Prosecutors Plan to Use Their Failure to Exploit the Ablow Laptop against Hunter Biden

There are actually at least two laptops admitted into discovery in the Hunter Biden trial: First, the laptop obtained from John Paul Mac Isaac, from which prosecutors obtained about half of their digital evidence. It was introduced as a physical object. Sadly neither side has submitted a picture of it, so there’s no exhibit showing what the famous laptop actually looks like.

There’s also a laptop depicted in this picture Zoe Kestan took, which prosecutors appear to have obtained from a subpoena to her, which she got off her phone.

According to the draft jury instructions, one of the immunized female witnesses against Hunter, Hallie Biden or Kestan, had a non-prosecution agreement, as opposed to testimonial immunity.

You have heard evidence that [PARTIES TO FILL IN] have ______________] has received a promise from the government that she will not be prosecuted;

And you have heard evidence that [_______________] has received a promise from the government that her testimony will not be used against her in a criminal case; or [my emphasis]

Given Abbe Lowell’s elicitation of Kestan’s role in buying Hunter drugs, and Leo Wise’s question that elicited the age difference between Hunter and Kestan in response, it seems likely Kestan is the one from whom prosecutors obtained full cooperation by waving around the possibility of criminal charges.

But back to the second laptop. By date — September 10, 2018 — and appearance (to the extent we can see it), the laptop in the picture is likely to be the laptop that ended up in Keith Ablow’s cottage in February 2019. Hunter started using that laptop around September 1, 2018.

Prosecutors have already revealed that they plan to explain away the fact that they have none of the kind of evidence showing Hunter purchasing crack in the period in which he owned a gun as they do from May 2018 and December 2019 and February 2019 by pointing to testimony — they originally claimed it would come from Hallie — that Hunter frequently lost phones.

Witness 3 observed that the defendant frequently lost phones and changed phones, which explains gaps in time where there are no messages.

I guess they realized that the texts with Hallie in the 11 days in question discredit the claim that his texts weren’t being sent and saved, so instead Leo Wise had Kestan describe all the phones Hunter lost in this period.

Q. Did that happen on more than one occasion where he lost a phone or had to replace a phone?

A. Yes.

Q. Approximately how many times would you say that happened during the period you were with him?

A. Maybe 5 or 6.

Note: I think she would not have known that he lost that many phones in that period; though he did lose that many devices.

They will show, however, that in a screencap that is undated but which she may have described as coming, “a day or so before Thanksgiving [2018]” or may have included among texts she kept sending afterwards, in which she marks that Hunter had a new phone (or new phone number).

After Abbe Lowell points out that prosecutors wasted hours and hours of jurors’ time showing them communications from periods no time close to the events in question, whoever does the reply to Lowell’s closing argument will point to that Kestan testimony and explain that the reason there are no comms from that period in October must be that Hunter lost the phones on which he arranged drug deals.

They’re not wrong, in theory.

I mean, it’s a rich theory given that in August 2023, prosecutors said they wouldn’t rely on the laptop at all because it was all backed up to the iCloud, and Derek Hines was misleading Judge Noreika about how much really was backed up to the cloud as recently as May 22. But I’m used to this kind of stuff from these guys.

The problem with this argument, though — or it would have been a problem if Noreika had forced prosecutors to do what is normally required in criminal cases, the actual validation of the data — is that the laptop on which any communications Hunter sent to drug dealers between October 11 and October 23 probably passed through the custody of the DEA.

Hunter Biden initiated a bunch of new devices at the tail end of the period he owned a gun.

On October 21, 2018 the laptop used as evidence at trial was first logged into his iCloud.

On October 22, a new iPhone XS was first logged into his iCloud (functionally, I believe this replaced a phone Hunter lost on October 11 or earlier).

On October 23, a new iPhone8 was first logged into his iCloud (functionally, I believe this also replaced a phone Hunter lost on October 11).

The laptop presented at trial does have evidence from before it was first put in service (largely in the form of an iTunes backup saved to the device itself), but prosecutors will argue that it wouldn’t have everything.

When Derek Hines had Erika Jensen present the cherry pick of evidence they’re using in this case, he relied on Subscriber records (one, two, three) and Jensen’s testimony to tie the comms depicted in the summary chart to Hunter. She didn’t show Apple’s records of which devices were associated with his account at any given time, which would give jurors a sense of — for example — the precise turmoil in his devices in this period (but would also give some idea of real anomalies that should have led to the exclusion of the laptop). Prosecutors could have shown that Hunter went through a lot of devices by showing that list from Apple. Instead, they’re going to rely on Kestan’s testimony.

But no one has mentioned that one of the devices Hunter lost — the one that would most likely have collected the equivalent set of comms to those introduced at trial — was found, found by the DEA when they searched the office of Hunter’s shrink, Keith Ablow.

David Weiss’ prosecutors are going to argue that they have gaps in their evidence precisely where that evidence would otherwise show ongoing crack use. What they’re not going to admit is that over a year after the investigation of Hunter Biden started, over a year after Federal authorities learned about the gun, the Federal government was in possession of the laptop that, according to this theory, would have the smoking gun crack communications to prove their case.

Instead of searching it for the comms that David Weiss will claim would prove their case, they simply gave the laptop back to Hunter Biden.

Having not done anything with the laptop when they had it in 2020, prosecutors will use their failure to do anything with the laptop in 2020 as an excuse for evidence they don’t have.

18 replies
  1. Fancy Chicken says:

    Man, you can’t make this shit up that the prosecution is pulling.

    I hope to God that Lowell can pull together a closing that can spotlight all these irregularities and corollary, not even truly inferential, evidence and testimony and that the jury can see this is a desperate case by the prosecution even if Norieka has loaded the dice for them and it appears on the face to be a strong prosecution.

  2. bawiggans says:

    I am not knowledgeable about federal rules of evidence. Is the excuse proffered by the government for why it does not have a particular piece of evidence to submit to the court a legal substitute for the absent evidence? If so, is it accepted practice to reconstruct such “evidence” using other admitted, physical evidence that is supposed to have established some sort of sequence, context or pattern? And if that is so, can the virtual, re-constructed evidence then be used to reconstruct yet more evidence that, sadly, was also not obtained or could not actually be submitted to the court because excuse here? And so on?

    • Error Prone says:

      Lawyer-contributors can correct me if I misunderstand, but circumstantial evidence was that there was regular use in the record from before and after the “gap” with it possible to circumstantially conclude continuity during the “gap,” or to conclude otherwise, with the court giving a circumstantial evidence instruction. And, reasonable doubt is a factor. Lowell’s presented circumstantial evidence, recent prior treatment w/o use, to raise a doubt the jury can find reasonable.

    • Error Prone says:

      There is a gap in evidence of use, but what about “addict?”

      If a jury instruction is given defining “addict,” we have to wait on it. If none is given, and the jury left to self-define, would that be appealable if having a trial chance to offer one and to not object if none is given (would an objection of record be needed)? It looks as if defining “addict” for the jury is some kind of don’t touch third rail. It is, however, a key element. If the jury is not instructed on what “addict” means, could they see that as the prosecution’s failure, or just go off guessing and deliberating? (I do well understand that once in the room to deliberate they can do anything they want, to ultimately come out and say hung, guilty, or not guilty. That’s been posted by Marcy.)

  3. Brad Cole says:

    Every entry that I read here leaves me wondering at the apparently limitless bucket of resources the DoJ is expending on this trivial case. They don’t even have the excuse that there’s money to recover as he already paid his taxes in full years ago. Brad Weinsheimer is the supposed supervisor of this case, he approved everything. It just seems like an out of control Federalist cabal. It’s astonishing that there’s no institutional check, 4 years after we got rid of Barr. I thought that prosecutors had to do some kind of cost benefit analysis?

  4. originalK says:

    In your previous post about the lost phones, I think that those messages overlaps a time when he could have been in rehab in PA. I’m guessing both prosecution and defense have found it in their interest to be vague with dates. But with respect to so many lost phones though, I think it is as likely that some were stolen, and I can’t imagine that everyone is so naive as to not know the street demand, especially for Apple devices.

    I keep repeating I don’t want to look at the evidence, but I wouldn’t be surprised if a couple of jurors are saying “what are these prosecutors on?” because of how naive & coy they are playing about real life. Which is to say, I have looked at more of the evidence, and HB is as likely to have episodic, problematic substance use in relation to episodic, problematic sex, gambling, shopping and alcohol use. I’m not the only one to point it out here – strip clubs (legal) are expensive! But also, some of the evidence from between the NYC trip and the gun theft centers around Delaware’s gambling “racinos” (legal) in Newark.

    “If the texts don’t exist, you must acquit!”

  5. Error Prone says:

    Reporting is DEA raided Abrow’s office. Suggesting DEA got the warrant. Has that warrant ever been made public? Among items to seize stated in the warrant, third party property would be exempt, yes/no? It was a DEA bailment. Patient records privacy would have been a concern in seeking and issuance of a warrant. DEA lacked authority to search that laptop that came into their possession as possibly Abrow’s but once known to not be his, but patient property, they likely had no legal basis nor warrant-related motive to search it. DEA is not FBI and not DoJ. It is a separate “person.” Or that is my understanding.

    • emptywheel says:

      Correct and correct. But FBI was involved, and that was a better chain of custody than the laptop that FBI found to get to David Weiss four months earlier.

  6. Southern Exposure says:

    If there is a hung jury and the DOJ decides to pursue another trial, would it automatically be in front of the same judge? Would Lowell get another bite of the apple on evidentiary rulings with this judge or with the new judge? Would Lowell be able to revisit the selective prosecution arguments and plea agreement arguments that he previously lost? Thanks

    [Welcome back to emptywheel. Please use the SAME USERNAME and email address each time you comment so that community members get to know you. You attempted to publish this comment under a second username, “northern exposure.” I have edited it this one time to match your first known username, “Southern Exposure.” Make a note of your correct username, check your browser’s cache and autofill. Future comments with mismatched usernames may not publish. /~Rayne]

    • bmaz says:

      Yes, same judge. Absent changed circumstances, prior evidentiary rulings would stand. No, those arguments are not germane in front of the jury.

    • emptywheel says:

      Note, too, that if the jury hangs prosecutors might decide to retry just to forestall appeal before the LA trial.

      • Southern Exposure says:

        Thanks bmaz. Makes sense.

        Sorry Rayne, changed computers and it did not carryover so I did it from memory. Should be corrected now. Appreciate how closely this sight is curated and monitored. Discussion rarely devolves as a result and it makes the reading here much more enjoyable and informative.

      • bmaz says:

        Why? The dirtier move would be to postpone LA until they have a certified prior on this.

  7. zscoreUSA says:

    Good catch on the Ablow laptop in the background.

    Something I am confused about is why the prosecution doesn’t use the photos/video of Hunter posing with the gun. Marco Polo report has the image next to an image from the same recording which has drugs on a counter.

    The file is titled, so I think was recorded on an iPhone. Marco Polo says the date is 10/17/18, so would probably be one of the 3 new iPhones.

    I don’t know if that means for some reason the prosecution has an issue with authentication or something else for that image.

  8. Zinsky123 says:

    First, IANAL, so my legal opinions mean nothing. However, I have served on a jury. Putting myself in the shoes of a juror in this trial, I would have a hard time convicting Biden on the documentation charges. The knuckleheads in the gun shop are the ones who should be punished in this case! Doctoring federal forms for a celebrity gun purchaser is exactly the sort of behavior society seeks to curtail, right? Not that we don’t want to curtail drug addicts buying guns too. However, Hunter was so completely under the influence during this period of time, I don’t see how the jury doesn’t reach a guilty verdict on the user in possession charge. As Marcy has so eloquently put it, Hunter’s drug use is a personal and societal shortcoming and tragedy that we can all relate to!

    • Kope a Pia says:

      The defense was not allowed to present any evidence about the shenanigans that the gun sellers did with the documents.

Comments are closed.