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.

NEXT: SG Confesses Error on Secret Immigration Docket, SCOTUS GVRs

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  1. OR that someone feared that SCOTUS might throw out the NFA on the very grounds that this *isn’t* a tax if one is unable to pay it. And other that it is newer, and hence possibly safer, what is the inherent difference between a machine gun manufactured after 1986 and one manufactured before?

    1. Would you throw out the NFA, (I’d swoon with joy…) or just the provision of the 1986 FOPA that shut the door on registering new machine guns? The latter, I would expect.

      While the Court’s reasoning in upholding the NFA as an exercise of the tax power was seen as somewhat outrageous at the time, in this time of penaltaxes it seems rather pedestrian. But even the author of the penaltax might blink at criminalizing failure to pay a tax the government won’t permit to be paid.

      1. If the latter was thrown out, it would instantly make the value of pre-Hughes Amendment M16 lowers drop from $30k down to about $1k. Haha.

        1. They’d still have a degree of value as antiques.

          1. Maybe for 1927 Thompsons, but not 1986 M16s or MP5s.

        2. No — the current M-16 only fires 3 shot bursts — it no longer has the fully-auto option of the Vietnam-era ones. It’s still considered a “machine gun” because of the 2nd round, but isn’t fully auto.

          1. I’m not sure what you mean by the ‘current M-16’, but the Army’s current general issue rifle is the M4A1, which is full auto.

  2. “Why did the SG take this strange course?”

    This seems like a silly, even disingenuous, question. The SG took this course because he wants to protect an unconstitutional law from judicial review in the context of a sympathetic defendant.

    The law in question is the subject of a 27! year old circuit split, having been struck down as unconstitutional in the 10th circuit under the exact reasoning pursued here. And that reasoning is very persuasive if you have an concern for limiting Congress to enumerated powers at all.

    1. Certainly that’s what Blackman is implying. Funny you’re so hostile with someone who is absolutely buying your narrative.

      If that’s what the SG is doing, they shouldn’t. But who appointed the SG, Brett?
      Did Trump appoint a part of the Deep State Swamp Conspiracy accidentally once again?

      1. I’m not fond of disingenuous questions. Just come out and say it.

        Are you under the impression that either Trump or Barr are 2nd amendment absolutists? Heck, the NRA isn’t run by 2nd amendment absolutists, (They signed off on throwing machine gun owners under the bus back in 86, much to the horror of the membership.) and neither Trump nor Barr are as principled on the topic as the NRA.

        I take it as a given, and have said so many times, that Trump is not ideologically pro-gun or conservative, and will only be pro-gun to the extent he finds politically necessary. So I’m not shocked that the AG would be engaging in tricks like this to preserve an unconstitutional gun control law the NRA leadership have no beef with.

        1. The NRA threw “machine gun owners under the bus back in 86” and I missed it?

          Damn. I would have liked to watch……..

          1. You got to watch them throw bump stock owners under the bus. It was roughly the same, except that they actually got something in return for screwing over the machine gun owners.

        2. They didn’t throw them under the bus. FOPA fixed so many bad gun laws (ammo registration!!) by a Dem Congress that they had little choice but to accept it.

          I hate the Hughes Amendment too (and don’t consider it constitutional or having been properly passed) but let’s not ignore the good FOPA did.

          1. No, they did throw them under the bus. They just got something in return for doing it.

        3. Good to know that rampant judicial bad faith isn’t limited to liberals, but to anyone Brett disagrees with.

      2. Any one that thinks Trump is any sort of absolutist on gun rights, especially concerning machine guns or fake machine guns, needs to take just a cursory look at his bump stock ban executive order and the underlying statute.

        1. If only there were room between being an absolutist and bad-faith judiciary trickery to maintain unconstitutional laws…

          1. Yeah, if only there were room between upholding the law and subverting it.

    2. That’s what I believe too. It seems not just odd but grossly unfair that DOJ is allowed to use this method to rob people of their day in court. I would have hoped SCOTUS would not permit it to happen.

      1. Weren’t we discussing, just a month or two ago, another case where some unit of government was dropping a prosecution in an effort to moot a case after the Supreme court had granted cert?

        Yeah, New York State Rifle & Pistol Association Inc. v. City of New York, New York, which the city tried to moot after certiori was granted. The Court decided to go forward with the case anyway.

        However, case being discussed in the OP is, in principle, much less of a close question whether to take. That circuit split has been sitting there unresolved for literally decades.

      2. I’m not sure I follow how anyone was “rob[bed] of their day in court.” Mr. Bronsozian was asking the Supreme Court to vacate his felony conviction and rule that he did not need to serve the prison sentence that was imposed. The government agreed that Mr. Bronsozian should not be a felon or go to jail. Why should the Supreme Court has refused to let what both the government and Mr. Bronsozian wanted to happen, happen?

    3. I thought the case was US versus Rock Island Armory which would have been heard in the 7th circuit? Is there another one?

  3. Related:

    U.S. v. Rybara upheld a conviction for posession of an NFA registered machine gun and ruled that the machine gun prohibition was a permissible regulation of an activity that substantially affected commerce.

    Judge Alito was the sole dissenter. Citing U.S. v. Lopez,
    the Supreme Court’s 1995 decision striking down the federal Gun-Free School Zones Act on Commerce Clause grounds, Judge (now Justice) Alito said:
    “…we are left with no congressional findings and no appreciable empirical support for the proposition that the purely intrastate possession of machine guns, by facilitating the commission of certain crimes, has a substantial effect on interstate commerce, and without such support I do not see how the statutory provision at issue here can be sustained….”

    1. U.S. v. Rybara upheld a conviction for posession of an NFA registered machine gun and ruled that the machine gun prohibition was a permissible regulation of an activity that substantially affected commerce.

      Shall not be infringed – – – – – –

  4. The connection to the Obamacare case is rather tenuous: The Obamacare mandate isn’t a tax, at a minimum, because it doesn’t levy a tax anymore. It originally wasn’t a tax because the statute literally said it was a penalty for failing to comply with a command. It’s as though you were grabbing people who failed to obey some order, throwing them in prison for 4 years without a trial, and then attempting to rationalize that it was just military conscription.

    In the immediate case, the NFA actually does levy a tax. That tax is still in effect to this day, and is non-zero. The government simply refuses to accept payment of it, and then criminally prosecutes you for the failure to pay.

    Trivially easy to distinguish.

    1. I think it’s a $250 machine gun transfer stamp (it’s literally a stamp). I’m not familiar with the text of the law, but I wonder how that “transfer” stamp applies to making a machine gun.

      (Many of these home made guns are made from demilitarized gun “kits,” like Sten guns where the receiver (a tube) has been cut out.)

    2. So, continuing on this, if you never really transfer it, i.e., you make it, why are you subject to the transfer tax?

      1. While it’s called a “transfer” tax, the statute says, “It shall be unlawful for any person required to register under the provisions of this section to import, manufacture, or deal in firearms without having registered and paid the tax imposed by this section.”

        Then it goes on to call the tax a “transfer” tax. Go figure.

  5. It’s frustrating that the Court maintains a secret machine gun docket, denying public access to the docket for this case.

  6. Now that the SG has demonstrated weak knees, this will be a path to get all prosecutions dismissed, until either the Supreme Court takes a case, or until the government is forced to open up the registry to prevent all these dismissals.

    1. Yeah, right. You think buying a machine gun legally costs an arm and a leg? Wait until you see the legal costs they’ll impose on anybody who takes this path. And with no real guarantee the author of the “penaltax” won’t decide the law is just peachy, and off you go to prison.

      1. A lot of people do take this path and BATFE prosecutes lots of cases for unregistered machine guns (now including bump stocks btw).

        This case gives a clear roadmap to any criminal defense attorney looking to make a name for themselves. It will only take one.

    2. No, they just charge them under the later Gun Control Act instead of the National Firearms Act.

      1. I don’t really have any desire for a machine gun, it’s just a fun way to burn through ammo, and I can’t afford to burn through ammo. More than that one time, just to see what it was like…

        But I’d like to be rid of the NFA because if its controls on suppressors. They’re a safety article, protect hearing. In civilized countries they’re mandatory, not prohibited!

        1. Why don’t futures prices for ammo ever get to zero or even go negative like oil or interest rates.

          If the May20 contract for .357 ammo got to a dollar i would take delivery, even for 100 million rounds. Then with the profits I would commission a .357 Thompson submachine gun which are now evidently legal.

          1. Because there aren’t futures markets for manufactured goods.

            Futures markets cover RME (Raw material extraction) and agricultural products.

            Oil futures only cover raw oil, there are no futures markets for refined petroleum products like gasoline.

          2. The issue with oil futures is storage space.

  7. I couldn’t imagine what the Surgeon General – so topical now – might have to say on machine guns.

    1. I can’t imagine why the Surgeon General’s opinion on machine guns would be of any interest and / or relevance.

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