Maryellen Noreika Archives - Page 2 of 7

Posts

What Jurors Noticed about Hallie Biden’s Testimony

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A. Yes.

Q. And is your husband in the audience?

A. Yes.

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

A. Yes.

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

A. No, just support.

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

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

MR. HINES: She does.

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

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

MR. LOWELL: What a jerk I am.

THE COURT: My guess.

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

MR. HINES: No objection.

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

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

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

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

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

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

MR. LOWELL: Meaning that they talked about it.

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

MR. LOWELL: I understand

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

MR. WISE: I saw him.

MR. LOWELL: She also has her lawyer.

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

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

MR. LOWELL: Or maybe we let it be.

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

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

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

THE COURT: If she’s doing something improper.

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

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

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

MR. WISE: Right.

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

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

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

COURTROOM DEPUTY: All rise.

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

THE COURT: So you want me to do what?

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

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

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

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

THE COURT: Someone here —

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

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

COURTROOM DEPUTY: Kind of.

MR. WISE: Okay.

COURTROOM DEPUTY: It was a suspicious.

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

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

MR. LOWELL: Not support you.

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

THE COURT: Is your husband here with you.

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

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

MR. LOWELL: I object to all those questions.

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

MR. LOWELL: I mean in general, yeah.

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

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

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

MR. WISE: Okay.

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

MR. WISE: Yeah.

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

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

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

MR. WISE: Okay.

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

THE COURT: Yes.

MR. LOWELL: Is that the phrase?

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

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

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

MR. LOWELL: I mean —

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

Lowell again objects to any comment specifically about her spouse.

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

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

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

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

MR. LOWELL: Right.

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

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

THE COURT: Exactly.

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

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

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

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

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

June 11, 2024/19 Comments/in 2020 Presidential Election, 2024 Presidential Election, Hunter Biden /by emptywheel

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

[snip]

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

[snip]

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

[snip]

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

[snip]

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

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

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

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

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

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

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

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

The Bidens are Bidens.

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

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

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

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

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

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

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

June 10, 2024/11 Comments/in 2020 Presidential Election, 2024 Presidential Election, Hunter Biden /by emptywheel

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

June 9, 2024/33 Comments/in 2020 Presidential Election, 2024 Presidential Election, Hunter Biden /by emptywheel

As I keep reminding, Hunter Biden faces three charges.

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

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

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

Whether the defendant was either an unlawful user of a controlled substance or a drug addict

Whether the defendant knowingly possessed a firearm

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

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

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

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

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

That’s all circumstantial, of course.

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

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

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

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

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

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

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

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

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

June 9, 2024/18 Comments/in 2020 Presidential Election, 2024 Presidential Election, Hunter Biden /by emptywheel

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

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

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

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

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

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

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

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

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

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

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

A. Yes.

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

A. Maybe 5 or 6.

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

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

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

They’re not wrong, in theory.

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

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

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

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

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

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

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

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

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

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

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

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

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

June 8, 2024/95 Comments/in 2020 Presidential Election, 2024 Presidential Election, emptywheel, Hunter Biden /by emptywheel

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

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

Familial Tragedy

Start with Naomi Biden’s testimony.

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

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

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

A. Aside from trash and clothes.

Q. Full of trash and clothes?

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

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

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

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

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

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

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

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

A. Yes.

Q. Was that box locked?

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

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

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

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

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

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

Here’s how that testimony played out.

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

A. It was in good condition.

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

A. No.

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

A. No.

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

A. No.

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

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

A. I don’t remember.

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

A. No. I don’t remember.

Q. I’m sorry, I didn’t hear you?

A. I don’t remember.

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

A. No.

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

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

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

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

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

Hitjob Backlash

That might have sunk Hunter entirely and it still might.

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

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

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

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

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

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

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

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

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

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

A. Correct.

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

A. Yes.

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

A. Correct.

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

A. Correct.

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

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

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

A. I would have written it right in there.

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

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

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

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

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

A. 18(b), car registration.

Q. You wrote it?

A. I wrote it.

Q. Where is it?

A. I wrote vehicle registration in there.

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

A. It’s not there.

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

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

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

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

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

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

DEA’s Los Angeles traffic expert

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

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

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

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

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

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

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

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

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

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

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

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

A. Yes, sir.

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

A. Yes, sir.

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

A. Yes. 119.

Q. Do you see that one?

A. I do.

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

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

Q. Got it.

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

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

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

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

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

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

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

A. Correct.

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

A. It doesn’t appear to be, no.

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

A. Yes, sir.

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

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

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

A. Correct.

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

A. Correct.

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

A. Correct.

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

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

A. Correct.

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

A. That’s correct.

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

A. Correct.

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

A. Yes. Correct.

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

A. Correct.

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

A. Yes, sir.

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

A. None that I reviewed.

Q. No bags on a scale, right?

A. No, sir.

Q. No bags at all?

A. Correct.

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

A. None that I reviewed, no.

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

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

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

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

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

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

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

A. Correct.

Q. Usually not individual users?

A. That’s correct.

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

A. Nothing that I have reviewed would indicate that.

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

A. I have never done that, no.

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

A. Yes, sir.

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

[snip]

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

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

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

This testimony put the issue of priorities before the jury.

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

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

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

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

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

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

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

Reading, Rather than Bringing, Receipts

June 7, 2024/49 Comments/in 2020 Presidential Election, 2024 Presidential Election, Hunter Biden /by emptywheel

Here’s an interesting detail from yesterday’s Hunter Biden trial.

After getting Hallie Biden’s testimony — which probably got prosecutors what they need to prove Count 3, the possession charge (though Hunter’s team will bring at least one witness to discredit Hallie’s story) — they called Joshua Marley, the second of two guys who responded to Hallie’s police report on October 23, 2018.

The first guy to respond was a guy named Vincent Clemons.

Prosecutor Derek Hines walked Marley, the second guy to respond to Hallie’s police report, through what he represented Marley had heard Hunter Biden say in response to Clemons’ questions of Hunter Biden.

Q. Was he interviewed in your presence, and did you participate in an interview with him?

A. He was interviewed in my presence, I don’t know if I participated much.

Q. How far away were you standing from him during the course of this interview?

A. If I recall correctly, just a couple of feet.

Q. Who else was with you?

A. Sergeant Clemons.

Q. Was Sergeant Clemons asking the questions and you were sort of recording the answers?

A. Correct.

[snip]

Q. Do you believe he was the victim because his handgun had been stolen, or was that at least the investigation at that time?

A. Yes.

Q. And is that how it was reported at least?

A. Yes, that the gun was removed from his vehicle.

Q. Did Hunter Biden say anything about who owned the gun that was missing?

A. Yeah, he said he had purchased the gun on either the 12th or the 13th from StarQuest Shooter.

Q. Hunter Biden had said he himself had purchased the gun?

A. Yes.

Q. Did he say anything about how he discovered the gun was missing?

A. I believe he just went into his vehicle and found it was missing from the center console.

Q. Did he say that?

A. I think so.

Q. Did you prepare a report?

A. Yes.

Q. Would that be reflected in your report, if he had said it?

A. Yes.

Q. Would it refresh your recollection to see that report?

A. Sure, yeah.

MR. HINES: May I approach, Your Honor?

THE COURT: You may.

BY MR. HINES: Q. Could you read that second sentence there, starting with that word?

A. To be advised —

Q. No, just read it to yourself?

A. I’m sorry, okay.

Q. Does that refresh your recollection as to whether or not Hunter Biden said where he had — his gun had been?

A. Yes.

Q. What did he say?

A. That it was missing from the center console of the vehicle.

Q. He indicated where he had purchased the gun?

A. Yes.

Q. What was the location where he had purchased it?

A. The StarQuest Shooters gun shop on Concord Pike.

This was overkill. One of the elements of the offense on Count Three, the easiest to prove, is that Hunter Biden knew he possessed the gun. The easiest way to prove that is that Hunter signed the gun purchase form and then, 11 days later, found it gone from his truck console and immediately texted Hallie Biden about it.

But in an effort to get Marley to describe Hunter saying that he had found the gun missing from the center console of his truck, Derek Hines used the Delaware Police Report to refresh Marley’s memory so he could describe what Hunter said.

Back in May, in an effort to prevent Hunter from pointing out that no one charged him in the five years since he bought the gun, Hines argued that this form is inadmissible hearsay.

First, the defendant states “both parties may still seek the admission of . . . the Delaware State Police incident report . . .” Response at 1. The report is inadmissible because it is hearsay and not covered by any exception. Fed. R. Evid. 801.

Indeed, it was not admitted yesterday. Hines simply used it to refresh Marley’s memory.

On cross, Abbe Lowell walked Marley through how this report got written up. First, he got Marley to describe that he and Clemons didn’t so much write the police report together. They both wrote their own separate reports, with their own names on the bottom of the pages they wrote.

Q. Did you collaborate with Sergeant Clemons to write the police report that you were shown to refresh your recollection?

A. Collaborate as far as, I did my report and he also wrote his report on his own.

Q. Say that last part?

A. He also did a report.

Q. So if in the police report of that day at the bottom of the page it has the name Sergeant Clemons, does that mean what’s on the page was his or it’s something that you both would have collaborated about, but he wrote it?

Noting that Hines has already used the report to refresh Marley’s memory, Lowell then used it to get Marley to note which parts of the report he wrote and which Clemons wrote.

BY MR. LOWELL: Q. You were shown this to refresh your recollection. Can you do that again for me? Just take a look at that, look down, I want you to see the bottom, I want you to see where there are names, and tell us whether or not that refreshes your recollection as to who is responsible for the words on a page?

A. So this one would be myself.

Q. This one, meaning the front page?

A. Correct.

Q. Now if you’ll turn to the second page.

A. Also myself.

Q. Okay. Third page?

A. Still myself.

He got Marley to describe that the fourth page, where Clemons’ report (which includes the report on what Hallie said that day, which no one claims Marley heard, as well as what Hunter said — the part Hines had Marley claim to remember as overkill). Lowell also got Marley to note that Clemons’ report was all typed up in a nice form; it was far more than notes.

Q. Now on the fourth page, if your report has again, as I was asking, a name at the bottom, does that reflect what?

A. That would be Sergeant Clemons.

Q. That’s not your writing, if he asked questions, that’s what is reflected in the report?

A. Right. So that would be his report.

Q. Okay. I understand. Did you review what he wrote?

A. No.

Q. And whether he wrote this, it’s all typed up in a nice form. That’s not what was done on the scene, right?

A. No, this would be later.

Q. Later the day, later the next day, do you know when?

A. We have three days to complete a report. So I’m not exactly sure.

Q. Okay. Before it becomes finalized, whatever that means, do you read it? The report?

A. Before I submit it in for approval?

Q. Yes.

A. Yes, I read it.

Lowell got Marley to describe that he doesn’t know when Clemons’ part of the report was submitted. It might even be a supplement, one that — so long as it was submitted under the same number — could be submitted any time after.

Q. At the point at which you did that for this form, had Mr. Clemons already put his part in?

A. I don’t know.

Q. But you see it in the report that it’s a number of pages, some his and some yours?

A. Correct. So it would be two separate reports under. the same number, so like a supplement.

Q. So part could happen one time, and then the next part happens another time, and at the end of the process it’s one report which has all the parts in it?

A. Yes, if it’s the same report number, yes, you could do supplements at any given time, you know, a day later, a month later if new evidence comes up or whatever.

Q. Got it. If there is something about what Ms. Biden said, you weren’t in her earshot, but it would be in the report if Mr. Clemons took that interview?

A. I would imagine.

Q. Did you know, did you review what it was he wrote down that she said?

A. No.

Q. And you have never looked at that?

A. Not that I remember.

Could have been submitted a month later! It was actually three days later, October 26.

Lowell gets Marley to admit that he was only maybe in earshot of the part of the interview where Hunter admitted — that bit Hines introduced as overkill to substantiate the easiest element of the offense for the easiest Count to prove — that he bought the gun.

Q. So he’s interviewing Mr. Biden, you’re not doing that?

A. Yes.

Q. He would be responsible for putting down what you were refreshed as to what Mr. Biden said?

A. Yes.

Q. When you were doing that, you were refreshed that he admitted right away that he had been the one to buy the gun?

A. Yes.

Let me interject and say one reason why Lowell is doing this is because in the part of the report that Clemons wrote (which was clearly designed to be a partisan hit job, including reference to the Biden Family), the part that Marley’s sure he did not hear, he described Hallie Biden saying she looked in Hunter’s truck because she suspected, “I think he is screwing around on me.” Not because she thought he had done drugs that day, but because she was jealous. Lowell needs to get that story in to undercut Hallie’s claim that she saw Hunter overnight on October 22, and thought he may have been using drugs, almost the only thing she remembers clearly from a very traumatic day over five years ago.

That might be all Lowell was preparing here. But in the process, he showed that Marley claimed to remember something that he maybe didn’t hear. And, more importantly, he got Marley to describe that Clemons’ part of the report could have been submitted anytime after he himself, Marley, opened the case number with his own report.

Lowell also got Marley to describe that when he went, by himself, to StarQuest to find the serial number for the gun, they may have simply given him the serial number by reading off the computer terminal, which he then copied.

Q. And when you went to StarQuest, you asked them if they had a record for the sale?

A. Yes.

Q. And did you — did they or did they just give you the serial number which is what you were looking for?

A. I’m not sure if they gave me a register receipt or they read it off the computer terminal and I copied it and made the phone call and put it in NCIC.

Lowell notes that there’s no copy of the receipt itself, nor of the Form 4473. If the paper documentation is not there, he didn’t get it.

Q. On the report you made, there is no copy on of what StarQuest gave you that day if they gave you anything?

A. Okay.

Q. I’m asking?

A. Oh, yeah, if it’s not.

Q. If it’s not there, it’s not part of the report?

A. Right.

Q. You might have just asked for the serial number?

A. Yes.

Q. You didn’t ask for a ATF Form 4473 on that day?

A. No.

Q. You just wanted the serial number?

A. Exactly.

Q. Were you involved after that, in getting the people at StarQuest to send you the actual form that was filled out by the gun buyer?

A. No.

Q. And then after you did that, after you went to StarQuest you didn’t go back, then your role in this would then after, to then write your report?

A. That was it.

We of course know that StarQuest didn’t print out the receipt for Marley. That receipt didn’t get first printed out until 2020, when StarQuest owner Ron Parlimere and some buddies and … Vincent Clemons were leaking this story to the press.

In 2020, Parlimere and Clemons were leaking the story to the press, and also “needing to get their stories straight.”

It also reveals a now-exposed attempt by the gun store to fabricate a false narrative about the gun sale. Palimere said the addition of the seller transaction serial number (“5,653”) may have been added on October 26, 2018. (TAB 4, Palimere FD-302 at 4). He said the vehicle registration reference was added in 2021. Yet, the government provided WhatsApp communications from October 2020 and February 2021 between Palimere, friends of his, and then-Delaware state trooper Vincent Clemons3 (see TABs 6 – 6C), all of which refer to the form, a plan to send it to others, needing to get their stories straight about what occurred in 2020, and wanting the gun sale issue and the form exposed during the Presidential campaign.

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

Now, as I said, it was overkill for Hines to use the police report to refresh Marley’s memory to remember something he maybe didn’t witness in an attempt to get even more proof of something that Hunter is not contesting — that he knew he owned the gun — to prove the easiest charge.

But as I’ve laid out, Count 1 — one of the two paperwork charges that requires proving Hunter’s mindset at the moment he filled out a form on October 12, 2018 — has a materiality component. Prosecutors have to prove that the false statement was material to whether they would sell him a gun or not.

And Count 2 charges a false statement on a document that the gun shop “is required … to be kept in the [gun shop’s] records.”

Abbe Lowell probably would have gotten there anyway, even if Hines hadn’t gone for overkill on the easiest element of offense on the easiest charge to prove. But by focusing on the form, he got Marley to make how the documentation from StarQuest got recorded and shared with the state of Delaware as they were conducting a criminal investigation in which they believed Hunter to be the victim an issue.

He laid the groundwork to get witness testimony that, in fact, the gun shop wasn’t complying with their record-keeping requirements, and they weren’t requiring all the elements of the form to be accurate and filled in before they sold Hunter a gun.

I think it likely that Judge Noreika would exclude it even though it is solidly material to both those charges. She said as much on Wednesday. (In a side bar, she even suggested that Hunter should not have listed his Dad’s address as his home address, citing a recent case where she sentenced someone to a year for that.) Noreika is dead-set on protecting the gun shop from facing any legal exposure from the trial of Hunter Biden, even if it means he cannot confront his accusers.

But what the gun shop shared with Delaware when — and the fact that Delaware didn’t get the paperwork they otherwise might have — came into evidence yesterday as a result of Derek Hines’ to go for overkill on evidence relating to the easier charge to prove.

How to Think about the Hunter Biden “Laptop”

June 6, 2024/75 Comments/in 2020 Presidential Election, 2024 Presidential Election, emptywheel, Hunter Biden /by emptywheel

As noted, yesterday the summary FBI witness in the Hunter Biden trial, Erika Jensen, testified that she did not do an analysis to find out whether any of the files on the laptop attributed to Hunter Biden, “had been tampered with, added to, or subtracted?” She also testified that, as someone who had, “a small basis of my understanding of how [FBI’s digital forensics experts] work” and having not done such an analysis, had not “seen any evidence whatsoever from the data [she] reviewed from [the] laptop to suggest that there was tampering”

Her job was not to do such an assessment. Her job was to do a summary of a very narrow cherrypick of files prosecutors asked her to summarize.

Indeed, her further testimony revealed how useless her opinion on the laptop is. Aside from matching the laptop serial number with one of at least seven laptops Hunter had used in the two years leading up to its delivery to John Paul Mac Isaac in 2019, the only other validation Jensen described was the emailed receipt JPMI sent Hunter Biden’s publicly identifiable email account on April 17, 2019, which is utterly and completely useless to validate the laptop. Jensen further described that she didn’t review any emails beyond a small handful prosecutors gave her. The file did not include the kind of metadata that would be necessary to assess its usefulness.

The investigative team had never validated whether anything had been added to the laptop before October 20, 2020. No one made an index before handing over the data in discovery to Hunter Biden’s team.

While everyone was focusing on Jensen’s testimony yesterday, Zoe Kestan actually gave far more interesting — and useful, for assessing the reliability of his data — testimony about Hunter’s digital life. She described, for example, that fairly early in their relationship, Hunter “sent me images of his credit card and asked me to call hotels and find somewhere for us to stay that night.” Kasten described that Hunter would get 5-minute codes and send them to her and to drug dealers so they could pull money from his ATM without his ATM card. She described how, sometime around March 2018, the two went together to drop broken devices off at an Apple store, but he left and she finished that process.

We went out for dinner one night, we went to the Apple store because his phone and his computer were broken, and he had to leave in the middle, so I dropped off, and you know, submitted his phone and laptop at the Apple store for him.

She testified he lost maybe 5 or 6 phones in the period they were in a relationship, a period intermittently spanning a year (though I think this might be high). She described trying to locate him once by logging into his bank account (the credentials for which were on her machine) to see where he was withdrawing money from an ATM. She described that he would do his business from her laptop.

This is just one person! And she had the means to totally pwn his life. As, too, undoubtedly, some of the drug dealers who supported his habit.

This is the kind of thing I’ve focused on for a long time. In the depths of his addiction, Hunter Biden exercised almost no digital security, meaning his girlfriends, his drug dealers, his sex workers, and even the junkies he partied with all had easy means to compromise his devices. And every time Hunter lost a device — the five to six Kasten testified to, the seven or so laptops he had over that year, two more phones she wouldn’t have known about — every single time, it would present the opportunity for someone to take over his digital identity as a bunch of right wing Trump supporters have since and tamper with it.

With all that said, I want to address all the reasons why no one should be admitting Hunter Biden’s digital data into a criminal trial without proving the provenance of each message.

Start with his iCloud. Contrary to widespread belief — belief sown by false claims from prosecutors parroted by credulous journalists — it is not true that all the data on the laptop was backed up to Hunter’s iCloud account.

As I have shown, only half the messages admitted in the trial came from one of two device backups saved to iCloud (these numbers are based off an early draft of the summary).

But there’s a mistaken belief that everything on his iCloud had to be authentic.

That’s because people like Kasten — and people who undoubtedly have a lot less affection for Hunter Biden — have devices that include the login data for Hunter’s iCloud or for phones that were set to back up automatically to iCloud. People with his devices might also be able to access his two main Gmail accounts, his RosemontSeneca one (which frequently suffered what Google believed to be compromises but which might just be Hunter trying to get in), or the droidhunter account he used for adult entertainment (which was accessed by a burner phone in a period when the droidhunter account had access to his iCloud during the period his digital life was packed onto to the laptop that would end up at the FBI).

The reason Hunter’s cloud data was vulnerable to tampering stems from the way he kept his own — and, per Kasten, his associates’ — laptops. We know from the hard drives shared publicly that that laptop included means to access Hunter’s iCloud, an iPad backed up exclusively to the laptop, the phone from which the most important texts used in his trial were extracted (protected by password), and the cookies and passwords to get into much of the rest of his digital life.

What everyone knows as the [multiple hard drives] copied from the laptop is better thought of as a set of a significant chunk of Hunter’s digital activity (much of it unavailable elsewhere), as well as keys that a sophisticated actor could use to access what was stored in the cloud.

And a whole lot of dick pics.

If we believe John Paul Mac Isaac, then he delivered that entire package of Hunter Biden’s digital life plus another two laptops,to the Mac Shop on April 12, 2019. (Remember that there’s another laptop in the wild, which purportedly was left at Keith Ablow’s guest cottage during the period some of this data was being assembled.)

Whether you believe that part of the story or not is not actually all that important. Except insofar as it raises the chances that what went into JPMI’s store was packaged up to maximal damage. Except insofar as right wingers and gossip columnists posing as journalists claim it gives them license to do anything they want with the data. Indeed, the way that story has been used as license to do something grotesque is about all that story does, whether true or not.

Which may be the point.

JPMI has made it clear he started snooping long before he claims his terms and conditions gave him property rights over the device (even if that extended to the data on the device, which Hunter’s team argues it does not). JPMI’s claims about what alarmed him enough to reach out the FBI and Congress and Donald Trump’s personal lawyer aren’t backed by the documents on the laptop. JPMI’s claims about what laptops he received that day don’t match the laptop shared with the FBI.

In other words, there are gaping holes all over JPMI’s story, which differs from the FBI’s story about what they did with the laptop in key ways.

And yet, that didn’t lead the FBI to validate the laptop associated with the iCloud account of the (then) former Vice President’s son beyond confirming that some but not all of the data matched what was in Hunter’s iCloud.

Whether you believe JPMI or not, he has copped to giving Rudy Giuliani, members of Congress, and through them, the whole world, the gateway to Hunter Biden’s digital life. There’s no defense of that, and yet virtually the entire DC press corps likes to pretend they’re doing ethical journalism if they whitewash it.

There’s not much, yet, to add to the discussion above of how David Weiss used the laptop. As noted above, the FBI never did real due diligence on this laptop.

There’s a lot yet to learn — including whether there was a connection between FBI getting a warrant on the laptop and then DOJ Chief of Staff Will Levi’s text to Bill Barr the next day, “laptop on way to you.”

We do know that the (known) December 2019 warrant only permitted the search of the laptop for the three tax crimes charged against Hunter Biden in Los Angeles (which seems inconsistent with the subpoena that described money laundering). The FBI did not have authority to search the laptop or data from Hunter’s iCloud for gun related evidence until December (though Agent Jensen’s summary of the evidence submitted at trial cited earlier warrants for reasons that have not been aired at trial).

The [hard drive containing the contents of the] laptop is not the same thing as the laptop entered into evidence this week.

That’s something about a bazillion trolls who responded to something I said in 2023, about the disseminated laptop: that it had been tampered with.

It has.

There are known (albeit minor) alterations on the content of the hard drive that Rudy Giuliani shared with the NYPost and, after that, the entire world. There are reportedly more significant compromises, which we might learn about if Rudy’s bankruptcy doesn’t entirely kill Hunter Biden’s lawsuit of Rudy. There was far more significant alteration done on two other sets of data: one, disseminated by Guo Wengui (including some of the files taken down by Twitter in October 2020), and another, released by Jack Maxey.

And there were different public and non-public means of using the hard drives passed on from JPMI to access further Hunter Biden data. Garrett Ziegler, for example, fully admits he compromised the encryption of the iPhone backed up to iTunes on the laptop (though in his response to Hunter Biden’s lawsuit, claims it was legal because the drive he hacked had never belonged to Hunter). Vish Burra is more outspoken about having hacked Hunter Biden.

Many many many of the people who froth over content from the laptop — and journalists who whitewash the hit job against Hunter — don’t know there are multiple versions of altered laptops that relied on multiple means to access (or create) the data.

Many — including many journalists — have just decided Hunter must a horrible person so they are not obligated to care what really happened here.

Hunter Biden’s laptop is not any one thing. It’s not real or authentic or not. It is, rather, the shoddy state of affairs when an entire country enthusiastically exploits the fact that an addict’s digital life was in a permanent state of half-compromise for most if not all of the time of his addiction.

Update: Corrected spelling of Kestan’s last name.

Update: Fixed the super confusing reference about why the FBI didn’t respond differently to the compromise of Biden’s son.

Judge Noreika Risks Narrowing Hunter Biden’s Right to Confront His Accuser Even Further

June 6, 2024/23 Comments/in 2020 Presidential Election, 2024 Presidential Election, Hunter Biden /by emptywheel

Gordon Cleveland, the man who sold Hunter Biden a gun without seeing an ID with an address on it on October 12, 2018, did not finish testifying at the Hunter Biden trial yesterday. When Abbe Lowell started walking him through the penalties on the gun shop and the guy who signed the form selling the gun, Derek Hines made an objection, leading to a contentious sidebar and a decision to finish Lowell’s cross-examination today.

During the sidebar, Judge Maryellen Noreika seemed inclined to further limit Hunter Biden’s ability to impeach Cleveland’s testimony (though will revisit it this morning).

After having prohibited Hunter Biden from talking about the possible crime the gun shop committed to cover up their own violation of the rules, Judge Noreika told Abbe Lowell that she would not permit him to ask any questions about the penalties on the gun salesman for selling a gun without proper ID. She went so far as to insinuate that Abbe Lowell should have objected when Derek Hines opened the door to such questions, but helpfully offered to strike the testimony that impeaches the testimony of Hines’ key witness.

The question of why the gun shop sold Hunter a gun relying just on a passport goes to the core of a premise Cleveland laid out about how he sold guns: First he makes a customer fill out form 4473 to make sure the gun sale is legal, and only after that does he sell things like ammunition.

Q. Why is it important for you as a salesman?

A. It’s important because after you fill in your personal information, there is a series of questions that can ultimately void the sale before it even gets all the way started with running the background, depending on what the answers are on that form.

[snip]

Q. After the gun is explained to him, the speed loader explained to him, the bullets are explained to him, and he has all that, is that on the counter?

A. Yes.

Q. And that’s when you deal with the form?

A. The form — the form was — no, so you got the sequence messed up. The guns and all that stuff was — I mean the gun, the ammo, and the speed loader was on the counter, but that was after the fact that the background check was already ran.

Q. So before the background check was already done, where was the handgun?

A. The handgun was already on the counter.

Q. Where are the bullets?

A. The bullets are on the shelf because we haven’t even discussed them before the background check.

If he never got a second form of ID, then his narrative of how he does sales — a narrative that is at the core of his claim to have witnessed Hunter Biden fill out the form — is suspect.

Cleveland’s current timeline of what happened that day is:

Hunter Biden picks a gun
Cleveland hands Hunter Biden form 4473 to fill out as Hunter hands him his passport
Cleveland leaves the front room to copy the passport which, he claims, takes less time to do than it does with a driver’s license because it is not double-sided
Cleveland returns to the counter and watches Hunter as he fills out the gun form
Only then does Cleveland take the passport — but not the form — in the back to ask whether he can use the passport
He and Jason Turner return to the counter
Turner reviews the form and sees that Hunter hasn’t signed it
Turner then tells Hunter he needs to go get a second form of ID
Turner goes back into the back room to run the background check
Turner fills out the rest of the form — including dating Cleveland’s signature
Cleveland proceeds to sell Hunter a bunch of other things, some of which he claims to have consulted on, some of which — a utility tool and a BB gun — he claims he did not (note, this may explain the 16 minutes that elapsed between the background check and the sale that I pointed out here)

To substantiate that he remained in the room while Hunter filled out the form, Cleveland said that he wouldn’t ask Turner to run a background check until he was sure the sale would be legal. But Turner ran the background check, without anyone recording receiving a second form of ID.

There are several reasons this goes to Cleveland’s credibility.

First, at least according to Abbe Lowell’s citations from a 302, in 2021 Cleveland told ATF Agent Hnat that his general practice is to get two forms of ID, but did not see a second form of ID from Hunter Biden.

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

With specific reference to Biden, “He said he would provide the copy of the U.S. Passport and the firearm information on a sheet of paper to the person sending the background check in. Mr. Cleveland said he did not see the document with the ATF Form 4473 he was shown.” (TAB 3, 10/12/21 ATF EF 3120 at 2, ¶6) [Lowell’s italics, his bracketed comments omitted]

Since his representation that he generally gets two forms of ID but did not when he sold Hunter a gun appears inaccurate, it raises questions about whether the things he said yesterday that he did routinely — such as telling someone to answer the form truthfully — are true.

Q. Let’s go through each of those things you just said. You said he’s supposed to fill out the form truthfully?

A. Yes.

Q. You used those words truthfully?

A. Yes.

Q. Do you do that as a matter of practice?

A. Always.

Q. Why do you do that?

A. Because of the questions that are on the form.

Secondly, Cleveland’s sworn testimony yesterday is not entirely consistent with his testimony weeks ago, in a way that makes his signature on the form problematic, on precisely the issue to whic Hines raised an objection.

Last month, Cleveland said that after speaking to Jason Turner, he told Hunter that they would need to see a second form of ID.

When Biden presented his passport as identification, Cleveland went into the back and asked Ronald Palimere and Jason Turner if it could be used. Cleveland recalls going back out to Biden and saying something to the effect that if Biden was going to use a passport, they would need another form of identification.

Here’s what he said yesterday.

Q. Now, at this point, what happens next after you witnessed Mr. Biden filling out the entire page 1?

A. So, that’s when I went to go get clarity on the passport.

Q. When you say get clarity, why did you get clarity on the passport?

A. I figured it was all right, I just needed to double-check because it was my first time using a passport, and I know like as far as with the ID’s, it’s a form of ID, you’re able to use that for a lot of different things.

Derek Hines then coached Cleveland to say that he had been told it was okay to sell a gun relying on the passport.

Q. Did you have a discussion with them?

A. Yes. I said I think the passport is okay, just double-checking.

Q. Let me stop you there. So you had a discussion with them because you had a question about passport, correct?

A. Yes.

Q. Now, at that point did you go — end up going back to the sales floor after your question had been answered?

A. Yeah.

Q. To your satisfaction?

A. Yep, I went right back to the sales floor.

Q. And what did you believe you could do at that point in the transaction?

A. You could take the passport, I was told.

Only after describing directing Hunter to sign the form (which is on the second page and, if accurate, undercuts Abbe Lowell’s claim that Hunter might have referred to the definitions in the back), as Cleveland describes, did Turner purportedly tell Hunter to go get a second form of ID.

Q. What happens next after you see Mr. Biden sign the form and date it?

A. What happened next is Jason said also we would need for the passport, another form of like identification stating his address, it could be a bill, or it could be a vehicle registration.

Q. What’s the next thing you observe?

A. I observe Mr. Biden leave out and then come back in.

Cleveland never saw a second form of ID, but nevertheless signed a form saying the “information recorded in Sections B and D is true, correct, and complete” and attesting to “my verification of the identification recorded in question 18.”

It was this section that Lowell was asking Cleveland if he had read when Hines objected, which is material not only for Cleveland’s credibility, but for a retention aspect of one of the charges.

Lowell had not yet elicited Cleveland’s testimony from a few weeks ago, in which he said,

Cleveland would not have paid attention to the paperwork side of the sale because he had already done his part by working with the customer and making the sale.

The comment undercuts Cleveland’s claim to have watched Hunter closely as he filled out the form. And it undercuts Cleveland’s description, yesterday, of walking Hunter through the difference between ammunition types and speed-loaders, parts of the sale which he describes taking place after the paperwork was done.

Here’s how the objection and sidebar went in — with Derek Hines making a desperate bid to force Lowell to finish his cross-examination in 15 minutes so as to prevent him from having the evening to review the testimony of Hines’ single witness to two alleged crimes charged against Hunter Biden.

LOWELL. On page 3, if you’ll go up above, I’m sorry, on page 3, go back down a little bit. On the right side of the column, the second paragraph, it reads, if the transfer/seller, that would be StarQuest, right?

A. Yes.

Q. Or the buyer discovers that a form is incomplete or improperly completed after the firearm has been transferred —

MR. HINES: I object, Your Honor.

THE COURT: All right. Let’s have a side-bar. (Side-bar discussion:)

MR. HINES: So the objection is not only it is outside the scope of direct, it is irrelevant what StarQuest did years later, with the form, and he’s driving towards that, it has no relevancy to whether or not Mr. Biden filled out the form.

THE COURT: Should I let the jury go for tonight?

MR. LOWELL: No, it’s a good time to let them go. Can I respond?

THE COURT: How much more do you have?

MR. LOWELL: For him, quite a lot.

THE COURT: Okay. All right.

MR. LOWELL: Well, I’m sorry, that’s stupid, I apologize.

Hines realizes that Lowell is about to have the night to review other problems with Cleveland’s testimony, and he tries to assert Cleveland’s right to go to work over Hunter’s Sixth Amendment rights.

MR. HINES: He drives a trash truck, he’s away from work.

MR. LOWELL: It won’t be over by 4:30 or even 4:45, and I’m — well, do you want to talk about this in open court before, or how do you want to do this?

THE COURT: I mean, if’s he not going to finish, are you going to finish by 5:00.

MR. LOWELL: Maybe, I don’t know how long it will take. I don’t want —

THE COURT: I’m just sensitive to the fact that he’s missing his work.

MR. LOWELL: Can I see how far — let me respond to his objection.

THE COURT: Yes.

When Lowell explains he should have the right to put it into the record that, having been told a second form of ID was necessary, Cleveland did not insist on seeing one but signed the form anyway, Noreika suggests that Lowell should have objected when Cleveland testified to something that puts his own credibility at issue. She offers to strike the testimony that makes Cleveland’s disinterest in completing documentation clear!

MR. LOWELL: I am not asking something you did years later, not doing that. I am indicating because he opened the door when he said something about somebody getting a second car registration or second form of identification, he said that, I didn’t, and so consequently, I need to ask him what that was.

THE COURT: No. You’re not putting that in. I ruled on that. I don’t think that he opened the door. You didn’t object or I guess, if you want me to strike what he said on that, I will consider it, but we’re not opening the door on that. [my emphasis]

Lowell tries again.

MR. LOWELL: So I cannot ask him, then, was a second form of identification given to him that moment.

THE COURT: At that moment. Why can’t they ask at that moment.

Hines says that because Cleveland doesn’t know whether Turner saw a second form of ID before signing a form that required one, he should not have to testify to that fact.

MR. HINES: He has no basis, he doesn’t know.

MR. LOWELL: To him.

THE COURT: You can say at that moment.

MR. LOWELL: Okay.

THE COURT: But if he misunderstands your question and starts talking about something later, we’re going to cut him off.

MR. LOWELL: Okay.

Noreika tries to resume testimony.

THE COURT: Members of the jury, we’re going to hopefully — (Sidebar discussion:)

MR. LOWELL: I want to be very fair to Mr. Cleveland, but to be fair to the jury, I don’t think I would finish by 5 o’clock. And I want to say that so that I don’t mislead and have them wait around. I’m sorry about him, I didn’t know the time, how long anything would take today. But I’m looking at my outline for the things that you’re lug me to ask and I won’t be done in that period of time.

Hines opines that Hunter Biden’s attorney should not have any more questions for the only witness to two of the charged crimes.

MR. HINES: I don’t know what else is relevant of this witness. We just did a tour of StarQuest.

MR. LOWELL: Why is that not relevant to find out where he was?

Having spent hours with a witness, Zoe Kestan, who introduced a slew of pictures of drug paraphernalia but who had no idea what Hunter was up to during the period of the charged crimes, Hines then whined that Lowell established the organization of the store in a way that may be inconsistent with Cleveland’s testimony. Noreika begins to relent.

MR. HINES: Well, you have taken more than thirty minutes —

THE COURT: I’m not going to cut him off from asking fair questions of the witness. So hopefully Mr. Cleveland won’t have to miss too much work tomorrow.

MR. LOWELL: I’m promise I’ll cut it down based on what you said. I’m being honest with you and you and you, it won’t be over and I know the jury will be here longer. I’m sorry, can I also say I’m trying, but at the same time, you shouldn’t criticize me for how long — you’re taking time on things you could have done shorter as well.

THE COURT: If he’s not going to finish, then why I am going to keep everybody here for a half hour?

Leo Wise insists he knows better than Abbe Lowell about how many questions Abbe Lowell has yet to ask the sole witness to two charged crimes.

MR. WISE: I think he’s going to run out. It’s hard to imagine —

THE COURT: Keep going. I have a lot of faith in Mr. Lowell that he’s not going to run out of things. I do.

MR. WISE: I have less faith.

Lowell notes that forcing him to keep the jury late is going to make them pissed at him.

MR. LOWELL: So I am suggesting, you tell me, I don’t know, this could go for another hour, I’m not saying it will, but I don’t want to invoke the wrath of the jury who has been told at the end of the day it’s 4:30. I think this fairest thing to do is for me to stop. I will go back to my outline and make it as short as possible — I can’t do that now — to save time.

Ultimately, Lowell gets the time to review his questions and streamline.

I feel for Cleveland. He dropped this second job because of health concerns in 2021, even though he was obviously very passionate about the job. Meanwhile, the gun shop totally fucked him over, making him sign a form validating a gun sale without first including the requisite information.

The statutes of limitation have expired on that sale, but thanks to Derek Hines’ obstinance about protecting gun shop owner Ron Palimere, Cleveland’s at risk of missing more than his job today.

Hunter Biden Prosecutor Derek Hines and the February 2019 Super 8 Crack Pipe

June 5, 2024/19 Comments/in 2020 Presidential Election, 2024 Presidential Election /by emptywheel

I have written three posts already where I have caught Derek Hines making the same false claim about his favorite passage of Hunter Biden’s memoir, in which the President’s son describes, “It was me and a crack pipe in a Super 8.”

In March, when I realized that in January, Hines claimed a passage representing Hunter Biden’s addiction in February 2019 after Keith Ablow made it worse was actually what his addiction was like in October 2018, I just assumed it was one of the routine fuck-ups I was beginning to expect from Derek Hines (who was also arguing that what distinguishes Hunter Biden from Roger Stone is that Trump’s rat-fucker didn’t write the memoir that he actually did write that was even more closely related to his alleged tax evasion).

Here’s how Weiss treats Hunter’s memoir in the equivalent filing in the gun crimes case.

After the defendant publicly announced his awareness of a federal investigation of him in late 2020, see ECF 63 at 5, the following year (2021) he chose to author, sell and promote his memoir, Beautiful Things, and to release an audiobook in a lucrative book deal. Relevant to the charges in this matter, the defendant made expansive admissions about his extensive and persistent drug use, including throughout the year 2018 when he purchased the gun. For example, the defendant admitted that he was experiencing “full blown addiction” to crack cocaine and by the fall of 2018 he had gotten to the point that:

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

Hunter Biden, Beautiful Things (2021) at 203, 208

In the Delaware case, Weiss is arguing something different than he is in the LA case, that is about how much evidence (Weiss claims) there is to prove the gun case. As I noted, that’s actually counterproductive in the selective prosecution response, because it proves that the evidence Weiss claims to think is so damning was available in 2021, before he decided to divert the gun crime in 2023, before he came to fear for the safety of his family and then reneged on that diversion agreement.

Oh. And also? Weiss again botches the evidence. The passage cited above about a crack pipe in a Super 8 on page 208 describes the aftermath, in February 2019, of the Ketamine treatment Hunter got from Roger Stone buddy Keith Ablow that — Hunter’s memoir describes — made things worse.

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

[snip]

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

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

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

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

This is in no way a description of the state of Hunter’s addiction in “fall of 2018,” when he bought a gun. It’s a description of the state of Hunter’s addiction in February 2019, after treatment from Ablow exacerbated the addiction. To make things worse, Hunter gets the timing of the 2019 follow-up treatment wrong in the book, saying it happened in February when it started in January. This passage is utterly worthless to prove the gun crime, and instead helps to prove that memoirs, especially those written by recovering addicts, are prone to narrative embellishment and error.

When he excluded the passage of the memoir about returning home in October 2018, and instead included the passage describing returning home after Keith Ablow made his addiction worse as if it was the state of his addiction in October 2018, I began to consider outright deceit.

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

To something that happened in February 2019.

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

Shortly after I wrote the post, he belatedly remembered the passage describing him returning home in October 2018 and added it to the exhibit.

You’re welcome, Mr. Hines.

But then he misrepresented this timeline again in his trial brief, as I described here.

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

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

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

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

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

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

It’s beginning to look like a pattern!!

It is a pattern.

He did the same again today, pretending something that is clearly 2019 happened in 2018.

Q. And how about any section in Chapter 9 or Chapter 10, the relevant time period for 2018?

A. No.

Q. And finally, page 208, continuing in the same chapter, after Mr. Biden describes full blown addiction, Exhibit 19, page 208, does Mr. Biden write “crack is a great leveler.” And then he goes on to say “just like in California.” Is that what he goes on to say here?

A. Yes.

Q. If you zoom out, above that, does he say in the first paragraph, “It was me and a crack pipe and a super eight, not knowing which the fuck way was up.” Are those his words?

A. Yes.

Q. And this is in the same chapter when he describes his return in the fall of 2018; correct?

At this point, this has to just willful deceit, permissible prosecutorial dickishness edging over into something else.

Hines has had to fix this error before, and he’s still pretending that when Hunter Biden said, “I headed back toward Delaware, in no shape to face anyone or anything,” describing his state after Keith Ablow made his addiction worse in 2019, instead described what he was like in 2018.

What kind of man keeps going back to metaphorically suck on the same crack pipe he found in a place it doesn’t really belong, Derek Hines, in New Haven in February 2019 rather than in Wilmington in October 2018 where he badly wants it to be? What kind of man keeps doing that?