of titanium dioxide.

This is a lengthy opinion.  And if you have a case involving a foreign government owned company, the decision is a must read.  But for purposes of this summary, here are the key points: 

Section 66(g) of the Restatement extends “[t]he immunity of a foreign state” to “a corporation created under its laws and exercising functions comparable to those of an agency of the state.” RESTATEMENT, supra, § 66(g). “The term ‘agency’ as used in this Section means a body having the nature of a government department or ministry.” RESTATEMENT, supra, § 66 cmt. a. 

We hold that the Pangang Companies have not made a prima facie showing that they exercise functions comparable to those of an agency of the PRC. They therefore are not the kinds of entities eligible for foreign sovereign immunity from criminal prosecution. 

Neither the allegations in the indictment nor anything else in the record establishes a prima facie claim that the Pangang Companies exercise functions comparable to those of an agency of the PRC. 

Because the record does not suggest that the Pangang Companies are anything more than conventional corporate entities engaged in commercial activities, the Pangang Companies fail to establish a prima facie case that they are entities “exercising functions comparable to those of an agency of the state.” 

4/11/25: Interesting 11th Circuit decision on Hobbs Act robbery

No published criminal decisions today from the 9th, so I have time to share an interesting case from the 11th Circuit. 

In United States v. O'Steen, --- F.4th ---, No. 22-13569 (11th Cir. 2025), the Court vacated the defendant's convictions. 

This appeal is the last chapter of a lengthy FBI investigation of the State Attorney for the Third Judicial Circuit of Florida, Jeffrey Alan Siegmeister. The investigation began in August 2018, after Andy Tong, whom Siegmeister was prosecuting for maintaining a gambling house in violation of Florida law,2 told the FBI that his attorney, Marion Michael O’Steen, would have to pay Siegmeister $50,000 for a favorable disposition of the case. The investigation concluded in February 2021, when a Middle District of Florida grand jury returned a twelve-count indictment against Siegmeister and O’Steen. Siegmeister was charged in eleven counts, O’Steen in four. Relevant here are Counts One through Four .

The Court's Hobbs Act discussion is particularly interesting. 

In his Rule 29 motion for acquittal at trial, O’Steen argued that he could not be convicted of Hobbs Act extortion because the extorted property must be the “actual property” of the victim.

The Hobbs Act defines “commerce” to include all “commerce over which the United States has jurisdiction.” 18 U.S.C. § 1951(b)(3). In other words, the statute reaches only as far as Congress can exercise its constitutional authority over interstate commerce. See U.S. Const. art. I, § 8, cl. 3. In order to establish the required “interstate nexus,” the Government must “show a realistic probability of an effect, or some actual de minimis effect, on commerce.” 

Although this Court has never squarely considered whether the Government can prove Hobbs Act extortion where the extorted property was provided solely by law enforcement, the Sixth Circuit addressed precisely that question in United States v. DiCarlantonio, 870 F.2d 1058 (6th Cir. 1989). In that case, like here, the allegedly extorted money had been provided to the victim by the FBI. See DiCarlantonio, 870 F.2d at 1060. And the Sixth Circuit held that “the mere receipt of government funds” could not create the requisite effect on interstate commerce. Id. at 1060–61; see also United States v. Rindone, 631 F.2d 491, 494 (7th Cir. 1980). 

We agree. Although the use of government funds as bribe money depletes the funds available to the government, it does not “deplete[] the assets of an individual who is directly engaged in interstate commerce.” See Diaz, 248 F.3d at 1084–45 (emphasis added). Therefore, evidence of an alleged extortion involving purely government money cannot establish even the minimal effect on interstate commerce that is required by the Hobbs Act.

4/2/25: Convictions set aside under Cal. P.C. 1203.4 are not "expunged" for Guidelines purposes

In United States v. Carver, --- F.4th ---, No. 23-4105 (9th Cir. 2025), the Court affirmed Carver's sentence, holding that convictions set aside under Cal. P.C. 1203.4 are not "expunged" for Guidelines purposes. 

In determining a defendant’s criminal history under the United States Sentencing Guidelines (“Guidelines”), courts do not count sentences for “expunged convictions.” U.S.S.G. § 4A1.2(j). We have held that convictions set aside under section 1203.4 of the California Penal Code are not expunged for purposes of section 4A1.2(j) of the Guidelines. See United States v. Hayden, 255 F.3d 768, 772 (9th Cir. 2001). Because Hayden used the “‘traditional tools’ of construction” to reach its conclusion, Kisor v. Wilkie, 588 U.S. 558, 575 (2019) , we reject the defendant’s argument that Kisor overruled Hayden.

3/27/25: Important Fourth Amendment Decision

In United States v. Holcomb, --- F.4th ---, No. 23-469 (9th Cir. 2025), the Court reversed the district court’s ruling on Holcomb’s motion to suppress three videos found on his computer, vacated his conviction and sentence for producing child pornography, and remanded for further proceedings.

The opinion is worth reading, especially if you are litigating a suppression issue based on an overbroad warrant or dealing with the good faith exception.  Here are some key points. 

This case raises a variation of the familiar but always troubling issue of whether someone can be prosecuted for despicable criminal conduct based on evidence obtained in violation of the United States Constitution. In the circumstances of this case, respect for the Constitution and the rule of law requires an answer of “no.”

On appeal, Holcomb argues, inter alia, that the second warrant’s dominion and control provision, on the basis of which the examiner located the three videos that led to Holcomb’s indictment, was invalid because it was both overbroad and insufficiently particular. He further argues that, under Ninth Circuit precedent, the good-faith exception does not apply to the examiner’s search of his computer. The Government disputes each of these arguments and also argues that the plain view doctrine independently authorized the examiner’s seizure of the three videos depicting child sexual abuse. 

We agree with the district court that the dominion and control provision was invalid because it was both overbroad and insufficiently particular. However, unlike the district court, we conclude that the good-faith exception does not apply to the examiner’s search. Furthermore, we conclude that the plain view doctrine does not independently justify the examiner’s seizure of the videos.

We first consider the validity of the dominion and control provision of the second warrant. At the outset, we observe that evidence of dominion and control was not at all relevant to the state’s investigation of the alleged assault.

Even assuming, arguendo, that evidence of dominion and control was relevant to the state’s investigation, the warrant’s dominion and control provision still violated the Fourth Amendment’s specificity requirement.

 Our cases have distinguished the Fourth Amendment’s specificity requirement in two respects: breadth and particularity. Breadth is the requirement that a warrant “be limited by the probable cause on which the warrant is based,” while particularity is the requirement that a warrant “clearly state what is sought.” United States v. SDI Future Health Inc., 568 F.3d 684, 702 (9th Cir. 2009) (“SDI”). Together, these requirements protect against “the principal evil” of general warrants, which allowed royal officials during the colonial era to “search and seize whatever and whomever they pleased while investigating crimes or affronts to the Crown.”  “[G]iven the vast amount of data” stored on computers, a “heightened” specificity requirement applies “in the computer context.”

Starting with overbreadth, the Government has failed to identify any meaningful limitation on the scope of the dominion and control provision. Unlike the other provisions of the warrant—which were limited to communications between Holcomb and J.J., surveillance footage depicting Holcomb or J.J., location data, and the computer’s search history—the dominion and control provision was not limited to a particular type of evidence. In addition, again unlike the other provisions, the dominion and control provision lacked any temporal limitation, thereby authorizing the state to open and examine any file from any time period, including files that long predated the alleged assault.

We therefore conclude that the second warrant’s dominion and control provision was overbroad.

We similarly conclude that the dominion and control provision was insufficiently particular. As we have explained, “[t]he purpose of particularizing the items to be seized is to insure that when the warrant is executed, nothing is left to the officer’s discretion.” Because Holcomb’s computer contained thousands of files and because the dominion and control provision did not contain any temporal limitations, the examiner simply exercised his unfettered discretion in determining which files to scroll past and which files to open and examine pursuant to that provision. On that basis alone, we can conclude that the dominion and control provision was insufficiently particular.

Both because it was overbroad and because it was insufficiently particular, the dominion and control provision effectively transformed the second warrant into a general warrant. 

Even if the Government had preserved such an argument, the severability doctrine would not save the examiner’s search because it is clear that the examiner discovered the disputed evidence pursuant to the dominion and control provision alone.

In holding that the dominion and control provision transformed the second warrant into a general warrant, we do not mean to suggest that dominion and control provisions must always contain temporal limitations. However, on the facts of this case, where the Government has failed to establish that evidence of dominion and control was relevant to its search, where the Government knew the exact time period surrounding the incident it sought to investigate, where the affidavit did not establish probable cause to search for evidence outside that period, and where every other warrant provision sought to limit the scope of the warrant to that period, the unlimited dominion and control provision plainly violated the Fourth Amendment’s specificity requirement. Any other holding would allow any warrant with a dominion and control provision to function as a general warrant. The Fourth Amendment forecloses that result. 

Having determined that the dominion and control provision was invalid twice over, we proceed to consider whether the examiner nevertheless complied with the Fourth Amendment by executing the second warrant in good faith. Under the good-faith exception, if officers conduct a search pursuant to a search warrant that is later invalidated, they still satisfy the Fourth Amendment so long as they acted in “objectively reasonable reliance” on that warrant. 

The Supreme Court has recognized “four situations that per se fail to satisfy the good faith exception.” United States v. Underwood, 725 F.3d 1076, 1085 (9th Cir. 2013) (discussing United States v. Leon, 468 U.S. 897 (1984)). The four situations are: (1) where the affiant recklessly or knowingly placed false information in the affidavit that misled the issuing judge; (2) where the judge wholly abandons his or her judicial role; (3) where the affidavit is so lacking in indicia of probable cause as to render official belief in its existence utterly unreasonable; and (4) where the warrant is so facially deficient—i.e., in failing to particularize the place to be searched or the things to be seized—that the executing officers cannot reasonably presume it to be valid. In each of these situations, an officer “will have no reasonable grounds for believing that the warrant was properly issued.

As the district court acknowledged in this case, it remains unclear whether the Supreme Court intended for “the road between Leon’s good-faith exception and qualified immunity to run both ways.” Needham and Manriquez point in different directions on that question. While Needham suggests that courts should import the heightened qualified immunity standard, Manriquez rejected that approach in favor of the “reasonable officer” standard. Moreover, this three-judge panel cannot clarify the applicable standard without calling for en banc review.

Interesting though this question may be, however, we need not resolve the tension between Needham and Manriquez in this case because we conclude that the good faith exception does not apply under either standard. To begin with, our existing precedents clearly establish that warrant provisions like the second warrant’s dominion and control provision violate a defendant’s Fourth Amendment rights.

Together, Kow, SDI, and the cases on which they rely stand for two clearly established principles. First, when probable cause to search is limited to a particular location, suspect, time period, or type of evidence, any warrant provision that is wholly lacking in any corresponding limitation is overbroad and therefore facially deficient under the Fourth Amendment. Second, an officer who relies on any such provision while executing a search warrant does not act in good faith.

[W]e conclude that the examiner did not act in “objectively reasonable reliance” on the second warrant when he discovered the videos depicting child sexual abuse from November 2016

The Government also argues that the seizure of the three videos depicting child sexual abuse was independently authorized by another exception to the warrant requirement: the plain view doctrine. Under that doctrine, the government may seize evidence without a valid warrant so long as government officials are “lawfully searching the area where the evidence is found” and “the incriminatory nature of the evidence [is] immediately apparent.”  The burden of demonstrating that both requirements are satisfied lies with the Government.

The Government was not “lawfully searching the area where the evidence was found” because it found the three videos while executing a general warrant. Where “the plain view seizure was in the context of officers executing an essentially general warrant,” the “justification for the plain view is . . . absent.” The Government thus fails to satisfy the first requirement of the plain view doctrine.

3/24/25: reasonable suspicion + flight = probable cause

In United States v. Hamilton, --- F.4th ---, No. 22-10161 (9th Cir. 2025), the Court affirmed Hamilton’s conviction and sentence for being a felon in possession of a firearm and ammunition and possessing a firearm in furtherance of a drug-trafficking crime.

Here are the basic facts: Law enforcement had some specific information connecting Hamilton to an unlawful shooting, but did not have a warrant for his arrest. When they located and tried to stop him two weeks after the shooting, he ran. The officers chased Hamilton on foot for several blocks, and observed him reaching for his waistband. An officer ordered Hamilton to show his hands and get on the ground, but Hamilton continued running. A second police car stopped in front of Hamilton, and officers tackled him to the ground. Hamilton was handcuffed and arrested. After the arrest, officers searched Hamilton and found a gun, marijuana, scales, and $6,692 in cash.

Flight from law enforcement can be suggestive of wrongdoing and give rise to probable cause when coupled with specific reasons to suspect that the person fleeing may have engaged in criminal conduct. Here, law enforcement had specific information connecting Defendant Robert Hamilton to an unlawful shooting in downtown San Francisco. When they located and tried to stop Hamilton two weeks after the shooting, he ran. The totality of circumstances surrounding Hamilton’s flight gave the officers probable cause to arrest him. Therefore, we affirm the district court’s denial of Hamilton’s motion to suppress the evidence obtained from his arrest. We also reject Hamilton’s jury-instructions and sentencing-enhancement challenges and affirm his conviction and sentence. 

The district court concluded that the officers had a lawful basis to stop Hamilton because they reasonably suspected that he was involved in the Valentine’s Day shooting. Hamilton does not dispute this. Nonetheless, Hamilton asserts that the officers’ attempt to stop him was unlawful because they intended to conduct an arrest, not merely an investigatory stop, from the outset.

Under the circumstances presented, the officers’ intent when they initially approached Hamilton is immaterial because he ran before the officers could do anything other than order him to stop. Thus, in their initial approach, the officers only attempted a seizure. They did not actually seize Hamilton. And where no seizure occurred during the officers’ initial contact with Hamilton, the Fourth Amendment was not triggered.

Moreover, the Supreme Court has instructed that “outside limited contexts such as an ‘inventory search or administrative inspection . . . an officer’s motive [does not] invalidate[] objectively justifiable behavior under the Fourth Amendment.’” . . . .  And if Hamilton had not fled and the officers had immediately arrested him, a different analysis would apply. But that is not what happened, and we must decide this case based on the facts as they are, not as they might have been.

Hamilton further contends that the officers’ initial approach was improper because one of them falsely stated that there was a warrant for his arrest. While the officer’s statement about the existence of an arrest warrant was incorrect, the record does not establish whether it was a lie or a mistake. But even assuming it was a lie, there was no constitutional violation. Officers are not categorically prohibited from using deception in investigations. But deception may be unreasonable if it is used “to gain access to places and things [officers] would otherwise have no legal authority to reach.”

Here, the officers had reasonable suspicion that Hamilton was involved in the Valentine’s Day shooting, which Hamilton does not dispute. Therefore, they had a lawful basis to stop and question him without a warrant. 

Hamilton also argues that his arrest was unlawful because the officers did not have probable cause to believe he had committed a crime.

. The Supreme Court has instructed that “[h]eadlong flight—wherever it occurs— is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.” Even where an “individual has a right to ignore the police and go about his business, . . . [f]light, by its very nature, is not ‘going about one’s business’; in fact, it is just the opposite.” 

That said, flight is not per se suspicious. Consistent with the Fourth Amendment’s totality standard, “[t]here may be circumstances where a person’s flight has a perfectly innocent and reasonable explanation” and thus does not reasonably engender suspicion.  And if the reason for the suspect’s flight is ambiguous—that is, it could have been to evade law enforcement or it could have been for some other innocent purpose—the flight itself cannot justify an arrest.

[W]hen the officers tackled Hamilton to stop his flight, they had reason to conclude that there was a “fair probability that [Hamilton] had committed a crime,” Struckman, 603 F.3d at 739, and the district court correctly concluded that Hamilton’s arrest was lawful. Therefore, we affirm the district court’s denial of Hamilton’s motion to suppress.

The Court also rejected Hamilton's challenges to the jury instructions and his sentence. 

3/21/25: Two SCOTUS decisions today

Beginning with Thompson v. United States, 604 U.S. ---, No. 23-1095 (2025), the Court held that 18 U.S.C. 1014, which prohibits “knowingly mak[ing] any false statement,” does not criminalize statements that are misleading but not false.

Chief Justice Roberts' opinion is very well written and worth the read.  Here are some key points. 

Patrick Thompson took out three loans totaling $219,000 from the same bank. Later, Thompson told the Federal Deposit Insurance Corporation (FDIC) that he had “borrowed . . . $110,000” from the bank. Thompson was indicted under 18 U. S. C. §1014 for making “false statement[s]” to the FDIC. Thompson argued that his statements were not false because he had in fact taken out a loan for $110,000 just as he said. Both the District Court and the Seventh Circuit held that they did not need to consider that argument. In their view, the prohibition in §1014 against “false statement[s]” extends to misleading ones as well, and Thompson’s statements were at least misleading in failing to mention the additional loans. The question presented is whether §1014 criminalizes statements that are misleading but not false. 

We start with the text. Section 1014 criminalizes “knowingly mak[ing] any false statement or report.” It does not use the word “misleading.” Yet false and misleading are two different things. A misleading statement can be true. And a true statement is obviously not false. So basic logic dictates that at least some misleading statements are not false.

Given that some misleading statements are also true, it is significant that the statute uses only the word “false.” If that word means anything, it means “not true,” both today and in 1948 when the statute was enacted. Just as a matter of plain text, then, a statement that is misleading but true is by definition not a “false statement.”

Adding “any” before “false statement” does not change that result. Contra, Brief for United States 19–20. Certainly, “any” has an “expansive meaning.”  But “[e]xpansive, yes; transformative, no.”

The Government wisely agrees that “false” means “not true.” Brief for United States 14. But, dictionary in hand, the Government notes that “false” can also mean “deceitful.” And, thesaurus in the other hand, the Government adds that “false and misleading have long been considered synonyms.” Absent from the Government’s account, however, is the fact that some misleading statements are not false, as the Government acknowledged at oral argument. Given that fact, the Government’s textual arguments simply point out the “substantial overlap” between the two terms. That overlap is beside the point. Certainly, the statute’s prohibition on “false statement[s]” could reach some statements that are “mislead[ing],” “deceitful,” “deceptive,” or “mendacious,” but only because those particular statements are also false. Regardless of whether other adjectives apply, the only relevant question according to the text of the statute is whether the statement is “false.” 

The Government argues that we should affirm on the alternative basis that Thompson’s statements were false. But neither the District Court nor the Seventh Circuit answered that question, and “we are a court of review, not of first view.” Our holding shows, however, that this question is the right one to ask under §1014. And as the litigation before us has clarified, even Thompson agrees that “[c]ontext obviously matters in determining whether a statement is false.”  

We agree with the parties that at least some context is relevant to determining whether a statement is false under §1014. We leave for remand the question whether a reasonable jury could find that Thompson’s statements in this case were false. 

In casual conversation, people use many overlapping words to describe shady statements: false, misleading, dishonest, deceptive, literally true, and more. Only one of those words appears in the statute. Section 1014 does not criminalize statements that are misleading but true. Under the statute, it is not enough that a statement is misleading. It must be “false.”

Next in Delligatti v. United States, 604 U.S. ---, No. 23-825 (2025), the Court held that the knowing or intentional causation of injury or death, whether by act or omission, necessarily involves the “use” of “physical force” against another person within the meaning of §924(c)(3)(A).  

Title 18 U. S. C. §924(c)(3)(A) defines a “crime of violence” to include a felony that involves the “use of physical force” against another person. In the context of a closely related statute, we have held that “the knowing or intentional causation of bodily injury necessarily involves the use of physical force.” United States v. Castleman, 572 U. S. 157, 169 (2014). This case asks whether that principle extends to §924(c)(3)(A) and, if so, whether the principle holds in cases where an offender causes bodily injury by omission rather than action. We answer both questions in the affirmative. 

This Court applies a “categorical approach” to determine whether an offense falls within the elements clause. Under that approach, we do not examine the defendant’s actual conduct. Instead, we ask whether the offense in question “always” involves the use, attempted use, or threatened use of force. Ibid. If the offense can be committed without the use, attempted use, or threatened use of force, it is not a crime of violence under the elements clause. 

The Second Circuit correctly held that causing bodily harm by omission requires the use of force. As in Castleman, the “use” of “physical force” in §924(c) encompasses the knowing or intentional causation of bodily injury. There is no exception to this principle when an offender causes bodily injury by omission rather than affirmative act. Delligatti’s §924(c) challenge therefore fails. 

Look for the government to rely on this holding to argue that inaction or passivity qualify as "use" in other contexts.