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

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.

33 replies
  1. Badger Robert says:

    You posted in terms referencing Greek tragedy. But my thoughts turned to the novel by Joseph Heller, Something Happened. Oddly, this post reinforces that thought. Because many things could have happened, but nothing happened just as in Heller’s novel. 11 days? Never used? He eventually got treatment? Seems to me that some jurors might compare these facts to terrible things that happened in their families and conclude something opposite of Heller’s title, but consistent with his text: nothing happened.

    • Benvindo Soares says:

      I hear you , I guess it might have to do with what the Law was designed to do ?
      I’m sure there are folks that are armed with prescriptions that lack control and have guns ….not a problem until it is .

      • Savage Librarian says:

        I had a home invasion in broad daylight once by someone with a weapon. It was a bizarre experience and nobody got hurt. But when I told a long distance friend about it, the next day he went out and bought a gun. I found that equally bizarre and worrisome because of prescription drugs he had.

        Although maybe not the most apt, the novel that comes to mind for me is Invitation to a Beheading by Vladimir Nabokov. The protagonist is accused of the crime “gnostical turpitude.”

  2. Benvindo Soares says:

    I have a stupid question.

    Was the gun ever loaded ? Did Hunter ever load it ? Under the Law does the weapon have to be accompanied by ammunition or just the fact you have the gun matter. lol

    I shall Google. It seems like the treatment of ammunition could be a tell for his state of mind.

    • John Paul Jones says:

      There was evidence/testimony that two rounds were found loose in the car, that is, removed from a box of ammo; I don’t recall any testimony/evidence that the gun was ever fully loaded. One possible inference is that he bought the gun, maybe, with the intention of solving his problems by shooting himself.

      • RipNoLonger says:

        Not that anyone in the law enforcement business have every been accused of planting evidence… And there is no good chain of evidence.

    • emptywheel says:

      There’s no evidence the gun was loaded.

      There were two bullets out of the box in the console. Hallie said she got rid of them with the gun.

  3. bgThenNow says:

    Drug paraphernalia? He was a smoker. How old was the child? What harm might have been posed? Paraphernalia is not drugs. I am not saying it is acceptable to have this stuff around children. But what harm outside of becoming aware of the drug problem? Was it a lighter? A pipe that could break and cut someone? I’m not up on the smoking paraphernalia, but it is not like needles (or a gun) that can really be dangerous.

    If there are jurors who have intimate awareness of these things, I’m sure they have worse stories. It’s not like he was manufacturing meth around children. He was trying to be safe keeping the gun locked up. It was not in proximity to where a child was playing. Who broke the lock?

    I bet some of the jurors are glad their friend/relative/etc is not the son of POTUS.

    • emptywheel says:

      Yup. I’m just laying out where I think prosecutors are going with this, partly because it helps to explain why the defense called Naomi.

    • Spooky Mulder says:

      Some might say that a dickish defense attorney or differently described, a fierce advocate of their client might wonder if the pouch with a crack pipe in it could belong to someone else who lived there and had a known history of crack cocaine use…

      I think this case has polluted my mind!

  4. Error Prone says:

    I remain astounded how Hallie Biden “disposed” of the firearm. Don’t they have remote semi-rural lakes around there without surveillance cameras, where heavy items slung in sink? Instead, as if wrapped for the finding, driven to a retail area full of surveillance cameras and put into some kind of trash container. On top of other trash? “I panicked” seems to only go so far. What was locked or not, truck doors, inside? Conflicting stories.

    No firearm found that way, no trial, no indictment.

    • Savage Librarian says:

      I think that location was a trash container outside Janssen’s Market, a local grocery store where POTUS still stops by to eat lunch and customers can get the “Joe Biden” sandwich. So, it seems symbolic, whether intentional or not.

    • earlofhuntingdon says:

      Familiar territory is the only explanation for the way she disposed of the weapon. It was bound to be found and sold or reused. Not much thinking going on.

      If giving it to the police or a gun dealer was not in the cards for her, dumping it in a river, lake, the sea would have been more reliable. Washes away trace evidence, barring the serial number. Makes it hard to find, and hard or impossible to reuse. Safer all round, but she didn’t do it.

  5. bgThenNow says:

    When Naomi had the truck, and when she returned it, the console was locked? Did she know there was a gun in the console? A thief who broke into the console would not have left the gun. Did Hallie say she broke the lock? Did she know he had a gun? Of course if she broke into the console and found the gun she would freak out.

    Again, all of this is not unfamiliar to anyone who has been in any caring relationship with someone abusing or having a history of abusing drugs. It’s just awful.

    • originalK says:

      If it is not the case that Hallie broke into the console, then it might have been Hunter upon exchanging vehicles with Naomi in NYC. He would have only had the gun for a few (6) days, maybe misplaced and/or never turned the console key (?) over to his daughter. Both of Hallie and Hunter’s narratives vary – neither was acting with a clear head – but with regard to the gun, his was the clearer.

    • originalK says:

      And thanks for adding a point of clarity for me – if he would have been 100% relapsed, with a broken console, it’s probable the gun would’ve been stolen before Hallie had a chance. :-(

    • rvhishere says:

      It makes the most sense to me that Hallie broke the console lock to see what was in the console. This explains the startle and panic response that Hallie exhibited. There is no reason to believe that Hunter trashed his own truck, though this seems to be the innuendo. This would make room for discrediting Hallies testimony and play into the jilted lover scenario.

      It’s not clear to me whether Hunter reclaimed the gun. If he didn’t, was there an explaination?

  6. Benoit Roux says:

    What are the legal bounds of this box that gets checked? What if you were clean and hopeful for a few days, then purchased the gun, checking the box “I am not an addict” thruthfully and sincerely at the moment, but then relapsed a few days later? How long do you have to be clean? One month? One week? Decades? What if you used drugs when you were 20, purchase a gun at 40, and relapse some timelater because a terrible and sudden trauma? Did you lie on the form? And to avoid the charge “Possession of a Firearm by a Drug User or Drug Addict 18 USC 922(g)(3)”, do you have to get rid of the gun as soon as you relapse? Sorry, too late. You would still be formally in violation unless you get rid of the gun BEFORE you get high? The whole timing of this, if applied to all gun owners in the entire country would probably sweep in millions of people.

  7. freebird says:

    Being an addict is idiosyncratic and particular to an individual person. A user can develop tolerance to a drug where they don’t get high and needs to keep dosing just to feel normal. The pernicious thing about using drugs is that the tolerance gets so strong that the required dose gets so high until it kills the user. Or, the same dose can interfere with a cellular process which affects the breathing and heart rate which then kills the user.

    So, a jury is going to make a subjective decision if a person is high or not. For me, I am lucky that I don’t get the euphoria from alcohol or the opiates I was given after surgery.

  8. dopefish says:

    OT: The Hill: Comer, after criminal referrals, pledges to go after Biden: ‘This is just the beginning’
    Comer says the criminal referrals of James and Hunter are really about his pointless impeachment investigation:

    “Remember, this is an investigation of Joe Biden,” Comer said in an interview on Fox News’s “Sunday Morning Futures” with Maria Bartiromo. “Hunter Biden, Jim Biden, Eric Schwerin, Devon Archer — these are all witnesses in an investigation of Joe Biden. This was always about Joe Biden.”

    Republicans desperately want Joe Biden to have some taint of corruption they can use to distract from Trump being by far the most corrupt person ever to hold the office of POTUS, who owes over half a billion dollars in civil judgements, has been found guilty of 34 felonies and is awaiting trial on over 50 more. Trump was impeached twice for serious crimes against his country. Meanwhile the worst sin Republicans can find committed by Joe Biden after 54 years of faithful public service, is that he’s now old.

    That article also telegraphs Republican plans to keep harassing the Bidens under a future Trump administration:

    “This is the first step, these criminal referrals,” Comer said. “Everything that we refer to the Department of Justice is within the statute of limitations. In fact, there’s five-year statute of limitations. So, if Merrick Garland’s Department of Justice doesn’t take this up in an appropriate manner, then the next administration and a new attorney general certainly can.”

  9. Nutmeg Dem says:

    Thanks for going over the elements of this charge and highlighting the salient points of the jury instruction. I would suspect that the jury may struggle with this during deliberations and have questions for the judge. Part of me would like to see Hunter convicted of one charge just to avoid the ridiculous right wing noise machine if he were acquitted (Yes, of course it’s going to happen regardless of the verdict). But I have to wonder if the jury which sees a guy who was in the depths of addiction, who is now clean and well looking and who has the support of his wife and family decides that this is a bs charge and acquits. Can you recommend any reporters who are covering the trial in person so maybe we can get some perspective?

  10. Error Prone says:

    Monday, June 10 – Has Lowell closed defense? If so, would closing arguments be expected today?

  11. Rayne says:

    One thing which makes me doubt how jurors of a certain age and experience will view Hunter’s addiction: the decades-long conditioning of anti-drug programs which began in the early Reagan administration with the absurd PR program “Just Say No.”

    The backgrounds of five of the jurors suggests they’ll see past the conditioning, but will the others? Or will they unconsciously believe Hunter had full agency and complete control over himself at all times and could have elected to “just say no”?

  12. Xboxershorts says:

    I posted this on xitter (pronounced shitter) and think it’s a meaningful thing to say here, as I have personal experience digging myself out of addiction and the damage it did to my life.

    “Disgusting how Gov’t is twisting the meaning of “addicted” here. The normal path OUT of addiction usually includes multiple attempts at treatment & always includes multiple relapses. (Relapse is normal in cases of addiction)

    I once had a sponsor who was clean for 6 years, but when his wife was diag’d with MS, he relapsed.

    Would it have been illegal for this sponsor to have purchased a firearm and did not check that box or post an entry on form 4473 here?

    I am 27 years removed from my last crack binge, not a day goes by I don’t thank God and the good humans who held my hand through this part of my life’s journey. Oh, and…What a Long Strange Trip It’s been!

    Question, do I, 27 years removed, need to check that box on the form?

    If not, then somewhere on that question the word “Active” needs to be included.

    • joel fisher says:

      Your story certainly highlights an issue: had the ATF folks wanted they could have printed the jury instruction next to the box Hunter checked “No”. The jury had all the time in the world to consider the instruction, Hunter–perhaps thinking he had finally beaten the addiction–a moment at point of sale.

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