Gaps and Forms: Hunter Biden’s Defense

The first day of the Hunter Biden trial revealed a lot about gaps in the prosecution’s case and Abbe Lowell’s plan to mount a defense.

As this post will show, it will be easier for prosecutors to prove Count 3, Possession of a Firearm by a Drug User or Drug Addict, than the two gun form crimes, even with Judge Noreika’s decision preventing Hunter from discussing how the gun shop sold a gun without obtaining the required ID.

What do prosecutors have to prove?

There are three counts against Hunter Biden: two for lying on a gun purchase form, and a third for possessing a gun while either being an addict or using illegal controlled substances. Given what will already be stipulated (things like that the gun shop is a federally licensed store), here’s what prosecutors have to prove for each:

Count 1: False Statement Material to Firearms Sale 18 USC 922(a)(6)

  • Whether the defendant made a false statement when he filled out the Form 4473
  • Whether the defendant knew the statement was false
  • Whether the false statement was material to the sale

Count 2: False Statement in Firearms Transaction Record 18 USC 924(a)(1)(A)

  • Whether the defendant made a false statement when he filled out the Form 4473
  • Whether the defendant knew the statement was false

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

Counts 1 and 2 involve Hunter Biden’s mindset at the moment he filled out the gun form on October 12. Count 3 involves what happened between October 12 and 23.

Note: Prosecutors are asking for a unanimity ruling on Count 3, meaning they want all jurors to agree on at least one of those conditions, that Hunter was an addict, or that Hunter used controlled substances while he possessed the gun.

What basis might Hunter Biden have for appeal?

If Hunter Biden is convicted, he will undoubtedly appeal. He would appeal on the rulings Judge Noreika already made. Those are:

  • His diversion agreement immunized him from these charges
  • This was a case of selective and vindictive prosecution and a violation of separation of powers
  • 18 USC 922(g)(3) is unconstitutional
  • David Weiss’ appointment and funding were unlawful

In addition, Hunter would appeal on at least two trial related issues:

  • As applied constitutional challenge to 18 USC 922(g)(3)
  • With her ruling on the gun form, Judge Noreika impaired his Sixth Amendment right to confront the gun shop employee witnesses against him

There’s an important dynamic here. The main gun charge, 18 USC 922(g)(3), might be appealed because it is unconstitutional for everyone under Bruen, or for the specific circumstances of Hunter Biden’s purchase, an as-applied challenge. But even if it were overturned, prosecutors have argued that the two false statements charges — particularly Count 2, which doesn’t involve materiality — would survive. Of course, those two false statements charges should be relatively easier to defeat, if Hunter were allowed to use the purchase form the gun shop doctored.

This is one of a number of reasons why Sarah Isgur’s argument that Hunter should just plead didn’t hold up. Because even a successful appeal on what Isgur mistakenly believed was his best appeal wouldn’t eliminate the exposure on gun crimes.

What evidence do prosecutors have?

There is no doubt that Hunter Biden is a recovering addict. The public, which has seen the pictures and even seen Hunter’s public statements, has little doubt of it. But what jurors will be considering is slightly different: whether Hunter considered himself an addict on October 12, 2018, whether he considered himself an addict at any time over the next 11 days when he possessed the gun, or whether he used controlled substances — crack — over those 11 days.

The government case has some surprising holes, because both of their main sources of evidence — Hunter’s memoir and his own digital evidence — actually don’t say much about his addiction or drug use over those 11 days.

Derek Hines spent much of yesterday playing excerpts of the audiobook of his memoir. But at least 11 of around 17 excerpts predate a rehab attempt Hunter made in August 2018 (many date to 2016), and so don’t say what the state of his addiction was for that period in 2018, and a number of them significantly postdate that period.

Update: The Court has posted yesterday’s exhibits here. Here’s the memoir as it came in as a physical exhibit. This is the entirety of the memoir introduced that pertains to the 11 days in question.

Similarly of the digital evidence submitted yesterday, roughly 29% predates the rehab attempt and 39% post-dates both it and the start of the Ablow Ketamine treatment that Hunter said in his memoir made his addiction worse (though that’s not in evidence).

One thing prosecutors plan to do is argue, fairly, that at all times in the four year period in question, Hunter was an addict. But that’s different than him viewing himself as an addict during those 11 days.

Two women will be absolutely critical witnesses to fill this gap. Zoe Casten, with whom Hunter was having a relationship, will reportedly testify that after Hunter did rehab in August 2018, she spent time with him in September 2018, and he was still using drugs.

Hallie Biden will authenticate a bunch of texts she exchanged with Hunter during the period in question (in pink in the table). Those texts show him telling her he was doing or buying crack, discussing his addiction, and also that he recognized she had taken his gun almost immediately, which will show that he knew he was a gun owner in the period in question. If her testimony is credible, it will go a great way to proving Count 3, because it will show he thought of himself as an addict during the period he owned the gun, probably used crack, and knew that he owned the gun.

Prosecutors have texts showing Hunter buying drugs in May 2018, November 2018, and February 2019. They don’t have any during the period he owned the gun. As a proxy for such proof, they have pointed to how much cash he was withdrawing from his bank account, implying that the cash went to pay for crack. It’s circumstantial, but jurors are instructed to use circumstantial evidence.

Hunter’s defense

To create reasonable doubt in jurors’ minds, Hunter needs to explain what he was thinking when he bought the gun and needs to discredit the evidence that will come in through Hallie that shows he used or considered himself addicted to crack during the 11 days.

To present his mindset when he bought the gun, Abbe Lowell described how Hunter simply wandered over to the gun shop while he was waiting for a replacement phone and got up-sold by the gun shop owner.

Across the parking lot from the AT&T store was another business. StarQuest Shooters and Survival. An interesting name. Later, from the AT&T store, as you’ll see in documents with time stamp, he went in, and you will see when he went into StarQuest, this is what he saw. You will see the evidence of what happened next. On display you will see in the front are a number of utility tools and knives, there were flash lights, and there were BB type guns. You will see that on that day, he bought one of each. So how did the purchase of the handgun come about?

As he walked around, a salesperson named Gordon Cleveland approached him. Mr. Cleveland will be a witness that Mr. Hines said will be theirs. Mr. Cleveland asked Hunter if he was looking for anything in particular. Hunter said he was browsing. Mr. Cleveland led Hunter to a display on the wall where the handguns were. Mr. Cleveland showed him the wall and asked if he was interested in buying a gun. The only time Hunter had any guns before was when he and his brother Beau went skeet shooting with shot guns. Mr. Cleveland explained what could be used at a range and selected a handgun for Hunter to see. Later, Mr. Cleveland also explained to Hunter the need for bullets and a speed loader. Hunter wouldn’t have known what a speed loader was until Mr. Cleveland told him.

But Hunter also confirmed that the gun came with a lock box to carry it in.

Cleveland told the prosecution that he doesn’t much care about paperwork — his job is just to make the sale. He did not walk Hunter through the gun form before he checked the boxes.

And the box that asks about drug use does not include a long paragraph after the fact explaining what it means like — for example — the question about whether you are a felon or not.

There are a whole bunch of tactical reasons why Lowell is doing this, I think, which I’ll return to. Effectively, though, he will argue that because the federal gun form does not define what being an addict is, if Hunter can provide evidence he relied on the form, then his mindset when he checked that box may not qualify him as an addict even though he was under the common jury instructions.

To discredit the evidence that he was using drugs during the period in question, Hunter will effectively argue he was too functional during the 11 days he owned a gun to be using crack, and that his references to being an addict in that period were references to alcohol.

In other words, Hunter will claim that the evidence he was addicted during those 11 days arises from abusing alcohol, not crack.

As to Hallie’s testimony? One thing he will do is attempt to prove that he was telling the truth in this exchange, in which he accused Hallie of taking the gun from the locked box in his truck, and she replied by claiming that the gun was not locked.

Hallie has told prosecutors the lock was broken. Hunter will get one of his daughters and uncle to testify that the lock was not broken. If he can get jurors to believe that Hallie only claimed the box was unlocked to excuse herself for getting him in trouble, then it might support his claim — otherwise a big stretch — that his references to doing crack were just attempts to tell Hallie to bug off.

There is a logic here, especially tactically. But Hunter faces a much steeper challenge on Count 3 than the gun form charges.

But it’s not impossible. Just as a measure of their concern, prosecutors are leaving the “knowingly” prong of the elements of offense off their statements anywhere they can get away with it (though some of that’s just expert prosecutorial dickishness).

It’s one thing to prove Hunter was an addict. That’s easy.

It’s another thing to prove precisely what he was thinking in those 11 days in October 2018.

41 replies
  1. Theodora30 says:

    Denial, not only to others but to yourself, is a major feature of addiction. I had an uncle who was an alcoholic during most of his adult life who was in denial. He always denied it and from what anyone could tell her sincerely believed he didn’t have a problem. If this case really does rest on whether Hunter believed he was an addict at the time he purchased the gun I would not be able to convict.

    • Ithaqua0 says:

      Absolutely. Looking back on it years later and saying “Yeah, I can see now that I was addicted” is not at all the same thing as being able to see it in the moment. And if the best evidence on the topic that the prosecution has isn’t contemporaneous, I’d take that as meaning there wasn’t any contemporaneous evidence, and I wouldn’t be able to convict either.

      On a different note, Trey Gowdy on Fox: “I did gun prosecutions for six years … I bet you there weren’t 10 cases prosecuted nationwide of addicts or unlawful drug users who possessed firearms or lied on applications … why are you pursuing this one?” – via Slate, which has a link to X.

  2. coalesced says:

    Indeed, the form only refers to “18 USC 922(g)” which has to be searched for an initial definition of:

    (g) It shall be unlawful for any person who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));

    which requires an additional search resulting in: 21 USC 802 – Definitions

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

    Which is a almost laughable ask. So hunter has to ask/evaluate himself….”at this moment…am I endangering anyone’s health/safety/welfare or am I no longer in control of myself.”

    Caveat: my primary experience/training is with the medical definition of addition, which differs vastly from the above definition.

    • emptywheel says:

      One thing Lowell emphasized is that Hunter thought to get a gun lock when he bought the gun. Which goes to the danger to others prong. As does the fight over the lockbox.

      • coalesced says:

        But the definition he is supposed to apply to self-assess is not on the form, nor is it even referenced on the form. And getting a gun lock is good practice in responsible gun ownership.

        • emptywheel says:

          Right. That’s one of the points of Lowell’s focus on the form, which as you understand will work very well for an as-applied appeal, not least bc this only had gotten applied to people convicted of drug-related stuff before.

          it is also a tactic to get to ensure he can get the gun shop employees in.

  3. NYsportsfanSufferer says:

    Hunter could text Hallie whatever he wants. Did anyone actually see him smoking crack on the car at that location at that time? Hallie can say yeah the text is real but was he actually there doing that? Prosecutors have to prove his location to verify the action actually occurred.

  4. Upisdown says:

    Apparently, Hunter Biden did not intentionally seek out that store, and he clearly wasn’t intending to shop for guns. Since Mr. Cleveland “led” Biden to the gun display, he must not have suspected that Biden was an addict based on his observation of Biden’s behavior.

  5. HorsewomaninPA says:

    Is it known why Hunter Biden bought the gun? Was he suicidal? I read the memoir and didn’t see any specific linkage, but there was quite a bit of him describing self-hatred.

    • Freda_CHANGE-REQD says:

      Joe Biden in an interview told of skeet shooting with the boys. He stated he owned two shotguns. Perhaps Hunter thought he’d pass time shooting at a gun range.

      [Moderator’s note: See note at 1:18 a.m. ET. /~Rayne]

  6. Steve S from CT says:

    Seems to me “Are you an unlawful user of drugs?” is clearly asking for an opinion, rather than an assertion of fact, and therefore “No, in my opinion I’m not an unlawful user of drugs” can’t be a “lie,” even if it’s a “wrong” opinion. It’d be different if it were stated as an assertion of fact, e.g., “Have you used marijuana, cocaine or heroin in the last 30 days?” Someone suggested the prosecution needs to provide evidence of Hunter Biden’s state of mind when he filled out that form, but I’d suggest if they do that, then they’re proving his response was simply his own subjective opinion, and not a false assertion of fact.

    (btw I tried to remember the name I’ve used previously, apologies in advance if I got it wrong)

    [Moderator’s note: this is the same username you’ve used on your most recent comments. /~Rayne]

    • Steve S from CT says:

      Re-stating in a slightly different way – I’m claiming the assertion “the defendant made a false statement” requires proving both a) the statement is in fact false AND b) the defendant made the statement. While “state of mind” has relevance to establishing whether or not the defendant actually “made the statement” (e.g., he actually intended to check the “no” box) I’m asserting “a statement that relies on a person’s state of mind” is literally the definition of “subjective,” and therefore cannot – by definition – be “false” in an objective, factual sense. I think that’s probably true even if the statement explicitly incorporates a “state of mind” element (e.g., “I hereby certify that I sincerely believe…”) but that’s not relevant to the question at hand, because it doesn’t. If the purpose of the question is to enable the government to assess whether the purchaser is eligible to buy a gun, then it needs to include specific factual questions that would enable the reviewer to make that assessment. While “Are you eligible to buy a gun?” (which is essentially what this is asking) may be useful as a filtering question (or not), that’d clearly be asking for a legal opinion that the average gun buyer would certainly not be qualified to give, and even if they did, opinions can’t be “false” just “wrong.”

  7. zscoreUSA says:

    On GTX18, there is an exchange in early May 2018, with an individual with a Russian sounding name.

    This may be interesting as the source of these messages is iCloud (04), which is most likely Robert’s iPad, which is the device I suspect was actually stolen (as opposed to a laptop which is the accepted narrative) on August 4/5 by a Russian drug dealer while in Las Vegas.

    The details of that theft, include the Russian drug dealer having been granted access to Hunter’s device in the time frame before the theft. And that Hunter was in Las Vegas to help the Russian drug dealer with something that was only supposed to last a day or 2, and not the 2 weeks it ended up lasting.

    So, that Russian drug dealer, may have stolen the device while in Vegas, but possibly based on Los Angeles, and physically in Los Angeles with Hunter in May.

    • coalesced says:

      If I remember correctly, there are 2 or 3 photos in the Biden data set around that date….3 Eastern European/Russian males, 1 female together in a car. Female is taking a selfie of all 4 of them. Hunter is not present…but pics taken on Hunter’s device. May be different date/event but struck me as suspect.

      • zscoreUSA says:

        Those images are from late Sept when Hunter is in LA before returning to Delaware. Around time of partying on the pool slide.

        The video of pulling a woman’s hair is 9/29/18. The image from the car with a group of people was from the same time frame.

        Oddly, I didn’t take any notes on it, as I didn’t see importance at the time I saw it. But I definitely recall it. If you scroll through the photos there are mostly smiles and everyone is having a good time partying. One individual in the car is staring through the camera with a look on his face that reminds me of the look on Epstein’s face in the photos with him and Trump and Maxwell.

        The Daily Mail suggests these people may be the ones from Vegas in August surrounding the theft of a device. But that same Daily Mail article appears to be patient zero for at least 3 false narratives about Hunter and the laptop. Functioning as a trial balloon if the false narratives will be called out.

        To be clear, there hasn’t been proven any connection between these 3 individuals, just something to keep in the back of the mind.

        1) LA Russian drug dealer: texted Hunter in May to connect with another drug dealer, cited by prosecutors

        2) Vegas Russian drug dealer: stole device in August, given access from Hunter to the device, Hunter was helping with something

        3) car person: partying with Hunter late Sept in LA, suspected by Daily Mail to be tied to 2)

  8. zscoreUSA says:

    Another note from GTX18:
    The October 2018 messages from Hunter to Hallie from what I call DC Number 2 are sourced to Laptop (iTunes), which I believe is the XS that was extracted to the Mac Isaac laptop in early February 2019.

    These messages show Hallie’s message have her name saved as “Hallie Biden”. Hunter’s side of the conversation don’t have his name saved, just the digits.

    Is that normal? Theoretically this device is the only phone that is the currently a trusted Apple device, per Dimitrelos. So should it have his name of the phone tied to it since he is using it? Or indication of a SIM card swap? Or some other explanation?

    • zscoreUSA says:

      GTX18 also shows messages from Hunter on 10/16/18 attributed to an iCloud email I’ve never seen, sources to Laptop (iTunes). I don’t know if I missed it previously, or it has only been in redacted forms, but it looks like it could be an account that had previously belonged to Beau and Hallie.

      I don’t what that indicates about which device is being used. Maybe Hunter is using Hallie’s iPad.

      • emptywheel says:

        Good question. I’ve not seen it either.

        It was on the previously released version (they did add some stuff, but I’m not sure what).

    • zscoreUSA says:

      Re: GTX18

      The messages from Hunter sourced to iCloud (03) all are from an email on Hunter’s end.

      Beginning on 11/8/18, the messages are mostly from the rspdc email with contact name “Hunter”, then the last one from that source is from the iCloud email with contact name “Robert Biden”.

      A relevant date is 11/5/18, which is when I suspect Hunter retrieves an old phone. So this phone may not have a working phone number at that time.

      Now, I’m really curious about the 11/3/18 message Emptywheel highlighted with the redacted opening and missing header.

      Was that just a prosecution mistake in preparing the form? Or intentional to hide something about which device was which?

        • zscoreUSA says:

          ehh. He signs off on a lot of text messages as Rob. And his signature is the full name Robert Hunter Biden.

          I point it out here largely to track which device and which digital account is which.

        • emptywheel says:

          Also he changed his Apple name over and over. Sometimes he was Robert, sometimes Hunter.

          His sex worker account was Robert something else.

  9. wetzel-rhymes-with says:

    I have long been wondering what evidence could satisfy Toulmin logic for attributing that Hunter thought of himself as an addict. How can you make the claim in a defensible way inferentially?

    For the defense, however, maybe an effective counter to the attribution is that in nearly every drug or alcohol treatment program, the first step is to admit to yourself you are an addict. Admitting you are an addict is the first step in recovery. Hunter was not in recovery at this time, so he would not have yet admitted he was an addict. If he had, he would have been in recovery, so it deductively follows Hunter had not yet admitted to himself he was an addict at the time he purchased the gun.

    • Shadowalker says:

      You have to use the law, which not only enhances the state of the addiction with, “so far addicted”, it allows that an addict can achieve self-control and abstain from using. It’s a thought crime of the moment, which means the prosecution has to prove they can read minds.

    • coalesced says:

      The concept of “addict” even varies between treatment programs/modalities. Your classic 12 step program is the only one that dogmatically requires public declaration of oneself as an “addict” and via those programs, once you are an addict…you are ALWAYS an addict. Even that would drastically alter how one might answer the required legal questions.

  10. EatenByGrues says:

    While I won’t accuse the judge in this case of corruption… I will note the following:

    If I were a politically-minded, GOP-serving judge overseeing the trial of the prodigal son of the Democratic POTUS, and my marching orders were the following:

    * engineer a guilty verdict before the election
    * don’t worry about being overturned on appeal, because any appeal will happen long after it’s politically useful

    … then I would conduct the trial (including all the pre-trial stuff) in EXACTLY the same fashion as this trial has been conducted. Kneecap and hamstring the defense at every opportunity, even when it’s obvious error that will result in a conviction being overturned.

    And yet… based on what I’ve read so far, I have higher hopes for an acquittal (or a hung jury) then I did before. Of course, the usual anti-nullifcation speeches will be delivered, instructing the jury that they are absolutely forbidden to question the prosecutor’s discretion, nor to consider any impact or fallout from their verdict, and Lowell will be barred from even hinting that the prosecution may have stepped over the line. But the chances of at least one juror deciding “they’re throwing the book at a junkie just to f him up–this is BS” and refusing to convict on that basis, seems to be greater than it was when the trial started.

    • Shadowalker says:

      Even a conviction won’t harm the President, so long as he doesn’t issue a pardon and allows the courts to figure it out. What better way to show a contrast between himself and the Republican party and the Republican nominee.

      • EatenByGrues says:

        I would hope not. Though I fully expect certain media sources to write misleading headlines like “BIDEN CONVICTED!” while deliberately obscuring which Biden it was.

    • emptywheel says:

      I don’t think anyone knows how it’s going to come out and Abbe Lowell has made it clear he is going to mount a defense so I’d wait to see it.

      But I think that post ignores some key details, laid out here: The memoir was a gross waste of the jury’s time, bc a single solitary page of it pertains to the period in question. They wasted hours laying out what Hunter freely admitted.

  11. Tech Support says:

    Of the various elements that need to be proven, there is one that leaps out to me, at least with respect to how the Judge and the prosecution have handled the evidence:

    Whether the false statement was material to the sale

    Isn’t there an argument to be made that the doctoring of the form demonstrates that the vendor, Cleveland, did not respect or comply with regulatory practices in the course of business and therefore any false statements on the form were not in fact material to the sale? i.e. Cleveland was going to sell that gun, hell or high water?

    • PensionDan says:

      Maybe one way Lowell can get around the judge shutting down Biden’s 6th amendment right to impeach the gun shop employees’ testimony is to ask Cleveland whether the 4473 placed into evidence has been completely filled out – which it has not; it’s missing line 18b, which is needed because the passport ID shown just above doesn’t include address. And then expand on that.

      • EatenByGrues says:

        There are ways that Lowell, even over the likely-sustained objections of the prosecution, can drop hints to the jury that there may just be relevant evidence that is being hidden from them. I guess Cleveland is being cross-examined by Lowell as I write this, it will be interesting to see what happens.

      • bmaz says:

        “Maybe one way Lowell can get around the judge shutting down Biden’s 6th amendment right to impeach…”


        Nobody here seemed worried about Alvin Bragg and the 6th Amendment right to notice of nature of charges, but you suddenly are now?

  12. Markus Daszkal says:

    Bottom line – there is plenty of reasonable doubt on all 3 counts. “Knowingly” is going to cause the prosecutors a whole lot of problems.

    A jury that wants to acquit will find it easy to do so. Anyone can see why they’re going after this guy. It’s a travesty of justice and the jury will resent it IMO.

    Not guilty on all counts within 2 hours after deliberations start. Book it.

    • emptywheel says:

      Please don’t.

      These are strong charges, especially Count 3. Please just let the jury do their job.

      • EatenByGrues says:

        By a technical analysis of the known facts, and ignoring questions around intent that might give rise to an acquittal, Hunter Biden is likely guilty as charged. He bought a gun during a time period in which he was a regular drug user; and there’s not really any dispute about that.

        In one sense, a conviction is indeed a likely outcome, and if one assumes the platonic idea that the Jury Decide The Fact Without Regard To The Consequences, the only just outcome. Hunter Biden almost certainly did the things set forth in the indictment.

        On the other hand, I think we all agree that the entire case is a travesty of justice–a politically-motivated throwing of the book designed to politically damage the defendant’s father, and one being conducted–as I noted above–with far less of an emphasis on surviving appeal. I don’t expect any convictions in this case to survive appeal, or at least they will be dramatically whittled down. But for the political considerations in play, an appeal after the election doesn’t matter. If Trump wins, we’re all fucked, and if Biden pater wins re-election, I imagine the son might eventually get some clemency (though not a full pardon) if and when any of the case against him survives the appellate process.

        But there is very much a “why is the government wasting its time on this case? Oh, that’s why” element to the whole thing. After all, Marcy, you are spending a great deal of time on this matter yourself (for which we all thank you!), whereas most gun possession cases involving low-level drug offenders, even ones (most of them) where this some other more serious crime being considered, pass beneath the notice of anyone in the press.

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