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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A. Yes.

[snip]

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

A. Yes.

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

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

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

Q. What did you understand that to mean?

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

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

A. Yes.

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

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

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

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

Memoir excerpt

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

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

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

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

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

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

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

I headed back toward Delaware, in no shape to face anyone or anything. To ensure that I wouldn’t have to do either, I took an exit at New Haven.

To ensure that I wouldn’t have to do either, I took an exit at New Haven. For the next three or four weeks, I lived in a series of low-budget, low-expectations motels up and down Interstate 95, between New Haven and Bridgeport. I exchanged L.A.’s $400-a-night bungalows and their endless parade of blingy degenerates for the underbelly of Connecticut’s $59-a-night motel rooms and the dealers, hookers, and hard-core addicts—like me—who favored them. I no longer had one foot in polite society and one foot out. I avoided polite society altogether. I hardly went anywhere now, except to buy. It was me and a crack pipe in a Super 8, not knowing which the fuck way was up. All my energy revolved around smoking drugs and making arrangements to buy drugs—feeding the beast. To facilitate it, I resurrected the same sleep schedule I’d kept in L.A.: never. There was hardly any mistaking me now for a so-called respectable citizen. Crack is a great leveler.

New Haven area spending, February to March 2019

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

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

February 11, 2019: Courtyard, New Haven

February 13, 2019: Courtyard, New Haven

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

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

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

February 14, 2019: Purchase at Citgo, New Haven

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

February 14, 2019: New Haven Parking

February 15, 20199: ExxonMobil, West Haven

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

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

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

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

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

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

February 15, 2019: ExxonMobil payment, West Haven

February 16, 2019: Carriage House, New Haven

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

February 16, 2019: Purchase at Walgreens, New Haven

February 17, 2019: Carriage House, New Haven

February 17, 2019: Purchase at CVS, Hamden

February 17, 2019: Purchase at Tommys Tanning, Hamden

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

February 18, 2019: Carriage House, New Haven

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

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

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

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

February 18, 2019: Purchase at McDonalds, Hamden

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

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

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

February 19, 2019: Purchase at Drizly, New Haven

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

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

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

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

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

February 21, 2019: Purchase at Patagonia New Haven

February 21, 2019: Parking paid in New Haven

February 21, 2019: Parking paid in New Haven

February 23, 2019: Booking.com Marriott Worcester

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

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

February 26, 2019: Purchase at Energy, Berlin

February 26, 2019: Purchase at Walgreens, New Haven

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

March 6, 2019: Purchase at Sunoco, Naugatuck

March 6, 2019: Purchase at Family Dollar, Naugatuck

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

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

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

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

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

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

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

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

March 8, 2019: ATM withdrawal Hemingway, East Haven

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

Cruikshank, Gun Control, And Bad Rulings

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Index to posts in this series

We’ve looked at two early cases interpreting the Reconstruction Amendments, The Slaughterhouse Cases and US v. Cruikshank. These cases are still in force, and have done massive damage, to Black people especially and others who hoped to gain their rightful freedom; to the balance of power among the three branches of government; and to our jurisprudence. Recent 2nd Amendment cases are good examples of this damage.

Gun control

Recapitulation of the old cases. In The Slaughterhouse Cases the Supreme Court analyzes §1 of the 14th Amendment (text below). The second sentence bars states from abridging the privileges or immunities of “citizens of the United States”. The Court says this provision applies only to the tiny number of privileges or immunities that attach to people solely as citizens of the US. It doesn’t apply to their rights as citizens of a specific state.

The Court says that the !4th Amendment doesn’t change the relationship between state and federal governments. 83 US 77-78. It’s a negative argument: such a monumental change must be in very clear language, and this isn’t clear enough to suit the Court.

In Cruikshank, the Court examines the rights which the defendants allegedly illegally conspired to violate. One is the right to keep and bear arms for a lawful purpose. Here is the Cruikshank Court’s entire discussion of that issue.

The right there specified is that of ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the ‘powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,’ ‘not surrendered or restrained’ by the Constituton of the United States.

Citing several older cases, the Court says that the 2nd Amendment does not guarantee the right to keep and bear arms; all it does is bar the US from infringing on that right. It says that states can regulate the ownership of arms as part of their police power.

To summarize:
1. The 14th Amendment didn’t change the power relations between the state and federal governments.
2. Rights not specific to the Constitution are solely the domain of the states under their police power.
3. The 2nd Amendment does not grant any rights to anyone. It merely prohibits the US from infringing the right to bear arms.
4. Any important change in the laws or Constitution must be clear enough to suit the Supreme Court.

Current cases. Eventually the Supreme Court started applying the Bill of Rights to the states using the Due Process Clause. By the time Heller v. Dist. of Columbia was decided, most of the Bill of Rights had become more or less applicable to the states.

In Heller Scalia cites Cruikshank approvingly. He writes: “States, we said, were free to restrict or protect the right under their police powers.” He completely ignores the holding of Cruikshank and several older cases that the only function of the 2nd Amendment is to prohibit the US from infringing the right, as well as the holding that the right does not arise from the Constitution. He simply imposes his own textualist reading of the 2nd Amendment as if it were written today instead of 240 years ago.

A few years later in Macdonald v. City of Chicago Alito put SCOTUS in charge of controling state power over guns. The Seventh Circuit had upheld Chicago’s gun regulations, relying in part on Cruikshank. Alito says the issue is: “… whether the Second Amendment right to keep and bear arms is incorporated in the concept of due process,” an issue not considered by the lower courts. Cruikshank isn’t applicable because it only considered the Privileges or Immunities Clause.

Alito gives a short history of cases applying the Due Process Clause to the Bill of Rights starting with this: “The constitutional Amendments adopted in the aftermath of the Civil War fundamentally altered our country’s federal system.” He doesn’t tell us what that change is, or how it applies to guns.

He cites Heller for the proposition that the 2nd Amendment creates a right to bear arms. Then he announces that the right to and bear arms is covered by the Due Process Clause. There isn’t really an explanation for this. Alito just says it’s, like, you know, fundamental to the concept of ordered liberty, amirite, for every American to carry a gun for “self-defense”. Like this guy.

Then in Bruen, Clarence Thomas says that the only allowable limits on the the right to keep and bear arms are those the states imposed prior to either 1789 or 1868. Whatever that right was, the states obviously regulated it under their police powers, but Thomas doen’t even mention Cruikshank and The Slaughterhouse Cases. I guess Macdonald says it was unconstitutional for states to regulate guns after the ratification of the 14th Amendment, even though they had that right under Cruikshank and used it for 130 years.

Conclusion. The end result is that we can only regulate guns if five members of the NRA Court permit it. And now we learn that Bruen didn’t slake the blood lust of Thomas, Alito, Gorsuch and Kavanaugh. They want to flood the country with ghost guns.

Why Not Overrule Those Old Cases?

I think one reason SCOTUS doesn’t overrule Cruikshank and The Slaughterhouse Cases is that it would change our understanding of our dual sovereignty system. In The Slaughterhouse Cases the Court said that a broad interpretation of the 14th Amendment “…would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment.” Of course SCOTUS is already doing that, as in gun regulation cases.

But if we dropped the pretense that the states are the dominant power in deciding the rights of citizens, SCOTUS would lose one of its go-to arguments against federal laws it doesn’t like. Dobbs, for example, says that the right to abortion should be decided by the states. Section 5 of the Voting Rights Act offends the dignity of the states (no, really), according to Shelby County v. Holder. And in NFIB v. Sebelius, SCOTUS says that the US can’t pressure the states to provide Medicaid to all their citizens, who, I note, are also citizens of the US, because state dignity is so important to suffering people.

There’s another possibility. The right-wing six simply don’t care about any of the traditional pillars of jurisprudence, such as stability, deference to the other branches, institutional reputation, and procedural constraints on power. And they’re careless. They don’t even try to be coherent or to clean up the loose ends of precedent that held for 150 years, or to create workable rules. See part IIIB of Breyer’s dissent in Heller and the dangers to society created by Bruen, as in the Rahimi case.

It’s bad enough that we’re goverened by five or six unelected lawyers. It’s worse that tbese second-rate people do such shoddy work.

———————
Section 1 of the 14th Amendment

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.