Judge Maryellen Noreika Confuses Hunter Biden’s Memoir for the NYPost

Judge Maryellen Noreika has finally ruled on (three of) Hunter Biden’s motions to dismiss; like Judge Mark Scarsi, she rejected them.

In a follow-up, I’ll show how Noreika conceives of what went down in the failed plea hearing last summer. Her conception of it has some problem of its own, but it does shore up some problems created by Judge Scarsi’s opinion.

Before I get there, though, I want to look at a key passage of her selective and vindictive prosecution opinion, in which she lays out what she suggests is sound reason for this prosecution.

Although Defendant asks this Court to find that the prosecution’s decision to abandon pretrial diversion and proceed with indictment on the three firearm charges only occurred because of Defendant’s political affiliations (or his father’s political affiliations), Defendant has failed to offer “clear evidence” that that is what happened here. Moreover, in this case, there appear to be legitimate considerations that support the decision to prosecute. See Armstrong, 517 U.S. at 465 (recognizing “the strength of the case, the prosecution’s general deterrence value, the Government’s enforcement priorities, and the case’s relationship to the Government’s overall enforcement plan” as legitimate factors that may motivate a particular prosecution). Defendant has published a book about his life, where he admitted that his firearm was taken from him at some point after purchase and it was discarded (along with ammunition) in a public trash can, only to be discovered by a member of the public. (D.I. 68 at 2, 7). The government has an interest in deterring criminal conduct that poses a danger to public safety, and prosecutors are not frozen in their initial charging decisions. See Goodwin, 457 U.S. at 382 (“A prosecutor should remain free before trial to exercise the broad discretion entrusted to him to determine the extent of the societal interest in prosecution. An initial decision should not freeze future conduct.”) [my emphasis]

This paragraph is a formulaic paragraph in virtually all selective and vindictive prosecution opinions. You cite Armstrong for reasons prosecutors might charge besides animus, you cite Goodwin to lay out that they can change their minds, and then you cite some thing that justifies the prosecution.

Because the standards laid out in Armstrong and Goodwin are so high, you don’t have to include much to justify meeting that standard.

But what you cite generally has to be true.

And it is not true that Hunter Biden wrote in his memoir about the gun. He wrote about someone else pulling a gun on him, which is cited on a different page of the government response Noreika cites for the claim.

One night, while looking for crack and stepping around people curled up on cardboard, the defendant pulled back the flap on a tent and, from the pitch black, saw a gun pointed at his face. Id. at 190.

Only a few months after this happened, on October 12, 2018, the defendant chose to buy his own gun, and during this period he continued to be addicted to crack. Guns and drugs, of course, are a dangerous combination.

He wrote texts — cited in other parts of the selective prosecution motion — to Hallie about the gun.

On October 23, 2018 (the day his then-girlfriend discarded his firearm), the defendant messaged his girlfriend and asked, “Did you take that from me [girlfriend]?” Later that evening, after his interactions with law enforcement, he messaged her about the “[t]he fucking FBI” and asked her, “so what’s my fault here [girlfriend] that you speak of. Owning a gun that’s in a locked car hidden on another property? You say I invade your privacy. What more can I do than come back to you to try again. And you do this???? Who in their right mind would trust you would help me get sober.” In response, the girlfriend stated “I’m sorry, I just want you safe. That was not safe. And it was open unlocked and windows down and the kids search your car. You have lost your mind hunter. I’m sorry I handled it poorly today but you are in huge denial about yourself and about that reality that I just want you safe. You run away like a child and blame me for your shit . . .”

I believe somewhere texts, which I believe to be between Hunter and Keith Ablow, in which Hunter discusses the incident, got cited in this case.

But prosecutors should not have accessed any of the texts before charging. They didn’t have a warrant to do so until 81 days after they indicted.

While Hunter Biden has not yet made a claim, texts between Hunter and Ablow might fall under a doctor-client privilege.

And Abbe Lowell was at least claiming he’d file a motion to suppress the laptop.

Effectively, then, Judge Noreika’s rationale for why it was sound for prosecutors to charge Hunter Biden either amounts to charging Hunter because someone pulled a gun on him (a ridiculous detail to include in the response motion anyway, since it doesn’t pertain to the crime), or because NY Post has been publishing data that Hunter alleges was stolen from him.

Update: The fact that Noreika relies on evidence obtained from Hunter’s laptop is important given the way she dismisses the import of Rudy Giuliani in the selective prosecution motion.

In attempting to show discriminatory purpose, Defendant points to past and recent statements made by former President Trump, alleged conduct of one of the former president’s personal attorneys (Rudy Giuliani) and a purported criticism and pressure campaign by Congressional Republicans. (See id. at 27-37).
None of this evidence, however, is relevant to any alleged discriminatory purpose in this case. The charging decision at issue here – from 2023 – did not occur when the former president was in office. Nor did it occur when Mr. Giuliani was purportedly trying to uncover “dirt” about Defendant and presenting that information to U.S. Attorneys across the country. (See id. at 30). And the pressure campaign from Congressional Republicans may have occurred around the time that the Special Counsel decided to move forward with indictment instead of pretrial diversion, but the Court has been given nothing credible to suggest that the conduct of those lawmakers (or anyone else) had any impact whatsoever on the Special Counsel. It is all speculation.

24 replies
    • emptywheel says:

      Probably not right away. Lowell has noticed an interlocutory appeal in CA, but I don’t understand how that’s not just going to antagonize Judge Scarsi.

  1. The Old Redneck says:

    As I said in a previous comment, this standard is virtually impossible to meet. The circumstantial evidence is compelling but it’s not enough. And you don’t get to depose the Special Counsel and ask about their motive for bringing charges.

    An appeal on this will have to wait until the end of the case, but realistically it wouldn’t have any legs anyway.

    • emptywheel says:

      I agree the standard is almost impossible to meet. On appeal, Hunter may have far more evidence, including David Weiss confession he was afraid for the safety of his family (though I’m not sure he has preserved all the issues in both places).

      But that doesn’t give Noreika license to make shit up, and one reason she did so is bc Weiss declined to claim that he got new evidence or anything that prosecutors normally claim.

      • The Old Redneck says:

        Agreed – none of this justifies making fact errors. But unfortunately, that made-up-shit standing alone will probably be shrugged off on appeal; specifically, it will be considered non-dispositive “harmless error.”

        I’m not sure Lowell has preserved all his arguments in both places either. But I don’t think he was ever pinning a lot of hope on this. He’s probably looking down the road getting ready to fry some bigger fish.

        • emptywheel says:

          Oh, I strongly disagree. I think he thought both the diversion and the selective prosecution arguments were going to be easy, and so wasn’t very careful with them.

        • Rugger_9 says:

          Is this situation reparable now for Lowell? I would think that the first mention by SC Weiss’ team of laptop-derived evidence would get an immediate objection to show provenance. Like Scarsi, it would seem to me that Noriega wants a jury to decide.

        • wetzel-rhymes-with says:

          Lowell is all-too-human. He had to hit a home run. It was a double just to get what he manage to get into hearings and thus into history. Hunter is screwed because maybe he did those things, for the most part, but he can still challenge the prosecution’s case like any other defendant. Lowell’s filings bear on the public perception, the history, and the broader effort to understand and combat MAGA. Smirnov isn’t going away. The laptop evidence still has no provenance, so maybe it can be shown not to result from a warranted search at trial or at some other type of hearing pretrial I don’t know anything about. You’ve sure given Lowell plenty of material to challenge the laptop evidence whenever he has the opportunity. People need it to get into filings and hearings as much as possible that the prosecutorial decisions on the President’s son occurred through improper interference. James Comer was up there spouting lies fed to him about Hunter Biden by Russian intelligence.

  2. Sussex Trafalgar says:

    Noreika’s ruling is an editorialized political hack job.

    She states last Summer’s agreement lacked the signature of the PO, therefore it was not a valid contract. Okay, she’s right, and she could have left out most everything else. She chose, however, to play editorial politics.

    Noreika, Cannon and Scarsi all sing on time from the same hymn book.

    • emptywheel says:

      I don’t think she was editorializing. I think she was trying to describe her own behavior in such a way that it didn’t violate her own view of what would be unconstitutional.

    • earlofhuntingdon says:

      That might be overgeneralizing about the federal judiciary, even about three of its members.

  3. AtLeastEightCharacters says:

    It’s unfortunate that Hunter Biden is a boogeyman to the right and practically invisible to the left, because it’s outrageous that David Weiss has (apparently) gotten away with the shabbiest thing a US Atty. could do short of prosecuting somebody he knew was innocent. I can’t believe there are two judges in the country who’d let the government dishonor a plea deal, for no explained reason, *after* signing the thing in open court and letting the defendant give a colloquy.

    Is there an explanation of *why* probation didn’t sign?

    • NYsportsfanSufferer says:

      Another question is what happened with Leslie Wolf. Why was she removed as the lead prosecutor before the court date? She should’ve been the one in charge of going through the agreement in court. She only negotiated and wrote the thing.

  4. zscoreUSA says:

    So, the texts (or iMessage) from Hunter on 1/29/19 that mentions the “secret service” was actually sent to Hallie’s sister Liz.

    The NY Post article by Emma-Jo linked above also cities 12/6/18 messages from Hunter to Keith Ablow about a gun. The NY Post article is not careful and implies both messages are sent to Ablow.

  5. NYsportsfanSufferer says:

    I know I’ve said this before but giving the government a license to renege then turn around and throw the book at people is an awful precedent to set. It’s also very convenient that Weiss moved Smirnov’s trial back to December so he can be done with Hunter in the summer then prosecute Smirnov without Hunter/Lowell able to use it to show why the government walked away from the agreement. Could it be anymore obvious what’s going on here?

    I know judges have to be by the book and follow the law and precedent, but why aren’t either of the judges asking any questions or even the least bit curious what happened here? I could see them not wanting to get involved in the politics of it and let the process play out, but how is that fair to the defendant who entered into an agreement with the government in what he thought was good faith?

  6. Upisdown says:

    “his firearm was taken from him at some point after purchase and it was discarded (along with ammunition) in a public trash can, only to be discovered by a member of the public. (D.I. 68 at 2, 7). The government has an interest in deterring criminal conduct that poses a danger to public safety,”

    The weapon was never loaded, so the ammunition was obviously discarded separately. Also, the gun wasn’t discarded by Hunter Biden, so the dangerous criminal conduct was committed by someone other than him. Which makes her deterrent point moot. The extent of Hunter Biden’s criminal conduct was checking a box and signing his name. Much like what Donald Trump is about to go to trial for.

    • freebird says:

      The box check would be hard to prove if it was not corroborated with a drug test. From what I read from the DEA and Justice Department’s websites is that no illegal drugs were used in the past 365 days before the gun purchase. Imagine a drug addict keeping a precise diary of drug usage.

  7. Savage Librarian says:

    School, Rule, and Golden Tool

    Who didn’t Weiss school on the foul play,
    Who didn’t Weiss school on detail,
    There were wiser ways to do it,
    But the Weiss ways would prevail.

    Yes, this is Weiss, we know it’s Weiss,
    They told him once, they told him twice,
    But if that is Freedom’s price,
    Let’s be precise.

    He scoffed at customary manners,
    Loosey-goosey, every pore,
    What about their bullseye, Freedom,
    Who’ll compel what’s at the core?

    Yes, this is Weiss, we know it’s Weiss,
    They told him once, they told him twice,
    But if that is Freedom’s price,
    Let’s be precise.

    They have tried negotiations,
    But the three man “stick it” line,
    Weiss, Wise, Hines: were so grievous,
    They know Smirnov’s right behind.

    Hypocrisy’s a vice,
    And the whole truth would be nice,
    But if that is Freedom’s price,
    Let’s be precise.

    Yes, justice should be unflinching,
    Don’t stab victims in the back,
    Courts shouldn’t convey whoppers,
    No, the facts should stay on track.

    As we eye it, it’s not nice,
    When the Courts condone MICE*
    But if that is Freedom’s price,
    Let’s be precise.

    Who didn’t Weiss school on the foul play,
    Who didn’t Weiss school on detail,
    There were wiser ways to do it,
    But the Weiss ways would prevail.

    Yes, this is Weiss, we know it’s Weiss,
    So, where’s Sobocinski’s advice?
    Yes, if that is Freedom’s price,
    Let’s be precise.


    “It Isn’t Nice by Malvina Reynolds cover by Kathleen Healy”


    *How ordinary people are convinced to become spies – 8/24/21

  8. thequickbrownfox says:

    While Hunter Biden appears to be on the fast train to being found guilty of felonies, even though he paid his tax liabilities plus penalties and interest, this guy failed to file tax returns for 5 years, and he is the present LT governor of North Carolina, and the R choice for governor. And he’s not been prosecuted, either (maybe because his name is not Biden).


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