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Maryellen Noreika Falls for Derek Hines’ False Claims, Again

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If I were a newish judge like Maryellen Noreika, I’d be a bit wary about accepting the representations of a prosecutor like Derek Hines who once claimed that sawdust was cocaine. Particularly when bowing to his request to exclude the original form from a trial about whether Hunter Biden lied on that form.

My post yesterday describing that Judge Noreika had prohibited Hunter Biden from showing the jury the actual physical form on which he is alleged to have lied was based off Derek Hines’ reply to a supplemental response that Abbe Lowell filed on Saturday — but the supplement was still sealed.

So when I suggested that Noreika may have credited as accurate something Hines said, I was just basing that off the fact that every time Hines wails about Abbe Lowell lying, it has turned out that he was covering something up.

Noreika likely credited something misleading Derek Hines said in a reply posted shortly before her order which cites to it (he has, repeatedly, projected his own inaccurate claims onto Abbe Lowell, and this may be an instance where, at the very least, Hines misunderstood a reference Lowell made).

Hines made a big stink about a bracketed reference to “a second form of identification” that Lowell had included in a quote from a 302 recording either one (if you believe Hines) or two (if you believe Lowell) interviews of Gordon Cleveland, the guy who sold Hunter Biden the gun, in 2021.

Cleveland has been entirely consistent on the issue of identification in the two interviews where it came up. Defendants claims he has offered an “evolving story,” but that characterization is not accurate based on defendant’s own quotes from Cleveland’s Jencks material. Supp. Resp. at 5. The only form of ID Cleveland saw was the passport. He never saw a Delaware vehicle registration and never claimed to. Instead, in both interviews he stated that Turner, who handled the background check, may have, but Cleveland didn’t have first-hand knowledge of whether he did or didn’t. In his first interview on September 27, 2021, Cleveland told investigators:

“He said he would provide the copy of the U.S. Passport and the firearm information on a sheet of paper to the person sending the background check in. Mr. Cleveland said he did not see the document [a second form of identification] with the ATF Form 4473 he was shown [by the Agent on September 27, 2021].” (TAB 3, 10/12/21 ATF EF 3120 at 2, ¶6) (emphasis added). Supp. Resp. at 5 (emphasis added).

The government at this point is obligated to point out that the defendant is again making malpresentations to the Court. In the above quote from his filing, the defendant inserted brackets into a real quote from the September 27, 2021, interview report for Cleveland. The defendant writes in those brackets that “Mr. Cleveland said he did not see the document [a second form of identification] with the ATF Form 4473 he was shown [by the Agent on September 27, 2021]. Supp. Resp. at 5. What defendant inserted into those quotes in brackets isn’t accurate. The ATF never showed Cleveland “a second form of identification.” If you look at the report, which defendant has and attached to his filing, it says that the only documents that were shown to Cleveland, at any point during the interview, were the following:

The ATF did not show Cleveland “a second form of identification,” as the above list of documents make clear. Defense counsel made that up. [Hines’ bold, Lowell’s italics]

Then Derek Hines accused Lowell of deliberately leaving out part of the 302: Cleveland describing that his colleague, Jason Turner, may have gotten a second form of ID.

What defense counsel chose not to quote from that report was the next sentence: “He said Jason Turner may have gotten the vehicle registration due to the U.S. Passport issue.”

Lowell’s supplemental response got docketed overnight. And it makes clear that (as I predicted), Hines is the one misrepresenting things and leaving pertinent quotations out.

The contested quotation comes in a passage where Lowell lays out inconsistencies in Cleveland’s story.

Cleveland (a government witness) sold Biden the handgun on October 12, 2018 and gave him the 4473 form to fill out. Yet, as to what was and was not on the form, who completed it and when, Cleveland offers divergent explanations at different points in time.

Cleveland was interviewed by ATF Agent Hnat on September 27, 2021, just six days after the actual Form 4473 (with additions) was obtained by ATF, and again on October 7, 2021. The interview notes reflect:

Speaking of his general practice he said, “He then gathers the information provided by the customer for the background check, the customers two forms of identification . . .” (TAB 3, 10/12/21 ATF EF 3120 at 1, ¶2).

With specific reference to Biden, “He said he would provide the copy of the U.S. Passport and the firearm information on a sheet of paper to the person sending the background check in. Mr. Cleveland said he did not see the document [a second form of identification] with the ATF Form 4473 he was shown [by the Agent on September 27, 2021].” (TAB 3, 10/12/21 ATF EF 3120 at 2, ¶6) (emphasis added).

Now being shown the added information, “He said Jason Turner may have gotten the vehicle registration due to the U.S. Passport issue.” (TAB 3, 10/12/21 ATF EF 3120 at 2, ¶6).

Later, under oath before a grand jury in April 2022—months after the altered Form 4473 was obtained and after he was shown it on September 27, 2021—Cleveland was asked no questions about the identification issue, the added registration information, or the two forms. (See TAB 3A).

But after issues concerning the different versions of the form were raised at the May 14, 2024 status conference, the Special Counsel went back to Cleveland and this is what was explained:

When Biden presented his passport as identification, Cleveland went into the back and asked Ronald Palimere and Jason Turner if it could be used. Cleveland recalls going back out to Biden and saying something to the effect that if Biden was going to use a passport, they would need another form of identification. [] Cleveland thinks Biden went outside and got something, but he can not say with certainty. Cleveland would not have paid attention to the paperwork side of the sale because he had already done his part by working with the customer and making the sale. Cleveland does not think they would have competed the sale without the second identification, though. (TAB 3B, 5/17/24 Cleveland FD-302 at 1).

Thus, even with Cleveland’s evolving story, he cannot say that Biden presented the vehicle registration, but simply assumes that someone else at the gun store would have obtained a second form of identification. Biden should be allowed to challenge this assumption that the gun store would have followed the law in obtaining a second form of identification. [Lowell’s italics, my bold]

As a threshold matter, Hines either lied or is painfully sloppy. Lowell did include that quotation about Turner. It’s right there, on the next line, precisely where Hines said it should be!

I asked Weiss’ spox whether Hines’ false accusation was a lie or just sloppiness (I also asked him to clarify whether Hines got the number of Cleveland interviews wrong). He responded, “As this case is before the court, we will decline to comment beyond our filings.”

But what Hines didn’t include is the context (and here, I do fault Lowell for not indicating whether the 302, which he describes as recording two interviews, distinguishes between what Cleveland said on September 27 and what he said on October 7; also he’s the one who put that bracket in the quote that simply reflects a paragraph break).

Line one: What do you normally do? Cleveland: I ask customers for two forms of ID.

Line two: Did you do that with Joe Biden’s kid? Cleveland: Nope. I didn’t see any second form of ID.

Line three: Well then, who added the second ID to the form? Cleveland: I dunno. Maybe Jason did it?

Right there, Cleveland has already undermined his own testimony, making it clear that (he claims) he always gets two IDs, but then admitting he didn’t here.

And in context, that “second form of ID” refers to the previous line (that’s called an antecedent, Mr. Hines, look it up! You’ll be amazed how grammar works!!).

It’s clear to anyone who knows how to read that Lowell was not referring to what the ATF agent showed Cleveland. It refers to what Hunter did or did not show Cleveland back in 2018. But Hines left it off, perhaps because it would undermine his false accusations?

The rest of the story Lowell’s filing tells is just as interesting. He reveals that the cop who first went to the grocery store to search for the gun in 2018, Vincent Clemons, coordinated his story with the gun shop owner.

[T]he government provided WhatsApp communications from October 2020 and February 2021 between Palimere, friends of his, and then-Delaware state trooper Vincent Clemons3 (see TABs 6 – 6C), all of which refer to the form, a plan to send it to others, needing to get their stories straight about what occurred in 2020, and wanting the gun sale issue and the form exposed during the Presidential campaign.

3 Not to be lost is the fact that Clemons was the Delaware State Police officer who first arrived at Janssens’ grocery store on October 23, 2018 when Hallie Biden threw a bag containing the handgun into a trash can in front of the store. It was Clemons who took statements about the handgun from both Hallie and Hunter Biden and was part of filling out an official police report on the issue. Two years later, he is in the communications with Palimere about the Form 4473, one of which states: “Yep your side is simple – Hunter bought a gun from you, he filled out the proper forms and the Feds approved him for a purchase.” (emphasis added). Palimere later responded, “I’ll keep it short and sweet as well: Hunter bought a gun. The police visited me asking for verification of the purchase and that’s all I can recall from that day. It was over 2 years ago.” (TAB 6B, 10/26/20 Palimere-Clemons Texts at 4, 6.) The reference to filling out the “proper forms” is not lost on defense counsel given what transpired thereafter. And, despite the importance of Clemons (e.g., the person who actually took the statements), the Special Counsel is foregoing him as a witness to call two other Delaware officers instead.

[snip]

Moreover, it turns out that profiting off an improper gun sale was not the gun shop’s only motive. The gun shop staff recognized Biden and the newly-disclosed evidence from the Special Counsel shows the store’s owner sought to politicize the sale to influence the election, which provides further evidence of bias.

Hines capitalized on Lowell’s mention of the election and Parlimere’s effort to politicize the purchase by presenting this description of a cop and a gun owner coordinating the story they plan to tell as exclusively political.

Among the items the defendant emailed to the Court on Friday night were proposed exhibits – identified as defense tabs “6,” “6A,” “6B,” and “6C” – which suggest that two witnesses are politically motivated. These selected portions3 of communications by Palimere to two friends and also to Sgt. Clemons – were made two years after the events in question when defendant’s father was a political candidate. The defendant inaccurately summarizes them as referring “to the form, a plan to send it to others, needing to get their stories straight about what occurred in 2020, and wanting the gun sale issue and the form exposed during the Presidential campaign.” Supp. Resp. p. 8 and n. 3. Nevertheless, he clearly wishes to confuse the jury by introducing these spliced, non-relevant communications to incite prejudice and emotion among the jury to distract from the elements of the crimes that were complete years before.

Thanks to this latest filing, the defendant’s strategy is now more apparent. He has returned to a claim that this prosecution was trumped up and politically motivated. But to suggest that the gun store owner’s political opinions, expressed two years after the fact, have bearing on whether or not he lied about his drug use on the form 4473 on Section A is absurd and must be excluded under the rules of evidence. There is no evidence to suggest these communications played any part in the witnesses’ actions or inactions with respect to the defendant. And there is no evidence that the defendant was the target of political animus by either witness.

The fact that witnesses in this case held political beliefs about which they communicated two years after the defendant’s alleged crime cannot possibly have any relevance to any fact at issue. The defendant should therefore not be permitted to present irrelevant, confusing and unduly prejudicial facts regarding witnesses’ political views to the jury. See Fed. R. Evid. 401, 402. Even if the communications were somehow relevant – and they are not – such evidence is unduly prejudicial to the government. Courts have excluded evidence at trial of a witness’s bias under Fed. R. Evid. 403 where admission would confuse the issues before the jury. E.g., Blair v. United States, 401 F.2d 387, 390 (D.C. Cir. 1968) (affirming trial court’s conclusion that the probative effect of the impeaching evidence was far outweighed by the potential prejudice)

That may be enough to get texts showing a cop working on a cover story; Judge Noreika cut and pasted Hines’ language treating these as political, and ruled that Lowell can’t raise politics at all, even though the gun shop owner says he rushed the sale to get Hunter out of the shop because his dad is anti-gun.

But it has me wondering something that Lowell apparently is also wondering.

He learned that Cleveland claimed that he always asks for a second ID because Hines just turned over the earlier 302 and Cleveland’s grand jury testimony, from April 2022, as Jencks. It seems that prosecutors may have provided these WhatsApp texts in response to a request for Brady, after Lowell started looking into the altered document.

But they haven’t provided any earlier interview reports from Ronald Palimere or Jason Turner, the latter of whom is the guy who actually altered the gun form.

2 Because the Special Counsel intends to call only Cleveland as a witness, but likely interviewed and has interview memoranda by other law enforcement who interviewed Palimere and Turner, the Special counsel produced only Jencks material for Cleveland (other than the only recently written FBI 302 of Palimere after the issue was raised at the May 14 status conference). Given the issues raised about the form’s accuracy and reliability, defense counsel believes statements byPalimere and Turner (if they exist) would be Brady material and asked again (after the initial discovery requests in October 2023) for Brady and Giglio material after the May 14, 2024 status hearing and again specifically on May 31, 2024. The Special Counsel has not responded.

It is virtually certain there is at least one earlier interview with Palimere, because Derek Hines began the interview by “remind[ing] Palimere of of the provisions of the proffer agreement,” rather than explaining them as if for the first time.

So … it gets worse, probably.

Nevertheless, Judge Noreika not only cut and pasted Hines’ exclusion of all discussion of politics, but she also parroted Hines’ mockery that someone might shade their testimony to protect their own immunity. (This entire footnote will be ripped to shreds if Hunter Biden has to appeal this case.)

The government has stated that it intends to call Gordon Cleveland, a gun shop employee, who will testify that he watched Defendant fill out Section A of the Certified Form and that Defendant checked “no” to question 11e about being an unlawful user or addict. Both the Certified Form and the 2021 Form have the same check mark (“X”) responding “no” to question 11e. The addition of “DE VEHICLE REGISTRATION” to a different section of the 2021 Form after the Defendant filled it out does not have “any tendency to make” those two facts, which are “fact[s] of consequence in determining” the charges – that he filled it out and that he said he wasn’t an unlawful user of or addicted to a controlled substance – more or less probable. F.R.E. 401. The Court also agrees with the government that Defendant’s conspiratorial theory about “doctored” forms and currying favor with the government is unsupported rhetoric, which would be prejudicial and confusing to the jury.

This is not a judgement — that the fact that the gun shop altered a form after the fact to make it look like they had followed the law wouldn’t suggest they might do that more regularly — is not one I’d want to be living down for the rest of my career as a judge. Especially not given that with Hines, there’s usually something worse about to drop.

Remaining Evidentiary Disputes in Hunter Biden Case

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As I laid out, Judge Maryellen Noreika has prohibited Hunter Biden from showing the jury the physical form that is the basis of two of the three charges against him. Her ruling may also have the effect of prohibiting him from explaining circumstances of the purchase — the gun shop owner says he was trying to get Hunter out of his store and so didn’t do the proper due diligence on the ID he showed because of his father, because she has prohibited any discussion of politics, even though by the gun shop owner’s own description, his view about Biden affected how he conducted the sale.

Judge Noreika also ruled against Hunter’s requested changes to the jury instructions and excluded the expert he wanted to call to testify about addiction, while deferring a decision on his forensic expert.

Abbe Lowell has submitted challenges to government exhibits (prosecutors will squeal that he did this late but this is a response to an updated exhibit list they provided on Friday).

Although Judge Noreika excluded lifestyle and spending claims from the trial, the government has listed all of Hunter’s Wells Fargo exhibits for September, October, and November 2018. Lowell objects to these coming in as a whole.

He also objects to three photos from the phone of a woman named Zoe Kesten, who may be the third female witness against him.

Biden objects to three photos included in GTX-38 (“Photos from Zoe Kestan’s iPhone”) as having no probative value and no relevance under Rules 401 and 403. The screenshots with Ms. Kestan and one photo of Mr. Biden sleeping, in which no drug paraphernalia is displayed or otherwise evidence, are not probative of drug use, drug purchasing, or drug-related activity and are more prejudicial than probative. Any testimony from Ms. Kesten about the nature of their interactions can be elicited on direct testimony, without introduction of these three photos.

Page 7: Photo of Mr. Biden sleeping on 6/18/2018 at 10:41 AM

Page 10: Photo of Mr. Biden on facetime with Ms. Kestan on 7/22/2018 at 7:13 PM

Page 11: Photo of Mr. Biden without clothing on and a tattoo on his back on 9/10/2018 at 5:09 PM

If she is the one who will testify that Hunter was smoking crack almost constantly when they were together, prosecutors probably want these photos to prove she was with him. The September photo would be particularly important as it is the single piece of evidence between one of Hunter’s attempts at rehab and his purchase of the gun in October.

Lowell has submitted his request for additional parts of Hunter’s memoir to come in under a rule of completeness; the government objects to all of them. Here’s one example of the kinds of things (Hunter’s requested inclusion is in red) the government is trying to exclude.

This excerpt, in particular, is bound to be very hotly contested.

Finally, and of most obscure interest, Lowell is trying to exclude a significant number of communications — basically the things marked in blue (remember that prosecutors say Hallie will validate the pink files).

They include:

  • All the laptop comms from the last two weeks it was in use
  • A text sent to Hallie about the gun on January 28, 2019
  • Two videos from late December 2018
  • Two photos from January 2019 from when he was at Keith Ablow’s

On paper this makes sense. The charges against Hunter pertain to his mindset on October 12, 2018, and his awareness of drug use and gun possession in the subsequent 11 days. His mindset in February 2019 is absolutely irrelevant to those charges (and, after all, prosecutors have just succeeded in arguing that the gun shop owner’s bias against Joe Biden in 2020 is irrelevant to his actions in 2018).

But these are some of the files that the prosecutors have had a prurient obsession with, repeatedly and falsely claiming that Hunter’s addiction in 2019 shows what his addiction in October 2018 was like.

The January 28, 2019 text to Hallie, however, is one that prosecutors will almost certainly argue goes to the heart of the case.

It describes him yelling at her for throwing away the gun the previous October (though there are related comms from that period that would put this one in context).

And the four visual files are among the sleaziest (and two are Murdoch favorites), several show Hunter nude.

The specific objections regarding those are of interest given questions about provenance. Lowell suggests that a late December video may record the voice of someone besides Hunter.

Pursuant to Federal Rules of Evidence 401 and 403, Biden objects to the use of this video dated 12/29/2018 because it is dated close to three months after the relevant period when Biden purchased a handgun and is more prejudicial and inflammatory than it is probative under Rule 403. GTX-18D is also cumulative of other documentary evidence the government will introduce. Furthermore, to the extent the government also intends to suggest the voice heard in the background is Biden’s, we object to any suggestion this is Biden’s voice.

And Lowell suggests that a January 31, 2019 photo doesn’t establish whose “smoking device” was in a photo.

Biden objects to the use of this partially-redacted photo displaying alleged drug paraphernalia dated 1/31/2019 because it is dated almost five months after the relevant period when Biden purchased a gun, does not establish where the photo was taken and, therefore, who might be the owner of the smoking device that is in the background, and is more prejudicial than it is probative under Rule 403. GTX18F is also cumulative of other documentary evidence the government will introduce

Several of these happen to be the communications whose authenticity are among the most suspect, and if Lowell excluded all the texts from February 25 and afterwards and the two January photos, it would have the effect of excluding all laptop communications not authenticated by Hallie. Which makes me wonder if Lowell is abandoning his plan to challenge the authenticity of any laptop communications.

On Eve of Hunter Biden Gun Trial, Judge Maryellen Noreika Covers Up Possible Gun Crime

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Judge Maryellen Noreika has ruled that Hunter Biden cannot present evidence that, to cover up that StarQuest gun shop sold Hunter Biden a gun without requiring him to show an ID with his address on it, the shop owner and one of its employees falsely claimed they had seen such ID three years after the fact on the physical ATF form.

They doctored the form.

More importantly, the gun shop owner testified that he did so because Hunter Biden listed a celebrity address (his father’s), and also because he wanted to get Joe Biden’s kid out of his store as quick as possible.

By his own testimony, the gun shop owner only belatedly complied with the required record-keeping because of who Hunter Biden is.

Now I get that Hunter Biden cannot claim that he cannot be prosecuted because the gun shop owner also committed a potential crime. Judge Noreika is perfectly correct to prevent that kind of argument.

But Hunter Biden has to be able to use the shop’s admitted willingness to skip documentary steps with a celebrity client and doctor the forms after the fact, because it leaves open the possibility they did that with more than the identification.

In ruling against Biden, though, she said that the gun shop’s willingness to doctor the form after the fact on one issue would not have any tendency to make it more likely they did elsewhere on the form.

Indeed, she seems to misunderstand that the gun shop owner appears to have confessed to doctoring the form.

2. The Court finds that the 2021 Form is irrelevant and inadmissible under Federal Rule of Evidence 401 and excludes it at trial.2 Moreover, even if the 2021 Form were admissible, the Court finds that it is excluded under Federal Rule of Evidence 403 because any probative value it arguably has is substantially outweighed by a danger of unfair prejudice, confusion of issues, and misleading the jury.

2 The government has stated that it intends to call Gordon Cleveland, a gun shop employee, who will testify that he watched Defendant fill out Section A of the Certified Form and that Defendant checked “no” to question 11e about being an unlawful user or addict. Both the Certified Form and the 2021 Form have the same check mark (“X”) responding “no” to question 11e. The addition of “DE VEHICLE REGISTRATION” to a different section of the 2021 Form after the Defendant filled it out does not have “any tendency to make” those two facts, which are “fact[s] of consequence in determining” the charges – that he filled it out and that he said he wasn’t an unlawful user of or addicted to a controlled substance – more or less probable. F.R.E. 401. The Court also agrees with the government that Defendant’s conspiratorial theory about “doctored” forms and currying favor with the government is unsupported rhetoric, which would be prejudicial and confusing to the jury.

One reason her logic he is especially problematic is because it’s clear the form wasn’t prepared at once. The multiple colors make it clear that the date on Gordon Cleveland’s signature — the employee on the hook for selling a gun without seeing an ID with an address on it — was added after the fact, and probably by someone else (Cleveland reportedly testified that his colleague wrote everything in red ink).

Noreika likely credited something misleading Derek Hines said in a reply posted shortly before her order which cites to it (he has, repeatedly, projected his own inaccurate claims onto Abbe Lowell, and this may be an instance where, at the very least, Hines misunderstood a reference Lowell made).

Hines took what appears to be a reference to Cleveland saying he never saw a Delaware registration, and instead insinuated that by that reference to “a second form of identification,” Lowell instead referred to what the FBI showed Cleveland, rather than what Hunter did.

Cleveland has been entirely consistent on the issue of identification in the two interviews where it came up. Defendants claims he has offered an “evolving story,” but that characterization is not accurate based on defendant’s own quotes from Cleveland’s Jencks material. Supp. Resp. at 5. The only form of ID Cleveland saw was the passport. He never saw a Delaware vehicle registration and never claimed to. Instead, in both interviews he stated that Turner, who handled the background check, may have, but Cleveland didn’t have first-hand knowledge of whether he did or didn’t. In his first interview on September 27, 2021, Cleveland told investigators:

“He said he would provide the copy of the U.S. Passport and the firearm information on a sheet of paper to the person sending the background check in. Mr. Cleveland said he did not see the document [a second form of identification] with the ATF Form 4473 he was shown [by the Agent on September 27, 2021].” (TAB 3, 10/12/21 ATF EF 3120 at 2, ¶6) (emphasis added). Supp. Resp. at 5 (emphasis added).

The government at this point is obligated to point out that the defendant is again making malpresentations to the Court. In the above quote from his filing, the defendant inserted brackets into a real quote from the September 27, 2021, interview report for Cleveland. The defendant writes in those brackets that “Mr. Cleveland said he did not see the document [a second form of identification] with the ATF Form 4473 he was shown [by the Agent on September 27, 2021]. Supp. Resp. at 5. What defendant inserted into those quotes in brackets isn’t accurate. The ATF never showed Cleveland “a second form of identification.” If you look at the report, which defendant has and attached to his filing, it says that the only documents that were shown to Cleveland, at any point during the interview, were the following:

The ATF did not show Cleveland “a second form of identification,” as the above list of documents make clear. Defense counsel made that up. What defense counsel chose not to quote from that report was the next sentence: “He said Jason Turner may have gotten the vehicle registration due to the U.S. Passport issue.” As defendant noted, Cleveland was not asked any questions about the form of identification that was used in the grand jury so there is nothing inconsistent between his first interview and his grand jury testimony.

Finally, when asked in his second interview on May 17, 2024, about identification he repeated that he only saw the passport and did not see a Delaware vehicle registration:

When Biden presented his passport as identification, Cleveland went into the back and asked Ronald Palimere and Jason Turner if it could be used. Cleveland recalls going back out to Biden and saying something to the effect that if Biden was going to use a passport, they would need another form of identification. [] Cleveland thinks Biden went outside and got something, but he can not say with certainty. Cleveland would not have paid attention to the paperwork side of the sale because he had already done his part by working with the customer and making the sale. Cleveland does not think they would have competed the sale without the second identification, though. (TAB 3B, 5/17/24 Cleveland FD-302 at 1). Supp. Resp. at 5. [Hines’ bracket, which I’ve bolded, only marks paragraph break; my italics]

In every interview Cleveland stated that Turner handled the part of the form that covered forms of identification, Section B, and he, Cleveland, watched the defendant fill out Section A, where the defendant records information about himself and answers the required questions, including the one that is the basis of the charges, namely, whether he was an unlawful user of or addicted to a controlled substance. Here is what Cleveland said in his first interview:

Defendant claims “Palimere was in discussions with Cleveland and Turner on that date about what was and was not on the form and, thereafter, the sale would be made regardless of legal compliance concerns.” Supp. Resp. at 7. That is not true. Defense counsel made that up, too. And the best evidence it is not true is that defendant cites nothing from any grand jury transcript or interview report in support of that assertion in his supplemental response. To be clear, no one has testified or stated in an interview—not Cleveland, not Turner and not Palimere—that they discussed “what was and was not on the form.” All that was discussed was whether a U.S. Passport could be accepted as a form of identification and whether a Delaware vehicle registration was needed as a second form of identification. And no one has testified or stated in an interview—not Cleveland, not Turner and not Palimere—that they discussed “the sale would be made regardless of legal compliance concerns,” because no such discussions occurred. [my italics]

The quote Hines accuses Lowell of excluding — that Jason Turner may have gotten a second form of ID — is utterly consistent with the reading that Lowell was referring to what Hunter showed Cleveland, not what the FBI did.

Even based off what is public, Hines appears to be misreading the rest, too.

Palimere, the gun shop owner, was in discussions with both Cleveland and Turner about what would be used on the form (the passport only). And while inapt, I believe Palimere’s testimony is only consistent with a claim that the sale would be made regardless.

That’s because it was made regardless, after a discussion about whether to get anything more.

In the case of Biden’s sale, Gordon Cleveland, was the salesman. Palimere was sitting at his desk in the back and Cleveland said something to the effect of, “Hey, Hunter Biden’s here. He wants to use his passport.” Palimere was familiar with Biden’s father’s not being a gun supporter so Palimere thought it would be bad for Palimere’s business to have Hunter Biden seen in his store. Palimere wanted to get the sale completed and get Biden out of the store, so Palimere said yes to using the passport as identification. Palimere never interacted with Biden.

[snip]

Normally, they would call a customer if they found an error/omission and needed to annotate the Form 4473. The ability to annotate the Fom 4473 is allowed by the ATF. For this case, a typical customer would have been called and told they needed to come back in and bring registration to show the residency.

Palimere was not about to call Biden. Palimere felt they could not have him come into the store. Plus, Palimere did not want to contact Biden and tell him he needed to come in and he was being investigated.

We can’t be sure (Lowell submitted his filing under seal because it included grand jury and non-public exhibits), but Hines’ representations seem to take imprecise comments from Lowell and read them in a way that makes no sense.

Noreika’s ruling becomes a problem (and likely will require at least clarification) for two reasons that seep into Hunter Biden’s Sixth Amendment right to impeach the government’s witnesses.

First, in the order, Noreika prohibited all discussion of political bias, which Hines suggested Lowell wanted to present exclusively through Palimere’s efforts to make this public before the 2020 election.

3. Questioning, testimony, evidence or argument, including but not limited to, the additional exhibits designated by the Defendant as tabs “6-6C” to his supplemental submission regarding any witnesses’ political bias are excluded from introduction or admission at trial because such questioning, testimony, evidence or argument is not relevant, is unduly prejudicial and invites nullification.3

3 The Court agrees with the government that the political views expressed in 2020 by the gun shop owner, Palimere (who did not witness Defendant fill out Section A of the Certified Form or check the box for question 11e in 2018), are sideshows aimed at tainting or confusing the jury. [my italics]

But Palimere described that he made an affirmative decision to treat the sale to Hunter Biden differently because of who his father is. Palimere freely confessed that he sold a gun without requiring the proper paperwork because Joe Biden is not a gun supporter.

Palimere was familiar with Biden’s father’s not being a gun supporter so Palimere thought it would be bad for Palimere’s business to have Hunter Biden seen in his store. Palimere wanted to get the sale completed and get Biden out of the store, so Palimere said yes to using the passport as identification.

This is politics. It affected the sale. Noreika doesn’t want that to come in because explaining that the gun store didn’t follow the rules with the sale to Hunter Biden and that they did so because of Joe Biden’s politics would be unduly prejudicial.

That strips Hunter of the ability to present key details about the sale.

And Noreika’s ruling may prevent Hunter from impeaching Cleveland.

A prosecutor can’t simply claim, nope, these statements Cleveland made about the form are not inconsistent. That usurps the role of the jury.

And they are inconsistent. In the first interview, Cleveland said that if a second ID was really requested, Turner handled it (it’s unclear whether Turner ever came to the front room, but since he’s the guy who doctored the form, it would be significant if he did). In the second interview, Cleveland claimed to remember asking for it. If his memory is inconsistent on that point, there’s no reason to credit his memory about how the form was filled out.

That, coupled with Cleveland’s claim he didn’t much care about the paperwork, should be fair game for questions about whether Hunter Biden’s part of the form really was filled out properly. As it is, Cleveland has signed the form even though he didn’t do key parts of it. But Noreika’s exclusion of the form will make it nearly impossible to argue that Cleveland’s testimony about the form is inconsistent.

Judge Maryellen Noreika may think it’s a conspiracy theory that the gun shop doctored the form because they wanted to get Joe Biden’s kid out of the shop quickly. Except it is also precisely what the gun shop owner’s testimony says.

Update: One piece of timing of note. ATF picked up the physical form on September 24, 2021. Cleveland was first interviewed on September 27, 2021. It appears they had to have used the physical form, not the scanned one, not least because the reference to the DE registration only appears on page 2 in the form, not the scan (which has a cover sheet). He was not interviewed again until a grand jury appearance. We know investigators did no basic investigative steps (getting a warrant, sending the pouch to be tested) until after the actual indictment.

Which makes me wonder whether they decided not to pursue charges because of this form and now are just (successfully, so far) bulldozing past this real evidentiary problem.

Update: According to the 302 from Cleveland’s May 2024 interview, he stated that he would not have paid attention to the paperwork side of the sale.

Cleveland thinks Biden went outside and got something, but he can not say with certainty. Cleveland would not have paid attention to the paperwork side of the sale because he had already done his part by working with the customer and making the sale. Cleveland does not think they would have competed the sale without the second identification, though.

This is a stunning comment from someone whose name is on the form transferring the gun. I could certainly see questioning about why he signed off on a form without personally taking responsibility for the paperwork, not least because he recognized the passport was not sufficient. His boss has basically put him in a position where he’s on the hook for a crime.

Now, he may contest this representation — 302s are only used to refresh memory, they never go back to the jury.

But if he does, it would be his word against the FBI agent who’ll submit much of the rest of the case, because they broke FBI protocol by not having a second FBI agent there. So Cleveland may be in the position of having to admit he violated gun purchase laws, knowingly, or trying to undercut another key witness.

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.

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.

Joseph Ziegler Allegedly Chased Doctored Laptop Evidence

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Following the news that Fox News has complied with one of Hunter Biden’s demands by taking down a six-part fictionalized series on Joe Biden’s son, Sarah Fitzpatrick, one of the journalists who first reported on Hunter Biden’s threats to sue Fox news yesterday, has a new scoop out.

A retired Secret Service agent implicated in the most clearcut laptop related fabrication, Robert Savage, is suing the NYPost, reporters who claimed that he had helped run cover-ups for Hunter Biden in LA, and the US affiliate of the Daily Mail. (NYP, Associated Newspapers)

A former Secret Service agent sued two news organizations for defamation Tuesday and accused them of publishing stories based on fabricated text messages that he says falsely linked him to Hunter Biden.

Robert Savage, a 25-year veteran of the U.S. Secret Service and the Special Agent in Charge of the agency’s Los Angeles Field Office from 2015-2017, filed the lawsuits in New York against the New York Post and two of its reporters, and the owner and publisher of the Daily Mail.

Savage alleged that the reporters and publications recklessly disregarded information that the text messages, which came from a laptop that purportedly belonged to Hunter Biden, were fabricated. Despite that, they published articles and tweets in 2021 and 2023 that suggested Savage communicated with and met and met with Biden in Los Angeles.

“Rob has not and has never met Hunter Biden, does not know Hunter Biden, has no connection with Hunter Biden, and has never corresponded with Hunter Biden,” Savage’s attorney, Mark Goidell, told NBC News.

The lawsuit itself is not the big part of the story: It’s that someone presenting as Joseph Ziegler questioned Savage about the incident.

In March 2022, Savage was visited at his home by an FBI agent and an IRS agent who said they wanted to ask him questions about his association with Hunter Biden and the laptop. Savage was also served with a grand jury subpoena from the U.S. Attorneys Office in Delaware, which later charged him with tax and gun charges.

NBC News obtained security footage of the interaction, copies of the business cards left by the agents and a copy of the subpoena.

The IRS agent identified himself as Joseph Ziegler, who testified as a whistleblower to a House committee investigating Hunter Biden in 2023. Ziegler alleged that the Department of Justice prosecutors limited his investigation of Hunter Biden, a charge that DOJ officiales denied. Ziegler’s attorney declined to comment.

Goidell said that the law enforcement agencies appear to have ended their investigations of the alleged text exchanges between Savage and Biden.

It has long been known that there was fabricated data on at least some versions of the hard drives created from the laptop. But it has been unclear whether those fabrications existed on the copy shared with the FBI.

If Joseph Ziegler really did visit Savage, it means one of two things: Either there is fabricated data on the FBI laptop and investigators have known that since 2022, or that Ziegler allowed himself to be tainted by the publicly released claims about the laptop, complete with fabricated data.

Remember, in August last year, when David Weiss’ purportedly sheep-dipped prosecutors told Abbe Lowell they were going to pursue felony charges against Hunter Biden, they confidently bragged that they had backstop for all the data on the laptop. They said that four months before they first obtained a warrant to access the laptop for evidence relating to gun crimes.

Their confidence turned out to be misplaced; in filings before Judge Noreika that persuaded her they had plenty of evidence against Hunter Biden, they relied on evidence that appears only to be available from the laptop.

And Savage’s lawsuit strongly suggests that prosecutors are sitting on evidence that they know the laptop is unreliable.

Update: This post has been updated, among other things, with links to the lawsuits.