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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:23-CR-21-FL-RN-1
UNITED STATES OF AMERICA OBJECTIONS TO MAGISTTRATE JUDGE
MEMORANDUM AND
v. RECCOMENDATIONSW
CARLOS ALSTON
Defendant Carlos Alston, through undersigned counsel, respectfully provides the
following concurrences and objections to the Magistrate Judge Memorandum and
Recommendation.
I. BACKGROUND
A. Procedural History
On January 24, 2023, Mr. Alston was charged in a two-count indictment with one
count of being a person in receipt of a firearm while under indictment, in violation of 18
U.S.C. § 922(n), and one count of being a person in possession of a firearm while a drug
user, in violation of 18 U.S.C. § 922(g)(3). [DE 11]. On July 18, 2023, United States
Magistrate Judge Robert Numbers issued a Memorandum and Recommendation on the issues
presented in Defendant’s Motion to Dismiss the Indictment based upon Second Amendment
of the U.S. Constitution grounds. [DE 27].
Mr. Alston concurs with the Magistrate Judge’s recommendation with regard to the
finding that § 922(g)(3) is unconstitutional in light of the Supreme Court’s ruling in New
York State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111 (2022). Mr. Alston
objects to the conclusion that § 922(n) is a regulation that is consistent with the nation’s
historical tradition of firearms regulation.
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B. Factual Background
Mr. Alston was waiting in the drive-thru line of a restaurant located in Henderson,
North Carolina, when police approached his car. [DE 1]. Mr. Alston anticipates that the
government will argue Mr. Alston brandished a weapon at the approaching police officer
after the officer gave verbal commands for Mr. Alston to show his hands and notified him of
outstanding warrants. [DE 1]. The officer then shot Mr. Alston once, striking him in the
lower body. [DE 1]. After a foot chase, Mr. Alston collapsed from his injuries and was taken
into custody. [DE 1]. Police recovered a Smith & Wesson, SD9VE 9mm pistol near Mr.
Alston’s flight path, and they discovered marijuana in his car. Mr. Alston has a prior criminal
conviction related to marijuana. [DE 1]. At the time of the shooting, Mr. Alston did not have
any felony convictions.
C. Standard of Review
A district court may refer a motion to suppress to a magistrate judge for a
recommendation pursuant to Federal Rule of Criminal Procedure 59(b)(1). See Fed. R. Crim.
P. 59(b)(1). A party may file written objections to magistrate judge's memorandum and
recommendation within fourteen days of being served with a copy of the memorandum and
recommendation. 28 U.S.C § 636(b)(1). “ ‘Any written objections must specifically identify
the portions of the Report and Recommendation to which objections are made and the basis
for such objections.’ ” Morgan v. N.C. Dep't of Health and Human Servs., 421 F. Supp. 2d
890, 893 (W.D.N.C. 2006) (emphasis in original) (quoting Thomas v. Westinghouse
Savannah River Co., 21 F. Supp. 2d 551, 560 (D.S.C. 1997)); see also Battle v. U.S. Parole
Comm'n, 834 F.2d 419, 421 (5th Cir. 1987) (“[P]arties filing objections must specifically
identify those findings objected to.”) (quotation omitted).
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II. RESTRICTIONS ON THE RIGHT TO BEAR ARMS IN LIGHT OF BRUEN
A. Mr. Alston concurs with the Court’s finding that § 922(g)(3) is
unconstitutional.
The United States argues that the Second Amendment does not apply to Alston
because—as an unlawful drug user under indictment—he is not a member of “the people”
who enjoy the Amendment’s protections. [D.E. 20 at 6–10]. The Memorandum and
Recommendation (M&R) properly reasoned that “[t]o agree with the United States, this court
would need to understand “the people” in the Second Amendment context differently than it
interprets that phrase in every other section of the Constitution; however, the Supreme Court
has rejected this approach.” [See D.E. 27 at 12].
The theory pursued by the government in this case has failed to recognize that Bruen
has changed the legal landscape in which all restrictions of Second Amendment rights must
be analyzed. The Supreme Court’s recent opinion in Bruen disavowed the lower courts’
framework, holding “Heller and McDonald do not support applying means-end scrutiny in
the Second Amendment context.” Bruen,142 S. Ct. at 2127. In its place, the Court adopted a
“text-and-history standard” more consistent with Heller’s methodology. Id. at 2138. Once
again, it is the “means-ends” justification that the Government is attempting to posit as the
basis to deprive Mr. Alston from his constitutional rights. See DE 40, at 3-4.
The analysis within the M&R as to the constitutionality of § 922(g)(3) is not an outlier;
it is consistent with the holding of Bruen. Under Bruen, the government cannot meet its burden
to identify a “relevantly similar” historical tradition of firearm regulation that supports disarming
individuals who are alleged to be drug users as there is no clear set of pre-enactment positive-law
statutes concerning narcotic use and firearms. Last week, the United States Court of Appeals for
the Fifth Circuit reached this same conclusion in United States v. Daniels, No. 22-60596, 2023
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WL 5091317 (5th Cir. Aug. 9, 2023). In Daniels, the Fifth Circuit similarly held that § 922(g)(3)
was inconsistent with Bruen. First the Daniels court found that the Second Amendment applied
to persons like Daniels, admitted drug users. Id at *2. Second the question was that there was not
a similarly analogous statute that existed prior to the Second Amendment. Id at *14. The
reasoning articulated within the M&R is identical to the reasoning of the Daniels court; as such,
the M&R is not an outlier opinion without basis. Accordingly, § 922(g)(3) fails the analysis of
Bruen.
B. Mr. Alston objects to the court’s finding that § 922(n) is a permissible
restriction of rights analogous to pre-trial detention.
The Supreme Court could not have been clearer when it stated that “firearms restrictions
are presumptively unlawful unless the government can demonstrate that the regulation is consistent
with the Nation’s historical tradition of firearms regulations.” Bruen, 142 S. Ct. 2111, 2126 (2022).
As such, Mr. Alston objects to the M&R with regard to the finding that § 922(n) “analogous
enough to pass constitutional muster.” [D.E . 27 at 20]. Further, Mr. Alston objects to the finding
that § 922(n) is a permissible limitation on the right to self-defense in a manner similar to pre-trial
detention. Id. at 19. Whether it is “analogous enough” is not the test as articulated by the court in
Bruen. Further, the court in Bruen as clearly stated that the “Second Amendment guaranteed to
‘all Americans’ the right to bear commonly used arms in public subject to certain reasonable, well-
defined restrictions.” Bruen, 142 S. Ct. at 2111, 2156. Accordingly, the M&R analogizes a
constitutional freedom of self-defense to a switchboard of rights that can be turned on and off
under the allegation of wrongdoing.
When the M&R asserts that the limitation of the right to bear arms is analogous to the right
to liberty, it is saying that the presence of an indictment’s probable cause determination is
analogous to the 18 U.S.C. § 3142 determination of detention. This analogy is not consistent with
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the holding of Bruen and allows for the deprivation of a constitutional right without any safeguards
other than a probable cause determination. As detailed within the M&R, a probable cause
determination is all that is needed to acquire an indictment. [D.E. 27 at 19] However, to take a
person’s liberty more than probable cause is required.
Section 18 U.S.C. § 3142(e) of the Bail Reform Act, which governs release or detention
pending trial, dictates that if, after holding a hearing, the court finds that no “condition or
combination of conditions will reasonably assure the appearance of the person as required, and the
safety of any other person and the community,” such court shall order the detention of the person
before trial. The factors to be considered in determining whether to release a defendant pending
trial are set forth in 18 U.S.C. § 3142(g) and include: (1) nature and circumstances of the offenses
charged; (2) the weight of the evidence against the person; (3) the history and characteristics of
the person, including family ties, the person's character, ties to the community, and criminal
history; and (4) the nature and seriousness of the danger to any person or the community that would
be posed by the person's release. United States v. Stewart, 19 F. App'x 46, 48 (4th Cir. 2001). To
obtain an indictment, a grand jury simply must find that a crime had been committed by the
defendant by the preponderance of the evidence. Under the Bail Reform Act, the clear and
convincing evidence standard applies to a determination that “no condition or combination of
conditions will reasonably assure the safety of any other person and the community.” 18 U.S.C.
§ 3142(e). As such, a simple finding by the preponderance of the evidence that there is a crime is
not sufficient. The Bail Reform Act recognizes that when a persons’ constitutional right is taken
away (in this case – the right to liberty) in the pretrial confinement context, the burden is higher
than merely preponderance of the evidence. Accordingly, the court made a false equivalence in
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analogizing pre-trial detention and the burden under § 922(n). Bruen argues that a right as
paramount as the right to bear arms cannot be removed by a preponderance of the evidence burden.
As articulated in Bruen, the right to bear arms is a right for all persons. Only centuries
after the Founding did Congress begin barring indicted individuals from receiving firearms.
Congress first passed a law prohibiting transporting firearms for individuals under indictment for
a crime of violence in 1938. See Federal Firearms Act of 1938, 75 Cong. Ch. 850, § 2(e), 52 Stat.
1250, 1251 (repealed). It was not until 1961 that Congress expanded the prohibition to include all
individuals under indictment. See Act of Oct. 3, 1961, Pub. L. No. 87–342, 75 Stat. 757 (repealed).
The statute was again clarified in 1968, to include indictments in state and federal court, but only
for those felonies punishable by more than one year in prison. See Gun Control Act of 1968, Pub.
L. 90–618, 82 Stat. 1213 (codified at 18 U.S.C. §§ 921–928). Of note, all of these restrictions
including the restriction under § 922(n) occurred post-enactment of the Second Amendment.
C. There is no well-established historical analogue.
The government cannot in identify a “well‐established and representative historical
analogue” from either era supporting the categorical disarmament of tens of millions of Americans
who seek to keep firearms in their home for self‐defense. Bruen, 142 S. Ct. at 2132; see Gabriel J.
Chin, The New Civil Death: Rethinking Punishment in the Era of Mass Conviction, 160 U. Pa. L.
Rev.1789, 1791 (2012) (explaining that “tens of millions” of free‐world Americans have criminal
records). It is understandable that the government has argued that there is a well-established
historical analogue – as it must aruge to uphold all of the post enactment legislation regulating
firearms; nevertheless, the standard announced by the Supreme Court in Bruen is the law of the
land. It must be enforced. Under that standard, the government has failed to meet its burden.
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The government cannot rely on the passage of § 922(n) in the mid-20th century to establish
a long-standing historical tradition back to the enactment of the Second Amendment, particularly
where it contradicts the plain language of the Constitution’s text. See Bruen, 142 S. Ct. at 2136–
37. The Supreme Court specifically declined to consider any 20th century evidence offered by the
respondents in Bruen, noting it “does not provide insight into the meaning of the Second
Amendment when it contradicts earlier evidence.” Id at 2154 n.28. The district court should do
the same in this case.
Accordingly, the government cannot meet its burden to identify a “relevantly similar”
historical tradition of firearm regulation that supports disarming individuals who have been merely
indicted. As such, § 922(n)’s restriction on firearms does not meet the Bruen test.
III. CONCLUSION
The government has failed to demonstrate that § 922(g)(3) and § 922(n) are
supportable by any historic tradition of firearm regulation in the United States, rendering
them unconstitutional under Bruen and the Second Amendment. Mr. Alston agrees with the
reasoning and conclusion of the Memorandum and Recommendation with regard to §
922(g)(3) and objects to the conclusions at to § 922(n). Mr. Alston continues to argue that
this Court should dismiss both counts of the indictment against Mr. Alston.
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Respectfully requested this 15th day of August, 2023.
G. ALAN DUBOIS
Federal Public Defender
/s/ Edward D. Gray
EDWARD D. GRAY
Assistant Federal Public Defender
Attorney for Defendant
Office of the Federal Public Defender
150 Fayetteville Street, Suite 450
Raleigh, North Carolina 27601
Telephone: 919-856-4236
E-mail: Edward_Gray@fd.org
N.C. State Bar No. 37539
LR 57.1 Counsel Appointed
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing was served upon:
Sarah E Nokes
Assistant United States Attorney
United States Attorney’s Office
Eastern District of North Carolina
150 Fayetteville Street, Suite 2100
Raleigh, NC 27601
by electronically filing the foregoing with the Clerk of Court on August 15, 2023, using the
CM/ECF system which will send notification of such filing to the above.
This the 15th day of August, 2023.
G. ALAN DUBOIS
Federal Public Defender
/s/ Edward D. Gray
EDWARD D. GRAY
Assistant Federal Public Defender
Attorney for Defendant
Office of the Federal Public Defender
150 Fayetteville Street, Suite 450
Raleigh, North Carolina 27601
Telephone: 919-856-4236
E-mail: Edward_Gray@fd.org
N.C. State Bar No. 37539
LR 57.1 Counsel Appointed
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