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Compelling Hallie Biden

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Hallie Biden is getting married this weekend, apparently between the time her youngest graduated from high school and the ninth anniversary of Beau Biden’s death and the start of the Hunter Biden trial, at which she will be the most important witness. I learned that when I perused the Page Six reporting on how Melania, Barron, and Ivanka all snuck into Trump Tower to commiserate with Donald after he was made a convicted felon.

Goodness knows that woman has been put through the wringer since Murdoch has made Hunter the primary focus of its obsession; I wish her a long, supportive, private marriage.

But first she has to make it through two Hunter Biden trials.

I want to focus on one aspect of the Hunter Biden trial, which starts next week, which has been missed by those doing scene-setters for the trial. This post, on how prosecutors plan to prove their case, and this one, on rulings thus far on motions in limine lay out much of how the trial will go.

Judge Noreika still has to rule on a dispute about whether Hunter Biden will be able to show the jury how the gun shop doctored his purchase form when the ATF asked for the hard copy of it. If she permits that, it makes two of the three charges against Hunter far sketchier, both of which rely on the way he filled out a form when he purchased the gun. Once gun shop employees admit that they didn’t require Hunter to provide a valid ID because they knew who he was, and then doctored the form years later to cover up that they had done so, it will provide an opening for Hunter’s lawyers to raise a doubt about what happened with the form on the front end and certainly whether it was material to the sale (materiality is required by just one of those two counts).

That leaves Count Three, that Hunter was either an addict or a user of illegal drugs during the period he knowingly owned the gun in 2018. As the government laid out and Judge Noreika adopted for her orders, they will only need to prove that he knew he had the gun and either knew he was an addict or that he used a controlled substance in those 11 days in 2018.

Thus, that leaves only the following issues for trial with respect to Count Three: (1) whether the defendant was either an unlawful user of a controlled substance or a drug addict;4 (2) whether the defendant knowingly possessed a firearm, (3) whether the defendant knew he was a unlawful user of a controlled substance or a drug addict at any point in time while he possessed the firearm (i.e., on any date between October 12 and October 23, 2018).

This is the charge that is most ripe to be overturned by post-Bruen constitutional charges, and Hunter plans an as-applied constitutional charge if he is convicted on it. But it is also the one that will be easiest to prove.

To prove it, though, prosecutors will rely heavily on Hallie Biden.

That’s because she exchanged a bunch of texts with Hunter both during the period he had the gun and as he almost immediately realized that she had done something with it on October 23, including these from October 14 where he seemingly describes smoking crack in a car.

Hunter had days earlier lost his phones, and so he was repurposing an old phone when he sent these texts.

The government has repeatedly described that they’ll have a witness — who by description is Hallie — who will testify that she sent and received those messages.

What we’re using on the laptop are messages that will be corroborated by a witness in this case who will testify that she sent those messages and received those messages.

If they can convince a jury these texts are valid representations of Hunter’s mindset at the time, it will be fairly compelling evidence on Count Three.

And that’s why the question of whether and if so how prosecutors compelled Hallie’s testimony is of interest.

In the face of representations from her attorney that she would invoke the Fifth Amendment on the stand, David Weiss has moved to compel her testimony in Los Angeles.

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).

Even though, absent statutes of limitation, her testimony in the Delaware case might be just as incriminating (because she’s the one who disposed of the gun), there’s no sign of such compulsion in the Delaware docket.

There is, however, a sealed filing (uncontested by Hunter’s team) pertaining to the testimony of a female witness that David Weiss has gotten permission to retain under seal until after the witness finishes testifying.

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).

This isn’t necessarily Hallie: in addition to the female FBI agent and Hunter’s ex-wife, there’s a female witness who partied with Hunter in Los Angeles in spring 2018 whose testimony might have some unique circumstances behind it. But, given the motion to compel her testimony in Los Angeles, there’s a pretty good likelihood it is Hallie.

Indeed, it could be nothing more than a sealed version of the motion to compel in Los Angeles (which for some reason did not obscure her identity), which was filed just three days later.

Obviously, prosecutors have prepped Hallie’s testimony. They claim to know precisely how she’ll testify. So there shouldn’t be too many surprises next week at trial.

If nothing else, however, it would mean two of three key witnesses at trial (the other being the gun shop owner, who testifying under a proffer admitted he only retroactively created a record of having required the proper identification for the sale) had concerns about their own legal exposure for a gun sale made over five years ago. It would mean that prosecutors have decided to pick and choose who’ll face legal liability for those events, deciding that Joe Biden’s kid will be the one who faces legal consequences for a charge no one else would have been charged with under the circumstances.

“True:” Hunter Biden Prosecutor Derek Hines Claims 80-Plus Equals “A Couple”

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In Derek Hines’ reply to Hunter Biden’s opposition to prosecutors somewhat failed bid to substitute summary for proving authenticity of his digital data, Hines accused Abbe Lowell of misunderstanding the digital discovery in the Hunter Biden gun case.

In the remainder of his Response, defense counsel demonstrates (1) they still do not understand the electronic evidence in this case that they received in discovery last fall, and (2) despite claiming they do, they actually have no evidence to give them “reasons to believe that data has been altered and compromised before investigators obtained the electronic material.” Doc. No 151 at p. 1. None of what they claim in their Response is admissible in court, and the government objects to any line of questioning suggesting the trial evidence may have been manipulated because there is no foundation for such questions, they are also irrelevant, and even the inference posed by such a question risks confusing the jury.

As often happens with Mr. Hines (he of the sawdust-as-cocaine error), this seems to be a case of projection.

In an exchange with Judge Maryellen Noreika at last week’s status hearing, Hines suggested that the way to validate digital data that may have been in other people’s hands was to match the content of it to real world events: to tie Hunter’s observation that he was in Delaware to ATM withdrawals made by a guy notorious at Wells Fargo for losing his ATM card.

MR. HINES: Your Honor, one point of clarification I would like to add, too, if I may. So the summary chart, as Your Honor has read, summarizes stuff from Apple. John Paul Mac Isaac, has nothing to do with that data for that production.

THE COURT: I understood that. And as I understood, that’s where the real contest comes in, not from the iCloud, I guess unless the iCloud was backed up at some time during April.

MR. HINES: So it comes from two devices that Hunter Biden had, his phone and his iPad, that were backed up to Apple. John Paul Mac Isaac never had custody of that phone or the iPad at this store. He had the laptop. That stuff that is on the summary chart has nothing to do with what Mr. Lowell is alleging from The Washington Post. What we’re using on the laptop are messages that will be corroborated by a witness in this case who will testify that she sent those messages and received those messages and then a couple of other messages which we have noted on page 3 of our reply. Where there was other corroboration, for example, a message that shows that he’s in Wilmington, Delaware and made an ATM withdraw, that shows that as well. This isn’t some vast array of messages from John Paul Mac Isaac that the Defendant alleges without evidence that he planted into his laptop. To be clear, we’ve asked for reciprocal discovery over and over again. They made this claim in the media that the laptop wasn’t true. We haven’t seen one scintilla, not one message that that isn’t true from the data that law enforcement turned over. And they can’t raise that issue in any meaningful way at trial because there is no evidence of it. We want to make that clear in our reply, the data coming in, and we don’t believe there is any basis for Mr. Lowell to make these kinds of–

To be clear, if Hines is correct that Hallie Biden — the witness he promised, “will testify that she sent those messages and received those messages” — really will validate the messages she and Hunter exchanged in the days immediately after he bought a gun, the entire question of the authenticity of Hunter’s data should be moot.

That’s the most important evidence at trial, because it would (at the very least), show Hunter acknowledging his addiction and probably consuming drugs during the 11 days he owned a gun, going a long way to proving the strongest of three charges against the President’s son.

But David Weiss’ prosecutors are thinking bigger than that.

They’re obsessed with the bacchanalia Hunter had during spring and summer 2018 in Los Angeles, and plan to rely heavily on that — events that transpired before Hunter’s final attempt at recovery before he purchased the gun — to prove his addiction. And they keep claiming the state of Hunter’s addiction after Ketamine treatment from Fox News pundit Keith Ablow shows the state of his addiction in October 2018, when he owned a gun; again, they want to use memoir passages and texts from that period to prove the state of his earlier addiction. There are discontinuities in Hunter’s addiction that make those other periods less probative to the case.

And to submit this evidence, they’re seeking to admit a bunch of communications on either side of rehab attempts that won’t involve a counterpart to Hunter’s communications to validate them, as Hines promises Hallie will for communications during the period Hunter owned the gun.

In this exchange Hines makes some misleading and one outright false claim. He seems to suggest to Judge Noreika that the summary chart only includes stuff from Hunter’s iCloud. He seems to suggest that none of the data in the summary chart went through John Paul Mac Isaac’s hands, when half of it did. Probably that’s just imprecision — a lack of specificity that just some of the messages were from the iCloud, that just some of the messages were from two devices that were backed up to Hunter’s iCloud.

But as to the claim that in addition to the messages that Hallie will validate, there are “a couple of other messages”?!?!

Here’s his description of the “couple” of messages noted on page 3 of the reply.

Messages in Row 85-86 (a message where the defendant says “I need more chore boy,” which is used consistently in the message with how the defendant described “chore boy” in his book), Rows 87 and 135-137 (messages where the defendant says he in Delaware, which is consistent with his ATM withdrawal activity, location information on photographs on his phone, and his admissions in his book), Row 214 (a photograph of the defendant with a crack pipe in his hand), and 216-292 (videos and photographs of the defendant with a crack pipe and drug messages from December to March 2019, consistent with the defendant’s characterization of his activity in his book).

That’s upwards of 80 communications, and he may have excluded a few that don’t involve Hallie (this table breaks out various kinds of comms sourced to the laptop, partly to show outliers, partly to break out comms from the laptop that involve Hallie — marked in pink — and those that do not).

Eighty is not “a couple.”

Even among the texts exchanged with Hallie, I have questions about some, such as the November 3, 2018 text posted without any metadata and with a dark line (as if it came from some other table).

The January 28, 2019 text Hunter sent Hallie, describing that she threw his gun in a dumpster, will be another for which her validation will be key (and for which contextual texts may be pertinent).

I have questions about some of the stuff from iCloud, too — again, because the metadata suggests it does not reflect a backup taken of the device on which the content was captured.

But among the 80-plus other comms, several are presented without the kind of metadata that would make the reliable.

And that’s just what’s included in the summary chart.

Which gets me to the really curious part of Hines’ argument. Both at the hearing and earlier, he impatiently complained that Hunter’s team hadn’t provided any reciprocal discovery — meaning, something like the John Paul Mac Isaac deposition obtained as part of the lawsuit and countersuit (in which a decision has been pending since February). Hines seems to imagine that a witness testifying to altering documents would be the only basis on which Hunter could challenge the authenticity of the digital data prosecutors obtained, whether in public or at trial.

He seems not to have considered whether he already gave Hunter the evidence to challenge the authenticity of such data, using the very same techniques the FBI uses all the time in cybersecurity investigations: the metadata from about six different Hunter Biden accounts.

For his part, Abbe Lowell seems quite certain that some of the material in the FBI’s hands is not authentic. which is different than being confident that some of these communications are.

THE COURT: I understand, but do you disagree if he wants to ask, look, he dropped off the laptop in April, you got it in December, that he can ask that?

MR. HINES: He can ask that timing question, absolutely, Your Honor.

THE COURT: All right.

MR. LOWELL: And one more thing, Judge. I think there may be — I have no quarrel with the point if they have a witness that said I sent this or received this message, of course that’s fine. It’s just that it seems to me their point was they wanted a broad stroke agreement or stipulation that the data is all authentic as opposed to —

THE COURT: And can be tied to Mr. Biden?

MR. LOWELL: Yes. And so I can’t make that because we know to the contrary. I think your point about there might be individual things to raise, if we find that, we will, but I don’t have a disagreement with what you and Mr. Hines just said.

THE COURT: Okay. And I guess we can address that to the extent it comes up in trial. So as I understandit, the government is asking for a ruling that the summary of voluminous messages is appropriate under the Federal Rule of Evidence 1006. Defendant doesn’t object to that. So I will allow this as a summary chart. The government is seeking to have this chart authenticated as of the date that the government received the laptop into federal — some federal agent’s custody. The Defendant does not disagree with that. So I will grant the motion to the extent that is what the motion is seeking.

With respect to whether particular messages on there can be challenged, we will have to take that on a case-by-case basis at the trial.

MR. HINES: Your Honor, on point two that you just read for your ruling, it’s the laptop and the Apple iCloud because the Apple iCloud came into the custody of law enforcement independently of the laptop. I wanted to make sure that was our request as well.

THE COURT: Thank you for that clarification.

MR. LOWELL: One other thing as to what you pointed out in terms of the book. We raised the issue of completeness for their 1006 chart, which we will also talk to them about.

THE COURT: If there is stuff that you want to add.

MR. LOWELL: If not, we will proffer our own if we can’t agree. [my emphasis]

Notably, there has been no discussion of retired Secret Service Agent Robert Savage’s claims that Joseph Ziegler interviewed him based on what both Savage and Hunter claim were fabricated texts; those texts date to the same Los Angeles bacchanalia that Weiss’ team loves.

But being certain that there are some files in Hunter’s digital evidence (and Lowell appears to believe this is true of stuff saved to the iCloud as well) is different than being certain that certain of the communications prosecutors will rely on at trial are fabricated or planted. The import of all this will depend on how much it is — and whether and, if so, how well FBI Agent Erika Jensen, through whom prosecutors wanted to introduce this evidence by using summary in lieu of authentication, can answer questions about digital attribution. She’s likely playing this role because she is not privy to all the technical details about Hunter’s digital data.

Perhaps the most remarkable part of this exchange, however, is that Hines measures this in terms of what is “true,” rather than whether it is “authentic.” “They made this claim in the media that the laptop wasn’t true. We haven’t seen one scintilla, not one message that that isn’t true.” But Hines has already proven that things he deems “true” may not be “authentic.” He claimed, as true, that a message sent by Keith Ablow was a true representation of Hunter’s (powder) cocaine use. Never mind that it was sawdust, not cocaine — that is, it wasn’t even “true.”

But it also wasn’t “authentic.” It wasn’t Hunter’s photo.

This is the mirror image of a logical problem that right wing propagandists (and certain apologists for Russia have) about the laptop and about Russian hack-and-leak efforts: proving something’s authenticity as a way to dodge proving that an authentic message proves the truth claim they’re making. Here, Hines is simply skipping the authentication step (and he may well get away with it).

We shall see next week. Judge Noreika has left the door open to Hunter’s team challenging this digital data (contrary to what some of the reporting on the hearing claimed), and prosecutors have likely left themselves open to more significant challenges by including data that is less probative to their case than the texts Hallie can validate herself.

At the hearing, Judge Noreika also left open the possibility of Hunter submitting on full pages from his memoir, not just the excerpts picked by prosecutors (though her order may be limited to pages, not longer passages).

[T]he motion will be granted in part. The pages offered by the government may be admitted, but the motion is denied to the extent that the government seeks to admit a page from Defendant’s memoir without giving him the opportunity to seek the admission of additional relevant sentences or passages from that same page subject to the Rule of Completeness so long as the statements made meet other requirements for relevance and prejudice. The excerpts by the way still need to come in through a witness.

Now, that being said, I will note that no one has provided me with un-redacted pages from the book, so I can’t tell you at this point whether I view any of the redacted portions to be properly admissible on the Rule of Completeness or the relevance and prejudice, but I do think it’s unfair that Defendant wouldn’t be given an opportunity to establish that.

She has yet to rule on the ATF form doctored after the fact by the gun shop. But Derek Hines did, at least, provide a non-responsive explanation for the source of the three colors on the form.

THE COURT: So you are planning to call Mr. Cleveland. And he is going to say I watched the Defendant fill out the form. I wrote down — did he write down — I noticed that with Mr. Lowell’s motion, he gave me a color copy of the form, which was nice. So is he going to be able to testify who wrote stuff in red, blue, black, whatever?

MR. HINES: Yes, he will. He will testify that Mr. Biden filled out Section A, which is the section that can only be completed by the buyer. And he will testify that he signed the form. You can see his signature on the third page of the form. And then he will testify that Jason Turner filled out Section B of the form. Jason Turner is another employee of StarQuest.

THE COURT: And who filled out — oh, Section B.

MR. HINES: Correct, Section B.

THE COURT: It looks like the same person who makes their zeros like that, but some are in black and some are in red.

MR. HINES: Correct. Based on the information the government has, he will testify that Mr. Turner completed Section B of the form.

Again, prosecutors have a strong case against Hunter Biden. But two of three ways in which they attempted to mitigate the holes in their case have at least partly failed.

Update: Corrected date of November 3 text.

Derek Hines’ Disappearing [Three Colors of] Ink

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In his bid to prevent Abbe Lowell from telling jurors about how the gun shop at which Hunter Biden bought a gun doctored the form on which he is accused of lying, Derek Hines told Judge Maryellen Noreika that Lowell had “inaccurately” claimed there were three or four differences between the original purchase record emailed to ATF and one altered three years later.

[A]t the hearing on May 14, 2024, the defendant inaccurately stated, “There are three or four changes on that form.” Hrg. Trans. at 39:13. That claim is incorrect. As described above, there were only two additions to the Certified Form 4473 after it was filled out on October 12, 2018. [my emphasis]

Hines restated Lowell’s description — “changes” — to address “additions,” and then accused Lowell of inaccuracy.

But he’s covering up that on top of two additions — one an attempt to make it look like the shop had not unlawfully sold Hunter Biden a gun using only his passport as ID — the purported physical copy was instead some kind of scan that hid the fact that the guy who sold Hunter the gun used three different colored inks: Black when he (or someone else) sold Hunter Biden a gun without viewing ID with his address on it.

 

 

Red when he recorded the NCIS background check.

 

 

And blue when he signed it, possibly without a date.

 

 

As Lowell noted in his response revealing the multiple colors, at the status hearing where he first raised this, Hines told Judge Noreika that the doctored form — the one he wants to exclude — had more evidentiary value than the original one, because it reflected Hunter showing a second form of ID.

MR. LOWELL: In terms of form, on Friday, the Government explained to us something that we asked them about that was in their discovery, but I did not understand the ramifications until Friday.

The 4473 form that is the subject of one of the counts, the Government produced two versions of that to us. One, they indicated a week or so ago that they are going to seek into evidence for it being the contemporaneous filing of the form in October of 2018.

On Friday, they informed us that the second form that was in discovery came to them in 2021, I believe. And we didn’t know that. And it’s a different form. I mean, it’s the same form. It has different material on it. And when that was put on and who put it on, we asked them on Friday, and they said they do not know.

So, consequently, that becomes a subject of importance to us as to how the actual form that will be the one that they’re not putting into evidence — by that, I mean the physical form that they obtained from the gun shop in 2021 is the form.

What they are seeking to put into evidence is a faxed or PDF’ed copy of that from October. The actual form has new handwriting on it, which is why we’re looking into that issue as well. And I didn’t know that until Friday.

So there are some things that I am asking that I have the ability to present in the way of experts, and we’re doing the best we can on that.

[snip]

MR. HINES: With respect to the Form 4473 and the two versions, there are two forms 4473 produced in discovery. This isn’t a nefarious issue.

In October of 2018, the store owner of Starquest e-mailed the form that Hunter Biden had signed, prepared, and was dated on that date, to an ATF agent. That form has been produced in discovery. All of the boxes on that form, with the exception of one box, matched a form that was later turned into the ATF approximately two years later, in, I believe, 2021; although, we’ve given the exact date to defense counsel. And the only difference is in that intervening period, someone had written Delaware Vehicle Registration on one of the lines, as an additional ID that Mr. Biden had presented.

So, frankly, that latter form is, from an evidentiary perspective, more valuable to the Government because it’s one more indicia of identity that Mr. Hunter Biden had given to the Starquest owners and salespersons when he bought that gun. [my emphasis]

Hines went on to explain to Judge Noreika that he thought it was a nonissue that the gun shop was doctoring forms years after the fact, which is a pretty weird claim from prosecutors insisting that Hunter Biden face consequences for allegedly lying on that same form five years ago.

Nonetheless, out of fairness, we have agreed that we should be using the form as it existed in October of 2018 that’s attached to an e-mail and has been authenticated by Starquest so that there’s no ambiguity or uncertainty regarding when the Delaware vehicle registration was written on there because that could have been done years later in advance of turning it into the ATF. We don’t know exactly when or who did that, but we think that this is really a nonissue, nonevent.

THE COURT: In advance of turning it in to the ATF, but the e-mail was turning it in to the ATF already?

MR. HINES: The e-mail was to the ATF. So the AFT [sic] has this e-mail. That’s been produced in discovery. That e-mail attaches the form that existed without that one — it says — I think the line item is like 19, and it says “supplemental identification,” and they had written “Delaware vehicle registration” on the later — on the version that was turned into ATF. But in the e-mail, it’s the form that existed at that time, with that box left blank. So that’s the form we’re going to use for trial because that is exactly what he filled out at that time.

[snip]

MR. LOWELL: The 4473 form is much more complicated than Mr. Hines would indicate. There’s not just one change on that form. There are three or four changes on that form.

There’s a number on the top right for the person who sold the gun’s identification number. There’s another change on it. And the idea that after the fact somebody put car registration, that’s a significant event in terms of Your Honor and the jury’s consideration because the form that they say is the critical aspect of one of the counts in this case that includes the identification being a passport is not an acceptable form of identification. It doesn’t include the person’s address. It should never have been accepted as a piece of identification. And somebody figured that afterwards. And then tried to fix it. And that should be a subject of the value of that piece of evidence in front of this Court and a jury. Those are issues we’re pursuing. And I didn’t know about the last one’s significance of when that came about until Friday.

Of course, that was before the prosecution quickly reinterviewed the gun shop guys, only to discover that their immunized gun shop owner (who, Lowell explained in his response, “drew media attention in October 2020, during the election campaign, and conspired with others shortly before the 2020 election to publicize aspects of Biden’s gun purchase”) tried to make it look like they had complied with the law after the fact.

As Lowell notes, this significantly increases the import of the immunity prosecutors have granted Palimere.

Making changes as Palimere did and submitting those to law enforcement would subject the gun shop to fines, revocation of its license, and possibly criminal penalties for falsifying a federal form.

Palimere gets to stay in business, but Hunter Biden faces prison for owning a gun for 11 days over five years ago.

I had already been wondering whether the dodgy forms explained Lesly Wolf’s decision to resolve the gun charge with a diversion agreement. All the more so given this detail: When prosecutors provided this form in discovery last October, they provided a photocopy, hiding the different color inks.

When the doctored form was reproduced to Biden in discovery, it was a black-and-white photocopy with none of the colors from the original, obscuring who filled out portions of the doctored form.

First Derek Hines hid that from Hunter Biden, and then he tried to hide it from Judge Noreika.

And remarkably, when FBI Special Agent Erika Jensen reinterviewed Gordon Cleveland (by herself) on May 16, she didn’t ask him why he used three different colored inks to fill out one form, purportedly all while Hunter Biden waited.

Timeline

October 12, 2018: Gun purchase

October 23: Hallie throws gun away

October 24: Secret Service and Delaware cops start investigating; ATF Special Agent James Risch advises shop only to hand over copy (which would hide multiple colors)

October 26: Shop sends form to ATF, without serial number

September 23, 2021: Gun shop turns over doctored physical form to ATF

April 16, 2024: On call with Lowell, prosecutors tell him he can inspect physical items; date of 302 including details about form

April 23: Gun shop manager certifies black-scanned form as authentic

April 24: Letter from prosecutors reiterates offer to inspect physical items

May 3: Deadline prosecutors impose for challenges to authenticity

May 10: Lowell asks why there are two versions of the forms

May 14: Lowell describes changes to physical form at status conference

May 16: Erika Jensen reinterviews sales clerk Gordon Cleveland (alone) and shop owner Ronald Palimere (with Hines and pursuant to a proffer)

May 20: Hines moves to exclude the doctored form

May 23: Lowell response includes multi-colored form

David Weiss Maintains He Can Use Hunter Biden’s Diversion Statements at Failed Plea Hearing

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David Weiss has made a show of agreeing to Hunter Biden’s Motion in Limine to exclude statements from his failed plea colloquy but has done nothing of the sort.

In response, he claims that he has already agreed to this, but has submitted his own order because the scope Hunter is asking for is broader than that covered by rules of criminal procedure.

The United States, by and through undersigned counsel, respectfully submits this Response to defendant’s motion in limine (Doc. No. 137). The government previously advised the defendant that the government does not intend to introduce the defendant’s statements from the July 26, 2023, hearing outside the limits of Federal Rule of Criminal Procedure 11(f) and Federal Rule of Evidence 410. Because the relief he requests, the exclusion of such statements “in this matter,” is broader than Federal Rule of Evidence 410, the government asks the Court to grant his motion in part and enter the attached order to this pleading which conforms with the Rules.

FRE 410 has an exception, allowing prosecutors to use statements for use in false statements charges, as has been charged here.

(b) Exceptions. The court may admit a statement described in Rule 410(a)(3) or (4):

(1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or

(2) in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present.

Hunter’s proposed order is broader than that — it excludes such statements altogether.

Among the things Hunter agreed to at the plea hearing was language written by Weiss’ team describing Hunter’s well-documented struggle with abuse.

THE COURT: All right. Thank you. Okay. In the next paragraph, it says you have a well-documented and long-standing struggle with abuse and you did tell me already, I’m not going to ask you again about your efforts to treat that. But when we talk about well-documented, is there a particular thing that we’re looking at for where it’s documented or is that just based on your discussions?

THE DEFENDANT: Well, I believe the government is referring to a book that I wrote about my struggles with addiction in that period of time in my life. And quite possibly other news outlets and interviews and things that have been done.

In other words, prosecutors made a big show of agreeing, but instead have carved out their ability to use Hunter’s admissions to being an addict at trial.

To be clear: Under the rules of evidence they can use the plea colloquy (something that has come up over and over). Hunter is asking for broader exclusion, but Weiss is playing games to make it look like he’s agreeing (meaning Judge Noreika will not review the issue), while instead getting her to sign an order permitting them to use everything.

Hunter Biden Prosecutor Leo Wise Aspires to Be the James Comer of John Durhams

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In a filing submitted last week opposing Hunter Biden’s [surely doomed] bid for a continuance of his California trial until September, Leo Wise argued that this is just a garden variety tax case that doesn’t merit any more time to prepare than the week between the Delaware case and the California case.

The defendant claims that he requires only “a small amount of additional time to adequately prepare” ECF 97, p. 5 (emphasis added). However, he asks for this “limited reprieve,” ECF 97, p. 4, of 77 days without providing any details about how those two and half months would be utilized. His filing is simply unclear about what the defendant would actually do with any additional time. His perception of this case as “uniquely challenging and high-profile,” ECF 97, p. 5, is unlikely to change if a continuance is granted. The fact that there may be more press coverage of this trial than others does not affect the preparation required by counsel in any way. This is a straightforward tax case, and the defendant has not alleged otherwise. He is not above the rule of law and should be treated like any other defendant. Every case has pretrial deadlines; the fact that they exist here cannot support a continuance request. Given the complete lack of specificity as to what needs to happen between now and trial (other than compliance with the usual pretrial deadlines which the defendant has known about since January), the factor of usefulness does not support a continuance. [my emphasis]

But a motion in limine filed by Hunter Biden reveals that claim is false.

Wise has no intention of treating this as a straightforward tax case.

After Hunter Biden agreed, in response to Weiss’ own motion in limine, not to mention how Leo Wise had been badly duped by Alexander Smirnov and instead of dropping the case, continued to give Russia what it intended all along, a political hit job on Joe Biden during the 2024 election, Hunter asked David Weiss’ team if they would likewise agree not to make this a trial about influence-peddling.

Weiss refused.

Defendant Robert Hunter Biden, by and through his counsel of record, hereby files this Motion in Limine to exclude from trial reference to any allegation that Mr. Biden (1) acted on behalf of a foreign principal to influence U.S. policy and public opinion, (2) violated FARA, (3) improperly coordinated with the Obama Administration, (4) received direct compensation from any foreign state, (5) received compensation for actions taken by his father that impacted national or international politics, or (6) funneled money to his father or any related alleged corruption (together, allegations of “improper political influence and/or corruption”). This evidence should clearly be excluded under the Federal Rules of Evidence 403 balancing test, as the risk of unfair prejudice is significantly outweighed by any marginal probative value. On May 17, 2024, Mr. Biden’s counsel asked for the Special Counsel’s position on this proposed motion in limine. On May 20, 2024, the Special Counsel indicated that he opposes this motion.

[snip]

Although the Special Counsel’s filed exhibit list (DE 88) contains upwards of forty descriptions that are totally insufficient to identify what document is being referred to (see, e.g., “Text Messages” (#073), “Notes” (#318)), it is clear that many exhibits the Special Counsel intends to introduce relate to allegations of improper political influence and/or corruption that are wholly outside of the scope of the Indictment. See, e.g., “Email from Eric Schwerin to Antony Blinken re: My Remarks In Latvia” (GX-267), “Email from Eric Schwerin to Sally Painter re: Amos Hochstein” (GX-262). Allowing in evidence or testimony related to the unsubstantiated claims of improper political influence and/or corruption run a real risk of the jury convicting Mr. Biden based on facts and allegations outside of the Indictment.

Defense counsel notes that it is ironic that the Special Counsel has filed a motion in limine to exclude evidence “alleging the prosecution of the defendant is somehow due to or part of a Russian malign election influence campaign,” which Mr. Biden did not object to. (DE 92 at 4.) Yet, the Special Counsel opposes the instant motion, which would preclude him from putting forward similar politically charged information to the jury. To prevent this trial from becoming a trial on politics rather than a trial on the charges in the Indictment, this Court should grant both the Special Counsel’s motion as it relates to a “Russian malign election influence campaign” and this Motion.

Having investigated for six years, David Weiss never substantiated a FARA case. But (as the exhibit list makes clear) he wants to drag that into what he claims is a straightforward tax case anyway.

The scope of Leo Wise’s aspirations to use the tax case as a vehicle to air James Comer’s fevered fantasies is made clear by something else Wise revealed in that same filing: The reason giving Hunter Biden more than a week between trials would harm the government is because they plan to make more than thirty people from around the country fly to California to testify against Joe Biden’s kid.

The defendant is not seeking a modest delay of a few days to obtain a piece of evidence or to procure a witness. He seeks a 77-day delay in a case the government has extensively prepared for following a detailed and lengthy investigation. This will inconvenience the United States. For instance, the government anticipates calling more than thirty witnesses, most of them out-of-state. See Declaration of Leo J. Wise, at ¶4 . Trial subpoenas began being sent to these witnesses over a month ago. Id. Many of these individuals are represented; the witnesses and their counsel have planned their summer schedules to account for this trial commencing in June and concluding in July.

You don’t need to call 30 witnesses to present your tax case against Hunter Biden!!

The key witnesses will be Hunter’s ex-wife, Katie Dodge, no more than eight people Hunter paid out of Owasco funds and then wrote off (including, it seems, Hallie Biden, whose testimony Weiss is compelling), maybe a sex worker or two to titillate Matt Gaetz (Weiss has similarly refused to exclude the sex workers), the accountant who filed Hunter Biden’s taxes in 2020, former Hunter business partners Rob Walker and Eric Schwerin, and some law enforcement witnesses to present all the paperwork. That’s around 16 witnesses.

If Weiss really does call over 30 witnesses, it will make this “straightforward tax case” into the largest Special Counsel trial in recent years (as laid out by the list below).

The sheer overkill of Leo Wise’s aspirations is clear when you compare Hunter’s case — for a failure to pay taxes from income that all came through the US — to Paul Manafort’s EDVA trial. Like the Hunter Biden case, that was a tax case, one for which tax evasion was charged for five years, not one, and one for which the scope of income was at least an order of magnitude larger. Because Manafort’s tax evasion involved keeping his Ukraine income offshore in Cyprus, that case also included charges of FBAR violations. It also included nine counts of bank fraud. So tax evasion, plus hiding his funds overseas, plus trying to cheat some banks in the US. Prosecutors called a bunch of local Alexandria vendors, because one way Manafort shielded his income was by wiring money directly to US vendors to pay for things like Ostrich-skin vests.

And for all that, at this stage of the proceedings, prosecutors estimated they would call 20 to 25 witnesses; they ultimately called 27.

Leo Wise wants to do something more spectacular than the Paul Manafort case — and given his close ties to Rod Rosenstein, I wouldn’t rule out the grandiosity of his aspirations as some kind of payback. Of course, there’s a straight through-line between the Manafort case and the Russian-backed effort to fuck over Joe Biden, so Leo Wise is giving Russia precisely what they wanted.

Leo Wise was sure he was smarter than Lesley Wolf and so chased the Alexander Smirnov allegation only to discover he was participating in an attempt to frame Joe Biden. Having been duped there, Leo Wise now refuses to back down. He will stage the most spectacular Special Counsel trial yet!

Update: My apologies to Judge Scarsi. He has apparently granted the continuance to September 5.

Other Special Counsel prosecutions

Scooter Libby: 10 Government Witnesses (plus three CIA briefers not called)

Roger Stone: 5 Government Witnesses (plus Andrew Miller, Michael Caputo, and Jerome Corsi, not called)

Michael Sussmann: 25 Government Witnesses (about 5 not called)

Igor Danchenko: 6 Government Witnesses

How David Weiss Plans to Prove the Gun Case against Hunter Biden

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In addition to their ham-handed attempt to cover up that the gun shop at which Hunter Biden purchased a gun fluffs gun purchase documents for “celebrity” purchasers, David Weiss’ team submitted their trial brief for the gun case yesterday. That, taken in conjunction with their Motions in Limine, provides a good sense of the gimmicks they plan to use to win the case against Hunter Biden. (You can find all these filings at my Hunter Biden page, which for the Delaware case is up to date.)

Ignore the Gun Shop’s Celebrity Treatment

As noted, David Weiss’ crack prosecutors only discovered that the gun shop had altered the Hunter Biden gun form after the fact when Abbe Lowell told them that at a status hearing last week.

They quickly reinterviewed gun shop employees, only to discover their testimony conflicts about whether they got that second form of ID in real time, or instead blew off doing so because Hunter was a “celebrity” purchaser and everyone knew his father.

In their belated motion in limine trying to prevent Hunter Biden from revealing that the gun shop altered this very form after the fact, prosecutors argue that relying on evidence about alterations made three years after the fact would amount to putting the gun shop owner on trial.

Except it’s not that simple. Both the 302 of the gun shop owner and the guy who sold the gun make it clear that someone in a back room is responsible for ensuring that the paperwork is in order, along with a clerk who handles the documents a third time. “He would not have paid attention to the paperwork side of the sale,” sales guy Gordon Cleveland told the FBI, “because he had already done his part by working with the customer and making the sale.” That is, the only guy in contact with the customer is not in charge of ensuring that the paperwork is in order — some guy in a back room, who submits the form to the authorities, is in charge of that.

Gun shop owner Ronald Palimere explained that his shop bifurcates the roles that way to “prevent errors.” Except even the tracking number did not get added to this form until after it was submitted to ATF; they appear to have added it after it was clear there was an investigation into the gun. The bifurcated role did the opposite of ensuring compliance.

In other words, if Judge Maryellen Noreika allows Hunter Biden to present this scandalous detail, it provides one way to sow doubt: if the gun shop was willing to alter the form three years after submission to belatedly comply with requirements, who’s to say they weren’t the ones who asserted that Hunter Biden wasn’t an addict?

Continue to Misrepresent Hunter Biden’s Memoir

When this is all said and done, I’m going to count the number of times that David Weiss and the two Trump-appointed judges justified this prosecution with a claim that everything they needed for the prosecution appeared in Hunter Biden’s memoir, with prosecutors and Judge Noreika all making false claims about what’s actually in the memoir, in the prosecutors’ case, repeatedly.

The problem is that Hunter actually didn’t say much about what happened between the time he returned to Delaware in October 2018 and when he went to Massachusetts for Ketamine treatment at the hands of Fox News pundit Keith Ablow that November. All those claims that the memoir provided abundant evidence to prove the gun case against Hunter? Nope.

And, as I’ve laid out repeatedly, what prosecutors once claimed showed the state of Hunter Biden’s addiction in October 2018, when he bought the gun, and still claim presents his continued state of addiction from October 2018, is actually his description of his addiction after (Hunter describes) the Ketamine treatment made it worse.

The therapy’s results were disastrous. I was in no way ready to process the feelings it unloosed or prompted by reliving past physical and emotional traumas. So I backslid. I did exactly what I’d come to Massachusetts to stop doing. I’d stay clean for a week, break away from the center to meet a connection I found in Rhode Island, smoke up, then return.

[snip]

Finally, the therapist in Newburyport said there was little point in our continuing.

“Hunter,” he told me, with all the exasperated, empathetic sincerity he could muster, “this is not working.”

I headed back toward Delaware, in no shape to face anyone or anything. To ensure that I wouldn’t have to do either, I took an exit at New Haven. For the next three or four weeks, I lived in a series of low-budget, low-expectations motels up and down Interstate 95, between New Haven and Bridgeport.

I exchanged L.A.’s $400-a-night bungalows and their endless parade of blingy degenerates for the underbelly of Connecticut’s $59-a-night motel rooms and the dealers, hookers, and hard-core addicts—like me—who favored them. I no longer had one foot in polite society and one foot out. I avoided polite society altogether. I hardly went anywhere now, except to buy. It was me and a crack pipe in a Super 8, not knowing which the fuck way was up. [my emphasis]

And they keep massaging this timeline. In their latest iteration in the trial brief, prosecutors try to minimize how long Hunter was in Ablow’s treatment (which, in any case, is inaccurate in Hunter’s book).

In his book, the defendant describes that he had a short stint at a therapistrun wellness center in Newburyport, Massachusetts, where the defendant says he sought drug addiction therapy.

By “brief,” these prosecutors mean Hunter claimed he spent 8 weeks in Newburyport, but the available evidence shows his follow-up trip started in mid-January, weeks earlier than he claimed in the book.

I would make two trips up there, staying for about six weeks on the first visit, returning to Maryland, then heading back for a couple weeks of follow-up in February of the new year.

As noted here, prosecutors are trying to edit the memoir to say what they want it to say, cherry picking pages and presenting them out of context. After I noted that they had excluded the part that shows Hunter arriving back in Delaware, they’ve added it belatedly in their trial brief.

7 Page 203 was inadvertently omitted from the government’s excerpts at Doc. No. 119-1. The government includes this single page in Exhibit 1 to this filing (it is the only page added to the submission at 119-1).

Abbe Lowell unsurprisingly objected to this cherry picking.

Lastly, setting aside the admissibility of additional statements from Mr. Biden’s memoir, equally concerning is the Special Counsel’s selective redaction to statements contained in the pages in Exhibit 1, without regard to the completeness of those proffered pages. For example, on page 219 (Chapter 11 title page, “Saved”), the Special Counsel included the opening sentence, “By the time my plane touched down in Los Angeles in March 2019, I had no plan beyond the momentto-moment demands of the crack pipe.” Ex. 1 at 219. However, the very next sentence on the page is redacted: “I was committed to one thing: vanishing for good.” Such a statement—whether Mr. Biden was in such despair or depression that he wanted to disappear, or worse, relent to suicidal thoughts—again goes to Mr. Biden’s then-existing state of mind, and should Mr. Biden seek its admission at trial, it ought to be admissible subject to its relevance and probative value.

[snip]

Just as importantly, these redacted pages ignore the common-law doctrine of completeness codified in Rule 106—limited to writings or recorded statements. Fed. R. Evid. 106, Adv. n.1. The rule’s purpose is to prevent a party from misleading the jury by allowing into the record relevant portions of the excluded testimony which clarify or explain the part already received. United States v. Ricks, 882 F.2d 885, 893 (4th Cir. 1989). But that is exactly what the Special Counsel has asked to do here—determining what it deems relevant, without regard to the complete context and conditions as Mr. Biden described it in his memoir.

This is one of just a few key decisions before Judge Noreika that may determine the outcome of the trial: whether she lets prosecutors effectively rewrite Hunter’s memoir so it tells a story that it really doesn’t.

Virgin Birth the Laptop

The other is what to do about the laptop.

Last August, prosecutors brashly told Abbe Lowell they didn’t need any laptop evidence to prove their case, that all of it also existed in Hunter’s iCloud data. That was, of course, over three months before they obtained the first warrant to search Hunter’s digital evidence for gun crimes, so they should not — and may not — have known how wrong they were.

Prosecutors now submitted what they bill as a summary chart of the communications they say support their case. Even more of the comms they’re relying on come from the laptop than when Derek Hines admitted they were relying on laptop comms in February.

Fully half — 148 out of 294 messages or videos — are sourced to the laptop (I’ve split out some of the laptop messages to highlight ones that are temporal outliers, which I may return to). And, as was true of Hines’ earlier filing, Weiss is relying on communications that only exist on the laptop to show Hunter’s state of mind in the period he owned the gun.

 

In a motion in limine, Weiss’ team tried to argue that because two FBI guys have certified that what they’ve shared is what they got from Apple and John Paul Mac Isaac, they don’t need to further validate these communications. They’re claiming this summary table is sufficient.

The government moves for a preliminary determination, as authorized by Federal Rule of Evidence 104, that a 1006 summary chart that summarizes the electronic evidence is admissible in evidence during trial, and the underlying evidence it summarizes is authentic pursuant to Federal Rule of Evidence 902(14). The summary chart satisfies the requirements of Rule 1006. The chart accurately summarizes electronic evidence derived from search warrants of the defendant’s Apple iCloud account and the defendant’s laptop and hard drive.

This ploy attempts to substitute the act of summarizing for the act of proving technical admissibility.

Unsurprisingly, the trial brief does not describe any plan to call the two technical experts — Robert Gearhart and Michael Waski — to describe the technical validity of the laptop. Weiss similarly is not calling Boyd Pritchard, the FBI agent who made a show of searching the laptop for gun crime evidence after Weiss finally got a warrant to do so.

In fact, Erika Jensen — the same woman who did interviews of the gun shop employees, at least one by herself — may be the only FBI employee (the forensic expert who tested the powder in the pouch that once held the gun may be the other) Weiss definitely plans to call to testify. And Jensen’s summary chart claims to rely on the original December 2019 laptop warrant rather than the December 2023 one as authority to have seized gun-related content.

This testimony will likely make or break any ongoing career at the FBI, because prosecutors are hanging this entire prosecution on her testimony (though I guess if Trump wins the election, she can expect a fat promotion). Particularly given that she’s the sole Agent to be involved in those key gun shop interviews, this could be more difficult than originally imagined.

It is common for prosecutors to try to “clean team” damning parts of the investigation — ensuring that investigative personnel privy to inconvenient facts never take the stand. Weiss has largely clean-teamed the entire underlying investigation.

This is, unsurprisingly, the topic about which Abbe Lowell had the most to say.

The Special Counsel seeks to exclude any authenticity challenge to six iCloud backup files included in its summary chart are self-authenticating pursuant to Rule 902(14). 1 That data, obtained in 2019 and 2020 from a search warrant to Apple, Inc. and, by subpoena and later a search warrant for The Mac Shop in Delaware, consists of more than 18,000 pages from various sources, including four iCloud backup files from Apple, Inc. and two backup files from a MacBook laptop and external hard drive subpoenaed from The Mac Shop in December 2019. (D.E.120 (“Mot.”) at 1, 3.) Defense counsel has numerous reasons to believe the data had been altered and compromised before investigators obtained the electronic material from Apple Inc. and The Mac Shop, such that the Special Counsel’s claim that the underlying data is “authentic” (id. at 4) and accurately reflects “defendant’s Apple Macbook Pro and [] hard drive” (id. at 2) is mistaken.

[snip]

Mr. Biden’s counsel told the Special Counsel on May 10, 2024 it agrees not to challenge the authenticity of the electronic data the Special Counsel intends to use with respect to it being what law enforcement received on December 9, 2019 from John Paul Mac Isaac (owner of The Mac Shop), and from Apple on August 29, 2019 and in a follow-up search on July 10, 2020. (Mot. at n.3.) However, Mr. Biden cannot agree this electronic data is “authentic” as to being his data as he used and stored it prior to Mac Issac [sic] obtaining it. Mac Issac [sic] claims he received an Apple MacBook laptop from a customer on April 12, 2019. FBI investigators did not obtain that data until December 9, 2019 through a grand jury subpoena, or gain lawful permission to access it until December 13, 2019 through a search warrant (No. 19-309M), some eight months after the Mac Isaac acquired the laptop. 2

2 The prosecution only received Office of Enforcement Operations approval to seek a search warrant for the laptop and hard drive on December 12, 2019, with the warrant issued the following day. See Gary Shapley, Laptop and Hard Drive Timeline (Oct. 22, 2020), Ex. 6 to Test. before H. Comm. on Ways & Means (May 26, 2023). Any access by FBI CART agents prior to December 12, 2019 was unauthorized, and Mr. Biden’s counsel objects to the any unlawful access of the laptop or hard drive prior to December 13, 2019.

Lowell only cites John Paul Mac Isaac’s claims about accessing the laptop (which Lowell presumably has gotten in sworn fashion as part of the lawsuit), media reviews of the laptop (which probably reflect the data post-dating the FBI’s receipt of the laptop), and Lev Parnas’ description of being offered the laptop as part of Rudy’s information operation.

I’ve shown repeatedly (for example, one, two, three, four, five) that there are more indices of compromise throughout this data — indices that Weiss tries to brush away with a frankly stupid explanation that Hallie Biden will testify Hunter often “lost” phones.

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

Given the way Hunter backed up his data except on the laptop that ended up being delivered to John Paul Mac Isaac, this should not create the gaps Weiss has identified. He may have even more problems explaining why there are isolated comms in particular places where — given the temporal patterns here — they shouldn’t be.

In any case, in the five pages Lowell had, I’m not sure he has made this case. Plus, Judge Noreika is vulnerable on this point herself, having ruled that there’s no proof Rudy Giuliani influenced this case even while claiming data that is publicly available because of Rudy instead derived to Hunter’s memoir.

David Weiss’ case should be far more solid than it is. The gun shop’s alterations of gun form data provides Hunter a way to question whether he asserted he was not an addict or whether gun shop employees did. Only through shameless cherry picking have prosecutors made the memoir say what they need it to say. And Lowell should be able to raise real questions about the provenance of all the data derived from the laptop which, as I noted, includes the most important communications.

The success of what Weiss obviously thought was going to be a slam dunk may depend on Weiss’ success at getting Noreika to buy off on his gimmicks to shore up weak parts of the case.

Update: Derek Hines — he of the sawdust as cocaine — has filed a table-thumping reply accusing Hunter’s team of not understanding the laptop. He describes that Hallie will validate the comms between her and Hunter during the days after he purchased the gun.

Messages between the defendant and Witness 3, beginning in row 88 because the defendant began using his ex-wife’s phone in October 2018 and her old phone was not synced to his iCloud account. Witness 3 will testify to the authenticity of these messages at trial.

These are, without exception, the most important pieces of evidence in the case.

But then he admits he doesn’t have validation for around 83 other messages (about 21% of the total), including a bunch of videos that have mixed metadata (for example, one taken on an iPhone 8 on October 22 but saved onto the iPhone XS, another captured on October 16 but first saved on November 27, during the period when Ablow was involved).

Messages in Row 85-86 (a message where the defendant says “I need more chore boy,” which is used consistently in the message with how the defendant described “chore boy” in his book), Rows 87 and 135-137 (messages where the defendant says he in Delaware, which is consistent with his ATM withdrawal activity, location information on photographs on his phone, and his admissions in his book), Row 214 (a photograph of the defendant with a crack pipe in his hand), and 216-292 (videos and photographs of the defendant with a crack pipe and drug messages from December to March 2019, consistent with the defendant’s characterization of his activity in his book).

Hines — he of the sawdust as cocaine — is demanding that Hunter prove absence of chain of custody rather than prosecutors proving it affirmatively.

The crazier complaint comes in the way Hines — he of the sawdust as cocaine — claims that because Hunter cited Lev Parnas’ description of Vitaly Pruss’ offer of the laptop in this time period, Hunter is “asking people to believe Russian intelligence when it suits his interests.”

The defendant also relies on an allegation that a Russian businessman told a third-party that Biden’s devices were compromised by FSB during his 2014 trip to Kazakhstan. This is yet another example of the defendant asking people to believe Russian intelligence when it suits his interests, but not to believe Russian intelligence when it doesn’t suit his interests.

I get that Rudy Giuliani’s role in all this is particularly sensitive — particularly given his role in the Brady back channel that David Weiss chased credulously. But I’m not aware of any time when Hunter has chased Russian intelligence. David Weiss did that, not Hunter.

I asked Weiss’ spox for clarification, but he nodded only to court filings.

Hunter Biden Prosecutor Derek Hines Confesses He Failed To Do Basic Due Diligence, Again

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I’ve written about how David Weiss’ prosecutors indicted Hunter Biden before they had taken basic investigative steps — like obtaining a warrant to search the President’s son’s digital data for evidence of gun crimes, or sending the gun to the FBI lab for testing, or figuring out what the evidence actually showed.

But wow, this one is a doozy.

Prosecutors just filed a late Motion in Limine (it was signed by Derek Hines, the sloppier of two sloppy AUSAs calling themselves Senior Assistant Special Counsels), seeking to prevent Hunter Biden from introducing evidence about how the guys at the gun store belatedly added information to the form on which he allegedly lied. They want to prevent Hunter’s team from telling the jury about how three years after the purchase, people in the gun store added information to the form to make it look like they had properly demanded a second form of identification after Hunter used his passport to buy a gun.

In other words, the original scanned form…

 

 

Differs from the physical form that prosecutors would need to submit at trial.

 

The government says — citing what they claim is an interview with the gun shop owner, Ronald Palimere — that the gun store guy insists the original form is accurate (and it may well be).

Following the hearing on May 14, 2024, the government interviewed Palimere on May 16, 2024. Exh. 2. He confirmed that Certified Form 4473 was the accurate version of the form as it existed on the date the defendant purchased his firearm:

For the sale to Biden, all the fields completed on the certified 4473 were done before Biden left the store. . . Palimere scanned and emailed the certified 4473 to Reisch . . . The form was then filed away. Palimere did not handle the form again for three years and until he was requested to turn it over to ATF SA Veronica Hnat on September 23, 2021.

Id. at p. 3. According to the report, before he produced the form to ATF SA Hnat:

Palimere decided to write Delaware registration in the box labeled 18.b. Palimere does not know why that was chosen but he knew it had to be an official document and it was all they could think of. Turner was the one who wrote Delaware vehicle registration in the box. Palimere thinks that if Biden presented a vehicle registration on the day of the sale, it would have been documented on the certified 4473.

Id. at p. 4. With respect to annotating box 18.b., the report of Palimere’s interview states:

No one thought to get supplemental information because everyone in the area knows who lives at [the defendant’s father’s address]. The address is a celebrity address. At the time and to Palimere and the employees, the address was obvious. If a second form of identification with an address was presented by Biden, Palimere was not present when it happened.

Id. at p. 2. [my emphasis]

Only, these brain surgeons didn’t include Palimere’s interview 302. Exhibit 2 is, instead, the 302 from a guy named Gordon Cleveland — the guy who sold Hunter the gun. He told the FBI that he thinks Hunter got some kind of additional record, but “can not say with certainty.” But he “would not have paid attention to the paperwork side of the sale” because he had already made the sale.

In other words, the guy who sold Hunter Biden the gun testified that he didn’t much care about the paperwork.

Palimere’s described testimony (that no one bothered getting secondary ID because everyone knew Hunter’s father) is inconsistent with Cleveland’s (who claimed maybe he got the Delaware Registration).

The word “impeach” does not appear in this MIL. Instead, prosecutors complain that Palimere — the guy whose 302 they apparently didn’t provide — is not on trial and Hunter Biden shouldn’t be able to put him on trial.

Palimere is not on trial. Nor does his decision to annotate the Form 4473 years after the defendant bought his gun change anything the defendant did in 2018.

And while David Weiss’ guys are demanding that Hunter not get any extensions, they’re asking for one to clear this up.

1 The defense did not raise this issue until a hearing on May 14 and the government respectfully requests leave to file its motion in limine after the May 13 deadline imposed by the Court.

Meanwhile, Hunter Biden’s team is trying to subpoena these gun shop guys (Palimere, Cleveland), apparently thus far with no success.

Prosecute Hunter Biden, if you must. But for goodness sake, please try to exercise the most basic due diligence before you do so.

Update: David Weiss’ crack team has now submitted the exhibit they wanted to submit, as opposed to the one they did: the 302 from a video teleconference interview with gun shop owner Ronald Palimere. It revealed a number of things:

  1. Palimere has a proffer agreement, seemingly offering a gun shop owner legal protection for failures to fill out gun forms properly so long as his testimony is deemed truthful. In other words, David Weiss is now in the position of prosecuting Hunter for a 5-year old gun crime rather than doing anything about a gun shop owner who fudges on paperwork.
  2. The interview was conducted by Derek Hines and an FBI Agent Erika Jensen, with no second FBI Agent present. Jensen did the follow-up interview with Cleveland, linked above, by herself.  Jensen is the witness through whom prosecutors want to introduce all the digital evidence, which means she’ll have to take the stand and therefore be available for questioning based on these 302s.
  3. Derek Hines told Palimere that Agent Jensen found the discrepancies with the gun form, not Hunter Biden’s lawyers. That’s not a big deal, yet (the FBI is allowed to lie to witnesses), but could become one.
  4. In the filing, Hines relies on Palimere’s testimony to claim that, “For the sale to Biden, all the fields completed on the certified 4473 were done before Biden left the store.” Except he also testified that he, “never interacted with Biden” because he was “in the back of the building.” I assume the store has security cameras, but Palimere is not a direct witness to the documentation being completed while Hunter Biden was present. Jensen didn’t ask Cleveland (who is the witness they want to put on the stand) whether it was all completed while Hunter was still there.

Update: David Weiss has now gotten the DE Clerk to memory hole the Cleveland 302 that substantially conflicts with that of his boss.

Update: Judge Noreika has approved the subpoenas Hunter Biden’s team asked for, including (but not limited to) the gun shop employees, including the guy who altered the document.

David Weiss’ Exhibit List Looks Like One Matt Gaetz or James Comer Would Assemble

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David Weiss’ team has submitted its exhibit list for Hunter Biden’s Los Angeles tax prosecution (as well as their motions in limine, which were — with the exception of a request to exclude mention that Hunter paid his taxes in 2021 — mostly uncontested).

The exhibit list includes a number of things that were expected — including:

  • Almost 40 exhibits pertaining to Hunter’s ex-wife Kathleen Buhle and their contentious divorce
  • Documents pertaining to Jeffrey Gelfound, the accountant who did Hunter’s taxes in 2020, who will almost certainly be a key witness on the most serious tax evasion charges
  • Payment records to Lunden Roberts, Hunter’s expensing of which is one of the most compelling pieces of evidence of intentional tax evasion

But it also includes a number of frothy right wingers’ favorite documents.

There is a Tony Bobulinski email that incorporates the “10 for the Big Guy” email — possibly an attempt to show that Hunter didn’t object to that claim, a complaint that comes straight from Matt Gaetz during Hunter’s testimony.

The indictment makes much of the fact that Hunter cut his partners out of this deal; there are multiple pieces of evidence that show one reason he did was he didn’t like Bobulinski’s Russian ties, which if David Weiss wants to talk about Bobulinski’s Trump and Viktor Vekselberg ties, by all means, let’s have it.

In any case, it doesn’t relate to non-payment of taxes, particularly not in 2018.

There are two references to the SDNY Patrick Ho docket — apparently to the docket itself, not the filing that redacted the name of someone believed to be Hunter.

Hunter did get a huge payment from Ho, ostensibly to find legal representation for Ho’s case. At a time when CEFC was recruiting Trumpsters like James Woolsey, Ho also kept ties with Hunter who — in 2018 — could be of no use to him (which is why CEFC was instead focusing on Woolsey).

Ho has recently claimed — for the benefit of frothers in Congress — that Hunter did nothing for huge payment he got for arranging legal representation in this case. It’s a remarkable claim at this late date and would be still more remarkable if introduced in a tax case.

And finally, prosecutors have included an email that probably dates to 2015 regarding the consulting set up with Blue Star Strategies.

On top of the fact that 2015 is not a charged tax year (indeed, the indictment says Hunter declared his 2015 Burisma income) and DOJ reviewed this for years and years and never substantiated a FARA charge, it is likely one of the almost 10% of documents that Joseph Ziegler sourced to the laptop. As I described in this post, the email I have in mind showed up in somebody’s mailbox recognizing “Burisma” as “Burials.”

Prosecutors had moved, with no objection, to prohibit Hunter from arguing that the prosecution team got sucked in by a Russian influence operation (in context, it was a reference to Alexander Smirnov). But if they’re going to rely on one of the most anomalous emails, potentially one only available on a laptop suspiciously similar to the one Lev Parnas said was being dealt by Burisma, the question of Russian influence operation should remain on the table.

Of these documents, only the Ho payment is even directly relevant to the 2018 taxes. And each of these documents would create all sorts of discovery problems and mini-trials about misrepresentations of Hunter’s motive.

Prosecutors have not yet filed their 404(b) notice; perhaps they want to turn the non-crime of monetizing a famous name into a crime?

Or perhaps David Weiss simply wants to use his tax case to feed right wing frothers during an election season.

Hunter Biden Moves to Enjoin David Weiss Under an Appropriations Argument Trump Adopted

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Abbe Lowell has moved to enjoin David Weiss from spending any more unappropriated funds in the prosecution of Hunter Biden.

Mr. Biden moves to enjoin the Special Counsel’s investigation and prosecution of him from now into the future because the Special Counsel lacks a valid appropriation from Congress. Previously, Mr. Biden moved to dismiss the indictment as the tainted fruit of past Appropriations Clause violations (D.E.62). Had that motion been granted, no future violation would have occurred. That said, the Special Counsel insisted dismissal was not the proper remedy and that alleged Appropriations Clause violations “are ‘best seen as requests for injunctions.’” (D.E.72 at 24 (quoting United States v. Bilodeau, 24 F.4th 705, 711 n.6 (1st Cir. 2022)).) Although Mr. Biden preferred dismissal as a remedy (i.e., how could one enjoin past violations?), he did not object to injunctive relief, explaining: “Under either view, this case could not proceed, so it is unclear how the Special Counsel’s preferred remedy would benefit him.” (D.E.80 at 16.) This Court, however, found no Appropriations Clause violation, so it did not reach the question of the appropriate remedy. (D.E.101.) 1

1 At this morning’s hearing, the Court questioned the timeliness of this Motion. As explained above, the Motion is timely because the prior motion to dismiss the indictment was for past Appropriations Clause violations and Mr. Biden now seeks to enjoin future constitutional violations. While the time has passed for Mr. Biden to bring pre-trial motions to dismiss based on the Special Counsel’s past decision to indict, nothing prevents Mr. Biden from seeking to enjoin future constitutional violations. The Special Counsel cannot be given a blank check to indefinitely spend unappropriated federal funds in violation of the Appropriations Clause. The need to explicitly seek injunctive relief did not arise until the Third Circuit Motion Panel’s May 9, 2024 decision dismissed the appeal under 28 U.S.C. § 1292(a) because injunctive relief was not explicitly requested, and the Court declined to hear Biden’s claim for relief at law (dismissal) on an interlocutory basis. Parties frequently seek to cure defects identified by opinions, for example, plaintiffs often file amended complaints and prosecutors file superseding indictments following motions to dismiss all the time, and the situation is no different here. Additionally, the prior scheduling order for pre-trial motions were for motions to dismiss. (D.E.57.) The parties clearly understood there were other “pre-trial motions” that would be filed addressing future issues and this Court set a new schedule for addressing some of those issues (D.E.117 (e.g., motions in limine, expert disclosure motion)), and the Special Counsel filing several such motions in limine this morning. The Court has not limited the Special Counsel orMr. Biden’s from objectingto any kind of future conduct.

Lowell is doing so because the Third Circuit order finding that none of Hunter’s appeals merited interlocutory jurisdiction rejected his challenge to Weiss’ Special Counsel appointment (which argued both the appointing a sitting US Attorney SCO violated DOJ’s own rules and also that Weiss’ appointment was not appropriated) in part because Judge Noreika had not formally refused his injunction.

In the defendant’s third motion to dismiss, he argued (1) the prosecuting U.S. Attorney’s appointment as a special counsel violated 28 C.F.R. § 600.3(a)’s requirement that special counsel be “selected from outside the United States Government” and (2) the Special Counsel improperly used an appropriation established by Congress for “independent” counsel without the requisite independence. See United States v. Biden, No. 1:23-cr-00061-001, 2024 WL 1603775 (D. Del. Apr. 12, 2024). The defendant contends the denial of this motion is appealable because it, in effect, refused him an injunction. The District Court did not explicitly refuse to enjoin the continued appointment of the special counsel, nor the continued use of appropriation of funds, nor did the defendant explicitly ask for such an injunction. Furthermore, the defendant has not shown the order has a “serious, perhaps irreparable, consequence” and can be “effect[ually] challenged only by immediate appeal.” See, e.g., Office of the Comm’r of Baseball v. Markell, 579 F.3d 293, 297–98 (3d Cir. 2009) (citing Carson v. Am. Brands, Inc., 450 U.S. 79, 84 (1981)). Accordingly, the denial of the defendant’s third motion to dismiss is not an appealable order denying an injunction.

The District Court’s denial of the defendant’s third motion is also not appealable as a collateral order. For collateral-order purposes, the rejection of the defendant’s claim that the Special Counsel’s appointment violated a regulation is analogous to other challenges to a prosecutor’s appointment or authority. Rejection of these challenges do not constitute collateral orders. See Deaver v. United States, 483 U.S. 1301, 1301–03 (1987) (Rehnquist, C.J., in chambers); United States v. Wallach, 870 F.2d 902, 907 (2d Cir. 1989); Deaver v. Seymour, 822 F.2d 66, 70–71 (D.C. Cir. 1987); United States v. Caggiano, 660 F.2d 184, 191 & n.7 (6th Cir. 1981). Moreover, categorically similar issues have been reviewed on appeal after a final or otherwise appealable decision. E.g., Morrison v. Olson, 487 U.S. 654, 668, 659 (1988); In re Grand Jury Investigation, 916 F.3d 1047, 1051 (D.C. Cir. 2019); United States v. Blackley, 167 F.3d 543, 545–49 (D.C. Cir. 1999); United States v. Wade, 83 F.3d 196, 197–98 (8th Cir. 1996); United States v. Prueitt, 540 F.2d 995, 999–1003 (9th Cir. 1976); In re Persico, 522 F.2d 41, 44–46 (2d Cir. 1975). Similarly, there is no collateral-order jurisdiction over the District Court’s rejection of the defendant’s appropriation argument and this order can be effectively reviewed after final judgment. E.g., United States v. Trevino, 7 F.4th 414, 420–23 (6th Cir. 2021); cf. United States v. Bilodeau, 24 F.4th 705, 711–12 (1st Cir. 2022) (finding appellant’s injunction request could not be effectively reviewed after final judgment). [my emphasis]

In other words, Lowell asked for this injunction so Noreika would refuse it, giving him a better shot at appeal before the Third Circuit.

I’ve consistently said I think this challenge is garbage — garbage on precedent and garbage on DOJ rules.

I still do — though David Weiss’ persistent efforts to claim he is also, simultaneously, the US Attorney who made deals he has since reneged on with Hunter Biden could make the challenge more interesting down the road. Effectively, David Weiss is claiming to be both SCO and US Attorney, all while hiding discovery US Attorney David Weiss knows to exist.

That said, since Hunter first made this argument, Trump has adopted it (I’ve got a post started comparing these things, but remember that Trump was indicted on the stolen documents case two months before Hunter was indicted on gun crimes, but Hunter’s gun trial is scheduled to be done before any of these frivolous hearings start in Florida) — with backing from right wing luminaries like Ed Meese. And Judge Cannon is so impressed with the garbage argument she has scheduled a hearing on it for June 21.

And Hunter has argued this same (IMO, garbage) argument in Los Angeles and the Ninth Circuit, where precedents for such appeals are somewhat more lenient (which Lowell addressed in a follow-up after the Third Circuit decision).

I’m not saying any of this will work. I think Lowell might be better served asking to make an amicus argument before Judge Cannon, if it’s not too late, if only because that’ll disrupt the political bias with which Cannon has run her courtroom. (Though again, that would do nothing to spare Hunter a trial.) We have long since spun free of actual evidence much less law in all these three Trump appointed judge’s courtrooms.

But Hunter’s continued effort to push this may complicate Cannon’s effort to treat this as a novel right wing argument. It could even — though this is unlikely — create a circuit split long before Cannon gets her show hearing. Or it could confuse the right wingers on SCOTUS.

The SCO challenge, in my opinion, is not interesting at all on the law. But the way in which these two cases are working in parallel on this point in particular makes the effort to better frame an appeal immediately more interesting.

Update: Unsurprisingly, the 9th Circuit — a panel of all Dem appointees — rejected Hunter Biden’s bid for interlocutory appeals of his failed Motions to Dismiss.

David Weiss Continues to Misrepresent the Damage Keith Ablow Did to Hunter Biden’s Addiction

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Prosecutors have submitted their motions in limine in the Delaware case. Those include:

Most of these are pretty standard and uncontroversial — though Abbe Lowell made it clear that he reserves the right to contest whether Hunter’s iCloud and laptop had been tampered with before the government obtained them.

Where David Weiss has doubled down on past error comes in his choice of book excerpts he wants to use.

He wants to exclude everything from the book except the excerpts he has chosen.

The government intends to admit into evidence only the excerpts of the book and audiobook that are in Exhibit 1. Federal Rule of Evidence 801(d)(2) provides the statement must be “a statement . . . offered against an opposing party.” Thus, a defendant cannot elicit his own self-serving statements without taking the stand and submitting to cross-examination. United States v. Willis, 759 F.2d 1486, 1501 (11th Cir. 1985); United States v. Wilkerson, 84 F.3d 692, 696 (4th Cir. 1996).

A defendant cannot sidestep the prohibition against hearsay by invoking the so-called “rule of completeness,” contained in Federal Rule of Evidence 106. This rule is designed to prevent “misunderstanding or distortion” caused by the introduction of only part of a statement that could only be cured by admission of the full record. Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 172 (1988). It does not allow adverse parties to introduce any unedited statement merely because the proponent party has offered an edited version. Indeed, “it is often perfectly proper to admit segments of prior testimony without including everything, and adverse parties are not entitled to offer additional segments just because they are there and the proponent has not offered them.” United States v. Collicott, 92 F.3d 973, 983 (9th Cir. 1996). The defendant has not identified for the government any portions of the excerpts that are misleading without additional surrounding context. The other portions of the book are therefore inadmissible hearsay.

The selections are not surprising. But in two ways, they are grotesquely dishonest. First, the chosen excerpts misleadingly lead from something that happened in August 2018.

 

 

To something that happened in February 2019.

Presented in the way it is, jurors will be wildly misled that Hunter’s New Haven exploits are what happened immediately after he relapsed in August 2018. They will be misled into believing the description of the New Haven depravity represent Hunter’s state in October 2018. They don’t.

Here’s what the language in the book describing his return to Delaware in fall 2018 looks like.

I had returned that fall of 2018, after my most recent relapse in California, with the hope of getting clean through a new therapy and reconciling with Hallie.

Neither happened.

For all the obvious reasons—my extended disappearances, my inability to stay sober, her need to stabilize and reorder her own life and family—Hallie and I called it quits. The relationship no longer helped either of us. Our attempt to reanimate Beau remained as doomed as it was from the start. The fallout piled up. I tried to explain things to my daughters, but how could I expect them to comprehend a situation I hardly understood myself?

Next on my agenda was getting clean. I drove up to Newburyport, Massachusetts, an old New England shipbuilding-turned-tourist town thirty-five miles north of Boston. A therapist ran a wellness center where he practiced a drug addiction therapy known as ketamine infusion. I would make two trips up there, staying for about six weeks on the first visit, returning to Maryland, then heading back for a couple weeks of follow-up in February of the new year.

Prosecutors were perfectly willing to use the transition into this passage in their response to Hunter’s MTD.

He wrote in Chapter 10 of his memoir, “I returned [to the East Coast] that fall of 2018, after my most recent relapse in California, with the hope of getting clean through a new therapy . . . Neither happened.” Id. at 203.

Perhaps now they’ve discovered that the book says nothing about Hunter’s state of mind when he was in Delaware, when he owned the gun.

More importantly, David Weiss repeats what might have been just another stupid error when he made it in response to Hunter’s motion to dismiss:

For example, the defendant admitted that he was experiencing “full blown addiction” to crack cocaine and by the fall of 2018 he had gotten to the point that:

It was me and a crack pipe in a Super 8, not knowing which the fuck way was up. All my energy revolved around smoking drugs and making arrangements to buy drugs—feeding the beast. To facilitate it, I resurrected the same sleep schedule I’d kept in L.A.: never. There was hardly any mistaking me now for a so-called respectable citizen. Crack is a great leveler.

David Weiss misrepresented this passage to Judge Noreika (and has not alerted her to the error). The scene in the Super 8 took place in February 2019.

Which means it took place after Keith Ablow’s treatment made Hunter Biden’s addiction worse.

The therapy’s results were disastrous. I was in no way ready to process the feelings it unloosed or prompted by reliving past physical and emotional traumas. So I backslid. I did exactly what I’d come to Massachusetts to stop doing. I’d stay clean for a week, break away from the center to meet a connection I found in Rhode Island, smoke up, then return. One thing I did remarkably well during that time was fool people about whether or not I was using. Between trips up there, I even bought clean urine from a dealer in New York to pass drug tests.

Of course, that made all that time and effort ineffective. I didn’t necessarily blame the treatment: I doubt much good comes from doing ketamine while you’re on crack. [my emphasis]

Weiss wants to exclude this critical context, imagining that Hunter included the Keith Ablow description because he knew that right wingers would demand he be prosecuted for the gun when he wrote it (Weiss emphasizes that Hunter started writing this in 2019, before he even knew of the investigation), and so said that the Ketamine treatment made his addiction worse for the moment he would be prosecuted.

I get what self-serving hearsay is. This is not it (though Judge Noreika has thus far been wildly favorable to Weiss’ misrepresentations).

This is basic facts of timeline — or more specifically, Weiss’ continued effort to misrepresent events that clearly happened in February 2019 as if they’re his smoking gun about 2018.