Pandemic Darlings The pandemic economy, in original documents
Home Source documents Court filing — No. 5:23-cr-00021 (Dkt. 37, E.D.N.C.)

Court filing — No. 5:23-cr-00021 (Dkt. 37, E.D.N.C.)

Full text

                      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).

         Case 5:23-cr-00021-FL-RN Document 37 Filed 12/01/23 Page 1 of 4
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.




                                       2




    Case 5:23-cr-00021-FL-RN Document 37 Filed 12/01/23 Page 2 of 4
      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




                                        3




       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




                                         4




       Case 5:23-cr-00021-FL-RN Document 37 Filed 12/01/23 Page 4 of 4


File and source

File
37.pdf
Size
101,504 bytes
SHA-256
6b5e31b5d7f1a0cecf0649dba7d559ec1cb347e217da2205b2975bdd11f927c5
Our copy
37.pdf
Original
archive.org
Back to top