United States District Court, W.D. North Carolina, Charlotte Division
STAY PENDING APPEAL
COGBURN JR. UNITED STATES DISTRICT JUDGE
MATTER is before the Court on defendant's Motion
for Stay Pursuant to Fed.R.Crim.P. 38(g). The government has
not responded within the time provided.
an appeal has been lodged, this Court has jurisdiction to
consider the Motion to Stay in accordance with the provisions
of Rule 38(g), as consideration by either a district court or
an appellate court is specifically contemplated in such rule.
Further, Rule 8(a)(1), Federal Rules of Appellate Procedure,
specifically provides that an appellant must ordinarily move
first in the district court for a stay of an Order pending
appeal. In accordance with criminal Rule 38(g) and appellate
Rule 8(a)(1), the Court need not rely on the indicative
ruling procedures provided in Rule 37. See Advisory
Committee Notes to the 2012 adoption of Rule 37, at ¶ 2.
Court has closely reviewed Rule 38(g). That rule provides
that this Court, or the Appellate Court, may stay any civil
“disability” created by the enforcement of a
defendant's conviction or sentence pending appellate
resolution. Technically, the disability is not directly
created by the conviction or sentence, but by the Order this
Court issued revoking defendant's naturalization as a
consequence of his Section 1425 conviction. Revocation of
naturalization is a consequence of any Section 1425
conviction. Title 8 U.S.C. § 1451(e) provides:
When a person shall be convicted under section 1425 of Title
18 of knowingly procuring naturalization in violation of law,
the court in which such conviction is had shall thereupon
revoke, set aside, *1209 and declare void the final order
admitting such person to citizenship, and shall declare the
certificate of naturalization of such person to be canceled.
Jurisdiction is conferred on the courts having jurisdiction
of the trial of such offense to make such adjudication.
Id. Further, revocation of naturalization is
mandatory upon conviction of any violation of Section 1425.
United States v. Moses, 94 F.3d 182, 188 (5th
Cir.1996) (“[Section 1451(e)] is mandatory- the
district court shall revoke the citizenship if the individual
is convicted under section 1425.” (emphasis deleted)).
Thus, the disability is directly tied to the underlying
conviction, making the relief sough within the realm of
relief contemplated under Rule 38. The Court will now
consider whether that relief should be granted.
unlike other provisions allowing district courts to stay
further actions or proceedings pending appeal, see Hilton
v. Braunskill, 481 U.S. 770, 776 (1987), Rule 38(g) does
not require this Court to make a determination as to whether
defendant is likely to succeed on appeal. Thus, issuance of
stay is not dependent on the merits of defendant's appeal
of what appears to be a mandatory Order of revocation.
while the government has not objected, this Court has
considered whether other courts faced with similar motions
have allowed what appears to be exceptional relief. While
defendant cites to no cases where a stay of revocation of
naturalization was granted pending appeal, it appears that a
stay was granted in United States v. Inocencio, No.
02-10288 (9th Cir. 2002) (docket entry #6, entered
7/29/2002). While appellant in that case was ultimately
unsuccessful, United States v. Inocencio, 328 F.3d
1207 (9th Cir. 2003), the Court of Appeals for the Ninth
Circuit allowed the stay subject to certain conditions agreed
to by both the government and the appellant.
the Court has considered the danger posed in staying the
disability pending appeal. While the possibility of defendant
engaging in additional Title 8 violations is real, it appears
from the representations of counsel that defendant has
otherwise abided by the law (with the exception of traffic
law infractions) and the conditions set by this Court
following his conviction.
carefully considered the motion, the appellate Orders and
ultimate decision in Inocencio, and again reviewed
the summary of the facts of this case, the Court believes it
can fashion an appropriate stay that protects the public as
contemplated by Title 8. In particular, the Court has adopted
the limitations suggested in defendant's motion
and those imposed by the appellate court in
Inocencio, which are most appropriate as they go to
the very harm Title 8 seeks to prevent.
IS, THEREFORE, ORDERED that defendant's Motion
for Stay Pursuant to Fed.R.Crim.P. 38(g) (#94) is
GRANTED, and the Order revoking
defendant's Naturalization (#89) is
STAYED pending resolution of appeal, subject
to the following conditions:
(1) Defendant shall not seek additional copies of his
Passport or Naturalization Certificate pending resolution of
the appeal; and
(2) Defendant shall not use his status as a United States
citizen in any manner to aid or sponsor anyone attempting to
gain entry, legal status, or citizenship in the United States