“Case Changing:” The 7-Eleven Messages

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It can’t be overstated the degree to which calling Naomi Biden to testify backfired on Hunter Biden.

Contrary to the claims of the Tiger Beat reporters at the courthouse, she wasn’t called to “humanize” her father. Rather, they intended to rebut a claim that Hallie Biden had made about the truck: that the console lock had been broken.

Q. So now, your dad has the truck, when you gave your dad the truck, I want you to describe the inside of it. Does the truck have a console?

A. Yes.

Q. And underneath the console, what’s there?

A. It’s like a safe.

Q. And meaning it’s a steel or metal object?

A. Yeah.

Q. Does it have a lock or does it not have a lock?

A. It has a lock.

Q. And when you and Peter had it at the period of time in October, was the safe working?

A. Yes.

Q. Was it broken?

A. No.

Even that backfired. Leo Wise used Naomi’s testimony about a clean truck as circumstantial evidence that between October 19 and October 23, Hunter did crack.

And if you compare what Naomi Biden said that she returned the truck to her father clean on October 19th, 2018, that there were no drug remnants in it and there was no drug paraphernalia in it, to Hallie Biden’s testimony that she searched the truck on October 23rd, just a few days later, that she found drug remnants. Remember, the way she testified what a drug remnant is, is when you break pieces, smaller pieces of crack off a larger rock, a lot of it falls and breaks off, that’s what a remnant is, and that’s what Hallie Biden saw in that truck on October the 23rd, and she also found drug paraphernalia.

So what does that mean? What does a clean truck with no drug remnants and no drug paraphernalia on October 19th, as in the testimony of the defendant’s own daughter, and then a truck with drug remnants and drug paraphernalia on the October the 23rd, what does that mean?

It means the defendant used crack in the truck between October 15th, 2018, and October 23, 2018, October 19th, when he got it back.

On cross, Naomi’s claims that her father seemed hopeful in this period quickly fell flat, as prosecutors showed her her own texts frowning that she didn’t get to spend much time with him while he was in NYC.

Q. Well, if we go to the next page, did you send your father a series of texts where you told him that you were in Brooklyn, but that you could have Peter meet him and trade, then did you ask your father if he had seen Peter and did he ask if — and did you ask if you would get to see him, in other words, your dad?

A. Yes.

Q. And was your dad’s response no? This is on page 1719? A. I think he’s saying no to did he call.

Q. Your next message then is “so no see you?!”

A. Yeah.

Q. And then you said, it looks like you did sort of an unhappy face, and the next text? A. Are you asking?

Q. Yes.

A. Yes.

Q. And then the next one is “I’m really sorry, dad, I can’t take this.” And then “I don’t know what to say, I just miss you so much, I just want to hang out with you.” Right?

A. Yeah.

That would have been enough in any case to undermine any defense claim that Hunter had cleaned up in the period he owned the gun.

But then, at 9:30 the night before closing arguments, after originally saying they wouldn’t put on a rebuttal case, prosecutors called Abbe Lowell to say they needed to do so because Naomi misspoke about what day her father had arrived in NYC, the 15th rather than the 17th (actually, she responded in the affirmative when Lowell asked her whether, “When he drove it up, do you recall about what day it was in October, was that October 15th?”).

MR. LOWELL: Last night at 9:30 or whatever after the government said they would not have a rebuttal case, they wrote while preparing for closing argument, and reviewing transcript this evening, we realized that Naomi Biden provided inaccurate testimony about the date when the defendant traveled to New York. That’s what they wrote, that’s the need for rebuttal. I understand, we can address that.

What they have done after that late at night was to provide us a new set of texts, forty-two of them, to propose in between before he got to New York where he was, who he was talking with, and what he was doing, which includes references that could be to try to contact or have people that were contacting him for possible drug use, that was not put in their case-in-chief. If what they said, and this is rebuttal, this is a rebuttal case as to where he was or whether Naomi was wrong, then that’s what the rebuttal is. That doesn’t need forty-two texts that includes all kinds ever other language.

We would be prepared to stipulate that either he you heard evidence from Naomi Biden that he arrived and was there the 15th, that’s not correct it was a few days later, or we can stipulate as to whether he got there, on or we can stipulate as to what locations he was, but then to have forty-two texts of all this other material that they could have proposed is not rebuttal for the proposition, which would be proper rebuttal, and if it was even remotely relevant to that which was the date, then it would be prejudicial beyond any relevance.

To prove that Naomi got the date wrong — to which Hunter’s team was happy to stipulate — prosecutors said that justified submitting 42 new texts as evidence, texts which had not been provided as a potential exhibit before, texts the defense received the morning of the hearing.

Prosecutors used the date discrepancy to submit a bunch of texts showing Hunter hade been arranging meetings at a 7-Eleven.

MR. HINES: The first thing I’ll say is all of these text messages do link to our proof that he was still in Delaware on October 15th, but nonetheless our rebuttal case is not limited, there is no rule of evidence that limits a rebuttal case to exactly the words that the defense witness testified to.

What I’ll say on how it relates to the 15th is that we have location information showing him at a 7-Eleven on October 14th, 15th and 16th, I believe those are the dates that’s reflected in the summary chart.

And location information and a photograph is just that, it’s location information, it does not identify whether the person themself was actually necessarily at that location because the photograph shows a geolocation, it could have been someone else’s photograph. So the other messages that we included are all messages, et cetera, that show the defendant did frequent a 7-Eleven, they are just messages from October 9th through that date when he left the area showing that he was communicating with other individuals to meet at a 7-Eleven.

By doing so, just before closing arguments (and giving Lowell no time to prepare), prosecutors submitted evidence of Hunter trying to meet a guy named Q at a 7-Eleven.

As Lowell described when he vigorously objected, showing texts from October 10 would not rebut Naomi’s perspective of what Hunter looked like on October 19; it was case changing.

MR. LOWELL: I am going to be repetitive, this is a case changing event and it shouldn’t be a case changing event where they shoehorn in this. What is relevant to rebut her perception of him on the 19th can be what? If he didn’t use drugs two weeks before does that rebut her perception? Six days before we know when he is on crack. He has to do it every twenty minutes according to the testimony. There is a disconnect, there is an extraordinary disconnect from her saying I saw him, maybe she wants to look at him in blinders, maybe she doesn’t say what he does, but that’s not —

Particularly given Hunter’s reference to meeting dealers at 7-Eleven in his memoir, this was some of the prosecution’s most probative evidence that he had bought drugs immediately before buying the gun. Indeed, they were among the few things Leo Wise mentioned in laying out the actual circumstantial evidence he was doing drugs that week.

What do we know specifically about that month of October. You see on the screen those drug messages on the 13th and the 14th. You see the addiction messages depicted on the 15th and the 23rd. You see the meeting messages on the 10th and the 11th, the day before he bought the gun on the 12th, and you see on the 23rd both addiction messages and drug remnants and drug paraphernalia recovered by Hallie Biden in the truck. [my emphasis]

Noreika’s decision to allow prosecutors to submit messages from a week before Naomi saw her father to rebut her claim that he looked fine is another of the decisions Lowell will include in any potential appeal.

It’s also a decision, and a development, that hasn’t been fully explained.

There’s a lot of armchair punditry about whether Hunter should have pled guilty (most of which misrepresents what happened to the plea deal, though this is an exception). But few understand how prosecutors used the mere fact that Naomi testified as an excuse to introduce texts that should have been in their case-in-chief.

Hunter Biden Found Guilty on All Charges

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An unsurprising result.

Let the appeals begin. That said, the conviction on the two documents charges make any appeal more difficult.

Here’s the verdict form.

Joe Biden’s statement:

As I said last week, I am the President, but I am also a Dad. Jill and I love our son, and we are so proud of the man he is today. So many families who have had loved ones battle addiction understand the feeling of pride seeing someone you love come out the other side and be so strong and resilient in recovery. As I also said last week, I will accept the outcome of this case and will continue to respect the judicial process as Hunter considers an appeal. Jill and I will always be there for Hunter and the rest of our family with our love and support. Nothing will ever change that.

Hunter Biden’s statement:

I am more grateful today for the love and support I experienced this last week from Melissa, my family, my friends, and my community than I am disappointed by the outcome. Recovery is possible by the grace of God, and I am blessed to experience that gift one day at a time.

Abbe Lowell’s statement:

We are naturally disappointed by today’s verdict. We respect the jury process, and as we have done throughout this case, we will continue to vigorously pursue all the legal challenges available to Hunter. Through all he has been through in his recovery, including this trial, Hunter has felt grateful for and blessed by the love and support of his family.

Update: Juror Ten gave a fairly long interview with CNN. It sounds like the only thing the jury had doubts about today was the materiality of the lie on Count One.

What Jurors Noticed about Hallie Biden’s Testimony

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As I’ve said over and over, Hallie Biden was the most important prosecution witness against her brother-in-law.

In his close yesterday, Leo Wise described that Hallie’s testimony that she found remnants of crack cocaine in Hunter’s truck days after, according to Naomi Biden, it was clean, is compelling circumstantial evidence that Hunter smoked crack in the truck between those days.

And if you compare what Naomi Biden said that she returned the truck to her father clean on October 19th, 2018, that there were no drug remnants in it and there was no drug paraphernalia in it, to Hallie Biden’s testimony that she searched the truck on October 23rd, just a few days later, that she found drug remnants. Remember, the way she testified what a drug remnant is, is when you break pieces, smaller pieces of crack off a larger rock, a lot of it falls and breaks off, that’s what a remnant is, and that’s what Hallie Biden saw in that truck on October the 23rd, and she also found drug paraphernalia.

So what does that mean? What does a clean truck with no drug remnants and no drug paraphernalia on October 19th, as in the testimony of the defendant’s own daughter, and then a truck with drug remnants and drug paraphernalia on the October the 23rd, what does that mean?

Abbe Lowell attempted to pitch her testimony as more inconsistent than that, describing how key parts of her testimony might confuse what happened on October 23, 2018, when she found the gun, and earlier times when she had searched his truck, noting that her testimony that Hunter had spent that night with her was inconsistent with him calling her and then taking an Uber back to her house.

But even she said she did not see Hunter using drugs in this period. And said only that when she went into the truck on October 23rd, first she said there were remnants and paraphernalia, but then when asked said a dusting of powder, I guess. And when I asked her to be more specific and tell us whether those remnants were on the console, steering wheel, floor mats, or car seat, all do you remember she said is, I do not recall.

And when asked what type of paraphernalia, she again said, I do not recall.

Was she remembering what she saw that day or dozens of other days when she, too, was using, where that more likely than not happened, okay. But if you noticed, she could remember that which the prosecutors asked her, the prosecutors who also gave her immunity, but not so much for any number of things. When she saw Hunter when he came back from LA, even if it was on the day he came back to go with her at an appointment she had at a Caron rehabilitation center or facility, when she saw him — or when she saw him, whether it was October 22nd or 23rd, whether it was the night, whether it was the night before, whether it was the early morning or when. And you’ll remember that I asked her whether or not when I could refresh her recollection, did she know that she was not with him that morning. And do you remember when I had to do that by saying do you remember the reference to calling an Uber? And then she said yes. You don’t need an Uber to go from her driveway into the house.

Before he launched that section of his closing arguments, however, he evinced sympathy that Hallie was put into this situation in the first place.

Where else did they go? Poor Hallie Biden, who had to be dragged through this period of her life again, who understandably did not remember a lot of the details.

Poor Hallie Biden didn’t remember a lot of the details…

This is something that we won’t be able to measure, unless and until jurors speak publicly about their deliberations after a verdict. It’s one thing to have sympathy or no for Joe Biden’s son, who was known to have addiction problems in Delaware. It’s another thing to have sympathy for Hallie Biden, the widow of the state’s much better loved former Attorney General.

And that’s why something that happened the day Hallie testified is of interest.

It showed up publicly in this exchange with Leo Wise on redirect, something some journalists covering the trial found odd.

BY MR. WISE: Q. I just have a few questions, Ms. Biden. The first is were you married just this past weekend, recently?

A. Yes.

Q. And is your husband in the audience?

A. Yes.

Q. And at the breaks have you been looking at him and him looking at you?

A. Yes.

Q. Has any of that had anything to do with your — the substance of your testimony?

A. No, just support.

But two sidebars in the middle of Abbe Lowell’s cross-examination of Hallie explain the background to Wise’s comment: A juror had told Judge Noreika’s courtroom deputy that they had seen Hallie communicating with someone in the courtroom and seemed to find it suspicious.

THE COURT: So one of the jurors said to Mark when she was leaving that when we were over here at side-bar, that they noticed that she was communicating with someone in the back. Now, I don’t know if she has a lawyer here.

MR. HINES: She does.

MR. WISE: Well, it’s her husband. She got married this weekend and I can see him in back.

THE COURT: So she was communicating with someone. They were like mouthing something to her. My guess is it was something on the order of, you know —

MR. LOWELL: What a jerk I am.

THE COURT: My guess.

MR. LOWELL: Could you clean that one up. What a jerk I am. Thank you.

MR. HINES: No objection.

THE COURT: Okay. So they noticed — so one juror, it’s the second alternate, so we know we have the two younger women, so it’s one of them. And then she said to him — and you can ask Mark questions, too, she said to him and other jurors noticed, too.

MR. LOWELL: So I’m sorry to get this right, Mark, Mr. Buckson, the first — second alternate says it to you?

COURTROOM DEPUTY: She stays behind and says, “I have to talk to you a minute.”

MR. LOWELL: When she did, she said other jurors saw it, too?

COURTROOM DEPUTY: She told me what happened and said other jurors saw it, too.

This created two concerns: The juror had found the exchange suspicious. And jurors talked about it.

MR. LOWELL: Meaning that they talked about it.

THE COURT: That’s what I said to Mark, that’s why I want to tell you guys everything that they said. Now what I don’t know — my guess is, it was on the way out the door, so it wasn’t like they had talked about it in the jury room. It was probably one of those things where they were like this, you know, but I don’t know that.

MR. LOWELL: I understand

THE COURT: So if you guys want to ask, you can. So what I thought I would do is tell you now, even though I interrupted your lunch, so you can go back, you can figure out who the person was.

MR. WISE: I saw him.

MR. LOWELL: She also has her lawyer.

MR. WISE: I mean, if someone is mouthing like hang in there, doing, whatever it is, I’m guessing it’s the husband, I don’t think a lawyer is mouthing something.

THE COURT: I don’t know who she was doing it with. Maybe you can go figure out. Maybe you can find out what they are saying and you guys can figure out what you want to do if you want to talk to the jury or you want me to talk to the jury.

MR. LOWELL: Or maybe we let it be.

THE COURT: Let it be with a reminder that don’t talk to each other.

So Judge Noreika and the lawyers discuss how to address this — both the jurors discussing among themselves, and the impression of something suspect going on be allayed — without making the problem worse.

MR. WISE: My only concern if she think she’s being coached or something.

THE COURT: If she’s doing something improper.

MR. WISE: I don’t want that impression to be left on them.

MR. LOWELL: Unfortunately, to figure that out, you would have to start inquiring who were you talking to, what were you mouthing, what was he mouthing back, and that concerns me as much as, you know, as anything because why — how is that helpful, right.

Let’s figure out before we bring them back what is the least that is necessary, if anything, because if you start inquiring, how is that helpful, right, I don’t think that’s helpful. I understand you don’t want the jury to think she’s being coached, certainly not by my party.

MR. WISE: Right.

MR. LOWELL: But I wonder how do you do that with finesse. Nothing comes to my mind at the moment, but I’ll try to put my mind to it. Thank you for telling us. And right now I don’t have anything I would suggest, but I’ll talk to you all about it.

THE COURT: Maybe you guys, somebody can just check with her lawyer and husband and find out what that was.

MR. LOWELL: Thanks, Your Honor, for bringing it to our attention. (End of side-bar.)

COURTROOM DEPUTY: All rise.

THE COURT: All right. So can I just see counsel for one second. (Side-bar discussion.)

THE COURT: So you want me to do what?

The agree that Judge Noreika will admonish the jurors not to talk to each other about the case. But that still left the problem of what to do with the appearance that someone might be coaching Hallie.

MR. LOWELL: I thought the, we talked, I think what we agreed was you don’t have to do it right away or whenever you would, it would just be the normal instructions to the jury just a reminder that you shouldn’t be talking to each other about the case, among yourselves of anything that’s happening, you have that, I don’t know exactly the words.

THE COURT: And then with respect to the discussions, are you okay if they just want to ask her, do you have someone here supporting you or something so the jury understands?

MR. LOWELL: I would object to that as somebody here supporting you.

THE COURT: Someone here —

MR. LOWELL: I mean, if you want to say do you have a relative — I mean, I don’t know. My view is do the least. But if you feel like something needs to be said. But I don’t know how that doesn’t make it worse.

MR. WISE: Was your impression that they thought it was something wrong going on?

COURTROOM DEPUTY: Kind of.

MR. WISE: Okay.

COURTROOM DEPUTY: It was a suspicious.

MR. LOWELL: Let’s say she has a relative, the problem, it still opens the door, what was your relative saying to you, were they just giving you a high five.

MR. WISE: The question would be Ms. Biden were you recently married, yes, just this week, is your husband here in audience to support you, yes.

MR. LOWELL: Not support you.

MR. WISE: Yeah, that’s what spouses do.

THE COURT: Is your husband here with you.

Leo Wise proposes to ask whether the person Hallie has been exchanging words of support with said anything about her testimony. I think that Lowell objected to this, though not vociferously.

MR. WISE: At the breaks, have you been looking at him and exchanging supportive words, has anyone been telling you what to testify about.

MR. LOWELL: I object to all those questions.

THE COURT: Well, I don’t object to has anyone told you what to testify.

MR. LOWELL: I mean in general, yeah.

MR. WISE: I don’t know what the prejudice is for her to say my husband is in the audience, I have been looking at him and he’s been looking at me for support.

MR. LOWELL: For support, how about I have been looking at him and he’s been looking at me.

THE COURT: And anything in that, was he telling you what to say, or something like that?

MR. WISE: Okay.

THE COURT: People are telling you what your testimony should be, something like that.

MR. WISE: Yeah.

THE COURT: Because I — look, I’m just concerned that the jury, there was nothing — I don’t think there is anything that she did wrong.

Over lunch, prosecutors confirmed that Hallie was exchanging comments with her spouse, whom she married the weekend before the trial.

MR. WISE: We confirmed with the lawyer, we said is she talking to you, no, no, the husband is here. He’s not going to obviously tell her anything about her testimony, but I am concerned that we’re leaving an impression with the jury that she’s doing something wrong, so if you just want to say, were you recently married, is your husband here with you, and then have you during breaks looked to him, and did anything that you do — any of your interactions about your testimony or something like that.

MR. WISE: Okay.

MR. LOWELL: Say that, were any of your interactions, sorry, were any of your interactions about your testimony.

THE COURT: Yes.

MR. LOWELL: Is that the phrase?

THE COURT: Yes. I was just trying to get at that it’s not influencing her testimony, but if there is a better word for that.

MR. WISE: I think maybe while you are on the stand.

THE COURT: Yes. While you were on the stand did you occasionally look to him, was any of that about your testimony?

MR. LOWELL: I mean —

THE COURT: I know, and you can object and if you have to object now.

Lowell again objects to any comment specifically about her spouse.

MR. LOWELL: Why don’t, we could that now, let me do it now. Yeah, I just think the more we inquire, the worse it gets, so I object to anything other than the instruction to the jury, telling them that you’re not supposed to be talking about the case before you deliberate.

THE COURT: I understand. The problem is that horse is out of the barn and I can instruct them on that going forward, but for this particular horse and barn, I don’t want the jury left with the impression that something nefarious was going on. I have enough issues with her testimony let alone something wrong.

MR. LOWELL: Let’s put this horse back in the barn, but can we do it with the fewest number of kicks to the side, to use the analogy.

THE COURT: Yes. I think that’s what it is, if you think there is a way that we can kick less, I took out support.

MR. LOWELL: Right.

THE COURT: I took out support and all I wanted to clarify is it didn’t have anything to do with — he doesn’t know anything about her testimony.

MR. LOWELL: But we don’t have to explain that.

THE COURT: Exactly.

MR. LOWELL: Okay. (End of side-bar. )

THE COURT: All right. We can bring in the jury.

Maybe Wise’s comment alleviated any concerns the jurors had about Hallie’s testimony. And who’s to say whether jurors thought someone coaching her would be on behalf of prosecutors or the defense?

But it’s the kind of thing that could significantly impact the impression jurors got of the testimony from the most important witness at trial.

Leo Wise Makes Excuses for the Reams of Evidence from Periods Hunter Didn’t Own a Gun

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If Hunter Biden’s prosecutors, Leo Wise and Derek Hines, fail to win a conviction on Count Three, the easiest charge to prove, it will be because of their own hubris, their decision to overwhelm the defendant with evidence of his four years of addiction, most of it from times when he did not own a gun, rather than simply present the very good circumstantial evidence showing he remained addicted, he continued to use crack, when he did own the gun.

Over 45 minutes into Wise’s closing argument, he laid out succinctly that circumstantial evidence, including — as I predicted — analogizing the state of Hunter’s truck before and after he used it to snow falling overnight.

What do we know specifically about that month of October. You see on the screen those drug messages on the 13th and the 14th. You see the addiction messages depicted on the 15th and the 23rd. You see the meeting messages on the 10th and the 11th, the day before he bought the gun on the 12th, and you see on the 23rd both addiction messages and drug remnants and drug paraphernalia recovered by Hallie Biden in the truck. That’s a lot of evidence of drug use and addiction in the month of October. It is evidence beyond a reasonable doubt.

And what else do we see in October? We see that persistent cash withdraws, hundreds and thousands of dollars every day.

[snip]

And if you compare what Naomi Biden said that she returned the truck to her father clean on October 19th, 2018, that there were no drug remnants in it and there was no drug paraphernalia in it, to Hallie Biden’s testimony that she searched the truck on October 23rd, just a few days later, that she found drug remnants. Remember, the way she testified what a drug remnant is, is when you break pieces, smaller pieces of crack off a larger rock, a lot of it falls and breaks off, that’s what a remnant is, and that’s what Hallie Biden saw in that truck on October the 23rd, and she also found drug paraphernalia.

So what does that mean? What does a clean truck with no drug remnants and no drug paraphernalia on October 19th, as in the testimony of the defendant’s own daughter, and then a truck with drug remnants and drug paraphernalia on the October the 23rd, what does that mean?

It means the defendant used crack in the truck between October 15th, 2018, and October 23, 2018, October 19th, when he got it back. Now nobody saw it, right? But you heard Her Honor instruct you that we rely on circumstantial evidence just as much as we rely on direct evidence. And this is circumstantial evidence beyond a reasonable doubt that he used drugs in that truck in that period.

It’s like if you go to bed at night in the winter and there is no snow on the ground, and you wake up the next morning and there is snow on the ground, you know it snowed.

But before he got there, in his very first words when presenting his case, he dismissed the Bidens, Hunter’s supporters in the courtroom, whom he had forced to relive the pain of providing an addict unconditional love.

MR. WISE: All of this is not evidence. The people sitting in the gallery are not evidence. You may recognize some of them from the news or from the community. In the course of this trial, you may have looked at them and they may have looked at you. You may have seen them reacting to the testimony or the photographs, or something that one of the lawyers said. But respectfully, none of that matters.

And then, like the lady that doth protest too much, he invented a reason why he had to do that, why he had to show the jury evidence of Hunter’s addiction from the periods he didn’t own a gun instead of focusing on the period he did.

In opening, Mr. Lowell said the prosecutors plan to call witness after witness who will tell you, and they plan to show you dozens of e-mails or texts which reference what Hunter does not dispute. He had abused alcohol since he was a teenager, and drugs as an adult. The defendant does dispute it. He pleaded not guilty to the charges, which is his right. And what Mr. Lowell says isn’t evidence. The fact that he said the defendant doesn’t dispute his drug use isn’t a stipulation to it. You heard Mr. Hines read the stipulations. They’re Exhibit 43. None of them are that the defendant admits he used drugs as an adult. So the United States had to prove it. And that’s why we had to call witnesses, and show you photographs and text messages, and play parts of the nonfiction book that the defendant wrote and read. All of which establishes, beyond a reasonable doubt, that the defendant used crack and was addicted to crack, and that he knew he used crack and was addicted to it during the relevant time period.

To be clear the evidence was personal, it was ugly, and it was overwhelming. It was also absolutely necessary. There is no other way to prove the use of drugs or addiction to drugs than through the kind of evidence that you saw.

[snip]

And that is because as the instruction provides, an inference that a person was a user of a controlled substance may be drawn from evidence of a pattern of use or possession of a controlled substance that reasonably covers the time the firearm was possessed. That’s why we introduced evidence from 2015 to 2019. In other words, before, during, and after the time when the defendant bought the gun and when he possessed it, because that establishes the pattern of use or possession of a controlled substance that reasonably covers the time that the firearm was possessed.

[snip]

And again, the evidence and the reason it was introduced from 2015 to ’19 shows the defendant habitually used a controlled substance. It isn’t something that started the day before he bought and then possessed the gun, or the week before, or the month before, it started years before and it continued for months thereafter. All of that is part of the pattern of use.

[snip]

Now I would like to turn to the evidence of a pattern of use or possession of a controlled substance that reasonably covers the time the firearm was possessed, including October 12th. First, you see the defendant’s own words and messages from 2018 and 2019, a year worth of messages from the spring of 2018 to the spring of 2019.

[snip]

We see messages in November 18th where he’s buying. We see addiction messages in 2018. We see both drug messages and addiction messages later in December of 2018, including images. And we see messages in 2019. And in February of 2019. And in March of 2019.

We don’t just have his messages from the time, although I submit that would be enough to convict. We also have his own words in his memoir describing buying and using drugs during that whole period from 2015 to 2019, four years, what he called four years of active addiction, and how he relapsed after numerous attempts at rehab, including after The View, the rehab center he went to for about a week late in August of 2018 in California.

Wise even made the grotesque argument that if only Hunter hadn’t gone to rehab, he might make the argument that he didn’t know he was an addict.

Maybe if he had never been to rehab, he could argue that he didn’t know he was an addict when he bought the gun on October the 12th, but he had been to rehab over and over again, and he kept going to rehab, which evidences that he knew he was — he had an addiction when he bought and possessed the gun.

The argument is inadequate on the law, because it sidesteps his obligation to show Hunter’s mindset at the moment he bought a gun (something he barely attempted more generally). But it is as obscene from a policy perspective as this prosecution is: because it punishes someone for the effort to get clean.

The hubris may undermine their case for one of two reasons.

Prosecutors had shown the jury what Hunter’s purchase and use of crack looked like, and then failed to show the same kind of evidence for the 11 days he owned a gun. The sheer overkill of the evidence they presented from different times made the very strong circumstantial evidence they had for the period that mattered look thin, at least to me. As Lowell argued throughout the trial and again in close: the book, the comms, and Zoe Kestan’s pictures all show explicit evidence of drug use. But Kestan’s picture from September 2018, between the time Hunter went to rehab and the time he bought a gun, is about the only one that doesn’t show drug paraphernalia. And none of the comms the DEA guy reviewed and none of the drug purchases captured in the comms and none of the descriptions of debauchery in the book took place in October 2018.

And more importantly, the overkill may harm prosecutors’ case because it was cruel. Jurors aren’t supposed to nullify the case before them — that’s what Wise seemed to be attempting to say when he dismissed the Bidens because they are Bidens (something that should have been prohibited by the motion in limine they got Judge Noreika to approve that barred Hunter’s team from presenting evidence about how the gun shop had treated Joe Biden’s kid differently because they wanted him out of the store).

The Bidens are Bidens.

But in that court room, they were also precisely what about half the jury is: family members of an addict.

And there’s a possibility that at least some of the jurors will refuse to join in Wise’s cruelty.

Update: In his close, Abbe Lowell noted that of the hour prosecutors spent playing audio of Hunter’s book, 40 minutes was from 2016 and 2017, and most of the rest was from the first half of 2018.

Do you recall they spent 40 minutes on 2016 and 2017. They spent 20 minutes plus on the first half of 2018. And then some minutes following in 2019. But did you hear even a minute about any of the events that happened in this period of time in 2018, when he came back from Los Angeles to be back home?

In response, Derek Hines suggested that they could have provided more and better evidence by playing more than the hour they played.

Now, Mr. Lowell suggested that it was unfair and that we were playing portions of the defendant’s book in this trial. We played about an hour of audio in this case. And he made two different arguments regarding that audio, first of all, he said we picked and choose out of context what we were playing. Well we played a full hour, would you like to have heard more of that audio book?

Hallie Biden Was First Compelled to Testify against Hunter Biden in 2022

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Remember how I wrote about how Hallie Biden was being compelled to testify?

I described how prosecutors submitted a filing in Delaware on May 17 asking to keep some exhibits pertaining to the testimony a female witness sealed until after she testified.

The United States of America, by and through its attorneys, David. C. Weiss, Special Counsel, and Derek E. Hines and Leo J. Wise, Assistant United States Attorneys for the District of Delaware, move that the enclosed filing be filed under seal as well as the accompanying proposed order and requested order from the court. The filing relates to a witness issue in the upcoming trial. The government will move to unseal this filing after the conclusion of the witness’s testimony at trial. In the interim, the government requests that the filings remain under seal to protect her identity from public disclosure so that her security is not compromised and so that there will be no witness intimidation issues that could undermine these proceedings. See United States v. Smith, 776 F.2d 1104, 1115 (3d Cir. 1985).

They filed an unsealed motion to compel Hallie Biden’s testimony in Los Angeles on May 21.

The Special Counsel hereby applies to this Honorable Court for an order compelling Hallie Biden to testify and produce evidence pursuant to the provisions of Title 18, United States Code, Section 6001 et seq., and respectfully represents as follows:

1. Hallie Biden has been subpoenaed to testify before this Court during trial beginning on June 20, 2024;

2. Counsel for Hallie Biden has advised that if Hallie Biden is called to the stand she will at that time refuse to answer questions, invoking the constitutional privilege against self-incrimination;

3. In the judgment of the Special Counsel, the testimony of Hallie Biden may be necessary to the public interest; and

4. Acting Deputy Assistant Attorney General Stuart M. Goldberg, an authorized Deputy Assistant Attorney General of the United States, has approved this application for an order instructing Hallie Biden to testify pursuant to 18 U.S.C. § 6002 and 28 C.F.R. § 0.175(a).

As noted, Stuart Goldberg, the Acting Assistant Attorney General for DOJ’s tax division, submitted authorization for that grant of immunity. His letter doing so is dated May 20, 2024.

Judge Noreika has now ordered unsealed the earlier exhibits tied to testimony. And as I suspected, it pertains to Hallie Biden. As in CA, the approval for compelling her testimony was signed by Goldberg. That earlier letter is dated April 11, 2022.

Of some interest: the order approving that immunity was signed by Judge Noreika, back on April 18, 2022.

That suggests Noreika may have been involved in this case for longer than was known. That might arise if, for example, a non-prosecution agreement (for someone like Zoe Kestan) were filed under seal before Noreika some time ago, and she got assigned Hunter’s case as a related case (though not such paperwork is in Hunter’s docket).

Note that Noreika’s order included tax charges, FARA, and gun charges. So the tax division approved compelling Hallie’s testimony for the gun charges.

Derek Hines’ motion to unseal the exhibits the exhibits notably did not unseal the motion regarding the immunity it in the first place, which remains sealed.

So it’s not clear — and Hines didn’t make it clear when he moved to seal the filing — why it was fine to submit the immunity paperwork publicly in California but not in Delaware.

The filing relates to a witness issue in the upcoming trial. The government will move to unseal this filing after the conclusion of the witness’s testimony at trial. In the interim, the government requests that the filings remain under seal to protect her identity from public disclosure so that her security is not compromised and so that there will be no witness intimidation issues that could undermine these proceedings.

One way or another, though, it’s clear that Hallie Biden was first compelled to testify against her brother-in-law in 2022, when Lesley Wolf was overseeing the case.

 

The AT&T Associations Underlying the Shoddy Laptop Validation

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Hunter Biden’s prosecutors may have knowledge of more problems with the laptop attributed to him than they’ve let on.

As I’ve described and quoted here, all the validation they’ve provided for the laptop is that the serial number for the device matches one of the seven or eight laptops he was using in the year leading up to John Paul Mac Isaac receiving it and the invoice from John Paul Mac Isaac’s shop was sent to Hunter’s publicly available email address; the invoice submitted at trial doesn’t even show the metadata.

As I noted, when Derek Hines asked summary witness Erika Jensen (who is not a cybersecurity expert) to describe the genesis of the digital evidence, he only asked her to show the subscriber records.

When Derek Hines had Erika Jensen present the cherry pick of evidence they’re using in this case, he relied on Subscriber records (one, two, three) and Jensen’s testimony to tie the comms depicted in the summary chart to Hunter. She didn’t show Apple’s records of which devices were associated with his account at any given time, which would give jurors a sense of — for example — the precise turmoil in his devices in this period (but would also give some idea of real anomalies that should have led to the exclusion of the laptop). Prosecutors could have shown that Hunter went through a lot of devices by showing that list from Apple. Instead, they’re going to rely on Kestan’s testimony.

He did not ask her to show the list of devices, obtained from Apple, that had been associated with Hunter’s account. We’re just taking Agent Jensen’s word that the laptop is associated with the computer (it is, but I find it notable that prosecutors didn’t submit the list into evidence).

Q. How?

A. Among other things, there was a serial number that’s on the back of this laptop that matches the Apple subpoena records that they obtained in 2019, so it matches the registration of this particular device to the iCloud account at a particular date.

Q. And is that serial number FVFXC2MMHB29?

A. Yes.

Q. And that’s also in the Apple records, you said?

Note: even though elsewhere she describes that the Apple information obtained “purchase history by device,” Jensen doesn’t claim that there’s a receipt showing Hunter buying it from Apple. We know there are receipts for the laptop Hunter bought on September 1 (the one that ended up with Keith Ablow), and the two phones replaced the same day he bought a gun. As far as I know, no one has ever seen a receipt for the laptop that ended up in FBI custody.

For each of the two device iCloud backups used at trial, Jensen made sure that the devices were associated with one of three phone numbers shown on the subscriber subpoenas to AT&T.

Q. What did that response show?

A. It showed — it would be considered supplier records, so it showed purchase history by device associated with Apple ID’s, which are associated with a person, and registration information for devices, and other subscriber information for devices associated with Robert H. Biden or Hunter Biden.

Q. Did those records correlate in some respects to the phone records you received from AT&T?

A. Yes. You could see in the records that the phone numbers that came back from AT&T were associated with various devices every time.

[snip]

Q. Are there two back up files that investigators utilized for evidence in this case?

A. Yes.

Q. What back up files were those?

A. So we named them Apple back up one, two, three and four. Three is a back up of an iPad pro. So that one was one that we used. The second one we used was Apple back up four, which was an iPhone SR.

Q. Were both of these devices registered to the defendant based on the Apple records?

A. Yes, so the extraction report that comes from these back ups show that there were information, including things like the phone number and MIMEI that associated these devices to Mr. Biden.

Q. Did you independently verify the Apple records to make sure they correlated with the AT&T phone records that we saw produced by AT&T?

A. Yes.

While Jensen described that devices could be backed up either via iCloud (to the cloud) or via iTunes (to a device), she didn’t describe that the most important texts in the case were backed up to iTunes on the laptop, and that that device was also using a number in Hunter’s name at the time (actually, he reactivated it the same day he bought the gun).

More notably, she didn’t do the same for a range of other communications obtained from the laptop:

That is, she was not asked to apply her secondary method of validation for a good number of the comms submitted.

Transcript

Q. What phone records did law enforce initially obtain?

A. We had phone records, subscriber and call records, which show the back and forth between numbers for three phone numbers that were used by Mr. Biden.

Q. And I’m showing you Exhibit 22(a), 23(a), and 24(a). Take a moment to look at those. What are those three exhibits, Agent Jensen?

A. So this is wireless subscriber information from AT&T for three telephone numbers, subscribed to Robert Biden.

MR. HINES: Move for the admission of 22(a), 23(a) and 24(a).

MR. LOWELL: No objection.

THE COURT: All right. Thank you, they’re admitted. ( Exhibit Nos. 22(a), 23(a) and 24(a) were admitted into evidence.)

MR. HINES: Ms. Vo, if you could display 22(a).

BY MR. HINES: Q. Agent Jensen, can you describe what this record shows?

A. So this record, which does have some redaction boxes for personal information shows on the top, you can see, financial liable party, billing party, this is information for a telephone number, 202-552-9396.

Q. And Ms. Vo, if we zoom in on the middle of that page where it says user information. Is that the phone number you read right there under MSISBN?

A. Yes.

Q. Is this a record you received in response to a subpoena your investigators received? A. Yes, this is a record we received approximately April 5th of 2019.

Q. It identifies the defendant’s name, as well associated with that number?

A. Yes.

Q. Turning to the next record, 23(a), is this another response to a subpoena from AT&T?

A. Yes, so this came back as part of the same subpoena return, so as part of the same subscriber record. This phone number is 302-377-3313. Also user name Robert H. Biden.

Q. That’s a second phone number that you learned was affiliated with Mr. Biden?

A. Yes.

Q. Turning to Exhibit 24(a), what is the phone number listed here?

A. This is a telephone number 202-285-2473.

Q. Who is it listed under?

A. Robert Biden.

Q. And is this the party that’s the listed financial liable party?

A. It’s both, so at the top it shows Robert Biden as well, and then the user information will typically be the person the phone number is associated with, at least per the AT&T record.

Q. If we zoom out a second Ms. Vo, and look at the date on the top left-hand corner of this document. When were these records provided to law enforcement?

A. On or about, they were generated on 4/5 of 2019, so we would have received them on or just after that date.

Q. After receiving this information from AT&T about the defendant’s phone numbers, did investigators issue other subpoenas?

A. Yes.

Q. What is an example of an entity that the investigator issued a subpoena to?

A. After that April 16th of 2019 there was a subpoena issued to Apple Incorporated.

Q. What is Apple Incorporated?

A. Apple as in Apple iPhones, iPads, MAC computers.

Q. Did Apple provide a response?

A. Yes.

Q. What did that response show?

A. It showed — it would be considered supplier records, so it showed purchase history by device associated with Apple ID’s, which are associated with a person, and registration information for devices, and other subscriber information for devices associated with Robert H. Biden or Hunter Biden.

Q. Did those records correlate in some respects to the phone records you received from AT&T?

A. Yes. You could see in the records that the phone numbers that came back from AT&T were associated with various devices every time.

Q. Was there an iCloud account associated with the Apple records that Apple provided?

A. They didn’t provide at that time contents, so it was just subscriber records, but you can see in some of the records that there were iCloud like services, subscribed to.

Q. What is an iCloud service?

A. So iCloud is essentially a way to replicate your data across your devices, for those who have multiple devices, or as a way to back up your phone and get your — you can find your phone, you can get your information put back on your new phone, it’s essentially a remote server controlled by Apple where you can subscribe to and leave your data on a server.

Q. So as opposed to needing to physically plug it into something, there is a way to also upload it to the cloud?

A. Right. The service changed overtime, but essentially you can back up your devices to a cloud, and the other option is you can back up a device to a computer, any computer actually that uses iTunes in that case to back up a device on a mobile computer.

Q. So the subpoena did not provide content at that time, correct?

A. Correct.

Q. Did it provide an e-mail address or iCloud address for Mr. Biden?

A. Yes. So there were Apple ID’s, which are typically an e-mail address, sometimes it’s not an e-mail address, but you can use your e-mail address, your Apple ID, and there was some provided.

Q. What was one of those iCloud addresses?

A. [email protected].

Q. Did investigators ultimately obtain content from Mr. Biden’s iCloud account?

A. Yes.

Q. How did they do that?

A. They sought and obtained a search warrant from this court house actually for content for the iCloud account, [email protected].

Q. So a judge issued a search warrant for that information?

A. I believe that was August 29th of 2019 that warrant was issued.

Q. How did the investigators get the data?

A. Apple requested a hard drive for the data, so the investigators sent a clean or new hard drive to Apple, Apple provided the data, and sent it back to the investigators.

MR. HINES: Your Honor, may I approach the witness?

BY MR. HINES:

Q. Agent Jensen, I’m showing you what’s been marked as government’s Exhibit 15. Do you recognize that?

A. Yes.

Q. What is it?

A. This is the hard drive that was sent to Apple and then returned to the investigators with the search warrant returned.

MR. HINES: I move Exhibit 15 into evidence.

MR. LOWELL: No objection.

THE COURT: Thank you. It’s admitted. ( Exhibit No. 15 was admitted into evidence.)

BY MR. HINES: Q. Can you please hold that up, Agent Jensen, for a moment? Did investigators ultimately review data from government’s Exhibit 15, that hard drive from Apple?

A. Yes.

Q. What kind of data did investigators derive from that hard drive?

A. There were e-mails that were obtained from the iCloud returned for iCloud back ups, so basically a back up for four different devices was recovered or extracted from the data.

Q. Did these back ups, these extractions have evidence of the defendant’s addiction on them?

A. Yes.

Q. Did that include evidence of addiction in the year 2018?

A. Yes.

Q. Are there two back up files that investigators utilized for evidence in this case?

A. Yes.

Q. What back up files were those?

A. So we named them Apple back up one, two, three and four. Three is a back up of an iPad pro. So that one was one that we used. The second one we used was Apple back up four, which was an iPhone SR.

Q. Were both of these devices registered to the defendant based on the Apple records?

A. Yes, so the extraction report that comes from these back ups show that there were information, including things like the phone number and MIMEI that associated these devices to Mr. Biden.

Q. Did you independently verify the Apple records to make sure they correlated with the AT&T phone records that we saw produced by AT&T?

A. Yes.

Q. Separately, did law enforcement also later obtain the defendant’s laptop and an external hard drive?

A. Yes.

Q. How did they come to receive it?

A. So in late 2019, the FBI received a tip that there was a laptop at a computer repair shop called the MAC Store, here in Wilmington, Delaware, that had been abandoned by its owner, and they ultimately obtained a subpoena and recovered the equipment from the computer store.

MR. HINES: May I approach, Your Honor?

THE COURT: You may. You may freely approach.

MR. HINES: Thank you, I appreciate that.

BY MR. HINES: Q. I’m showing you what has been marked as government’s Exhibit 16. Can you look at government’s Exhibit 16? What is government’s Exhibit 16, Agent Jensen?

A. This is a laptop that was recovered from the computer store.

Q. Did investigators ultimately extract data from that laptop?

A. Yes.

Q. How?

A. So they used forensics, FBI and other federal officials used forensic tools. Actually I think it was just the FBI that used forensic tools to extract data from the laptop.

Q. And was the FBI or law enforcement authorized to look in that laptop?

A. Yeah, so after the — after this laptop was received, the search warrant was obtained for data on the laptop.

Q. Ultimately in examining that laptop, were investigators able to confirm that it was Hunter Biden’s laptop?

A. Yes.

Q. How?

A. Among other things, there was a serial number that’s on the back of this laptop that matches the Apple subpoena records that they obtained in 2019, so it matches the registration of this particular device to the iCloud account at a particular date.

Q. And is that serial number FVFXC2MMHB29?

A. Yes.

Q. And that’s also in the Apple records, you said?

A. Yes.

Q. So from the data from the laptop and the hard drive, did you — what did you do next, or what did the FBI do next when assessing the addiction evidence?

A. So from the data that was extracted from both the iCloud back ups and this — the laptop, investigators were able to go through largely WhatsApp messages, iMessages, and text messages, and found evidence of addiction within the messages.

MR. HINES: Move for the admission of Exhibit 16 and 15 if I did not already, Your Honor.

MR. LOWELL: As we discussed, yes, we understand what that is, so we have that preliminarily, I have no objection.

THE COURT: Okay. It’s admitted. ( Exhibit Nos. 15 and 16 were admitted into evidence.)

Definition of an Addict: Why Hunter’s Paraphernalia around Kids Matters

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As I keep reminding, Hunter Biden faces three charges.

Two pertain to the form he signed at the gun shop, which not only implicates the mutually inconsistent testimony from the three gun shop guys, but also requires an additional element of the offense (materiality for one, and retention for the other) that may be undermined by their shenanigans, to the very limited extent Judge Noreika allowed Hunter to present that.

The third charge, unlawful possession, will be easier for prosecutors to prove. To win a conviction, they have to convince all 12 jurors that at any point in the 11 days Hunter owned the gun, he either knowingly used a controlled substance or was was knowing addict (the knowing possession will be easy to prove, since as soon as he realized the gun was gone from the console of his truck, he asked Hallie about it). Prosecutors are asking for unanimity on at least one of those measures.

Count 3: Possession of a Firearm by a Drug User or Drug Addict 18 USC 922(g)(3)

  • Whether the defendant was either an unlawful user of a controlled substance or a drug addict
  • Whether the defendant knowingly possessed a firearm
  • Whether the defendant knew he was an unlawful user of a controlled substance or a drug addict at any point in time between October 12 and October 23, 2018

Here are the definitions the jury will use to decide if he qualifies.

The term “addict” means any individual who habitually uses any controlled substance so as to endanger the public morals, health, safety, or welfare, or who is so far addicted to the use of a controlled substance as to have lost the power of self-control with reference to his addiction.

The phrase “unlawful user of a controlled substance” means a person who uses a controlled substance in a manner other than as prescribed by a licensed physician. The defendant must have been actively engaged in use of a controlled substance or controlled substances during the time he possessed the firearm, but the law does not require that he used the controlled substance or controlled substances at the precise time he possessed the firearm. Such use is not limited to the use of drugs on a particular day, or within a matter of days or weeks before, but rather that the unlawful use has occurred recently enough to indicate that the individual is actively engaged in such conduct. An inference that a person was a user of a controlled substance may be drawn from evidence of a pattern of use or possession of a controlled substance that reasonably covers the time the firearm was possessed.

Prosecutors have circumstantial evidence that Hunter used controlled substances in that 11 day period. Naomi Biden says that when she gave her dad’s truck back to him, it was clean. Hallie Biden says that when she searched it days later, it had remnants of crack cocaine. Add that to the text where Hunter told Hallie he was with a crack dealer, and that may be enough to convict.

That’s all circumstantial, of course.

What’s not in dispute is that Hunter was an addict in that period, and regularly referred to himself as such. But that’s where the rest of the definition gets interesting.

Prosecutors have presented evidence — again, with Naomi Biden’s testimony, as well as Zoe Kestan’s — that Hunter was a high functioning addict. They’re not going to convince a jury he had lost the power of self control for the period in question.

Which means to prove he was an addict they’ll need to prove that his habitual use of crack cocaine endangered public safety, and that he recognized that during the 11 days in question.

This is the single area where anything in his memoir is useful at all. He told stories about how in 2016 he did really stupid stuff involving cars.

But that’s not the most likely way a jury will find that he endangered public safety. It will be from Kathleen Buhle and Hallie’s testimony that they routinely searched his car to ensure there was no drug paraphernalia around their kids. It will be in Hallie’s validation of a text — a text prosecutors had not shared with Hunter in advance — that days after she disposed of the gun, she found a leather pouch with a pipe right next to where Hunter’s nephew Hunter was playing.

It’s also the reason why, I suggested, the defense may have called Naomi to rebut Hallie’s testimony that the console of the truck was locked, that the gun was kept locked the entire time he owned it. If the console was unlocked, then it shows that his addiction led him to treat the gun unsafely. It’s also why Abbe Lowell tried to get Hallie to remember that she told cops that she searched the truck because she was looking for evidence that he was cheating on her, not because she believed he had been using.

We have no idea what jurors will decide in days ahead. What we do know is what definition they’ll use to decide whether he was an addict.

And one measure of that will be the extent that he exposed Joe Biden’s grandchildren to his drug habit.

Prosecutors Plan to Use Their Failure to Exploit the Ablow Laptop against Hunter Biden

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There are actually at least two laptops admitted into discovery in the Hunter Biden trial: First, the laptop obtained from John Paul Mac Isaac, from which prosecutors obtained about half of their digital evidence. It was introduced as a physical object. Sadly neither side has submitted a picture of it, so there’s no exhibit showing what the famous laptop actually looks like.

There’s also a laptop depicted in this picture Zoe Kestan took, which prosecutors appear to have obtained from a subpoena to her, which she got off her phone.

According to the draft jury instructions, one of the immunized female witnesses against Hunter, Hallie Biden or Kestan, had a non-prosecution agreement, as opposed to testimonial immunity.

You have heard evidence that [PARTIES TO FILL IN] have ______________] has received a promise from the government that she will not be prosecuted;

And you have heard evidence that [_______________] has received a promise from the government that her testimony will not be used against her in a criminal case; or [my emphasis]

Given Abbe Lowell’s elicitation of Kestan’s role in buying Hunter drugs, and Leo Wise’s question that elicited the age difference between Hunter and Kestan in response, it seems likely Kestan is the one from whom prosecutors obtained full cooperation by waving around the possibility of criminal charges.

But back to the second laptop. By date — September 10, 2018 — and appearance (to the extent we can see it), the laptop in the picture is likely to be the laptop that ended up in Keith Ablow’s cottage in February 2019. Hunter started using that laptop around September 1, 2018.

Prosecutors have already revealed that they plan to explain away the fact that they have none of the kind of evidence showing Hunter purchasing crack in the period in which he owned a gun as they do from May 2018 and December 2019 and February 2019 by pointing to testimony — they originally claimed it would come from Hallie — that Hunter frequently lost phones.

Witness 3 observed that the defendant frequently lost phones and changed phones, which explains gaps in time where there are no messages.

I guess they realized that the texts with Hallie in the 11 days in question discredit the claim that his texts weren’t being sent and saved, so instead Leo Wise had Kestan describe all the phones Hunter lost in this period.

Q. Did that happen on more than one occasion where he lost a phone or had to replace a phone?

A. Yes.

Q. Approximately how many times would you say that happened during the period you were with him?

A. Maybe 5 or 6.

Note: I think she would not have known that he lost that many phones in that period; though he did lose that many devices.

They will show, however, that in a screencap that is undated but which she may have described as coming, “a day or so before Thanksgiving [2018]” or may have included among texts she kept sending afterwards, in which she marks that Hunter had a new phone (or new phone number).

After Abbe Lowell points out that prosecutors wasted hours and hours of jurors’ time showing them communications from periods no time close to the events in question, whoever does the reply to Lowell’s closing argument will point to that Kestan testimony and explain that the reason there are no comms from that period in October must be that Hunter lost the phones on which he arranged drug deals.

They’re not wrong, in theory.

I mean, it’s a rich theory given that in August 2023, prosecutors said they wouldn’t rely on the laptop at all because it was all backed up to the iCloud, and Derek Hines was misleading Judge Noreika about how much really was backed up to the cloud as recently as May 22. But I’m used to this kind of stuff from these guys.

The problem with this argument, though — or it would have been a problem if Noreika had forced prosecutors to do what is normally required in criminal cases, the actual validation of the data — is that the laptop on which any communications Hunter sent to drug dealers between October 11 and October 23 probably passed through the custody of the DEA.

Hunter Biden initiated a bunch of new devices at the tail end of the period he owned a gun.

On October 21, 2018 the laptop used as evidence at trial was first logged into his iCloud.

On October 22, a new iPhone XS was first logged into his iCloud (functionally, I believe this replaced a phone Hunter lost on October 11 or earlier).

On October 23, a new iPhone8 was first logged into his iCloud (functionally, I believe this also replaced a phone Hunter lost on October 11).

The laptop presented at trial does have evidence from before it was first put in service (largely in the form of an iTunes backup saved to the device itself), but prosecutors will argue that it wouldn’t have everything.

When Derek Hines had Erika Jensen present the cherry pick of evidence they’re using in this case, he relied on Subscriber records (one, two, three) and Jensen’s testimony to tie the comms depicted in the summary chart to Hunter. She didn’t show Apple’s records of which devices were associated with his account at any given time, which would give jurors a sense of — for example — the precise turmoil in his devices in this period (but would also give some idea of real anomalies that should have led to the exclusion of the laptop). Prosecutors could have shown that Hunter went through a lot of devices by showing that list from Apple. Instead, they’re going to rely on Kestan’s testimony.

But no one has mentioned that one of the devices Hunter lost — the one that would most likely have collected the equivalent set of comms to those introduced at trial — was found, found by the DEA when they searched the office of Hunter’s shrink, Keith Ablow.

David Weiss’ prosecutors are going to argue that they have gaps in their evidence precisely where that evidence would otherwise show ongoing crack use. What they’re not going to admit is that over a year after the investigation of Hunter Biden started, over a year after Federal authorities learned about the gun, the Federal government was in possession of the laptop that, according to this theory, would have the smoking gun crack communications to prove their case.

Instead of searching it for the comms that David Weiss will claim would prove their case, they simply gave the laptop back to Hunter Biden.

Having not done anything with the laptop when they had it in 2020, prosecutors will use their failure to do anything with the laptop in 2020 as an excuse for evidence they don’t have.

Demons: The Greek Tragedy of America’s Hunter Biden Addiction

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While Hunter Biden’s team hasn’t officially decided whether he will take the stand, I’m confident we have seen the last witness testimony in the trial. Friday’s testimony might lead to a split verdict from the jury, with the easiest possession charge solidified, but more reason a jury might balk at the two documents charges.

But, after reading the transcript, I can’t help but view the last day as emblematic of the tragedy of the American addiction to prosecuting Hunter Biden.

Familial Tragedy

Start with Naomi Biden’s testimony.

As I’ve been saying from the start, Hallie Biden was the most important witness for prosecutors, not just because she’s the one who found and discarded of the gun at the center of the case, but because Hunter sent Hallie texts during the time he owned the gun discussing buying crack.

In addition, at trial, Hallie testified that she searched Hunter’s truck because he had come to her house overnight on October 22 and she thought he might have been using. She described finding “remnants” of crack cocaine which, given the fact that the pouch in which Hallie put the gun before disposing of it had trace remnants of cocaine, was particularly damning.

Q. When you searched his car, what did you find? Or when you cleaned out his car, to use your words, when you went through the car?

A. Aside from trash and clothes.

Q. Full of trash and clothes?

A. Yeah. I did find some remnants of crack cocaine and some paraphernalia.

Q. And just to be clear, this is the morning of the 23rd?

A. Yes. Oh, and the gun, obviously.

In real time, there was a discrepancy between Hallie’s explanation to Hunter of why she disposed of the gun — because it was not locked up — and Hunter’s — that it was locked and her disposal of it publicly made it more risky.

On the stand, Hallie described that the lock on the console “had been broken.”

Q. Where did you find the gun in the truck?

A. In the console, the arm console, it was like a box.

Q. Was the box part of the truck like in the —

A. Yes.

Q. Was that box locked?

A. It had a lock, but the lock had been broken. So it was like two inches ajar, you couldn’t like click it.

Hallie’s testimony on the stand — that she searched the truck because Hunter looked like he had been using — conflicted with the police report (which quoted her saying “I think he is screwing around on me”) and some of her contemporaneous texts (which Abbe Lowell struggled to get admitted under the rules of evidence).

I assume these inconsistencies were why Hunter’s team called Naomi Biden to testify. She had used the truck in which the gun was found to help move her boyfriend to New York days earlier, so she knew what it looked like when she gave it back. But rather than helping Hunter’s defense, it will end up matching the classic examples of circumstantial evidence.

You go to sleep and the ground is bare, you wake up and there’s snow on the ground, you have circumstantial evidence it snowed overnight.

Someone comes in from outside carrying a wet umbrella, you have circumstantial evidence it’s raining.

You give your dad his truck and it’s clean and the console is locked, but days later your aunt finds drug paraphernalia in it and the console guarding the gun has the lock broken?

Here’s how that testimony played out.

Q. When you took the truck from Washington D.C. to New York, what was the condition of the inside of the truck?

A. It was in good condition.

Q. By that I mean was there any laundry thrown around, any things that you could determine were left in the truck by your dad?

A. No.

Q. I want to talk about the Raptor truck a minute. Would you put up DX — can you look at Exhibit 12 in your book. So the condition of the truck is where we were at. I asked you what was inside and you said there was nothing particular left behind. When you gave the truck to your dad in New York, did you see strewn about, any, what we’ll call drug paraphernalia?

A. No.

Q. Did you see any white powder residue or anything like that?

A. No.

All the more so given the line of questioning from Leo Wise suggesting that, at a time Hunter was trying to collect the truck in the middle of the night, a drug dealer Zoe Kestan had identified, Franky, had gotten a code to access Hunter Biden’s Wells Fargo account.

Q. Did he tell you he was meeting with someone named Franky?

A. I don’t remember.

Q. Did he tell you that he had Franky come to his hotel room?

A. No. I don’t remember.

Q. I’m sorry, I didn’t hear you?

A. I don’t remember.

Q. Did he tell you he had given someone named Franky an access code to his Wells Fargo account?

A. No.

It’s clear now that prosecutors called Kestan for that testimony — that Hunter gave her and his drug dealers five minute codes to access his bank account — as much as anything else. Prosecutors have some idea who was making the cash withdrawals that, without the five minute codes, were just a proxy for drug purchases.

Not only will Naomi’s testimony provide circumstantial evidence that between the time she gave the truck back and the time Hallie searched it, Hunter had gotten and was using drugs.

But she displayed the tragedy of a family desperate to provide Hunter the love he needed to get and stay clean and instead be met with a wall of deceit. And I’m sure the Biden family is wondering, as I am, whether and if so what might have led Hunter to break the lock on his own console where he had a gun and from which two bullets were taken out of their box (but, according to Hallie, found loose in the console and disposed with the rest).

The trial as a whole has been a week-long display of unconditional love, a sharp contrast with the mob-like attack on rule of law from Trump and his supporters, a contrast that really should have been the focus of the Tiger Beat style trial coverage.

But this moment — the moment Naomi thought she might help her dad but instead may have sealed his prosecution — must have exhibited to the jury the heartbreak such unconditional love faces when supporting someone with addiction, something with which a number of jurors have first hand experience.

Hitjob Backlash

That might have sunk Hunter entirely and it still might.

But other witnesses yesterday completely discredited the testimony of Gordon Cleveland, the guy who sold Hunter the gun, the single witness to the two other counts charged, that Hunter lied on a gun form.

As I laid out here, Cleveland described that selling the gun to Hunter went this way.

  • Hunter Biden picks a gun
  • Cleveland hands Hunter Biden form 4473 to fill out as Hunter hands him his passport
  • Cleveland leaves the front room to copy the passport which, he claims, takes less time to do than it does with a driver’s license because it is not double-sided
  • Cleveland returns to the counter and watches Hunter as he fills out the gun form
  • Only then does Cleveland take the passport — but not the form — in the back to ask whether he can use the passport
  • He and Jason Turner return to the counter
  • Turner reviews the form and sees that Hunter hasn’t signed it
  • Turner then tells Hunter he needs to go get a second form of ID
  • Turner goes back into the back room to run the background check
  • Turner fills out the rest of the form — including dating Cleveland’s signature
  • Cleveland proceeds to sell Hunter a bunch of other things, some of which he claims to have consulted on, some of which — a utility tool and a pellet gun — he claims he did not

His former colleague, Jason Turner (whom the owner of the shop blamed for altering the document after the fact, but jurors don’t know that), offered an entirely different timeline. He described:

  • Cleveland puts form (which Hunter has not signed) and passport (and, Turner later claims, the gun) on stack of background checks Turner is doing
  • Before doing background check, he reviews the paperwork and sees Hunter has not signed it
  • Turner brings the form and passport to Cleveland and — without ever speaking to Hunter — tells Cleveland that Hunter needs to sign the form and provide a second form of ID
  • Turner than stood by the back office door and watched as Cleveland got Hunter to sign the form and provide a second form of ID
  • Turner runs the background check
  • Turner fills out the form and in the process records the car registration (and the passport)
  • Turner brings the form and the gun back out to Cleveland
  • He never speaks to Hunter
  • Palimere was not in the gun shop and witnesses and witnesses none of this

The shop owner, Ron Palimere (the guy who has a proffer agreement immunizing truthful testimony), offered a third story:

  • At some point Palimere comes over to the store from his pawn shop because he has been informed there is a celebrity customer
  • Cleveland comes back into the office with the form and the passport
  • Cleveland asks if he can use just the passport for ID
  • Palimere says he can
  • Palimere does so because he was trying to avoid holding up the sale

The gun shop owner — the one guy with immunity — says he approved selling the gun without getting proper ID. The guy on the hook for the background check, Turner, claims he instructed Cleveland that the gun could not be sold without a second ID. And Cleveland, the guy who signed the form, says Turner interacted with Hunter and via that process got a second form of ID. Statutes of limitation have expired on the sale itself — Weiss was too busy chasing Hunter to figure out whether a still-active gun dealer has a practice of letting celebrities buy guns without proper paperwork — but they have not for any document alteration in 2020 or 2021, and if either man provably lied on the stand, they could face perjury charges.

All this might pass unnoticed to the jury. But I have to imagine they’d be surprised by Turner’s insistence that he recorded the car registration in the form, when no such thing is recorded on the form.

Q. You see the books next to it, line 18(b), right under it?

A. Correct.

Q. It says supplemental government issued documentation, if the identification document does not show current residence, government issued photo identification, do you see that?

A. Yes.

Q. If it doesn’t show residence, do you see that?

A. Correct.

Q. You a moment ago said that the passport doesn’t have somebody’s address?

A. Correct.

Q. Then you said that you told Mr. Cleveland something, right?

A. He needed to get further government issued identification with an address on it.

Q. Right. And if he did, what would you do with that?

A. I would have written it right in there.

Q. But you don’t see such writing in there, do you?

A. When I wrote that out, I wrote the car registration.

Q. You don’t see such a writing in there, do you?

A. When I wrote that out, I wrote car registration.

Q. When you wrote this out, you wrote car registration here or car registration there?

A. 18(b), car registration.

Q. You wrote it?

A. I wrote it.

Q. Where is it?

A. I wrote vehicle registration in there.

Q. I’m asking you if you did and this is the form, where is it on the form that you say you wrote?

A. It’s not there.

The conflicting stories of the gun shop employees — particularly Turner’s testimony that he ordered Cleveland to do something that Cleveland says Turner did — certainly undermines Cleveland’s credibility, and therefore his value as a witness to the way in which Hunter filled out the form.

But as I’ve described there is another element of the offense to both the form-related charges, beyond just that Hunter knowingly lied on the form. One requires that a false claim be material to the sale; in this case, the gun shop owner testified that not having proper ID was not material to this sale. The other arises from the obligations on the gun shop to keep proper paperwork, which Turner’s testimony makes clear they did not (though discussion of which remained largely barred by Judge Noreika’s order prohibiting discussion of the later alterations).

Even without knowing that the form got doctored years after the fact, jurors may have reasonable doubt about what actually happened here.

And the conflicting testimony may oblige David Weiss to do something about it, something his prosecutors have been trying to avoid.

Somewhere between three and four years ago, according to Palimere, Turner altered a form in violation of instructions that Turner acknowledged are right there on the form. The men gave irreconcilable testimony on the stand.

If you’re going to prosecute Hunter Biden for lying on a form, how do you avoid prosecuting a gun shop that doctors a form after the fact? In other words, one of these guys risks joining Alexander Smirnov in legal hot water, because the imperative to prosecute Joe Biden’s son has revealed that one after another after another after another person did something really shady to make sure he’d be prosecuted.

DEA’s Los Angeles traffic expert

All of which may lead jurors to ask what they are doing here — not least, why they have spent days of their lives seeing evidence that Hunter Biden used drugs anytime other than the days leading up to October 11 (showing his mindset when he purchased the gun) and between then and October 23 (when Hallie disposed of it), when he wrote a book admitting to just that.

Prosecutors have buried the jury with one of the few things not in contention: that Hunter Biden struggled with addiction, with periods of sobriety and periods of desperate addiction.

The absurdity of all this may have come into focus on Friday during the testimony of Joshua Romig, the DEA expert brought in to to translate for jurors topics that were not in dispute.

As Romig described, his day job is investigating drug trafficking, including “some firearm offenses when it comes to drug traffickers.” But it is the trafficking itself that DEA is trying to shut down.

I did that for over five of the years that I was assigned to the DA’s office, was just investigate drug trafficking offenses. I was very briefly assigned to the warrant unit before I got hired by DEA, because my boss didn’t want me to get involved in anymore court cases because he knew I was leaving. And then since I have been a DEA agent, the only thing, we’re a single mission agency, all we do is investigate drug trafficking. There are nuances to those drug trafficking cases, we investigate money laundering when it comes to drugs, we investigate some firearm offenses when it comes to drug traffickers, theft of firearms, but my primary responsibility is to investigate drug trafficking.

Derek Hines — he of the sawdust as cocaine — started Romig’s testimony with a focus on how the drug trade works, which led Abbe Lowell to object and this contentious sidebar.

MR. HINES: It’s not going to be a long road, I’m merely establishing if the jury understands what cocaine is and generally where it comes from to get to its source distribution points, and that forms the basis for Mr. Romig to testify about how he knows what the drugs are and how the language works in the drug trade so he can give an opinion to the messages which I seek to put up. This won’t be a long road.

MR. LOWELL: Ten feet, 2 miles, what’s the length of the road?

MR. HINES: Not as long as the roads you travel, Mr. Lowell.

Then Hines launched into a review of communications from times other than October 2018 that continued for 37 minutes.

Lowell responded by going on at length himself, noting that all the communications Romig reviewed were for times other than October 2018, and with two exceptions, there were no communications with drug references from that period, neither of which required an expert to interpret them.

Q. You see the date, these are now October of 2018; right?

A. Yes, sir.

Q. Take a look at those. All right. If you go to the next page, please. And you see those texts?

A. Yes, sir.

Q. Okay. Now, you see on the 13th, go back one, please, Mr. Radic. Now go forward one, and go forward one. Okay. Look at those texts. Go forward one. Go forward one. That’s still in October of ’18. Please go forward one. Would you go another one? Do you see a reference to a Bernard at 10:13; right?

A. Yes. 119.

Q. Do you see that one?

A. I do.

Q. You didn’t do any independent investigation of who Bernard is or whether he even exists did you?

A. No, I didn’t do any investigation in this case.

Q. Got it.

A. I just was provided the messages that you see in front of you.

Q. And no need to interpret, because there is a word dealer there, so you didn’t need to interpret that one?

A. A lot of these messages don’t need much interpretation for me, correct.

Q. Go to the next one. That’s to Rows 125. Please go one more, please. I’m sorry, go back, you saw there is a reference in that to sleeping on a car, smoking crack, you don’t need to interpret that?

A. I don’t think I need to interpret that, no, sir.

Q. You don’t know whether that’s accurate or not, whether that’s where he was at the time; right? A. I don’t.

Q. Next one. Look at those. Next one, please, Mr. Radic. And again, we’re in October of 2018, right?

A. Correct.

Q. If you go to the next one, take a look at those. Like, for example, 1:35 on the 16th of October is one that says “hey buddy, it’s Richie Jones, checking in”, that’s no reference to drugs or anything like that, right?

A. It doesn’t appear to be, no.

Q. Go to the next one, Mr. Radic. With that. Go to one more, please. Okay. We’re in the end of October 2018. Go to one more. 1:49. And we’re still in October. Right? And then the next one. Do you see that’s at the going into November and after, do you see that?

A. Yes, sir.

Q. When you reviewed this chart before you came to court or at any point in your investigation, in what I just showed you from the period of time from August of 2018 through November of ’18, there is no reference in what you saw or analyzed of 1.4, is there, in those texts that I just went through with you?

A. No, I’m not sure when that 1.4 text was, but no, not in the ones we just reviewed.

Q. No reference or photo of any scale with white rocks on it in the texts I identified for you between August and November of 2018; correct?

A. Correct.

Q. No reference to baby powder in that period of time?

A. Correct.

Q. No reference to soft stuff in that period of time?

A. Correct.

Q. No reference to party favor in that period of time?

A. Correct. Q. No reference to grams in that period of time?

A. Correct.

Q. No reference to chore boy in that period of time?

A. That’s correct.

Q. No reference to one full in that period of time?

A. Correct.

Q. No reference to fentan in that period of time?

A. Yes. Correct.

Q. And no reference of a ball in that period of time?

A. Correct.

Q. Those last 4 or 5 were all the way into 2019 as we went through on the screen a moment ago, right?

A. Yes, sir.

Q. And in that period of time, there is no pictures of a drug being used, right, no holding of a pipe, right?

A. None that I reviewed.

Q. No bags on a scale, right?

A. No, sir.

Q. No bags at all?

A. Correct.

Q. No videos of him weighing any drugs, right?

A. None that I reviewed, no.

Q. So all that you identified and what I went through with you, were for the years I said before and after the period of August of 2018 through the time that we identified those in November of ’18, that would be a fair statement I just made, isn’t it?

A. With the exception of the October text that we talked about, where he said he was smoking crack.

Q. I did those too. We identified those too. You’ll agree with me, no pictures, no photos, no scales, no white rocks, no chore boy, no fentan, no ball, no ounce, no grams, none of that?

A. Yes, sir, outside those two messages, you are correct.

Romig did describe that the size of cash withdrawals Hunter was making were consistent with drug use, but admitted he didn’t do any analysis of Hunter’s cash flow at the time.

And it’s not just the fact that Derek Hines (he of the sawdust as cocaine) asked this DEA expert to spend his time analyzing comms from periods other than October 2018. More importantly (as Lowell elicited), the DEA doesn’t spend its time reviewing the comms of end users, because the goal is to break up large scale drug trafficking.

Q. In your introducing your expertise and what you are testifying about, you indicated that your job and the job of your colleagues is to be trying to break up large scale distribution of drugs?

A. Correct.

Q. Usually not individual users?

A. That’s correct.

Q. And you don’t have any reason to understand that what Mr. Biden is on trial for has anything to do with him being a distributor?

A. Nothing that I have reviewed would indicate that.

Q. And you’re not investigating, or you didn’t investigate him for the time he was using?

A. I have never done that, no.

Q. You went over all those texts that had people’s names and numbers, some of which you just went over with Mr. Hines, and there were people that seemed to be the distributors, or at least the people that were selling him narcotics. Did you see those people’s texts?

A. Yes, sir.

Q. So as your job to try to break up large scale distribution, did you look into those people?

[snip]

Q. My question was, you didn’t do that, not that you don’t know that it was done, not withstanding that you said your goal —

A. The DEA, as far as I know, but specifically me, or any of the groups that I supervise did not investigate any of the people based on my review of the sellers in this investigation.

Derek Hines’ DEA witness made it clear that this was not an effort to combat drug trafficking. Nor was it an effort to analyze even primarily the communications Hunter sent during the period he owned a gun.

This testimony put the issue of priorities before the jury.

As Manuel Estrada described when explaining to HJC why his top aides advised against getting involved in this case, there are — there should be — far higher priorities.

A Just around that. I mean, just to put it into perspective, it was a crisis mode when I came in because one of the major areas we have is national security. National Security covers not just foreign actors. It includes terrorist actors. It includes domestic extremism. And I’ve had to double the size of that division during the time I’ve been there, and we still can’t handle all of the cases we have there. Q And that’s today, even doubled, you don’t have sufficient attorneys to handle all of the cases? A Well, that’s true in every one of our areas. We don’t have enough AUSAs to handle our national security matters. We could be doing every AUSA in my office could be doing PPP fraud cases we have so much PPP fraud. Every Q PPP is the

A That’s the COVID fraud, COVID19 money fraud. Every AUSA in my office could be doing healthcare fraud cases we have so much healthcare fraud. We have to deploy our resources in the most effective manner to address the needs of the district. As I mentioned, we have a fentanyl epidemic. That includes not just deathresulting cases, it includes going after cartels which are distributing these pills, not just in powder form but in pill form. We routinely seize over a million pills at a time from vehicles, and we need to prosecute those cases. Each pill could be a death. And routinely now we’re finding cartels transporting fentanyl in liquid form, which is a new thing that they’re doing. So we have to do those cases.

We have a violent crime crisis where, for a variety of reasons, including some of the local policies, there has been an increase, certainly in our view, of violent crime and use of handguns in crimes. We have taco vendors on the streets getting robbed at gunpoint. So we are doing more of those types of offenses than we ever have before. We don’t have enough resources to do those.

But David Weiss reneged on a plea deal to chase a hoax from someone with ties to Russian intelligence and since then has been throwing everything he had — including this DEA expert’s time — reading texts from Hunter Biden from periods not remotely close to the period he owned a gun.

Judge Noreika has, properly, been working hard to guard against the jury nullifying this vote, voting that this whole thing is just so stupid and such a waste of time.

But Jeebus: with the human tragedy and the increasing consequences for those who campaigned to target Hunter Biden, what the fuck is the point. What are we doing such that the most important legal case in America serves primarily to subject Joe Biden’s family to the tragedy of his son’s addiction all over again?

Fridays with Nicole Sandler

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