UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

v.

JARED SAMUEL KASTNER,

Defendant.

Criminal Action No. 21-725 (RDM)

MEMORANDUM OPINION AND ORDER

Defendant Jared Kastner appeals Magistrate Judge Upadhyaya’s order denying his

motion to lift the pretrial release condition prohibiting him from possessing a firearm. See Dkt. 

97; Dkt. 100. The appeal presents the latest in a long string of attempts by Kastner to remove or

circumvent that condition of his pretrial release. For the reasons explained below, Kastner’s 

appeal is DISMISSED as untimely.

I. BACKGROUND

This is one of the many cases pending before the Court relating to the attack on the U.S. 

Capitol on January 6, 2021. Kastner is charged with four misdemeanor counts: (1) knowingly 

entering or remaining in a restricted building or grounds without lawful authority, in violation of 

18 U.S.C. § 1752(a)(1); (2) disorderly or disruptive conduct in a restricted building or grounds, 

in violation of 18 U.S.C. § 1752(a)(2); (3) disorderly conduct in a Capitol building or grounds, in 

violation of 40 U.S.C. § 5104(e)(2)(D); and (4) parading, demonstrating, or picketing in a 

Capitol building, in violation of 40 U.S.C. § 5104(e)(2)(G). See Dkt. 24 (Superseding 

Information). The Court has previously detailed Kastner’s alleged activities, see, e.g., Dkt. 42, 
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but, for present purposes, the Court focuses on the history of his efforts to modify the condition 

of his pretrial release restricting his access to firearms. 

On December 14, 2021, Kastner had his initial appearance before Magistrate Judge Zia 

Faruqui. Min. Entry (Dec. 14, 2021). At that hearing, Kastner requested a modification to the 

standard pretrial release condition restricting firearm possession on the ground that he 

volunteered as a security guard at his church. Judge Faruqui granted Kastner’s request and 

modified the standard condition to permit him to possess a firearm “while on the premises of the 

Wilmington Baptist Church” but only if (1) the “firearm [wa]s to be stored and secured on the 

Church’s premises;” (2) Kastner was “prohibited from taking the firearms off the Church’s 

grounds;” and (3) Kastner was otherwise “prohibited from possessing firearms.” Dkt. 11 at 3.

Kastner then twice moved this Court to lift the remaining firearm restrictions, first on 

January 21, 2022, and again on April 13, 2022. Dkt. 20; Dkt. 37. The Court denied both 

requests. Dkt. 35; Dkt. 42. In denying Kastner’s first request, the Court noted the importance of 

protecting the safety of Pretrial Services officers who may need to visit Kastner on pretrial 

release without warning. Dkt. 35 at 2-3. As D.C. Pretrial Services represented to the Court, 

“permitting Defendant to keep firearms at his residence poses an unreasonable risk to the officers 

who may need to conduct a home visit.” Id. The Court also focused on officer safety in denying 

Kastner’s second request. Dkt. 42 at 9-10.

Neither of those decisions invoked a blanket ban on the possession of firearms by those 

charged with non-violent misdemeanors. Rather, as the Court explained in its first decision 

denying Kastner’s motion to modify Judge Faruqui’s order:

To start, the Court notes that the Magistrate Judge struck a reasonable

balance in this case. Defendant is not categorically barred from possessing

firearms, and he may continue to serve on the security detail for his Church.

It is exceedingly unlikely that Defendant’s Pretrial Services officer will need
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to visit Defendant while he is at church, and thus, that exception makessense.

Moreover, although Defendant is charged with misdemeanors, he stands

accused of being among the first people to breach the U.S. Capitol on January

6, 2021, allegedly entering the building within five minutes of the “initial 

breach” and reaching the Crypt, “where he was confronted by a line of law

enforcement officers.” Dkt. 22 at 3. And, although Defendant is not

charged with committing a violent crime, he allegedly remained unlawfully

in the Capitol building while rioters screamed and pushed against law

enforcement. Id. The government further alleges that Defendant, during

his trip to the Washington region in the days leading up to January 6,

researched “Large Capacity Magazines in Virginia” and “concealed carry

magazine limit [W]ashington DC,” id. at 6,suggesting that he owns a weapon

equipped with a large capacity magazine and that he brought the weapon with

him to the Washington region (most likely, Maryland and Virginia) in the

days leading up to the assault on the Capitol. Even crediting Defendant’s

suggestion that his Internet searches merely show that he was trying to

comply with the law, the evidence that he hoped, if lawful, to bring a weapon

equipped with a large capacity magazine to the rally-turned-riot is

concerning. The Court accordingly concludes that, in this context, the

temporary firearm restriction is. . . reasonably [necessary] to assure the safety

of the Pretrial Services officers during Defendant’s supervision.

Second, the Court is unpersuaded that the firearm restriction represents a 

failure to treat Defendant “individually,” as Defendant contends. To the 

contrary, although the government asked the Magistrate Judge to impose an 

absolute restriction on Defendant’s possession of firearms, the Magistrate 

Judge, upon learning that Defendant serves as a security officer at his 

Church, rejected that request and, instead, allowed Defendant to carry a gun 

three times weekly while serving in the security detail at his Church. Dkt. 22

at 8. That exception to the restriction was granted in recognition of 

Defendant’s unique circumstances and his desire to continue serving his 

Church. Defendant’s suggestion that the Court has held that a firearms 

restriction should be imposed in every case is also incorrect. Rather, the 

Court merely concludes that, on the facts of this case, a partial restriction is 

appropriate and that the Magistrate Judge’s decision was reasonably tailored 

to Defendant’s circumstances.

Dkt. 35 at 3-4. 

In denying Kastner’s second motion for reconsideration, the Court reiterated that it

“‘has [not] held that a firearms restriction should be imposed in every case’” and that “[t]here 

may be context-dependent reasons for permitting defendants on pretrial release to possess

firearms at home, such as a desire to protect children while parenting alone, combined with a
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determination that home visits need not be required, as was the case in United States v. Logsdon,

No. 22-cr-23 (D.D.C. 2022).” Dkt. 42 at 9 (quoting Dkt. 35 at 4; citing Dkt. 37 at 3-4). But, 

here, on the “‘facts of this case,’” the Court reaffirmed that Kastner failed to show that there was 

good reason to modify the “‘partial restriction’” that Judge Faruqui put in place. Id. (quoting 

Dkt. 35 at 4) (emphasis in original). In short, the Court remained persuaded that permitting 

Kastner to possess firearms in his home while on pretrial release would pose a risk to officer 

safety and that he lacked any compelling, countervailing need to possess a firearm (outside of his 

church) while on pretrial release. Id. at 9-10.

Despite this history, Kastner was undeterred. On August 22, 2022, Pretrial Services filed 

a report recommending that the Court remove Kastner from Pretrial Supervision pending trial 

and, instead, direct that he be detained. Dkt. 45 at 2. The Court will not recite the entire 

background here. The short of it is that on July 26, 2022, a Pretrial Services officer conducted a 

home visit at Kastner’s new residence. Dkt. 47 at 6. The officer asked Kastner whether there 

were any firearms within the residence; Kastner responded that there were. Id. The officer 

discovered three firearms in the residence. Id. The Court held a hearing regarding this asserted 

violation on September 6, 2022, at which it heard testimony from Pretrial Services officers, 

Kastner, and Kastner’s wife. Dkt. 57 at 7.

Based on the evidence presented, the Court found “by clear and convincing evidence that

. . . Kastner was in knowing violation of his conditions of pretrial release.” Id. at 9. The Court 

also found that Kastner was “evasive or less than forthright” during his testimony. Id. 

Notwithstanding these findings, the Court rejected the recommendation from Pretrial Services 

that Kastner be detained pending trial. Id. at 12. As the Court explained, “conditions short of 

incarceration offer[ed] a less restrictive means of reasonably assuring the safety of the 
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community, at least at this time.” Id. at 10. The Court accordingly ordered that (1) Kastner not 

reside in any place where any firearm is present; (2) so long as she resides with Jared Kastner, 

his wife Kaitlyn Kastner not possess any firearms in their shared residence (Kaitlyn consented to 

that condition during the hearing, Rough Hearing Tr. at 322:3-25 (Sept. 6, 2022)); and (3) 

Kastner be committed to home detention for a period of thirty days. Dkt. 57 at 11-12. The Court 

also vacated the exception to the standard condition that had previously allowed Kastner to 

possess a firearm while at his church. Id. at 11.

A few months later, in December 2022, Kastner “waive[d his right to] a trial, judgment, 

and sentencing by a district court judge,” and, instead, sought to proceed before a magistrate 

judge. Dkt. 71 at 1. Without objection from the government, see 18 U.S.C. § 3401(f), the Court 

granted that motion, Min. Order (Dec. 21, 2022), and the case was randomly reassigned to 

Magistrate Judge Moxila Upadhyaya “for all purposes,” Min. Order (Dec. 21, 2022). Hoping to 

have a more receptive audience before the Magistrate Judge, Kastner promptly renewed his 

twice-denied motion for reconsideration and requested that Judge Upadhyaya lift the conditions 

of his pretrial release prohibiting him and his wife from possessing firearms, once again arguing 

that he “is a nonviolent defendant facing mere victimless misdemeanor charges” insufficient to 

trump their “rights to keep and bear arms under the Second Amendment.” Dkt. 88 at 1

(emphasis in original). He argued that under the Supreme Court’s decision in N.Y. State Rifle & 

Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022), the pretrial condition preventing Kastner 

from possessing firearms is unconstitutional on its face. Dkt. 88 at 7. The government opposed, 

arguing that Kastner failed to meet the standard for a motion to reconsider and that a temporary 

firearms restriction is “proper and justified.” Dkt. 95 at 15.
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Magistrate Judge Upadhyaya denied Kastner’s motion. See Dkt. 97. She first construed 

Kastner’s motion “as yet another motion to reconsider” and explained that Kastner was therefore

required to show either an intervening change in controlling law, new evidence, or a need to 

correct clear error or prevent manifest injustice. Id. at 3-4 (citing United States v. Ferguson, 574 

F. Supp. 2d 111, 113 (D.D.C. 2008)). She then found that “Kastner present[ed] no new evidence 

or a change in factual circumstances to warrant reconsideration of the Court’s previous decisions 

setting conditions of release.” Id. at 4. Although Kastner relied on the Supreme Court’s decision

in Bruen and the Western District of Texas’s decision in United States v. Quiroz, No. 22-CR00104, 2022 WL 4352482 (W.D. Tex. Sept. 19, 2022), Judge Upadhyaya noted that Bruen did 

not “address the constitutionality of restricting a person’s right to possess a firearm after being 

charged with a federal crime as a condition of pretrial release” and did not “disturb[] the Bail 

Reform Act, which expressly authorizes a court in certain circumstances to, among other things, 

restrict a defendant’s possession of a firearm.” Id. at 5 (citing 18 U.S.C. § 3142(c)(B)(viii)). 

And as to Quiroz, she held that the out-of-circuit district court case is both non-binding and, in 

any event, inapt. Id. at 6. The Court also notes that Kastner seeks to possess a firearm in his 

home and that the relevant Second Amendment jurisprudence, accordingly, dates back to 2008, 

when the Supreme Court decided Heller v. District of Columbia, 554 U.S. 570 (2008).) Finally, 

Judge Upadhyaya pointed to “the extensive record, including the two written District Court 

opinions on Kastner’s motions to modify this condition,” which demonstrate “specific reasons 

warranting the restriction, not least of which is the fact that Kastner was found to have been in 

violation of the very condition he seeks to remove.” Id. at 7. She therefore denied Kastner’s 

motion. Id. 
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Judge Upadhyaya filed her Order on March 16, 2023. See Dkt. 97. Seventeen days later, 

on April 2, 2023, Kastner appealed that Order to this Court pursuant to 28 U.S.C. § 636(b)(1)(A). 

See Dkt. 100 at 1. In that two-page filing, Kastner again cited Bruen and Quiroz for the 

proposition that “a fundamental change in the law” supports his request. Id. at 2. On April 3, the 

Court ordered the government to respond to the appeal and ordered both parties to address the 

appealability of Magistrate Judge Upadhyaya’s Order by April 10. See Min. Orders (Apr. 3, 

2023). The government timely responded, arguing that (1) the Court should deny Kastner’s 

appeal for failure to timely file; and (2) if the Court reaches the merits, it should reject the appeal 

on the ground that Kastner has, yet again, failed to meet the standard for reconsideration. See 

Dkt. 101.

On April 10, 2023, Kastner moved for enlargement of time to submit his response to this 

Court’s order. See Dkt. 102. In particular, Kastner requested a seven-day extension of time “due 

to multiple staff members [at his lawyer’s firm] being affected by the flu or COVID-19” and 

because “a virus was found in the firm’s servers which led to multiple computers losing valuable 

information and dying in the same week.” Id. at 1. Later that same day, however, Kastner filed 

his response to the Court’s order. See Dkt. 103. The Court accordingly denied Kastner’s motion 

for enlargement of time to respond to the Court’s order as moot. See Min. Order (Apr. 11, 

2023). 

Then, on April 12, 2023, the Court ordered Kastner to respond to the government’s filing, 

including the government’s contentions that Kastner’s appeal was untimely and that the 

Magistrate Judge’s Order, in any event, should be affirmed on the merits. Min. Order (Apr. 12, 

2023). In response, Kastner pressed several arguments, including that (1) there is good cause for 

his failure to file his appeal in a timely manner; (2) he is seeking to vindicate both his Second 
8

Amendment rights as well as his wife’s (despite the fact that she consented to the condition at the 

hearing before this Court); (3) he is advocating for an extension or overturning of existing 

precedent; (4) his argument was triggered by new precedents; (5) he is relying on those new 

cases, which include Bruen and Quiroz; (6) he was compliant with directions from the Capitol 

Police on January 6; and (7) he is not required to provide a reason for needing a firearm. See 

Dkt. 106. 

In sum, this is the sixth time that one of three judicial officers in this courthouse has been 

asked to address Kastner’s pretrial release condition restricting his ability to possess a firearm 

while on pretrial release.

II. ANALYSIS

In opposing Kastner’s appeal, the government argues both that the appeal is untimely and 

that it fails on the merits. Dkt. 101. Although the Court’s prior decisions on this issue are 

consistent with the government’s position on the merits, the Court need reach only the first issue: 

Kastner’s appeal of the Magistrate Judge’s Order is untimely. 

A.

Kastner has elected to be tried by a magistrate judge pursuant to 18 U.S.C. § 3401(a), 

which provides that, “[w]hen specially designated to exercise such jurisdiction by the district 

court or courts he serves, any United States magistrate judge shall have jurisdiction to try persons 

accused of, and sentence persons convicted of, misdemeanors committed within that judicial 

district.” Federal Rule of Criminal Procedure 58(a)(1) “appl[ies] in petty offense and other 

misdemeanor cases and on appeal to a district judge in a case tried by a magistrate.” Local 

Criminal Rule 58, moreover, confirms that “[a] magistrate judge may conduct trials (with or 

without a jury), accept pleas, impose sentence, and otherwise exercise jurisdiction in cases of 
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misdemeanor offenses in accordance with 18 U.S.C. § 3401 and Rule 58, Federal Rules of 

Criminal Procedure.”

When a defendant elects to proceed before a magistrate, he has the right to appeal certain 

orders to the district court. Rule 58(g)(2)(A) governs “[i]nterlocutory [a]ppeal[s]” from a 

magistrate judge to a district judge. Under that provision, “[e]ither party may appeal an order of

a magistrate judge to a district judge within 14 days of its entry if a district judge’s order could 

similarly be appealed.” To initiate such an appeal, the appealing party “must file a notice with 

the clerk specifying the order being appealed and must serve a copy on the adverse party.” Fed. 

R. Crim. P. 58(g)(2)(A). Local Criminal Rule 58(e) confirms that an “[a]ppeal from a magistrate 

judge’s order or judgment under this Rule is governed by Federal Rule of Criminal Procedure 

58(g).”

Here, all agree that Kastner did not appeal of Magistrate Judge Upadhyaya’s Order within 

fourteen days and that, unless the Court retroactively extends his time appeal, the appeal is 

untimely. Federal Rule of Criminal Procedure 45(1) sets forth the rules for computing time:

When the period is stated in days or a longer unit of time:

(A) exclude the day of the event that triggers the period;

(B) count every day, including intermediate Saturdays, Sundays, and 

legal holidays; and

(C) include the last day of the period, but if the last day is a Saturday, 

Sunday, or legal holiday, the period continues to run until the end of the 

next day that is not a Saturday, Sunday, or legal holiday.

Magistrate Judge Upadhyaya issued her order denying Kastner’s motion for reconsideration on 

March 16, 2023. See Dkt. 97. Kastner’s appeal was thus due fourteen days later, on Thursday, 

March 30, 2023, but he did not file his appeal until Sunday, April 2, 2023—three days late. See 

Dkt. 100. Kastner’s appeal is therefore untimely.
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II.

Kastner does not dispute that his appeal is untimely (although he miscalculates the 

deadline as Friday, March 31, 2023, see Dkt. 106 at 2). Instead, he makes two arguments, 

neither of which is availing. He first argues that he filed a motion for an extension of time; 

second, he argues that, in any event, he is now entitled to retroactive extension of time to file due 

to “excusable neglect and/or good cause.” Id. at 2-3. 

Kastner’s first argument misstates the record. He claims that “Defendant by counsel filed 

a motion for an extension of time on April 3, 2023, asking for an extension of 7 days which 

would make the new deadline April 10, 2023.” Id. at 2. As the docket reflects, Kastner’s 

counsel, in fact, did not file a motion for extension of time to appeal on April 3. The only docket 

entries on that day reflect three minutes orders by the Court; none of those entries—or any other 

entry on the docket—shows that Kastner sought an extension of time to appeal. To be sure, on 

April 10, Kastner filed a motion for enlargement of time (dated April 9, 2023), requesting a 

seven-day extension “for the deadline to submit filings addressing whether Magistrate Judge 

Upadhyaya’s Order, Dkt. [97], is appealable to this Court under 28 U.S.C. § 636 or any other 

authority.” Dkt. 102 at 1. But that request sought additional time to respond to this Court’s 

order directing the parties to address whether the appeal was proper; it did not seek an extension 

of time to file the appeal itself. 

Kastner next argues that “there is good cause for the untimely appeal.” Dkt. 106 at 2. 

Under Federal Rule of Criminal Procedure 45(b)(1):

When an act must or may be done within a specified period, the court on its own 

may extend the time, or for good cause may do so on a party’s motion made:

(A) before the originally prescribed or previously extended time expires; 

or
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(B) after the time expires if the party failed to act because of excusable 

neglect.

Because Kastner requested an extension of time after the deadline to file his appeal expired, he 

must show both good cause and excusable neglect. Id. He has failed to carry that burden.

Kastner argues that “there is good cause for the untimely appeal based on a trojan virus 

and malware which was sent to Defendant’s counsel during discovery which disabled staff 

member’s laptops and resulted in significant delays to file the appeal.” Dkt. 106 at 2. In his 

motion for extension of time regarding the April 10 deadline to respond to the Court’s order, 

Kastner similarly claimed that “a virus was found in the firm’s servers which led to multiple 

computers losing valuable information and dying in the same week.” Dkt. 102 at 1. 

Defense counsel offers no details regarding how, if at all, the presence of the computer 

virus prevented him from filing his appeal in a timely manner—or at least seeking an extension 

of time before the deadline passed. He does not indicate, for example, when the virus was 

discovered, whether the firm had access to uncompromised computers during the relevant time, 

or when the problem was resolved. It appears, moreover, that Kastner’s counsel filed documents 

in other cases in the days immediately before and after the appeal deadline in this case, which 

suggests that, at minimum, counsel had access to a working computer. See, e.g., Defendant 

Kenneth Joseph Owen Thomas’s Red-Lined Proposed Jury Instructions, United States v. 

Thomas, No. 21-cr-552 (D.D.C. Mar. 31, 2023), ECF No. 84; Declaration of Roger I. Roots, 

United States v. Alberts, No. 21-cr-26 (D.D.C. Mar. 29, 2023), ECF No. 114; Motion for Bill of 

Particulars, United States v. Westbury, No. 21-cr-605 (D.D.C. Mar. 29, 2023), ECF No. 83. 

In the absence of any detail regarding the computer difficulty Kastner’s counsel invokes, 

the Court can only assume that it is the same difficulty that Kastner’s counsel reported in United 

States v. Slaughter, No. 22-cr-354, Dkt. 39 (Notice that the United States Has Attempted to Plant 
12

Trojan Malware on Defense Computers to Gain Remote Access) (Mar. 28, 2023). If that 

assumption is correct, then—according to Kastner’s own law firm—the problem was first 

discovered on March 20, 2023, ten days before the appeal deadline in this case, when the firm’s 

“Client Advocate” opened an email, “[i]mmediately” after which her “computer froze.” No. 22-

cr-354, Dkt. 43-2 at 1 (Lambert Decl. ¶ 6). Even more to the point, the law firm represented to 

the Court that on March 28—two days before the time to appeal elapsed in this case—the 

computer virus was removed from the Client Advocate’s computer, and she “regained full use of 

[her] laptop shortly thereafter.” Id. at 3 (Lambert Decl. ¶¶ 11-14). It is, of course, possible that 

the problem continued—although the law firm made no mention of any such problem in its May 

2, 2023 filing in the Slaughter case—and it is also possible that the firm was very unlucky, and it 

was hit by two viruses at the same time. But it is the movant’s burden to establish excusable 

neglect, see Fed. R. Crim. P. 45(b)(1), and Kastner’s sparse filing fails to meet that demanding 

burden. Tellingly, Kastner’s counsel does not even assert that his own computer (or the 

computer of any lawyer in the firm) was affected; he merely says that a “staff member’s 

laptops”—presumably the Client Advocate’s computers—were infected with a virus. Dkt. 106 at 

3. More is needed to justify a failure to file a timely appeal.

Finally, Kastner asks for greater lenience than in a typical case because he is seeking to 

vindicate a constitutional right. See Dkt. 100. But that argument rings hollow here, where this 

opinion marks the sixth time that a judicial officer has addressed his pretrial release firearms

condition; where he has knowingly violated the Court’s orders relating to that restriction (leaving

the Court skeptical that Kastner will abide by the terms of a narrowed firearms restriction, such 

as one allowing his wife to keep firearms in the house under lock and key); where the Court has 

repeatedly found that good reasons exist to impose the restriction on the specific facts of this 
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case; and where, in any event, Kastner’s trial date is just several weeks away. The Court notes, 

moreover, that most conditions on pretrial release restrict the defendant’s liberty in some respect

and therefore implicate constitutional rights. But that fact alone does not relieve counsel of the 

obligation to comply with the Federal Rules of Criminal Procedure. The Court is therefore 

unmoved by any argument that counsel’s failure timely to file should be excused because of the 

magnitude of the right at issue.

III. CONCLUSION

For the reasons explained above, Defendant’s “Appeal of his Second Amendment 

Restrictions,” Dkt. 100, is hereby DISMISSED as untimely.

SO ORDERED.

 /s/ Randolph D. Moss

 RANDOLPH D. MOSS 

 United States District Judge 

Date: June 28, 2023