Judge Noreika Joins Derek Hines in Selective Adherence to the Laws of Physics

In addition to making false claims about Abbe Lowell’s argument, Derek Hines’ successful reply brief excluding the form gun shop employees doctored to cover up their own potential crime made an argument about physics: Anything that happened after Hunter Biden allegedly checked a box could not be relevant to his actions.

II. StarQuest Employees’ Actions After the Defendant Completed Form 4473 §A Are Not Relevant

The government intends to call Gordon Cleveland to testify because he is the witness from Starquest who observed the defendant fill out Section A of the form 4473 where the defendant identified himself and stated that he was not an unlawful user of or addicted to a controlled substance. The other two individuals the defendant has subpoenaed, Turner and Palimere, cannot testify to that fact. They, and not Cleveland, were involved in adding “DE VEHICLE REGISTRATION” to the form more than two years after the defendant filled it out. Palimere exchanged text messages, again two years after the events that are the subject of the indictment, that indicate a bias against the defendant. The addition of “DE VEHICLE REGISTRATION,” and Palimere’s political views are sideshows that the defendant is attempting to inject into the trial and are irrelevant. The government does not intend to call either Turner or Palimere because they lack first-hand knowledge of the defendant’s actions. Their addition of “DE VEHICLE REGISTRATION” to the form after the defendant filled it out does not have “any tendency to make” those two facts, which are “fact[s] of consequence in determining” the charges—that he filled it out and that he said he wasn’t an unlawful user of or addicted to a controlled substance—more or less probable. F.R.E. 401. Therefore, their testimony on the addition of “DE Vehicle Registration” to the form, years after the defendant’s conduct occurred, is irrelevant and should be excluded.


Whatever action was taken after the fact with respect to the form is immaterial.

They adopted exactly the opposite approach with communications regarding drug use. Abbe Lowell had tried to exclude the communications — including those after Keith Ablow’s Ketamine treatment made Hunter’s addiction worse — because they were sent so long after the gun purchase and disposal.

But prosecutors argued that communications (and photos and videos) from months after the gun was disposed are somehow proof about what happened in October.

The defendant objects to the messages in Rows 214-292 in the government’s 1006 Summary Chart as cumulative and occurring subsequent to the defendant’s gun purchase and therefore prejudicial under Rule 403.

The redacted message in Row 215 – “that’s a line brighter than throwing my gun in a full trash can in a busy grocery store and then some kid blows his sisters head off and you go to prison for the rest of your life” – is an admission regarding the gun which was made by the defendant to Witness 3 and therefore admissible under F.R.E. 801(d)(2).

With respect to Row 214 and Rows 216-292, these are admissible under Rules 401 and 402 as probative of his active addiction. In Chapter 11 of his book, the defendant admitted that he was actively addicted to crack cocaine between 2015 and 2019. See Government’s Motion to Admit Portions of Defendant’s Book and Audiobook and Motion in Limine to Exclude use of Self-Serving Statements (ECF 119) and Ex. 1 attached thereto. The messages in Row 214 and 216-292 are are relevant because they show that the defendant’s statement in his book was accurate and indeed his addiction continued into 2019, without disruption. The messages have a tendency to make the fact that he was an addict and user more probable than it would be without the messages. Fed. R. Evid. 401(a), 402. Moreover, the fact that he was addicted to crack between the fall of 2016 and the spring of 2019 is a fact of consequence relevant to all three charges in the indictment. Fed. R. Evid. 401(b); see United States v. Corona, 849 F.2d 562 (11th Cir. 1988) (abrogated on other grounds) (evidence of social use of cocaine and admissions during treatment over 2.5 year period is sufficient to sustain conviction). His admissions in his messages have probative value which is not substantially outweighed by a danger of unfair prejudice or other issues under Fed. R. Evid. 403.

Note, as I said here, I think the government is right about Row 215.

And Judge Noreika bought that argument too, deciding to let prosecutors waste hours of jurors’ time hearing messages about buying drugs that date to long after the time Hunter owned the gun.

THE COURT: Okay. Defendant has objected to a number of the government’s objections, first, rows 214 to 292 of the government’s summary chart, Exhibit 18. Those objections are overruled.

Row 215 is a message from the defendant about the disposal of the gun in a trash can in a grocery store, it is an admission and admissible under Rule 801(d)(2). Rows 214 and 216 through 292 are messages probative of defendant’s drug addiction. Although the messages are dated after the date defendant bought the gun, they are not being offered in isolation but rather with other evidence of his addiction before, during, and after the time he purchased the gun. They are circumstantial evidence as to whether he was an unlawful user of, or addicted to any controlled substance when he purchased and possessed the firearm and so they are admissible under rules 401 and 402.

Next, we have a series of photos or videos marked as Exhibits 18C through F. Those objections are also overruled. The primary objection to those is they are dated after October of 2018, for the same reasons I allowed the text, I will also allow those exhibits. They are circumstantial evidence of defendant’s addiction and relevant and admissible.

As to Exhibit 18C, which defendant also objects to as it shows him unclothed, the clip is redacted so that it only shows him from the chest up, so I will not exclude it on that basis.

Similarly, Judge Noreika sustained the government’s objections to virtually all context Lowell had tried to include from the book.

She also seemingly expanded the scope of her ruling on the gun shop actions, prohibiting Lowell from raising anything the gun shop employees did wrong, which I’ll return to.

Noreika’s waste of jurors time may actually work against the prosecutors: Lowell had just a few moments of cross examination regarding all this evidence at the end of today; he started by pointing out that most of the evidence submitted was long after the alleged crimes. I wonder whether jurors will fail to see some really damning texts from the period he owned the gun for the forest of texts that came long afterwards.

28 replies
  1. Upisdown says:

    I have an unrelated question as someone who has never set foot in a gun store. Do these businesses operate using commissions or bonuses for compensation to sales staff? I’ve bought lots of autos and cell phones over my years. I know how commissioned salespeople like to up-sell and how they shove paperwork in front of you and rarely explain what you are signing. When I read that Hunter Biden also purchased hollow points and a speed loader, it struck me something a salesman would suggest in order to up their commission.

    • David F. Snyder says:

      They won’t get commission on small ticket items like a speed loader or small boxes of ammo. But the gun itself, could be upsold, for sure. My experience is that the verification isn’t rushed typically; but in this case it sounds like it was.

  2. earlofhuntingdon says:

    Hard to see how later conduct establishes a defendant’s pattern of behavior for a period that occurred months earlier. In fact, a pattern of earlier behavior can’t normally be used to establish the fact of specific behavior that relates to an alleged crime. It pummels the jury with what a bad boy HB must be, but doesn’t tie the behavior to the alleged crimes.

    • Michael8748 says:

      Also, how do they exclude anything “political” from defense arguments from a gun store that is decidedly political?

  3. bgThenNow says:

    Thanks so much for all you have put into this, Marcy. Drug addiction is a hellish disease. I’m so glad some of the jurors have experience, like most of us have with a loved one suffering, not everyone can recover. I have a lot of compassion and concern for Hunter, as a recovering addict. It must be very hard to keep it together under the scrutiny and charges. I wonder if he was considering suicide when he bought the gun? Whether he talked about it or no. I recently lost an old friend who was addicted most of his life. Overdose would have been better, I think, than how he died. I think he wanted to live, but it was a terrible life for some years. Norieka must have some issues about addiction. It’s awful how she is judging this. IMO.

    • David F. Snyder says:

      Hear, hear. Sorry for the loss of your friend. May all recovering addicts remain in recovery.

    • Zinsky123 says:

      I almost lost my oldest son to drug and alcohol addiction about ten years ago. He spent a month in an in-patient rehab center and it took. So, I know the pain a father feels – like Joe Biden. My son remains clean and sober and is one of the great joys of my life.

  4. dopefish says:

    Other than here, is there any good coverage out there of the Hunter Biden trial?

    (I don’t suppose the transcripts will be made public for free, like they did in NY for Trump’s trial?)

    • emptywheel says:

      No and no.

      I’m getting transcripts but can only publish excerpts. So we’ll be a day behind in the real news.

      • dopefish says:

        Thank you. Its depressing that the MSM barely reports any of the context essential to understand what is really happening in this trial.

        If it weren’t for your tireless digging into it, I would probably not know anything about the prosecutorial dickishness that went on in this case.

    • zscoreUSA says:

      What’s the deal with the press coalition and access to trial exhibits? Do the trial exhibits still become available to the general public, just after the trial has completed?

  5. John Paul Jones says:

    Judge Noreika’s rulings seem to be premised on the idea that the law exists to judge people’s style of life rather than specific criminal acts, i.e., if he was an addict in 2017 and an addict in 2019, then that is enough to prove that on a specific day in 2018 he must also have been an addict and therefore using drugs.

    • David F. Snyder says:

      The only way people learn is the hard way. Judge Norieka may get it if a close relative gets addicted; but even then maybe not.

      • P J Evans says:

        The potential jurors talking about drug addicts in *their* lives should have clued her in.

  6. Dark Phoenix says:

    In other words, the prosecution is going to borrow a trick from Rudy Giuliani and pretend that time doesn’t occur in a straight line, so events can be rearranged to fit the story the rearrangers want to tell, rather than the one that actually happened.

  7. freebird says:

    Someone calling themselves an addict is subjective to that person. When is a person who drinks a drunk? I know people who do drugs every day and are high functioning. Some people smoke marijuana as a sleep aid. Are those people addicts?

    This saga feels like the prosecution are omniscient narrators using proleptic irony as a literary device that you find in novels. It is like the prosecutors are saying that Hunter Biden should have known that his father was going to be elected in 2020 and for that he should go to jail.

    • emptywheel says:

      That’s true for the two statement crimes, connected to the form. But not true with respect to the period when he owned the gun. That charge is far easier to prove.

      • freebird says:

        Frankly, Hunter had a drug problem but he appears clean now. So, this prosecution is vindictive. What is irksome is that law enforcement knew about this issue in 2018 and did not rectify it then. They kept a back pocket crime for later use. I thought that this is why we have a statute of limitations.

        What is pernicious here is that the right-wing is using HB as a cudgel to smash things that those on the left care about. It is a classic post hoc fallacy. Because HB, a grown man, owned a gun for 11 days JB should not be elected.

        • Rayne says:

          If that argument worked — the sins of the son visited on the progenitor — Trump shouldn’t have been elected in 2016.

        • freebird says:

          Rayne, I get what you are saying except for there is no Special Counsel, Congressional Panels, Fox News or right-wing lawyers creating a loud din that gives the impression that Hunter Biden is an arch-criminal drug lord instead of a run-of-the-mill junkie.

        • Rayne says:

          Reply to freebird
          June 5, 2024 10:00 am

          No, there’s just the media pounding this case down the public’s collective throat because it’s 1) low hanging fruit and they don’t have to expend much effort/resources to produce content, and 2) it’s easily sensationalized with the crap GOP’s PR/influence op produces, and 3) there’s nothing else important happening in their own backyards because the economy is humming along, they’re still comfortable frogs slowly simmering in climate crisis, and 4) their corporate overlords are happy with this output.

          How convenient Trump’s other criminal trials are deferred so as not to compete for media attention.

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