Maryellen Noreika Archives

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Tanya Chutkan Finally Gets the Trump Case Back

SCOTUS finally remanded its immunity decision to the DC Circuit and the DC Circuit has, in turn, remanded it back to Judge Tanya Chutkan.

So Trump will finally have to deal with his actions on January 6.

As Brandi Buchman noted, Trump will have to file his appeal of the E Jean Carroll verdict by August 14.

In other scheduling news, Judge Noreika has scheduled the Hunter Biden sentencing for November 13 — much later than it had to be, delaying any of the appeals until such time that the President will have to be considering pardoning his son, if he plans to do that. She has yet to rule on Hunter’s Rule 29 motions, but I guess we know how she’ll rule.

Hunter’s tax case is still scheduled for September, and prosecutors continue to insist they can introduce allegations of influence peddling that have nothing to do with his alleged tax evasion and non-payment.

In Bid to Withhold Laptop and Hard Drive Forensic Reports, Derek Hines Misstates Hunter Biden’s View on Authenticity of Data on Laptop

July 17, 2024/24 Comments/in emptywheel /by emptywheel

As I noted in this post, I wrote a letter to Judge Maryellen Noreika asking her to release several documents, the more interesting of which are the forensic reports on the laptop attributed to Hunter Biden and the hard drive with John Paul Mac Isaac’s purported copy of the laptop.

Abbe Lowell had no problem with the release of the forensic reports.

Mr. Biden has no objection to the release of either item requested by the journalist—the motion for miscellaneous relief at DE 167 and/or the expert disclosure of Michael Waski at DE 120-2.

Derek Hines did. He said that because he never filed the forensic reports, they are not judicial records before Judge Noreika.

However, his disclosure was never filed with the Court because the defendant agreed that the information derived from his laptop was authentic. Therefore, the expert disclosure was not included as an exhibit for ECF 120 because the certification itself sufficiently supported the motion. Moreover, since there was no dispute about the authenticity of the information derived from the defendant’s laptop, the government did not call Mr. Waski as an expert witness at trial. Accordingly, the expert disclosure is not a judicial record and is not a record before this Court that the Court could unseal.

There are several problems with this response.

First, as I wrote in my letter, nothing in the certification mentioned the laptop or hard drive it certified.

Mr. Waski’s certification, as docketed, does not by itself certify that the laptop was among the devices extracted. While the MIL describes that Mr. Waski’s certification pertains to, “two backup files from laptop and hard drive” (DE 120 at 3), Mr. Waski’s certification itself mentions neither. Instead, it references a “Digital Forensics Report and [an] Extraction Report,” singular. Compare Robert Gearhart’s certification at DE 120-1, which lists the four iCloud backups described in the MIL, “Apple Backup 1, Apple Backup 2, Apple Backup 3, Apple Backup 4,” which in turn match the warrant. (20-mj-165 DE 3 at 2) To confirm that Mr. Waski’s certification pertains to the laptop and hard drive incorporated into the summary and described in the warrant (19-mj-309 DE 3) requires inspecting the Disclosure.

There is no way the public — or Judge Noreika herself — can be certain that the “Digital Forensics Report and Extraction Report,” singular, mentioned in the certification describes the forensics of both (or either!) the laptop and the hard drive. We need to see the description of that report in the Disclosure itself.

The certification relies on the Disclosure to even identify what it is certifying.

More importantly, Hines blatantly misstates Hunter Biden’s view on the authenticity of the data on the laptop. In Abbe Lowell’s response to Hines’ motion to bypass any expert witness, he specifically debunked that claim.

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.

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 obtaining it.

He pointedly did not agree that the data derived from the laptop (and hard drive, which I suspect has more irregularities) was “authentic” as to being his own data.

One reason I’m interested in the hard drive is because Hines himself revealed that the “backup” of it is 62% bigger than the laptop of which it purports to be a copy. Understanding why that is so might go a long way to explain anything John Paul Mac Isaac did with Hunter Biden’s data.

As I noted in my letter to Judge Noreika, Congressman Dan Bishop suggested in a deposition on the laptop last year that if the FBI, “has conducted a forensic investigation and has suppressed the results,” people shouldn’t defer to the FBI. This was an opportunity for the FBI to show it’s work.

It — or at least, David Weiss — doesn’t want to.

Update: Corrected misspelling of Hines’ last name. My apologies to him.

Update: Judge Noreika has now docketed my reply. Among other things, I noted that the creation date for the PDF of Waski’s certification post-dates the day when it was sent to Hunter Biden’s team on April 24.

The other certification is dated April 23.

Update: Judge Noreika has, unsurprisingly, granted the request to docket the Hallie Biden related filing, but denied the Disclosure on the laptop and hard drive.

ORAL ORDER re: D.I. [247], IT IS HEREBY ORDERED that the Sealed Motion (DI [167]) is hereby unsealed. The expert disclosure of Michael Waski is not part of the record of this case or in the Courts possession. IT IS HEREBY FURTHER ORDERED that the Court will not address further informal requests made by letter rather than appropriate motion. Ordered by Judge Maryellen Noreika on 7/18/2024. (as)

emptywheel Writes Letters: The FBI Extraction of the Hunter Biden Hard Drive Is 62% Bigger than the Laptop

July 17, 2024/64 Comments/in emptywheel, Hunter Biden /by emptywheel

As I did in January, I’ve written a letter asking Judge Maryellen Noreika to liberate two documents, the more interesting of which are the forensic reports FBI did of the Hunter Biden laptop and the hard drive John Paul Mac Isaac made of the laptop. (Yes, I know it has my personal information.)

In a key passage explaining the significance of the two forensic reports, I noted that the extraction of the hard drive that purports to be a copy of the laptop is 62% bigger than extraction of the laptop itself.

In the motion in limine in support (“MIL”) of introducing those communications via summary report (DE 120), SCO relied on the expert certification of Michael Waski, a Senior Digital Forensic Examiner who, as a Forensic Analyst, was involved in exploiting the laptop in 2019. Accompanying the MIL, SCO provided Mr. Waski’s certification, which in turn incorporates by reference his expert Disclosure. (DE 120-2) The only reasons given why SCO did not docket expert Disclosures themselves were, “because those documents are voluminous and because the defendant agrees these files are self-authenticating.” Nevertheless, Mr. Waski’s certification describes his Disclosure as, “attached hereto.”

Mr. Waski’s certification, as docketed, does not by itself certify that the laptop was among the devices extracted. While the MIL describes that Mr. Waski’s certification pertains to, “two backup files from laptop and hard drive” (DE 120 at 3), Mr. Waski’s certification itself mentions neither. Instead, it references a “Digital Forensics Report and [an] Extraction Report,” singular. Compare Robert Gearhart’s certification at DE 120-1, which lists the four iCloud backups described in the MIL, “Apple Backup 1, Apple Backup 2, Apple Backup 3, Apple Backup 4,” which in turn match the warrant. (20-mj-165 DE 3 at 2) To confirm that Mr. Waski’s certification pertains to the laptop and hard drive incorporated into the summary and described in the warrant (19-mj-309 DE 3) requires inspecting the Disclosure.

Beyond that issue of completeness, Mr. Waski’s Disclosure holds additional significant public interest: (1) it would reaffirm the integrity of these proceedings, (2) it might address concerns raised in two separate Congressional investigations incorporating Mr. Biden’s devices (3) it would provide insight into derivative hard drives that have been the subject of controversy for years.

Some background explains why. The FBI obtained the two devices referenced in the MIL from computer repairman John Paul Mac Isaac. (19-mj-309 DE 3) One device, introduced into evidence as GTX16, is a MacBook Pro. The other device, a Western Digital hard drive, purports to be a copy that Mr. Mac Isaac made of the laptop; that copy is, in turn, the source of a number of other hard drives disseminated publicly, including to Congress, since 2020.

Because the hard drive purports to be a copy of the laptop, the content on those devices should substantially match. Yet the MIL suggests it may not. According to SCO, the “backup file” of the laptop (the original source) consists of 4,198 pages (DE 120 at 5). The “backup file” of the hard drive derived from the laptop (the purported copy) consists of 6,801 pages (Id.). In other words, the extracted copy made of the laptop is 62% larger, measured in pages, than the extracted original source. SCO’s office provided no response to an inquiry regarding the significant size difference in these backup files. [my emphasis]

Judge Noreika has asked the two sides to weigh in on these requests by end of day.

ORAL ORDER re Letter ( 247 ): IT IS HEREBY ORDERED that, by the close of business today, the parties shall provide the Court with their respective positions on the request for the unsealing of the two documents referenced in the letter. ORDERED by Judge Maryellen Noreika on 7/17/2024. (mdb) (Entered: 07/17/2024)

“Double Jeopardy Protection … Is [Hunter Biden’s] Right”

June 24, 2024/17 Comments/in 2024 Presidential Election, emptywheel, Hunter Biden /by emptywheel

“Mr. Biden took the case to trial,” Abbe Lowell wrote in a reply brief arguing that an June 25, 2022 amendment to the statute that previously made 18 U.S.C. § 922(g)(3) a crime made the possession charge filed against Hunter non-viable retroactively, “so that either by conviction or acquittal from the jury or by this Court, he would have double jeopardy protection against future prosecutions. That is his right.”

The means by which Lowell hopes to make the third count of which Hunter was convicted go away are a bit tricker than that: basically, when Congress changed the gun law in 2022, they added another one, increasing the penalty on the charge. But there was no way (Lowell argues) to charge Hunter under a law enacted four years after he owned a gun if he hadn’t already been charged.

The Special Counsel’s invocation of the 1871 savings clause now found in 1 U.S.C. § 109 is off base, because that statute only saves prosecutions that already had been filed when the law was amended. It does not allow the Special Counsel to bring new prosecutions post-amendment based on conduct that violated a pre-amendment statute, which is exactly what the Special Counsel has done. Not only does the language of Section 109 itself make this clear, but the 153-year history since the statute was enacted confirms this reading. Congress regularly attaches savings clauses to legislation to allow new prosecutions to be brought for violations of prior law, when it chooses to do so, and it did not do so here.

As I said here, I was persuaded by Derek Hines’ argument that this complaint is untimely. I’m no longer so sure.

What I am humbly reconsidering, though, is whether when I scolded others for oversimplifying the reasons why Hunter would go to trial, I was not myself also oversimplifying.

Take the new motion Lowell filed today (though he accidentally posted, then withdrew it, last week), arguing that because the Third Circuit never issued a mandate after rejecting Hunter’s second bid for interlocutory appeal, Maryellen Noreika did not have jurisdiction over this case when she held a trial.

The Third Circuit entered an order dismissing Mr. Biden’s second appeal on May 28, 2024, and denied Mr. Biden’s rehearing petition on the first appeal on May 31, 2024. The Third Circuit, however, did not then and has not yet issued its mandate as to the orders dismissing either appeal. Thus, when this Court empaneled the jury on June 3, 2024 and proceeded to trial, it was without jurisdiction to do so.

This particular motion would not win an acquittal if it were to succeed. It would only get Hunter a new trial.

But if Lowell was really confident that this jurisdictional ploy would work, it might explain some of the things he appeared to let slide at trial. If Lowell expected he might get a second trial, potentially even one with the core gun charge eliminated, he might let some things slide he otherwise would not, thereby preserving those arguments for a potential second trial.

That leaves the substantive reply submitted today, Lowell’s post-Rahimi support for Hunter’s as-applied Second Amendment challenge, which like Derek Hines’ response, is longer than his initial Rule 29 motion (though the reply is still have the length of Hines’ response).

This fight — because of the nearly unique nature of the charges against a non-violent offender like Hunter, because of the circumstances of his charging, because of the timing — was always going to be interesting.

It does not disappoint.

This filing mocks SCOTUS as much as David Weiss’ folks.

The Special Counsel often relies on post-Founding Era purported precedents, but those come too late to inform what was intended by those who ratified the Second Amendment. As Rahimi explained: “A court must ascertain whether the new law is ‘relevantly similar’ to laws that our tradition is understood to permit, ‘apply[ing] faithfully the balance struck by the founding generation to modern circumstances.’” Slip op. at 7 (quoting N.Y. State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1, 29 & n.7 (2022); see also Slip op. at 3 (Gorsuch, J. concurring) (noting the relevant timeframe is the time of founding for interpreting the Constitution); Slip op. at 2 (Barrett, J., concurring) (explaining post-ratification practice may not reflect Founding Era views); Slip op. at 28 (Thomas, J., dissenting).

But the key point does something similar to the other tactical moves Lowell took today: It uses Leo Wise and Derek Hines’ prosecutorial dickishness against them. It notes that, against Lowell’s wishes, Judge Noreika granted prosecutors’ bid to keep all Second Amendment claims out of trial.

It was only told to find whether the statutes as written were violated—without any further finding necessary to satisfy the Second Amendment. 6/10/24 Tr. at 1298. In fact, the Special Counsel sought, and this Court granted, a motion in limine to prevent reference to a Second Amendment defense. D.E.189 at 3 (Order granting government’s motion (D.E.124) to exclude argument, evidence and questioning relating to the constitutionality of the firearm statute). The Sixth Amendment prevents Mr. Biden’s conviction from resting upon any judge found facts, those facts must be found by a jury beyond a reasonable doubt, and—over Mr. Biden’s objection—the jury was not even asked to find the facts necessary for his conduct to be a crime consistent with the Second Amendment. Erlinger, Slip op. at 11 (“Judges may not assume the jury’s factfinding function for themselves, let alone purport to perform it using a mere preponderance-of-theevidence standard.”).

It emphasizes that Derek Hines instructed the jury from the start that they were not to consider the one thing SCOTUS says should be considered: whether an individual is dangerous.

Beyond advancing this erroneous legal theory (or “invented” theory, according to Justice Thomas, Slip op. at 28 (Thomas, J., dissenting)), the Special Counsel is simply wrong in claiming that Mr. Biden posed any risk of violence. We do not quarrel with the Special Counsel’s claims and statistics that many users of crack are violent and have misused guns, but—while the Special Counsel has extensively chronicled Mr. Biden’s conduct over several years of crack use—the Special Counsel has not identified a single time in which Mr. Biden became violent. Not one. And there is no evidence whatsoever that Mr. Biden ever loaded, fired, brandished, or threatened anyone with a gun, or that it was ever even in his actual physical possession at any time in which he was allegedly using any drug.

Mr. Hines conceded this point in his opening:

To be clear, Mr. Biden is not charged with a violent offense, the gun was taken from him just after 11 days before anything like that could occur. But it’s important to note that whether the defendant is dangerous is not an issue that’s relevant for your determinations in this case. He’s just charged with possession of a gun. 6/4/24 Tr. at 341 (emphasis added).

Not only is this an acknowledgment that no violent offense did “occur,” Mr. Hines told the jury it would not be making any finding as to “whether the defendant is dangerous.” Id. And he was right about that—nothing in the jury instructions asked the jury to find whether Mr. Biden was dangerous. Thus, even if this is an element of the offense that must be read into the statute to make it constitutional, the jury was not asked to find this element met as is required by the Sixth Amendment.

And it notes that Derek Hines cannot now argue that Hunter Biden was dangerous categorically.

The Special Counsel devotes much of its opposition to claiming that Mr. Biden’s drug use made him dangerous(D.E.234 at Sec. I.B.), but Rahimi clearly rejected the government’s argument that this is a basis for disarmament. A more particularized historical analogy is required. As the Supreme Court explained in Rahimi, while “holding that Section 922(g)(8) is constitutional as applied to Rahimi,” the Court “reject[ed] the Government’s contention that Rahimi may be disarmed simply because he is not ‘responsible.’” Slip op. at 17; see Slip op. at 6 (Gorsuch, J., concurring) (“Nor do we purport to approve in advance other laws denying firearms on a categorical basis to any group of persons a legislature happens to deem, as the government puts it, not ‘responsible.’”) (emphasis added). At oral argument, the government explained that “when it used the term ‘responsible’ in its briefs, it really meant ‘not dangerous.’” Slip op. at 28 (Thomas, J. dissenting) (emphasis in original). With respect to this argument “that the Second Amendment allows Congress to disarm anyone who is not ‘responsible’ and ‘law-abiding,’” Justice Thomas emphasized: “Not a single Member of the Court adopts the Government’s theory.” Id. at 27. To highlight thisfact, Justice Gorsuch requoted Justice Thomas’ point in his concurrence. Slip op. at 6 (Gorsuch, J., concurring) (“Not a single Member of the Court adopts the Government’s theory”).

The reason for that is self-evident. The Government’s proposed justification is also far too general. Nearly all firearm regulations can be cast as preventing ‘irresponsible’ or ‘unfit’ persons from accessing firearms. In addition, to argue that a law limiting access to firearms is justified by the fact that the regulated groups should not have access to firearms is a logical merry-goround. As the Court has made clear, such overly broad judgments cannot suffice.

Slip op. at 15 (Thomas, J., dissenting).

It’s the jury’s job to make findings of fact that might be required by SCOTUS’s fiddling with gun laws.

The Special Counsel devotes much of his brief to arguing the facts, but he is directing his repeated closing argument to the wrong forum. This Court properly told the jury that “you are the sole judges of the facts,” and this jury was not asked to find the constitutionally relevant facts.

This won’t persuade Judge Noreika. But it will bollox the posture of this case, particularly if Hunter wins a retrial based on the jurisdictional ploy. What kind of jury instructions would Noreika give, post-Rahimi?

Finally, Lowell notes that if SCOTUS eventually does change the rules on 18 USC 922(g)(3) prosecutions — perhaps by requiring that a jury find a defendant also posed a danger as an addict — Hunter would never have had notice of this standard before he violated it.

That begs the question:* where is this line that separates not only what is legal from what is illegal, but where the exercise of a constitutionally protected right becomes a felony? How does a person have fair notice of when he or she is allowed to possess a firearm if they used a prohibited substance a day, a week, a month or, as the Special Counsel argued, years before? This Court has not said, and the jury that would have to find a constitutionally permissible charge to convict was not told either. In other words, whatever more facts must be proven beyond Section 922(g)(3)’s statutory language for a conviction to be proven—such as active intoxication while physically armed and terrorizing people—remains an unknown and were never found by the jury.

Moreover, once the Court does announce where this line exists, that guidance is only of value to the people of Delaware prospectively. It comes too late for people like Mr. Biden to be able to conform their conduct within the constitutional bounds of the law previously. Thus, while courts may impose limiting constructions on a statute to resolve constitutional problems with them in some circumstances, principles of due process notice prevent those new standards from being applied retroactively. See, e.g., Marks v. United States, 430 U.S. 188, 194–95 (1977); Bouie v. City of Columbia, 378 U.S. 347, 362 (1964). Additionally, when courts add a judicial gloss on a statute, that gloss must be charged in an indictment like any other element. See, e.g., Simmons, 96 U.S. at 363. There is no point in saving a statute from being found unconstitutional through a limiting construction if the grand jury that makes a charging decision and the jury that is asked to convict are never told what is required by a court’s limiting construction. Consequently, if the Court finds that the Second Amendment places a gloss on Section 922(g)(3) that narrows the constitutionally permissible scope of the statute, Mr. Biden must be acquitted on that ground alone.

None of this is about contesting the circumstances of Hunter’s addiction when he possessed a gun. Rather, it’s about contesting whether his addiction would be enough to satisfy any new standard SCOTUS might adopt.

But these problems were always inherent in charging a non-violent offender on gun charges just days before the statutes of limitation expired even as multiple post-Bruen challenges threatened to change the landscape of the crimes charged.

This won’t win acquittal on all charges for Hunter. But it may well complicate things.

* Note: Having called out Judge Scarsi for his misuse of “begs the question,” I must call out Lowell’s usage here, too.

Derek Hines Ensures that Two Likely Appeals Will Implicate His False Claims about Hunter Biden’s New Haven Crack Pipe

June 23, 2024/16 Comments/in 2024 Presidential Election, emptywheel, Guns, Hunter Biden /by emptywheel

Hunter Biden filed three Rule 29 motions after the government rested in its case in chief against him in Delaware: a motion claiming there was insufficient evidence against him that is a formality in advance of other appeals, a claim about a recent change in the gun law that David Weiss convincingly argued is untimely, and his promised Second Amendment as-applied challenge.

While I disagree with virtually every commentator that a Second Amendment challenge is Hunter’s best chance at overturning his conviction, the as-applied challenge, more than his more general Second Amendment challenge, may prove important in years ahead– and it will take years, not least because Judge Noreika is unlikely to grant this challenge.

After all, one thing that makes Hunter’s prosecution almost unique is that there was and is no other legal judgment to implicate a tie between his addiction and the purchase of the gun, such as a related crime. There was no legal fact-finding, as there had been in imposing the restraining order on Rahimi, that he posed a threat. No court had found Hunter’s addiction to pose a threat to others. When a Biden-hating cop interviewed him after Hallie filed a police report, that cop did not prosecute — or even test — Hunter for doing drugs in the recent days.

On Friday, hours after the Supreme Court ruled against Zackey Rahimi’s challenge to restrictions on domestic abusers’ gun ownership, Derek Hines filed Special Counsel’s opposition to Hunter’s as-applied challenge. Unsurprisingly (and uncontroversially), the opposition relies heavily on Rahimi decision.

At trial, the government proved that the defendant was a heavy crack cocaine user who frequently posed a danger to himself and others. Section 922(g)(3), as applied to the defendant, falls squarely within “this Nation’s historical tradition of firearm regulation” and comports with the Second Amendment. New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 17 (2022). The Supreme Court’s decision today in United States v. Rahimi, No. 22-915 (U.S. June 21, 2024) clarified that Bruen only requires the government to show “the challenged regulation is consistent with the principles that underpin our regulatory tradition,” not that it is “identical” to a regulation at the founding. Slip op at 7. This significantly undermines the defendant’s reliance on United States v. Daniels, 77 F.4th 337 (5th Cir. 2023), which cites repeatedly to the now-reversed Fifth Circuit decision in Rahimi. As to the Fifth Amendment challenge, because § 922(g)(3) provides fair notice of the conduct it prohibits, it is not unconstitutionally vague. The Court should therefore deny the defendant’s motion.

But aside from that tactical opportunism, Hines doesn’t argue why Hunter himself posed a danger as a gun owner in October 2018, beyond pointing to the specific gun paraphernalia that, Abbe Lowell argued fairly convincingly, Gordon Cleveland upsold Hunter Biden to purchase.

Indeed, having argued assertively at trial that Hunter was a very high functioning crack addict, Hines relies on general policy arguments about addicts’ impairment to explain the danger of him owning a gun.

It is beyond dispute that firearm possession while operating under significant cognitive impairment in critical areas like attention, speed of processing, emotional regulation, inhibition control, and the ability to prioritize negative long-term consequences—not to mention psychological and physiological effects like panic, paranoia, tremors, or muscle twitches—presents a significant public safety risk. Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 670-71, 674 (1989). The dangerousness of the defendant’s cocaine use is vividly shown by the evidence presented at trial, in which the loss of inhibition, emotional regulation, and self-control was demonstrated. See, e.g., Ex. 19 at 170-74 (discussing an episode in which the defendant drove a 500-mile road trip on which he wrecked a rental car when he hit the curb and spun into oncoming traffic, chain-smoked crack cocaine while driving, and chased a possibly hallucinatory barn owl at high speeds “through a series of tight, bounding switchbacks”).

As the Fried court noted, “unlawful drug use . . . causes significant mental and physical impairments that make it dangerous for a person to possess firearms.” 640 F. Supp. 3d at 1262-63. People who habitually use a substance like crack cocaine that impairs the ability to think, judge, and reason “are analogous to other groups the government has historically found too dangerous to have guns.” Id. at 1263; see also Wilson v. Lynch, 835 F.3d 1083, 1094 (9th Cir. 2016) (“It is beyond dispute that illegal drug users . . . are likely as a consequence of that use to experience altered or impaired mental states that affect their judgment and that can lead to irrational or unpredictable behavior.”); United States v. Carter, 750 F.3d 462, 469-70 (4th Cir. 2014) (finding “convincing” the government’s argument “that drugs ‘impair [users’] mental function . . . and thus subject others (and themselves) to irrational and unpredictable behavior’”); Yancey, 621 F.3d at 685 (“habitual drug abusers, like the mentally ill, are more likely to have difficulty exercising self-control, making it dangerous for them to possess deadly firearms”).

Perhaps the weirdest thing Hines does, as he did at trial, is to present evidence of Hunter’s later condition to substantiate his case, citing evidence of Hunter’s crack use in November and December 2018 and February and March 2019.

By March 2019, he claimed he had “no plan beyond the moment-to-moment demands of the crack pipe” and that this period followed “four years of active addiction.” Id. at 219-20.

[snip]

The defendant also discussed purchasing drugs in text messages with several individuals, showing a pattern of consistent drug use from spring 2018 to spring 2019. See, e.g., Ex. 18 at Row 1-22 (April 2018); id. at Row 23-65 (May 2018); id. at Row 66-72 (June 2018); id. at Row 73-85 (July 2018); id. at Row 86-87 (August 2018); id. at Row 169- 80 (November 2018); id. at Row 195-206 (December 2018); id. at Row 217-49 (February 2019). [my emphasis]

Admittedly, Hines would have had virtually all of this written before Rahimi. But the SCOTUS decision stresses temporary prohibitions, not permanent ones. And particularly absent a focus on Hunter’s drug use between the time of his August rehab and the gun purchase (Hines cites but does not quote Zoe Kestan’s testimony describing Hunter’s use in September 2018), Hines’ inclusion of so much evidence that post-dates Hunter’s ownership of a gun entirely makes the constitutional question more interesting.

Can an addict really lose his Second Amendment rights for future addiction?

And in the middle of one of those passages about Hunter’s future drug use months after he owned the gun, Hines includes the false claim he won’t stop making: that Hunter’s description of “me and a crack pipe in a Super 8” pertained to the state of his addiction in fall 2018, shortly after he owned a gun, rather than four months later, after Fox News pundit Keith Ablow’s treatment had made Hunter’s addiction worse.

The defendant characterized his daily experience in November 2018 as “me and a crack pipe in a Super 8 [motel], not knowing which the fuck way was up,” explaining that “[a]ll my energy revolved around smoking drugs and making arrangements to buy drugs.” Id. at 208. According to the defendant, by March 2019, he had “no plan beyond the moment-to-moment demands of the crack pipe.” Id. at 219-20.

Now, Hines’ obtuse misrepresentation of this passage presents more problems for a defense against a vindictive prosecution appeal. After all, by repeating this false claim six times (he repeated it in his response to the sufficiency challenge, as well, because apparently Hines doesn’t know “which the fuck way [is] up”), Hines is either confessing that he grossly misread the memoir which he successfully argued before Judge Noreika distinguished Hunter from other non-violent addicts who never get charged…

…Or he simply framed Hunter Biden before the grand jury, just like a corrupt Baltimore cop would frame someone by planting a crack pipe, claiming that conduct that took place long after the charged crime instead took place just weeks later.

Derek Hines had little of the evidence he used to prove his case at trial when he indicted Hunter Biden in September of last year. He didn’t have the cocaine residue in the leather pouch, he didn’t have a warrant to search Hunter’s text messages for evidence of gun purchases, he had some, but not all, of Kestan’s testimony.

Did he falsely tell the grand jury, as he told Maryellen Noreika and insinuated to the jury, that this passage pertains to “fall 2018”?

Did he make an easily disproven false claim to the grand jury to get that indictment? (The materials below show how easy this should be for a literate prosecutor to understand.)

But it is in Kestan’s testimony where his continued recitation of this line poses problems.

To win this constitutional challenge, Hines needs Kestan’s testimony that Hunter was doing drugs between his August rehab and his October gun purchase to be credible, because otherwise there are questions about the status of his addiction when he purchased the gun.

Q. And this was September the 18th of 2018, right?

A. I believe I was in the room by myself when I took that photo, so I think the day that we woke up there and he left later was the 17th.

Q. Okay. The day or — and the night he was there with you, did you see him smoking crack at The Freehand?

A. Yes.

[snip]

Q. All right. Now, when you get there on September the 20th of 2018, you’ve already testified he was smoking crack at The Freehand. Was he smoking crack at the Malibu house, when you were there in that week starting on September the 20th?

A. Yes.

But — on top of the full excerpt and spending records I place below, showing that Hines is wrong about his claims about the Super 8 passage — Kestan’s testimony debunks Hines’ unhealthy obsession with that line about the Super 8.

Q. And when you got there, where was he staying?

A. He was staying on an island called Plum Island, next to, or part of a place called Newburyport, Massachusetts, he said he was doing a ketamine infusion treatment.

Q. What did you understand that to mean?

A. It sounded like it was an outpatient type thing, where he would go to a clinic during daytime hours and get the treatment. And he was staying in a, like a rental house on his own otherwise.

Q. And when you went to visit him, did he in fact leave for whatever these treatments were?

A. Yes.

Hunter Biden wasn’t in New Haven in November 2018, when Derek Hines claims he was smoking the crack pipe Hunter described himself smoking in a Super 8 in New Haven (though in reality, only a few of the hotels at which he stayed in New Haven were as sketchy as a Super 8, and the only obvious one was a Quality Inn, not a Super 8).

He was, per Hines’ most important witness for this as-applied challenge, in a house out on Plum Island, outside Newburyport, still getting the Ketamine treatments that preceded the scene that Hines won’t stop falsely claiming happened in 2018.

Again, Hines’ persistent false claims about New Haven matter more in a hypothetical selective prosecution challenge, because Hines’ false claim was central to his assertions that there was reason to charge Hunter when he did.

But this as-applied constitutional challenge will implicate the timeline, what came before and what came after. And Derek Hines has persistently and obtusely made false claims about the timeline so he could rely on his favorite passage from Hunter’s book, including in his response to this as-applied challenge.

Memoir excerpt

The following excerpt shows the full context of Derek Hines’ favorite passage from Hunter Biden’s memoir. The italicized text was not included in the exhibit and audio-recording presented to the jury, which clearly places this description after his treatment from Ablow.

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

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

The reality is, the trip to Massachusetts was merely another bullshit attempt to get well on my part. I knew that telling my family I was in rehab meant I could claim they wouldn’t be able to contact me while I was undergoing treatment. I’d made my share of insincere rehab attempts before. It’s impossible to get well, no matter what the therapy, unless you commit to it absolutely. The Alcoholics Anonymous “Big Book”—the substance abuse bible, written by group founder Bill Wilson—makes that clear: “Half measures availed us nothing.”

By this point in my life, I’d written the book on half measures.

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.

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. All my energy revolved around smoking drugs and making arrangements to buy drugs—feeding the beast. To facilitate it, I resurrected the same sleep schedule I’d kept in L.A.: never. There was hardly any mistaking me now for a so-called respectable citizen. Crack is a great leveler.

New Haven area spending, February to March 2019

The following collects a non-exhaustive summary of money Hunter Biden spent in and around New Haven between February 11 and March 9, 2019. There is no other similar presence in New Haven that is easily identifiable.

This timeline happens to coincide with some of Hines’ favorite proof of drug purchases, as well.

February 11, 2019: Courtyard, New Haven

February 13, 2019: Courtyard, New Haven

February 13, 2019: Purchase at Reruns Bar and Grill, West Haven

February 13, 2019: Non-WF ATM withdrawal Broadway, New Haven

February 14, 2019: Purchase at Zachary’s Package Store, New Haven

February 14, 2019: Purchase at Citgo, New Haven

February 14, 2019: Non-WF ATM withdrawal Broadway, New Haven

February 14, 2019: New Haven Parking

February 15, 20199: ExxonMobil, West Haven

February 15, 2019: Non-WF ATM withdrawal Whitney Ave, Hamden

February 15, 2019: Non-WF ATM withdrawal Elm Street, West Haven (4X)

February 15, 2019: Non-WF ATM withdrawal Sawmill, West Haven (2X)

February 15, 2019: Purchase at New Haven Pizza, New Haven

February 15, 2019: Non-WF ATM withdrawal Highland, West Haven (4X)

February 15, 2019: Purchase at Sawmill Package Store, West Haven

February 15, 2019: ExxonMobil payment, West Haven

February 16, 2019: Carriage House, New Haven

February 16, 2019: Purchase at Around the Clock, New Haven

February 16, 2019: Purchase at Walgreens, New Haven

February 17, 2019: Carriage House, New Haven

February 17, 2019: Purchase at CVS, Hamden

February 17, 2019: Purchase at Tommys Tanning, Hamden

February 17, 2019: Non-WF ATM withdrawal Whitney Ave, Hamden

February 18, 2019: Carriage House, New Haven

February 18, 2019: Uber used on new device in Hamden

February 18, 2019: Non-WF ATM withdrawal Hamden Plaza, Hamden

February 18, 2019: Non-WF ATM withdrawal Dixwell Ave, Hamden

February 18, 2019: Non-WF ATM withdrawal Whitney Ave, Hamden

February 18, 2019: Purchase at McDonalds, Hamden

February 19, 2019: Non-WF ATM withdrawal Whitney Ave, Hamden

February 19, 2019: Uber ride from West Haven to Hamden

February 19, 2019: Booking.com The Blake Hotel, New Haven

February 19, 2019: Purchase at Drizly, New Haven

February 20, 2019: Uber ride from Milford to New Haven

February 21, 2019: Uber ride from New Haven to Milford

February 21, 2019: ATM withdrawal Hemingway Ave, New Haven

February 21, 2019: Purchase at Zachary’s Package Store, New Haven

February 21, 2019: Purchase at Fatface Corporation, New Haven

February 21, 2019: Purchase at Patagonia New Haven

February 21, 2019: Parking paid in New Haven

February 23, 2019: Booking.com Marriott Worcester

February 24, 2019: Purchase at Whiskey on Water, Worcester

February 26, 2019: Uber ride from New Haven to New Haven

February 26, 2019: Purchase at Energy, Berlin

February 26, 2019: Purchase at Walgreens, New Haven

February 26, 2019: Purchase at Pizza Plus, New Haven

February 26, 2019: Non-WF ATM withdrawal College Street, New Haven

February 27, 2019: Non-WF ATM withdrawal College Street, New Haven

February 27, 2019: Non-WF ATM withdrawal George Street, New Haven

February 27, 2019: Uber ride from New Haven to New Haven

February 28, 2019: New sign-in to Twitter on Safari in New Haven

February 28, 2019: Non-WF ATM withdrawal Chapel Street, New Haven (2X)

February 28, 2019: Non-WF ATM withdrawal Church Street, New Haven

February 28, 2019: Non-WF ATM withdrawal George Street, New Haven

February 28, 2019: Non-WF ATM withdrawal Broadway, New Haven

February 28, 2019: Purchase at Meat&Co, New Haven

February 28, 2019: Purchase at Rite Aid, New Haven

February 28, 2019: Pick-up iPhone XR at Apple New Haven

February 28, 2019: Uber ride from Naugatuck to New Haven

February 28, 2019: Uber ride from New Haven to Naugatuck

March 3, 2019: ATM withdrawal Campbell Ave, New Haven

March 4, 2019: ATM withdrawal Foxon Blvd, New Haven

March 4, 2019: ATM withdrawal Hemingway Ave, New Haven

March 6, 2019: Purchase at Sunoco, Naugatuck

March 6, 2019: Purchase at Family Dollar, Naugatuck

March 6, 2019: ATM withdrawal Whalley Ave, New Haven

March 6, 2019: New sign-in to Twitter on Safari in New Haven

March 6, 2019: ATM withdrawal Church Street, New Haven (X4)

March 6, 2019: Purchase at Temple Wine and Liquor Store, New Haven

March 6, 2019: Uber ride from New Haven to New Haven

March 6, 2019: Booking.Com Omni Hotel New Haven

March 7, 2019: Uber ride from West Haven to New Haven

March 8, 2019: Uber ride from point to point in New Haven

March 8, 2019: ATM withdrawal Hemingway, East Haven

March 9, 2019: Quality Inn, New Haven (2X)

Hunter Biden’s Prosecutors Complained about the Laptop, Once, Too

June 17, 2024/11 Comments/in 2020 Presidential Election, 2024 Presidential Election, Hunter Biden /by emptywheel

Just over a month ago, Judge Maryellen Noreika denied Hunter Biden’s request to compel prosecutors to provide better guidelines about where it had obtained evidence they would use against him. Because Derek Hines had identified the individual messages he used in a filing — including the Keith Ablow picture of sawdust Hines claimed was cocaine — she deemed the request moot.

Defendant closes his motion with a request that the government be ordered to “generally point defense counsel” to where, on a forensic image of Defendant’s “Apple MacBook Pro,” certain text and photographs can be located. (D.I. 83 at 18). That forensic image was produced to Defendant in October 2023 without an index, without any Bates stamps and without any indication of what will be used at trial. (Id. at 17). Although the government produced the laptop in the specific format requested by Defendant (D.I. 86 at 19), he complains that he has been unable to locate on the image certain text and photographs relied upon by the government (D.I. 83 at 17-18). In its opposition, the government provides an exhibit with images and annotations that appears to identify where the information resides on the laptop. (See D.I. 86 at Ex. 1). As best the Court can tell, this response satisfied Defendant, and there are no further outstanding requests with respect to the laptop. (See D.I. 89 at 19-20 (recognizing that the government has no index and expressing appreciation for the government’s disclosure of location of information)). Therefore, Defendant’s request as applied to the Apple MacBook Pro appears moot.

Noreika’s refusal to require a searchable format came up at least twice at trial (probably three times). I’ve already described how prosecutors sprung the 7-Eleven texts on Hunter the morning of closing arguments. Hunter’s team surely looked for communications between Hunter and Naomi Biden before they put the daughter on the stand, but they seem to have been surprised by some texts changed that week (note, those texts were only used to refresh her memory, so did not come in as exhibits).

But even prosecutors complained that they couldn’t find things that had been on the laptop.

Before dropping four pages of new texts on Hunter Biden the last morning of trial, days earlier, Leo Wise complained that Hunter’s team had only identified the location of eight pages of texts they wanted to use to cross-examine Hallie the night before Hallie testified.

MR. WISE: The first issue is globally, we got this at 11:07 last night that actually provided the sources for these messages. We have been asking for it since Monday when they sent it to us. We of course provided our summary chart months ago. The whole point of the rule, 1006 to allow each side to check the accuracy of the statements that are in the summary chart. So we think the whole thing should be kept out because we haven’t had the time and they haven’t followed the rules to give us the time. And it’s eight-pages long.

Lowell responded that they had given the texts earlier; they had just provided the location the night before.

MR. LOWELL: Yes, of course. So as to the first one, Mr. Wise would indicate that the first time he saw these texts was whenever he just said. Actually, over the last few days we have back and forth, they keep asking us for source material and we keep trying to provide it.

THE COURT: What are these sources that they all have exactly the same number?

MR. LOWELL: I would like my colleague to address the source if I could have that happen.

MR. WISE: I didn’t say we saw the text for the first time last night, I said we saw the source.

Judge Noreika suggested that one thing prosecutors were trying to do was challenge the authenticity of the texts. Lowell reminded that he got Agent Jensen to vouch for authenticity on the stand.

THE COURT: I understand, you were trying to check the accuracy and authenticity.

MR. LOWELL: Again, one of the things I asked Agent Jensen was whether or not that material, the Cloud material, and the laptop was in the condition that they got it and whether they provided it to us in discovery and whether it was the same material and she said it was. That is the source, they have it and they sent it to us, we sent it back to them, but I’ll have Mr. Kolansky address the source for it.

MR. WISE: I don’t think they sent it back to us. But again, if you look at our chart, we literally have page 1001, I’m looking at a message 86, page 1412, so that they could go back exactly to where this message comes from and it was provided months ago.

That’s when Hunter attorney David Kolonsky revealed he was working from the hard drive of the laptop prosecutors provided and Hunter’s team used a different extraction tool to work from there.

MR. KOLANSKY: Your Honor, these messages that start on October the 11th, they’re extracted from the hard drive that we received in discovery from the government. It was a single hard drive with essentially, if you think about it —

THE COURT: So was there a way for you to say it’s on page whatever of the hard drive?

MR. KOLANSKY: There is not, Your Honor.

THE COURT: How did they do it?

MR. KOLANSKY: I don’t know how they do it, I don’t know what software they used.

THE COURT: How did you give them a specific place to go and he’s saying you can’t.

MR. WISE: We gave it to them both ways, they asked for the raw data and then we also gave them these extraction reports that reflect all of the messages that we are using with page numbers and all of the messages they’re using, they’re just somewhere in these 18,000 pages and they won’t tell us where.

THE COURT: You’re assuming they’re somewhere in these 18,000 pages, you don’t know?

MR. HINES: They keep saying they’re from the same data, so that means they should be on the extraction reports and the extraction reports are pages that are–

THE COURT: Can you get them that information?

MR. KOLANSKY: We can get them the information based on an extraction report that we created using an extraction software we have. It’s not going to match —

THE COURT: Did they give you an extraction —

MR. WISE: We gave them an extraction report, they did not give us whatever he’s referring to that has page numbers that we can look at.

THE COURT: So you gave them an extraction report, the same extraction report you used to come up with page numbers?

MR. WISE: Exactly.

THE COURT: Can you use that extraction report and give them page numbers?

When Judge Noreika asked why Kolansky didn’t just use the extraction report prosecutors provided, he said he couldn’t find all of them.

MR. KOLANSKY: When I searched these messages last night, Your Honor, for each of the 42 rows, I did not find these messages in the extraction report that they’re referring to.

MR. WISE: So they have discovery, an extraction report that they’re relying on that they haven’t give us which is the underlying material that supports under 1006 the summary report and they should have given it to us.

MR. KOLANSKY: Your Honor, we’re happy to provide the extraction report that we generated.

THE COURT: Why are you doing that today when you expect to use the exhibit today?

MR. KOLANSKY: It’s an extraction report that we used in order to thread the messages so that they’re readable.

THE COURT: Yes, but — what I’m confused about is you’re not giving them the information in the same way that they gave it to you. You’re saying — he’s saying look, tell us where it is, we gave you an extraction report and you’re telling me but it’s not in, it’s something new that wasn’t in the government’s extraction report and you can’t tell us where it is?

MR. KOLANSKY: Let me try to rephrase it, maybe I’m mischaracterizing it. When we —

THE COURT: Was it in the — so the government gave you an extraction report, you’re telling me these messages you want to use were not in there.

MR. KOLANSKY: Correct. They were in something else.

MR. LOWELL: They were in a separate sub-data, the extraction reports were from the iCloud, these messages were derived not from the source file, but from Macintosh HD, Macintosh hard drive, so there is two worlds of discovery, iCloud, and those were the extraction reports, and then material from the hard drive, which we extracted ourselves based on the forensic images they provided.

THE COURT: Did you give them an extraction from the hard drive?

MR. WISE: Yes, from the laptop. There is an extraction– that’s why if you remember when Agent Jensen was testifying, the format changed —

THE COURT: So these are messages that you’re using from the laptop, not from the — not from the iCloud.

MR. KOLANSKY: They’re from the hard drive that we received from the government.

THE COURT: The hard drive image is from the laptop. You guys are talking, I got laptops and hard drives, and I don’t even know what else I got, iClouds, oh my.

MR. KOLANSKY: Yes, that’s right.

THE COURT: So the hard drive, though, is the hard drive that correlates with the laptop.

MR. KOLANSKY: Yes, Your Honor.

THE COURT: So these are messages you want to rely on from the laptop that are not in the iCloud?

MR. KOLANSKY: That’s correct, Your Honor.

THE COURT: Okay. And you’re saying, Mr. Wise, that you gave them extraction files from the hard drive/laptop.

MR. WISE: Exactly.

THE COURT: And why didn’t you give them from that extraction file, the page numbers?

MR. KOLANSKY: I have not seen that extraction report, Your Honor.

MR. WISE: We provided it in discovery. It was — that’s how we made the chart, I mean, which they’ve had for months. So if they looked at that chart and said wait a minute this says laptop, we don’t have an extraction report from the laptop, where are you getting this from, we would have expected to hear that months ago. There is clearly an extraction report, that’s what the 1006 reflects and we reattached it when we provided our expert discovery.

MR. LOWELL: One point on that, by the way, if we’re talking about authenticity, which I think is half the issue, we talked to the government and have the stipulation about it being authentic.

Finally, Wise and Hines started claiming that the reason they can’t find these texts are because maybe they were filtered as privileged.

MR. WISE: There is sort of two things with that. We didn’t get everything that’s on that laptop. It went through a filter review. So we may or may not have. They have the whole set. So first thing —

THE COURT: Filter review from whom?

MR. WISE: A separate team that we have no access, we’re walled off for, it’s in the search warrant, that is the protocol that would be followed. The first thing is whatever they would want to show her, they should give us, we should see it so we know, and we’re not going to be able to sitting here sort of find it on the fly. If the question is authenticity, sure a witness can testify that, you know, this is a text I sent or an e-mail I sent and that gets them through the authenticity gate, but it doesn’t necessarily get them through the admissibility gate and the admissibility gate is often things like is it a business record, that’s how it comes in, is it some other exception —

[snip]

MR. LOWELL: Yes. So we will try to get that done quickly and figure that out. Again, not that I feel like I need to apologize, but we have been going back and forth. The data is incredibly dense and we have gotten it from the government in various ways. And now I’m hearing that they’re saying in their extraction report or what they did, there may be things missing, well we have them from them, so I don’t know how things we put here could be missing because we didn’t invent this, we got it from them.

THE COURT: So anything — maybe I should address this to your colleague. So anything that you have gotten or put on this chart is something you got from the government, not from any other source?

MR. KOLANSKY: That’s correct, Your Honor, and I proffer that and it comes directly from the government and that is why I endeavored to be as precise as possible to the original source file path they can stick it on the hard drive and get exactly to the folder where that message is derived from on the hard drive we received.

MR. LOWELL: Like last night I think, or yesterday afternoon, whenever we were able to go back, we provided them with the media that they can go and do exactly what Mr. Kolansky just said and check it. Now if they chose not to, I’m sorry but we gave it to them because that’s the best you can do with the data they gave us.

THE COURT: All right.

MR. WISE: No, no, we didn’t get any media, I got, 11:07, I saw something on my phone that has this path name that I don’t know what it is.

MR. LOWELL: I’m sorry, we gave them the file path one by one of something they gave us.

MR. WISE: Yeah.

THE COURT: The file path one by one, but the file path is identical.

MR. HINES: It’s filtered, we can’t see that but we can’t — and they know that from the search warrant, it’s in the search warrant.

THE COURT: So you’re limited in what you can do because you’re trying to protect rights using only the information allowed from the search warrant.

MR. WISE: Exactly.

MR. LOWELL: What I’m learning for the first time, understand this, they have provided us in discovery things that they’re saying that the investigative team does not have. So I didn’t realize that, I thought it was a one to one match, you would have assumed that otherwise I don’t know why they would have sent it to me, it’s not attorney/client materials we’re talking about, it’s conversations between Mr. and Ms. Biden, so I don’t understand that.

MR. WISE: It’s Rule 16, it’s his statement, we have to turn it over, if it’s privileged, we don’t get to see it if it goes through a filter, this is not anything new, the search warrant says it went through a filter.

Even Judge Noreika scoffed that the government would have filtered communications between Hunter and Hallie as privileged, which led Wise to channel Donald Rumsfeld invoking known unknowns.

THE COURT: He’s saying this is conversation between Mr. Biden and Ms. Biden, there is no arguable privilege here.

MR. WISE: Again, we don’t know what we don’t know, when they say we got it, we don’t have it

Again, Hunter’s team blew the deadline for exhibits, so part of this was their fault (though these were exhibits for cross-examination).

But ultimately, Hines and Wise’s silly claims that they couldn’t find individual comms either stems from the failure to do an index of the laptop in the first place.

Even prosecutors had a problem with the complexity of the laptop, and in that moment, tried to claim (in part) that they could exclude material from the laptop they had testified was authentic because they couldn’t find it.

The Pee Tape: The Media’s Obsession with Jill Biden May Undermine the Jury

June 14, 2024/8 Comments/in 2024 Presidential Election, Hunter Biden /by emptywheel

Let say at the outset, I absolutely support the decision of the jury to convict Hunter Biden, based on the evidence submitted to them.

This description, from Juror 10, describes that Abbe Lowell’s attempt to explain away the 7-Eleven texts sprung on the defense the morning of closing arguments convinced the jury that Hunter had been trying to buy crack shortly before he denied being an addict on the gun form.

The 68-year-old juror from Sussex County, Delaware described the case to Fox News but said he didn’t buy the defense’s narrative that Hunter may have gone to a 7-Eleven to buy coffee — and said he thought he was probably buying crack-cocaine.

“Nobody is above the law, doesn’t matter who you are,” the juror said.

Prosecutors had suggested that Biden was trying to reach out and find drug dealers when he was arranging to meet someone at a Wilmington convenience store at 5 a.m. 7-Eleven was referenced in Biden’s Oct. 15-16, 2018, text messages. Biden also wrote about the convenience store in his memoir, “Beautiful Things,” explaining it was the type of place he would go to buy drugs.

That would suggest any question about the verdict would focus more on the way the prosecution submitted these texts, without identifying them as exhibits first, as a rebuttal case.

As zscoreUSA and I were discussing when I described the background of the texts, by submitting them in this way, Abbe Lowell had no opportunity to conduct a technical review of how those SMS texts, probably sent from a phone that Hunter lost the day he sent them, came to be found on a laptop that didn’t first associate to Hunter Biden’s iCloud account for another ten days. (He may later have found the phone, but this particular instance is a case that prosecutors would need to explain.)

So admitting them in this way did two things: Admitted case-in-chief evidence as rebuttal evidence, even though it had no plausible tie to rebutting Naomi Biden’s testimony, the pretext prosecutors used for doing so, and in so doing, depriving Lowell of making a technical challenge to their admission.

As I said before those texts came in, the case that Hunter used drugs during the period he owned the gun was strong. That made the decision on Count Three, possession, fairly clear cut. Short of nullification, the biggest question was whether jurors would find the sketchiness surrounding the form raised enough questions about it to give pause on the two form-related charges. Apparently it did: according to one report the last thing the jury decided was whether the form could be deemed material in a case where the gun shop admitted they sold the gun even though the paperwork was improper.

But once those 7-Eleven texts came in, it made any attempt to explain mindset at the gun shop far less convincing. As Lowell said, the texts were “case changing.”

So any question about the verdict will focus not on the jury, but on five decisions Noreika made:

To permit the prosecution to rely on laptop evidence without indexing and Bates stamping it first
To admit laptop evidence via summary, evading any technical validation
To prohibit virtually all discussion of the gun shop’s own alleged misconduct with respect to the form
To allow prosecutors to admit these texts as rebuttal, when they should have come in — as identified exhibits — in their case in chief
To keep “knowingly” off the verdict form

Again, with regards to the substance of the evidence, all of the many juror interviews demonstrate that the verdict was proper. I’m grateful for their service and happy that they’re not terrified of being doxxed, as all the Trump jurors (wisely) appear to be.

That said, the media’s obsession on whether Jill Biden’s presence in the courtroom played a factor — a question they seemed to ask every time a juror gave an interview — could undermine the jury in another way, because it introduces questions of juror credibility and raises further questions about their discussions before deliberating.

That’s because this tweet from Glenn Thrush suggests that jurors and the media were, at a minimum, aware of, if not interacting with, each other as they all stayed at the Doubletree Hotel next to the courthouse.

Juror 10, who lives an hour away from the courthouse, is among those who might have stayed at the hotel.

The jurors all promised they would keep an open mind. But there wasn’t a single journalist at the trial who exhibited an open mind — and almost none of them exhibited an understanding of the elements of offense for each of the three charges. Almost none of them understood that the four years of evidence of addiction was not dispositive about Hunter’s mindset on October 12, 2018.

The jurors were much smarter about the case than the tabloid journalists covering it. So even if jurors just heard reporters discussing the case at breakfast or the hotel bar, it might taint their understanding of the case (though Judge Noreika asked jurors Tuesday morning and they said they had not “[heard] anything” outside of the courtroom).

All the more so given that jurors went from a 6-6 split on the verdict on Monday to coming to unanimity after a few hours on Tuesday.

Because of the import of the 7-Eleven texts, any such taint likely wouldn’t matter.

But there is something that jurors have said that might raise questions.

Because the press asked and asked and asked about Jill Biden’s presence, there are many descriptions of how the jury viewed her presence, such as this claim from the ubiquitous Juror 10.

Some jurors confessed that they didn’t initially recognize the first lady, who was a constant figure sitting behind Hunter Biden in the courtroom gallery.

“People were saying, ‘I didn’t even know what President Biden’s wife looked like,’” juror No. 10 said, adding that he felt badly that Hunter Biden’s daughter, Naomi Biden, was called to testify.

Juror 10 balked at that same question here.

CNN, however, said that all the jurors it spoke with “acknowledged the weight of having her in the courtroom,” (with yet another quote from Juror 10).

The reason this matters is that one juror and two alternates ran into Jill Biden and Melissa Cohen Biden last Wednesday when they decided to use the public bathroom rather than the dedicated jurors’ bathrooms.

THE COURT: So during the break, three jurors decided that they didn’t want to wait in line in the jury room because there are 16 of them and one bathroom or two, and so they went out in the hall and they went to the bathroom. It was juror number nine, and it was two of the alternates, I believe it was the remaining — the first two remaining alternates, not the older woman on the —

MR. KOLANSKY: Younger woman.

THE COURT: Yes, the two younger women. And so they went to the bathroom and the Marshal saw them in there and came back. Mr. Biden’s wife was in there at the time. And she was in the stall, and she was coming out of the stall when they were — when they were — I guess washing their hands or something.

So I instructed my deputy that he needs to be much sterner that they — with all the jury, that they cannot leave unaccompanied. I then called in each of the jurors one at a time into my chambers to reinforce that, but also to ask them what happened.

They each gave very similar stories. They said you know, didn’t want to wait in line, they opened the door from my chambers, there is a hallway back here, my chambers is on the other side, so they walked down this hallway, got to the door, and they saw security. I assume it was Secret Service, because I think Mrs. Biden stands out there. They said they waited and someone gave them a thumbs up and they walked to the bathroom, went to the bathroom, were coming out and as they were coming out, they saw Mrs. Biden, the younger Mrs. Biden, coming out of the stall. That there were no — there was no discussion, no interaction, but they saw her, and then one of the jurors said when it was — one of the alternates, she said when she was walking back, she looked sideways, and saw the first lady, that one didn’t bother me because you can see the first lady sitting in the courtroom. That’s what happened, if you guys want to do anything, if you want to ask them any questions you can, but I just want to put on the record that happened.

MR. LOWELL: Appreciate you telling us that, there was no verbal interaction?

THE COURT: There was no verbal interaction, were you guys discussing anything you’re not supposed to be discussing about the case, were you discussing anything in the bathroom?

MR. LOWELL: There is nothing I need to say.

THE COURT: No, she didn’t do anything wrong.

MR. LOWELL: She just went to the bathroom?

MR. HINES: Today?

MR. LOWELL: Right. I understand.

Getting questioned — without warning to the lawyers in advance — about this interchange changed the focus on Jill Biden.

We know, from the sidebar on Hallie Biden’s interactions with her spouse, that jurors were discussing interactions with family members when they shouldn’t have been. Indeed, one of the alternate jurors was the one who first raised the exchanges Hallie Biden was having from the witness stand.

And Juror 10’s chummy interviews with the press raises questions about discussion of Jill Biden’s presence, possibly in response to this exchange.

Leo Wise’s Performed Ignorance

June 14, 2024/7 Comments/in 2020 Presidential Election, 2024 Presidential Election, emptywheel, Hunter Biden /by emptywheel

I want to look at a tactic that Leo Wise — who purports to be enforcing Rule of Law — used at the Hunter Biden trial, because it demonstrates how aggressively he polices the boundaries of his own plausible deniability, plausible deniability he used elsewhere in these proceedings to make claims he should know are false.

I’ve already pointed to the nutty response Abbe Lowell elicited from Jason Turner who, when he worked at the gun shop where Hunter bought a gun (he now works for the US Mint!), was in charge of ensuring paperwork was in order.

Turner’s testimony appears to be totally honest. He said, first, that he told Gordon Cleveland to get a second form of ID. And then, without saying whether Cleveland did do so or not, said that if he had, Turner would have written it on the line for doing that.

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

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

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

A. I would have written it right in there. [my emphasis]

When Lowell asks Turner why it’s not on the form, Turner then changes from the conditional tense to the past tense. “I would have written it … I wrote that.”

Four times Turner asserts he did write that he had gotten a vehicle registration.

According to the publicly known facts, he did write it — two or three years after the fact.

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

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

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

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

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

A. 18(b), car registration.

Q. You wrote it?

A. I wrote it.

Q. Where is it?

A. I wrote vehicle registration in there. [my emphasis]

But then Lowell asks him where it is on the form. “It’s not there,” Turner also truthfully describes.

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

A. It’s not there.

Leo Wise — who purports to be enforcing Rule of Law — interrupts to halt this line of questioning. He states that this line of questioning has been excluded (expanding the already expansive limits on Hunter’s Sixth Amendment Judge Noreika authorized), and then offers up that poor Jason Turner is simply describing his memory of writing the form.

The second form of identity required by rule of law, Leo Wise — who purports to be enforcing rule of law — says, is irrelevant.

MR. WISE: Your Honor, may we approach side-bar?

(Side-bar discussion.

MR. WISE: So this line of questioning was excluded, he has a memory of writing it, he hasn’t established when, he’s not impeached him, he said he remembered writing it in. He’s asking him about the day, but he’s not distinguishing, and this is simply irrelevant, a secondary form of ID is irrelevant.

Lowell responds (and while all the lawyers in this case were willing to game the limits of trial conduct, in this case, this is completely believable) that he had no idea how Turner would respond to his question.

MR. LOWELL: Wow. I have no idea he was about to say what he just said, that he wrote in a different form of identification.

THE COURT: He’s confused as to the time.

MR. LOWELL: I know he is and I’m not going there but he said it, so I just wanted to ask who wrote it, where is it, I didn’t know he was going to say that, judge.

MR. WISE: He did know that because the [Jencks] that we gave you from Palimere, said Palimere told him to write it.

MR. LOWELL: Two years later.

MR. WISE: That’s not your question.

MR. LOWELL: I’m asking him on that day, I’m asking him on that day.

THE COURT: What you can do now is you can just say there is nothing about the vehicle registration. It is not written in this box on this version of the form.

Ultimately, Judge Noreika believes that Lowell had no idea how Turner would respond, because she was surprised herself.

MR. LOWELL: Okay. But let’s be clear on the record, when you say I knew he was going — I had no idea he was going to say that.

THE COURT: I take your word for that. I didn’t know he was going to say that.

After that exchange, Lowell got Turner to concede that the registration was not marked on the form.

(End of side-bar.

BY MR. LOWELL: Q. So what I was asking you is from whatever you just said about the testimony of anything having to do with the registration, you and I can be clear that on this form that has the date on it, there is no such reference in line 18(b), right?

A. There should be.

Now, note that Leo Wise handled cross of Turner and — as we’ll see — of Ron Palimere, the gun shop owner. We know that Derek Hines attended an interview with Palimere in May, and neither prosecutor attended an interview with Cleveland; FBI Agent Erika Jensen did that by herself.

But Wise undoubtedly knows that Hines met with Palimere mere weeks ago, at which Hines reiterated the proffer that prohibited prosecutors from using Palimere’s admission that, “No one thought to get supplemental information” substantiating that Hunter lived at his father’s address because, “everyone in the area knows who lives” there. Wise undoubtedly also knows that Palimere described just writing something convenient in on the form, because “it was all they could think of.”

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.

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.

Wise undoubtedly knows all that.

But he did something notable to pretend to have plausible deniability about it, to pretend to have nothing to do with any uncertainty that Lowell might introduce.

When Lowell asked Palimere a question he didn’t ask of Turner (whether they had ever met before, a fairly standard trial question), Leo Wise objected when Lowell said that Palimere had met with “prosecutors,” plural.

Q. My name is Abbe Lowell, we’ve never met?

A. No, sir.

Q. Never spoken?

A. No, sir.

Q. You have spoken to the prosecutors and investigators in the case, right?

A. Yes, sir.

Q. And we have —

MR. WISE: Your Honor, I object to that question, prosecutors and investigators, we’ve never met as well.

MR. LOWELL: I’m sorry.

BY MR. LOWELL: Q. You have met with members of the FBI?

A. Yes, sir.

Q. Even recently; correct?

A. Yes, sir. [my emphasis]

Wise objected to the question, one that Palimere had already answered in the affirmative, creating the illusion of plausible deniability, one that served to obscure that Derek Hines had not only met with Palimere, but learned that Palimere knowingly sold a gun without proper paperwork.

Wise had no questions for Parlimere.

But he did for Turner.

Indeed, even before he introduced himself, he asked Turner whether Hunter’s attorneys had succeeded in meeting with him before trial. Turner didn’t respond. Instead he suggested that they had set up a meeting but Hunter’s attorneys, “can’t be on time for nothing.”

Q. Good morning, Mr. Turner.

A. Good morning.

Q. So you were subpoenaed by the defense as a witness, right?

A. Correct.

Q. Did they try to talk with you before they did that, before you testified here today?

A. That’s a whole mess of stuff right there.

Q. Really?

A. I got the subpoena, I had to call them.

Q. Uh-huh.

A. And they can’t be on time for nothing.

Q. What does that mean?

A. I work third shift.

Q. Uh-huh.

A. And so I should be sleeping right now.

Q. What does third shift mean?

A. Third shift, that’s on the other side of the clock from everybody else, I go in at 6:00 p.m., I get done at 5 a.m.

Q. Is that what you got done today?

A. Yes.

Q. All right. So I just have a — you and I have never met, right, Mr. Turner?

A. I don’t even know you from nobody.

Q. I just have a couple of questions?

In fact, Judge Noreika even interrupted to remind Wise to introduce himself!

THE COURT: Did you introduce yourself?

MR. WISE: I’m not sure. I will.

THE COURT: He said he doesn’t know you.

BY MR. WISE: Q. My name is Leo wise, I represent the United States in this case. Nice to meet you.

So if we could have government Exhibit 10A on the screen. This is the form that Mr. Biden filled out that Mr. Lowell asked you about, right?

A. Correct. Actually that form is wrong.

As she did not do when, for example, Kathleen Buhle answered a question that had been excluded from questioning by offering up that Hunter had, “gotten kicked out of the Navy for testing positive for cocaine,” Judge Noreika warned Turner not to answer questions prosecutors had not asked.

THE COURT: Just take it one step at a time, only answer the questions that he asks.

THE WITNESS: Yes, ma’am.

Wise badly wanted to know whether Lowell had learned any of the details prosecutors were hiding from him, so much so he forgot his manners.

Part of this was about preventing jurors from learning that Leo Wise’s application of Rule of Law is, in fact, selective, from learning that Wise’s sidekick Derek Hines had in fact already immunized a potential crime, one with potentially greater impact on society, from these witnesses.

But part of it was also about policing his own plausible deniability.

The Scolding that Hunter Biden Should Have Pled Guilty Ignores the Complexity of What Happened

June 12, 2024/21 Comments/in 2020 Presidential Election, 2024 Presidential Election, Hunter Biden /by emptywheel

In the wake of yesterday’s verdict against Hunter Biden, there are a lot of armchair quarterbacks and hacks mulling why Hunter Biden didn’t simply plead guilty.

One of the only thoughtful, factually accurate pieces I’ve seen is this, from Dennis Aftergut. After accurately describing how David Weiss reneged on the original plea deal in the face of Republican pressure, Aftergut nevertheless describes that Hunter should have pled guilty anyway, assuming that the judge who intervened to kill the diversion that would have amounted to a probation sentence would sentence Hunter leniently if he took responsibility as he tried to last July.

Maybe he thinks he’s got a chance on appeal, given the Supreme Court’s expansion of Second Amendment rights. But successful appeals of criminal convictions are historically very long shots — about 1 in 15 get reversed — and it’s hard to see appellate courts ruling that the right to buy a gun includes the right to lie to get one.

The conviction will hurt Hunter Biden’s father personally, and it can’t help him politically. The right wing’s fact-free attempts to link President Biden to his son’s criminality would have been there even with a plea, but Hunter taking responsibility for his conduct would have diminished the MAGA narrative’s staying power.

One thing’s for sure: The hung jury or the acquittal Hunter Biden was hoping for would have been a political disaster for his father — and for the nation, in this election where the rule of law is on the ballot. For many in the media and for a substantial portion of the electorate, former President Donald Trump’s conviction for falsifying business records in connection with buying Stormy Daniels’ silence to corrupt the 2016 election contrasted with Hunter’s non-conviction would have exponentially amplified the MAGA screams claiming that there are two standards of justice.

Even ignoring Noreika’s statements (including a comment in a bench conference that she thinks Hunter violated the law by putting his dad’s address on the gun form), one problem with these think pieces is, to the extent they consider appeals, they usually limit their consideration of the nature of appeal. Most, as Aftergut did, focus primarily on a Breun appeal of the gun charge.

Prosecutors charged this to make such a challenge almost useless. Even at the plea hearing, Judge Noreika inquired why prosecutors hadn’t included a felony false statements charge, particularly in light of constitutional challenges to the underlying statute.

THE COURT: I have had one or two cases involving a person struggling with addiction who bought a gun, we usually see a felony charge for false statement. The Defendant has admitted that his statement was false, but he wasn’t charged. Again, I’m not trying to get into the purview of the prosecutor, and I understand the separation of powers, it’s in your discretion, but I just want to ask, does the government have any concern about not bringing the false statement charge in light of our discussion of 922(g)(3) and the constitutionality of that charge.

And in their response to Hunter’s constitutional challenge, prosecutors argued that the false statements charges would survive even if SCOTUS overturned the possession charge.

The Supreme Court has concluded in many cases, across many decades, and in many different contexts that a defendant cannot make a false statement to evade a statute the defendant believes is unconstitutional and escape criminal liability for the false statement by arguing the unconstitutionality voids his knowingly false statement: “Our legal system provides methods for challenging the Government’s right to ask questions—lying is not one of them. A citizen may decline to answer the question, or answer it honestly, but he cannot with impunity knowingly and willfully answer with a falsehood.” LaChance v. Erikson, 522 U.S. 262, 265 (1998) (quoting Bryson v. United States, 396 U.S. 64, 72 (1969)). In 1937, for example, the Supreme Court held that defendants charged with defrauding the United States by misrepresenting the identity of hog producers could not escape criminal liability by arguing that the statute and regulations requiring the information to be furnished were unconstitutional. See United States v. Kapp, 302 U.S. 214, 215, 218 (1937)

By charging possession and false statements, prosecutors made it risky at best to plead guilty with the intent of appealing on constitutional grounds alone, because the false statements charges with the same punishment may well survive a successful constitutional challenge anyway.

At least until Judge Noreika prohibited Hunter from introducing the doctored purchase record or even pressing gun shop employees about it, Hunter had a shot at raising questions about other elements of offense on the two documents charge. Indeed, per Juror 10, the question of whether Hunter’s lie on the form was material is the one thing that held up a conviction yesterday, so a bid for acquittal on the document charges had more promise than defeating the possession charge.

Biden also filed an as-applied challenge after the government rested, arguing that the facts as presented at trial make the charge unconstitutional, something that required developing a trial record. That, too, may have been defeated by Leo Wise’s exceptional prosecutorial dickishness. Notably, Lowell argued there was no location data showing him at 7-Eleven.

There is no video of Mr. Biden at the 7-11 or CCTV of him near the intersection where he was supposedly sleeping on his car, no location evidence (and if there was, there are bars and restaurants in the areas as well) , or any other evidence.

And then prosecutors used the pretext of an answer Naomi Biden made to introduce just such evidence, effectively using their pretextual rebuttal argument to fight this as-applied appeal.

Aftergut notes in his piece that Hunter also challenged the indictment on a selective and vindictive basis, which he also describes is almost impossible to win. That remains true. But even in the lead-up to the trial, prosecutors had to confess that the government discovered in 2021 that the gun shop may have also violated the law with regards to this sale by doctoring the form after the fact, but nevertheless extended a proffer to the gun shop owner so he could confess he sold the gun without second ID because he wanted to get Joe Biden’s son out of his store quickly. Prosecutors also turned over evidence that the gun shop owner had worked to make this gun sale public in 2020 in hopes of raising the political pressure on the case not being charged. By going to trial, Hunter developed evidence that prosecutors chose to charge Hunter while providing a proffer to the guy who brought pressure to charge it in the first place.

And there’s a fact set regarding claims of vindictive prosecution that are unprecedented. Noreika simply ignored the import of Weiss’ decision to renege on the deal because he decided to chase the transparently false Alexander Smirnov lead that he had first gotten in 2020, something that Abbe Lowell preserved before her (but did less well before Judge Scarsi). It is literally the case that Donald Trump’s Attorney General set up a side channel for dirt from known Russian spies that resulted in an attempt to frame Joe Biden and that attempt to frame Joe Biden was the reason prosecutors reneged on the deal last summer.

Aftergut is silent about an appeal on the immunity claim, Hunter Biden’s belief that the original diversion agreement which both parties signed prohibited the government from charging these felonies. As it is, there is a District conflict, with Judge Mark Scarsi ruling that the diversion agreement was valid but had not been put into effect, and Judge Noreika ruling that — after her own head of Probation had refused to sign a deal she had already approved — the deal never went into place. If an appeal of that succeeds, especially if it were quick and succeeded before September, then the September trial might be affected as well.

Abbe Lowell also seems to at least suspect that prosecutors have withheld Brady material, which if he can ever prove it, is another thing that would undermine this prosecution.

Now, Hunter could have challenged some of these without going through the pain of trial. But not all of them.

What we have watched since last July is an incredibly contentious fight in which prosecutors who, as Republicans wailed and threats proliferated, chased the false claims of a guy with ties to Russian intelligence, and now demand that Hunter simply suck up felonies because they did so.

And things get worse as we move to Los Angeles. There, the felony counts for writing off payments to people like Lunden Roberts (and several other women, one of whom may be Zoe Kestan, whose fashion business Hunter was fronting) are charged along with three counts of dubious propriety: the 2016 failure to pay (for which Hunter has argued statutes of limitation have expired) and 2017 and 2018 failure to file, for which venue is either definitely (for tax year 2017) or arguably (for tax year 2018) invalid. Hunter could plead to that indictment, but he’d be pleading to charges that were improperly filed.

Prosecutors have promised to make the Los Angeles trial even more cruelly embarrassing than the Delaware trial, introducing a bunch of evidence of influence-peddling that should be unrelated to the tax charges charged. That is, if Hunter goes to trial to argue that he didn’t remember some of the expenses he wrote off and got advice supporting others, Weiss’ team at least plans on airing Hunter’s relationship with people like Tony Bobulinski, yet another witness in this case alleged of wrong-doing on his own part but not charged.

But here’s the thing everyone keeps forgetting: going to trial may not matter. Because Merrick Garland capitulated to David Weiss’ demand for Special Counsel status to chase Alexander Smirnov’s false claims, Weiss gets to write a report. We’ve already seen John Durham simply fabricate things in his report, including things (like a narrative of all the investigations into Hillary during the 2016 election that Durham deceitfully claimed showed special treatment) that were far afield of the investigation itself. And Weiss’ prosecutors have already proven even more dishonest, with Derek Hines falsely implying he found Hunter Biden’s 2019 New Haven crack pipe in Wilmington in October 2018 on four different occasions, the narrative equivalent of a dirty Baltimore cop framing a defendant by bringing a crack pipe to an alleged crime scene and planting it.

Because David Weiss got the mandate to file a report because he chased Alexander Smirnov’s false claims, recent practice means he can say pretty much anything about Hunter Biden in a report he wants. Weiss’ prosecutors did something incredibly stupid and as a result they’re rewarded with a guaranteed opportunity to dirty up Hunter Biden some more.

So the only difference between deliberate humiliation in a September trial and deliberate humiliation in a report is when it takes place. Leo Wise and Derek Hines have made it clear they plan to continue humiliating Hunter Biden no matter what he does.

And that changes the calculus.

It may not change the wisdom of pleading out, perhaps pleading out in Los Angeles before a September trial brings out the obscene Tiger Beat journalists again for the election period.

But it does make simple bromides about how much better it would be to plead out overly simplistic.

“Case Changing:” The 7-Eleven Messages

June 12, 2024/9 Comments/in 2020 Presidential Election, 2024 Presidential Election, Hunter Biden /by emptywheel

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

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

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

A. Yes.

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

A. It’s like a safe.

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

A. Yeah.

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

A. It has a lock.

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

A. Yes.

Q. Was it broken?

A. No.

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

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

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

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

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

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

A. Yes.

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

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

A. Yeah.

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

Q. Yes.

A. Yes.

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

A. Yeah.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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