The Volokh Conspiracy

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DOJ Dismisses Indictment of Machine Gun Prosecution While Cert Petition Was Pending

How often does the SG dismiss an indictment while a cert petition is pending, without a confession of error? And is there a connection to the Obamacare case?


Monday's Order List had another unusual entry:


The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Ninth Circuit for further consideration in light of the pending application to vacate the judgment and dismiss the indictment.

This case presented a constitutional challenge to the federal prohibition on registering machine guns. The proposed question presented was:

Does Congress's power to tax give it the power to punish the possession of unregistered machineguns under § 5861(d) of the NFA, even though it is impossible to register and pay tax on those machineguns, the law generates no revenue, and the only enforcement mechanism is prosecution?

The Solicitor General filed motions to extend the time to file a response on October 31, December 5, and January 7. These motions were routine, and cited the usual heavy caseload. They were granted. But the SG filed a fourth extension on February 5, which included this sentence:

In addition, the government has filed an application in the district court to dismiss petitioner's indictment under Federal Rule of Criminal Procedure 48(a), and that application remains pending. See D. Ct. Doc. 143 (Dec. 5, 2019).

On March 9, the SG finally filed the brief for the United States. There was no confession fo error. Rather the Government offered this policy reason for dismissing the indictment so late in the game:

The government explained in a declaration supporting the application that, "[a]fter consultation with the Solicitor General's Office, the United States Attorney's Office now has determined that dismissal of this criminal case in the interest of justice." D. Ct. Doc. 143, at 5. The government observed to the court that "a Department of Justice policy direct[s] prosecutors to charge the unlawful possession or transfer of a machinegun made after May 19, 1986 under 18 U.S.C. § 922(o), rather than, as in this case, under 26 U.S.C. § 5681(d)." Ibid. The government emphasized that the policy "creates no enforceable rights for a particular defendant" and that the case was "lawfully charged and prosecuted." Id. at 5-6. But the government explained that it had concluded that because of "the possibility that a similarly situated defendant in another district would not have been so charged and convicted," "the strong interest in national uniformity in the application of justice provides good cause for the dismissal of the indictment and vacatur of the judgment." Ibid. Petitioner did not object to the government's application. See D. Ct. Doc. 143, at 6. The application remains pending in the district court.

As a result, the SG urged the Court to GVR the petition:

Petitioner contends (Pet. 5-13) that 26 U.S.C. 5861(d), as applied to unregistered machineguns, exceeds Congress's taxing power under Article I of the Constitution. In view of the government's pending application to dismiss the indictment, this Court should grant the petition, vacate the judgment below, and remand the case.

The case was distributed for the 4/17/20 conference, and on 4/20, the case was GVR'd "in light of the pending application to vacate the judgment and dismiss the indictment."

How often does DOJ dismiss an indictment while a cert petition is pending, without a confession of error? The SG offered several examples, the most recent of which occurred in 1980:

For example, "[t]he Department of Justice has a firmly established policy, known as the 'Petite' policy, under which United States Attorneys are [ordinarily] forbidden to prosecute any person for allegedly criminal behavior if the alleged criminality was an ingredient of previous state prosecution against them." Thompson, 444 U.S. at 248. "Ever since the Justice Department established the 'Petite' policy in 1959, the Court has consistently responded to requests by the Government in cases [where the policy was violated] by granting certiorari and vacating the judgments." Id. at 249; see Hammons v. United States, 439 U.S. 810 (1978); Frakes v. United States, 435 U.S. 911 (1978); Rinaldi, 434 U.S. at 32; Croucher v. United States, 429 U.S. 1034 (1977); Watts v. United States, 422 U.S. 1032 (1975); Ackerson v. United States, 419 U.S. 1099 (1975); Hayles v. United States, 419 U.S. 892 (1974); Thompson v. United States, 400 U.S. 17 (1970) (per curiam); Marakar v. United States, 370 U.S. 723 (1962) (per curiam); Petite v. United States, 361 U.S. 529 (1960) (per curiam).

This Court's practice "is not unique to violations of the 'Petite' policy." Thompson, 444 U.S. at 250. "The Court also has consistently vacated the judgments in other cases which the Solicitor General has represented were in violation of other Justice Department policies." Ibid.; see Blucher v. United States, 439 U.S. 1061 (1979) (obscenity prosecution); Nunley v. United States, 434 U.S. 962 (1977) (prosecution for willfully making false statements); Margraf v. United States, 414 U.S. 1106 (1973) (prosecution for carrying a concealed weapon while boarding an aircraft); Robison v. United States, 390 U.S. 198 (1968) (per curiam) (addition of counts upon retrial); Redmond v. United States, 384 U.S. 264 (1966) (per curiam) (obscenity prosecution).

The SG could not find an example in the last forty years of this practice.

Why did the SG take this strange course? The Affordable Care Act litigation may have played a role in its decision. In Texas v. U.S., the federal government argues that the ACA, which no longer raises revenue, cannot be construed as imposing a tax. The National Firearms Act no longer raises revenue, because the government won't collect the payment.  Bronsozian argued that his provision cannot be sustained under NFIB v. Sebelius. As a result, the DOJ would have had to argue that the National Firearms Act, which raises no revenue must be construed as imposing a tax. There is a tension between the two positions. Perhaps the easier path was to simply dismiss the indictment to sustain the Obamacare case.