UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
CRIM. NO.: 5:23-CR-00021-FL-RN
UNITED STATES OF AMERICA )
) MOTION TO STAY
v. )
)
CARLOS ALSTON )
The United States of America, by and through the undersigned Assistant
United States Attorney for the Eastern District of North Carolina, respectfully
requests this Court stay action in this case pending resolution of the government’s
interlocutory appeal. In support of this Motion, the government asserts the following:
1. On February 28, 2023, Defendant filed a Motion to Dismiss the pending
Indictment, arguing that the statutes upon which the charges were brought
violate the Second Amendment in light of New York State Rifle and Pistol
Assoc., Inc. v. Bruen.
2. On October 24, 2023, the Court granted the Motion to Dismiss in part. The
Court found 18 U.S.C. § 922(g)(3) unconstitutional and thus dismissed Count
Two of the Indictment. The Court found 18 U.S.C. § 922(n) constitutional and
denied Defendant’s motion as to Count One.
3. On November 20, 2023, the government filed a Notice of Appeal indicating its
intent to appeal this Court’s dismissal of Count Two of the Indictment. Such
appeal is authorized pursuant to 18 U.S.C. § 3731.
4. The government requests this Court stay proceedings on the single remaining
Count of the Indictment. See Fed. R. App. P. 8(a).
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5. “[A]n appeal from … an interlocutory order made immediately appealable by
statute divests a district court of authority to proceed with respect to any
matter touching upon, or involved in, the appeal.” United States v. Mala, 7 F.3d
1058, 1061-62 (1st Cir. 1993). The government’s evidence for the dismissed
Count Two is inextricably intertwined with its evidence for the remaining
Count One and thus touches upon or involves matters currently under appeal.
6. If proceedings upon Count One are not stayed pending the government’s
appeal, the Court may be required to try to case twice, which is not an efficient
use of Court resources.
7. Counsel for the defendant has indicated that Defendant does not object to the
requested stay of proceedings on Count One.
8. Further, pursuant to 18 U.S.C. § 3161(h)(1)(C), the delay resulting from the
government’s interlocutory appeal should be excluded for purposes of
calculating speedy trial.
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WHEREFORE, the United States moves this Court to stay further proceedings
in this matter pending the outcome of the pending interlocutory appeal. A proposed
order is attached.
Respectfully submitted this 1st day of December, 2023.
MICHAEL F. EASLEY, JR.
United States Attorney
BY: /s/ Sarah E. Nokes
SARAH E. NOKES
Assistant United States Attorney
Criminal Division
U.S. Attorney’s Office, EDNC
150 Fayetteville Street, Suite 2100
Raleigh, North Carolina 27601
Sarah.nokes@usdoj.gov
Telephone: 919-856-4286
VA Bar No. 82472
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Case 5:23-cr-00021-FL-RN Document 37 Filed 12/01/23 Page 3 of 4
CERTIFICATE OF SERVICE
This certifies that a copy of this motion has, this 1st day of December, 2023,
been served upon Counsel for the defendant via CM/ECF to:
Edward Gray
Federal Public Defender
150 Fayetteville Street
Suite 450
Raleigh, NC 27601
MICHAEL F. EASLEY, JR
United States Attorney
BY: /s/ Sarah E. Nokes
SARAH E. NOKES
Assistant United States Attorney
Criminal Division
U.S. Attorney’s Office, EDNC
150 Fayetteville Street, Suite 2100
Raleigh, North Carolina 27601
Sarah.nokes@usdoj.gov
Telephone: 919-856-4286
VA Bar No. 82472
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