And it did not involve anyone connected to Donald Trump, the Trump Campaign, or Russia. //

On April 20, 2020, the Supreme Court — at the request of the United States — vacated cert in a case that had been fully briefed and ready for oral argument before the Court. It vacated the case after the Government notified the Court that it had filed a motion under Rule 48(a) to dismiss the indictment in the matter of United States v. Bronsozian.

The curious fact about the motion for dismissal is that it came long after the defendant was convicted at trial by a jury, his conviction was affirmed on appeal, and his case was pending in the Supreme Court awaiting oral argument. //

the Court vacated the granting of cert., and remanded the matter back to the Ninth Circuit for further proceedings in light of the Government’s motion. In turn, two days ago the Ninth Circuit remanded the matter to the district court. //

Defendant was indicted under a tax statute for failure to register and pay a tax on an automatic machine gun he bought from an undercover agent. The problem with the theory of prosecution is that many years ago Congress passed a law saying people could not longer pay, and the Department of Treasury could no longer collect the tax payments on automatic weapons called for in the tax law.

As a result, it has been DOJ policy to charge a different crime with regard to possession of an unregistered machine gun — not the “tax” based crime. It’s hard to put someone in jail for not paying a tax that the law says you cannot pay.

But someone in Los Angeles didn’t get the memo, and in 2016 a federal prosecutor there charged Bronsozian with a crime because he didn’t pay the tax on the machine gun it was illegal for him to pay. //

after consideration of a lot of potential “collateral impacts” of pushing forward defending a tax that is not being collected (ACA sound familiar to anyone?), the Solicitor General decided that the wiser course of action for policy reasons was to abandon the matter, and seek dismissal of the case back in the trial court where the indictment was brought to avoid having the Supreme Court weight in on the legality of enforcing a tax statute in light of a later act by Congress making it illegal to pay the tax (cough — Obamacare — cough). //

JerryS
6 hours ago
Here's from the CATO Institute blog on this case:
How often does DOJ dismiss an indictment while a cert petition is pending, without a confession of error? The solicitor general offered several examples, the most recent of which occurred in 1980. The SG could not find an example in the last 40 years.

Why did the SG take this strange course? Believe it or not, ongoing Obamacare litigation is the most likely explanation. In Texas v. United States, which the Supreme Court agreed to hear but which now likely won’t be argued till the fall, the federal government argues that the Affordable Care Act, which no longer raises revenue, cannot be construed as imposing a tax.

Well, 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, the 2012 case that upheld the individual mandate after reconstruing it as a tax. As a result, DOJ would’ve had to argue that the National Firearms Act, which raises no revenue, must be construed as imposing a tax, while arguing that the no‐​longer‐​revenue‐​raising ACA cannot be construed that way.

Perhaps the easier path was to simply dismiss the indictment to sustain the Obamacare case. Our kudos to Mr. Bronsozian, and his counsel John Littrell, for securing an unusual win for constitutional governance by forcing the government into that pretzel. //