No, it’s not hard to believe, but complete understanding of what actually transpired may be.
So no prosecution under 26 U.S.C. § 5861? Well and good, but that’s not the end of it. Read the whole Reason article linked by Clayton especially this one part:
On March 9, the SG finally filed the brief for the United States. There was no confession of 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.
Now this guy is off the hook, as Double Jeopardy -being tried for the same crime twice- applies. But what we really have is a case of the Court slapping the cluebat upside the head of the prosecution and telling them how to do things in the future.
So don’t go and make your emmagees thinking your lawyers can use this dismissal to cover you. All the gubbermint has to do it prosecute under the 922(o) ban, which they didn’t this time. Other cases where the Prosecutors charged under 922(o) have been ‘successful’.
A prosecution for unlawful machine gun possession was granted cert by the Supreme Court–and the Justice Dept. filed a motion applying to vacate the judgment and drop the indictment. (It appears that the defendant challenged the constitutionality of the indictment before this went to trial.) Huh?
The argument that scared DOJ into dropping felony charges is that:
1. Federal authority to regulate machine guns is derived from their authority to tax them.
2. Since 1986, it is has been unlawful to make them for private ownership.
3. If they will not collect that tax, do they have authority to regulate their possession?
Apparently this is a side effect of ACA which required you to pay a tax for not being insured. The penalty was reduced to 0 recently by Congress, so the individual mandate no longer has any basis, because it was derived from Congressional taxing authority. It appears that DOJ has figured what that my friend Stephen Halbrook argued in U.S. v. Rock Island Armory (C.D. Ill. 1991) could sink machine gun regulation, very quickly:
As applied to machineguns alleged to be possessed after May 19, 1986, prosecutions may no longer proceed under 26 U.S.C. § 5861. This is because the National Firearms Act is part of the Internal Revenue Code, and its provisions — including registration of machineguns possessed after May 19, 1986 — are valid only to the extent they aid in the collection of tax revenue. Since BATF would not register and accept tax payments for any machinegun after May 19, 1986, registration of machineguns made and possessed after that date no longer serves any revenue purpose, and such registration requirements are invalid. Since 18 U.S.C. § 922(o) is interpreted to ban registration and taxation of machineguns under the National Firearms Act, § 922(o) effectively repeals such registration and taxation provisions. Congress has no enumerated power to require registration of firearms. However, since registration of firearms may assist in the collection of revenue, Congress passed the National Firearms Act in 1934 pursuant to its power to tax. Section 922(o) destroys the constitutional basis of registration.
The U.S. Attorney did not appeal that decision, likely afraid it would become precedent for the whole circuit.