Reading, Rather than Bringing, Receipts

Here’s an interesting detail from yesterday’s Hunter Biden trial.

After getting Hallie Biden’s testimony — which probably got prosecutors what they need to prove Count 3, the possession charge (though Hunter’s team will bring at least one witness to discredit Hallie’s story) — they called Joshua Marley, the second of two guys who responded to Hallie’s police report on October 23, 2018.

The first guy to respond was a guy named Vincent Clemons.

Prosecutor Derek Hines walked Marley, the second guy to respond to Hallie’s police report, through what he represented Marley had heard Hunter Biden say in response to Clemons’ questions of Hunter Biden.

Q. Was he interviewed in your presence, and did you participate in an interview with him?

A. He was interviewed in my presence, I don’t know if I participated much.

Q. How far away were you standing from him during the course of this interview?

A. If I recall correctly, just a couple of feet.

Q. Who else was with you?

A. Sergeant Clemons.

Q. Was Sergeant Clemons asking the questions and you were sort of recording the answers?

A. Correct.

[snip]

Q. Do you believe he was the victim because his handgun had been stolen, or was that at least the investigation at that time?

A. Yes.

Q. And is that how it was reported at least?

A. Yes, that the gun was removed from his vehicle.

Q. Did Hunter Biden say anything about who owned the gun that was missing?

A. Yeah, he said he had purchased the gun on either the 12th or the 13th from StarQuest Shooter.

Q. Hunter Biden had said he himself had purchased the gun?

A. Yes.

Q. Did he say anything about how he discovered the gun was missing?

A. I believe he just went into his vehicle and found it was missing from the center console.

Q. Did he say that?

A. I think so.

Q. Did you prepare a report?

A. Yes.

Q. Would that be reflected in your report, if he had said it?

A. Yes.

Q. Would it refresh your recollection to see that report?

A. Sure, yeah.

MR. HINES: May I approach, Your Honor?

THE COURT: You may.

BY MR. HINES: Q. Could you read that second sentence there, starting with that word?

A. To be advised —

Q. No, just read it to yourself?

A. I’m sorry, okay.

Q. Does that refresh your recollection as to whether or not Hunter Biden said where he had — his gun had been?

A. Yes.

Q. What did he say?

A. That it was missing from the center console of the vehicle.

Q. He indicated where he had purchased the gun?

A. Yes.

Q. What was the location where he had purchased it?

A. The StarQuest Shooters gun shop on Concord Pike.

This was overkill. One of the elements of the offense on Count Three, the easiest to prove, is that Hunter Biden knew he possessed the gun. The easiest way to prove that is that Hunter signed the gun purchase form and then, 11 days later, found it gone from his truck console and immediately texted Hallie Biden about it.

But in an effort to get Marley to describe Hunter saying that he had found the gun missing from the center console of his truck, Derek Hines used the Delaware Police Report to refresh Marley’s memory so he could describe what Hunter said.

Back in May, in an effort to prevent Hunter from pointing out that no one charged him in the five years since he bought the gun, Hines argued that this form is inadmissible hearsay.

First, the defendant states “both parties may still seek the admission of . . . the Delaware State Police incident report . . .” Response at 1. The report is inadmissible because it is hearsay and not covered by any exception. Fed. R. Evid. 801.

Indeed, it was not admitted yesterday. Hines simply used it to refresh Marley’s memory.

On cross, Abbe Lowell walked Marley through how this report got written up. First, he got Marley to describe that he and Clemons didn’t so much write the police report together. They both wrote their own separate reports, with their own names on the bottom of the pages they wrote.

Q. Did you collaborate with Sergeant Clemons to write the police report that you were shown to refresh your recollection?

A. Collaborate as far as, I did my report and he also wrote his report on his own.

Q. Say that last part?

A. He also did a report.

Q. So if in the police report of that day at the bottom of the page it has the name Sergeant Clemons, does that mean what’s on the page was his or it’s something that you both would have collaborated about, but he wrote it?

Noting that Hines has already used the report to refresh Marley’s memory, Lowell then used it to get Marley to note which parts of the report he wrote and which Clemons wrote.

BY MR. LOWELL: Q. You were shown this to refresh your recollection. Can you do that again for me? Just take a look at that, look down, I want you to see the bottom, I want you to see where there are names, and tell us whether or not that refreshes your recollection as to who is responsible for the words on a page?

A. So this one would be myself.

Q. This one, meaning the front page?

A. Correct.

Q. Now if you’ll turn to the second page.

A. Also myself.

Q. Okay. Third page?

A. Still myself.

He got Marley to describe that the fourth page, where Clemons’ report (which includes the report on what Hallie said that day, which no one claims Marley heard, as well as what Hunter said — the part Hines had Marley claim to remember as overkill). Lowell also got Marley to note that Clemons’ report was all typed up in a nice form; it was far more than notes.

Q. Now on the fourth page, if your report has again, as I was asking, a name at the bottom, does that reflect what?

A. That would be Sergeant Clemons.

Q. That’s not your writing, if he asked questions, that’s what is reflected in the report?

A. Right. So that would be his report.

Q. Okay. I understand. Did you review what he wrote?

A. No.

Q. And whether he wrote this, it’s all typed up in a nice form. That’s not what was done on the scene, right?

A. No, this would be later.

Q. Later the day, later the next day, do you know when?

A. We have three days to complete a report. So I’m not exactly sure.

Q. Okay. Before it becomes finalized, whatever that means, do you read it? The report?

A. Before I submit it in for approval?

Q. Yes.

A. Yes, I read it.

Lowell got Marley to describe that he doesn’t know when Clemons’ part of the report was submitted. It might even be a supplement, one that — so long as it was submitted under the same number — could be submitted any time after.

Q. At the point at which you did that for this form, had Mr. Clemons already put his part in?

A. I don’t know.

Q. But you see it in the report that it’s a number of pages, some his and some yours?

A. Correct. So it would be two separate reports under. the same number, so like a supplement.

Q. So part could happen one time, and then the next part happens another time, and at the end of the process it’s one report which has all the parts in it?

A. Yes, if it’s the same report number, yes, you could do supplements at any given time, you know, a day later, a month later if new evidence comes up or whatever.

Q. Got it. If there is something about what Ms. Biden said, you weren’t in her earshot, but it would be in the report if Mr. Clemons took that interview?

A. I would imagine.

Q. Did you know, did you review what it was he wrote down that she said?

A. No.

Q. And you have never looked at that?

A. Not that I remember.

Could have been submitted a month later! It was actually three days later, October 26.

Lowell gets Marley to admit that he was only maybe in earshot of the part of the interview where Hunter admitted — that bit Hines introduced as overkill to substantiate the easiest element of the offense for the easiest Count to prove — that he bought the gun.

Q. So he’s interviewing Mr. Biden, you’re not doing that?

A. Yes.

Q. He would be responsible for putting down what you were refreshed as to what Mr. Biden said?

A. Yes.

Q. When you were doing that, you were refreshed that he admitted right away that he had been the one to buy the gun?

A. Yes.

Let me interject and say one reason why Lowell is doing this is because in the part of the report that Clemons wrote (which was clearly designed to be a partisan hit job, including reference to the Biden Family), the part that Marley’s sure he did not hear, he described Hallie Biden saying she looked in Hunter’s truck because she suspected, “I think he is screwing around on me.” Not because she thought he had done drugs that day, but because she was jealous. Lowell needs to get that story in to undercut Hallie’s claim that she saw Hunter overnight on October 22, and thought he may have been using drugs, almost the only thing she remembers clearly from a very traumatic day over five years ago.

That might be all Lowell was preparing here. But in the process, he showed that Marley claimed to remember something that he maybe didn’t hear. And, more importantly, he got Marley to describe that Clemons’ part of the report could have been submitted anytime after he himself, Marley, opened the case number with his own report.

Lowell also got Marley to describe that when he went, by himself, to StarQuest to find the serial number for the gun, they may have simply given him the serial number by reading off the computer terminal, which he then copied.

Q. And when you went to StarQuest, you asked them if they had a record for the sale?

A. Yes.

Q. And did you — did they or did they just give you the serial number which is what you were looking for?

A. I’m not sure if they gave me a register receipt or they read it off the computer terminal and I copied it and made the phone call and put it in NCIC.

Lowell notes that there’s no copy of the receipt itself, nor of the Form 4473. If the paper documentation is not there, he didn’t get it.

Q. On the report you made, there is no copy on of what StarQuest gave you that day if they gave you anything?

A. Okay.

Q. I’m asking?

A. Oh, yeah, if it’s not.

Q. If it’s not there, it’s not part of the report?

A. Right.

Q. You might have just asked for the serial number?

A. Yes.

Q. You didn’t ask for a ATF Form 4473 on that day?

A. No.

Q. You just wanted the serial number?

A. Exactly.

Q. Were you involved after that, in getting the people at StarQuest to send you the actual form that was filled out by the gun buyer?

A. No.

Q. And then after you did that, after you went to StarQuest you didn’t go back, then your role in this would then after, to then write your report?

A. That was it.

We of course know that StarQuest didn’t print out the receipt for Marley. That receipt didn’t get first printed out until 2020, when StarQuest owner Ron Parlimere and some buddies and … Vincent Clemons were leaking this story to the press.

In 2020, Parlimere and Clemons were leaking the story to the press, and also “needing to get their stories straight.”

It also reveals a now-exposed attempt by the gun store to fabricate a false narrative about the gun sale. Palimere said the addition of the seller transaction serial number (“5,653”) may have been added on October 26, 2018. (TAB 4, Palimere FD-302 at 4). He said the vehicle registration reference was added in 2021. Yet, the government provided WhatsApp communications from October 2020 and February 2021 between Palimere, friends of his, and then-Delaware state trooper Vincent Clemons3 (see TABs 6 – 6C), all of which refer to the form, a plan to send it to others, needing to get their stories straight about what occurred in 2020, and wanting the gun sale issue and the form exposed during the Presidential campaign.

3 Not to be lost is the fact that Clemons was the Delaware State Police officer who first arrived at Janssens’ grocery store on October 23, 2018 when Hallie Biden threw a bag containing the handgun into a trash can in front of the store. It was Clemons who took statements about the handgun from both Hallie and Hunter Biden and was part of filling out an official police report on the issue. Two years later, he is in the communications with Palimere about the Form 4473, one of which states: “Yep your side is simple – Hunter bought a gun from you, he filled out the proper forms and the Feds approved him for a purchase.” (emphasis added). Palimere later responded, “I’ll keep it short and sweet as well: Hunter bought a gun. The police visited me asking for verification of the purchase and that’s all I can recall from that day. It was over 2 years ago.” (TAB 6B, 10/26/20 Palimere-Clemons Texts at 4, 6.) The reference to filling out the “proper forms” is not lost on defense counsel given what transpired thereafter. And, despite the importance of Clemons (e.g., the person who actually took the statements), the Special Counsel is foregoing him as a witness to call two other Delaware officers instead.

Now, as I said, it was overkill for Hines to use the police report to refresh Marley’s memory to remember something he maybe didn’t witness in an attempt to get even more proof of something that Hunter is not contesting — that he knew he owned the gun — to prove the easiest charge.

But as I’ve laid out, Count 1 — one of the two paperwork charges that requires proving Hunter’s mindset at the moment he filled out a form on October 12, 2018 — has a materiality component. Prosecutors have to prove that the false statement was material to whether they would sell him a gun or not.

And Count 2 charges a false statement on a document that the gun shop “is required … to be kept in the [gun shop’s] records.”

Abbe Lowell probably would have gotten there anyway, even if Hines hadn’t gone for overkill on the easiest element of offense on the easiest charge to prove. But by focusing on the form, he got Marley to make how the documentation from StarQuest got recorded and shared with the state of Delaware as they were conducting a criminal investigation in which they believed Hunter to be the victim an issue.

He laid the groundwork to get witness testimony that, in fact, the gun shop wasn’t complying with their record-keeping requirements, and they weren’t requiring all the elements of the form to be accurate and filled in before they sold Hunter a gun.

I think it likely that Judge Noreika would exclude it even though it is solidly material to both those charges. She said as much on Wednesday. (In a side bar, she even suggested that Hunter should not have listed his Dad’s address as his home address, citing a recent case where she sentenced someone to a year for that.) Noreika is dead-set on protecting the gun shop from facing any legal exposure from the trial of Hunter Biden, even if it means he cannot confront his accusers.

But what the gun shop shared with Delaware when — and the fact that Delaware didn’t get the paperwork they otherwise might have — came into evidence yesterday as a result of Derek Hines’ to go for overkill on evidence relating to the easier charge to prove.

How to Think about the Hunter Biden “Laptop”

As noted, yesterday the summary FBI witness in the Hunter Biden trial, Erika Jensen, testified that she did not do an analysis to find out whether any of the files on the laptop attributed to Hunter Biden, “had been tampered with, added to, or subtracted?” She also testified that, as someone who had, “a small basis of my understanding of how [FBI’s digital forensics experts] work” and having not done such an analysis, had not “seen any evidence whatsoever from the data [she] reviewed from [the] laptop to suggest that there was tampering”

Her job was not to do such an assessment. Her job was to do a summary of a very narrow cherrypick of files prosecutors asked her to summarize.

Indeed, her further testimony revealed how useless her opinion on the laptop is. Aside from matching the laptop serial number with one of at least seven laptops Hunter had used in the two years leading up to its delivery to John Paul Mac Isaac in 2019, the only other validation Jensen described was the emailed receipt JPMI sent Hunter Biden’s publicly identifiable email account on April 17, 2019, which is utterly and completely useless to validate the laptop. Jensen further described that she didn’t review any emails beyond a small handful prosecutors gave her. The file did not include the kind of metadata that would be necessary to assess its usefulness.

The investigative team had never validated whether anything had been added to the laptop before October 20, 2020. No one made an index before handing over the data in discovery to Hunter Biden’s team.

While everyone was focusing on Jensen’s testimony yesterday, Zoe Kestan actually gave far more interesting — and useful, for assessing the reliability of his data — testimony about Hunter’s digital life. She described, for example, that fairly early in their relationship, Hunter “sent me images of his credit card and asked me to call hotels and find somewhere for us to stay that night.” Kasten described that Hunter would get 5-minute codes and send them to her and to drug dealers so they could pull money from his ATM without his ATM card. She described how, sometime around March 2018, the two went together to drop broken devices off at an Apple store, but he left and she finished that process.

We went out for dinner one night, we went to the Apple store because his phone and his computer were broken, and he had to leave in the middle, so I dropped off, and you know, submitted his phone and laptop at the Apple store for him.

She testified he lost maybe 5 or 6 phones in the period they were in a relationship, a period intermittently spanning a year (though I think this might be high). She described trying to locate him once by logging into his bank account (the credentials for which were on her machine) to see where he was withdrawing money from an ATM. She described that he would do his business from her laptop.

This is just one person! And she had the means to totally pwn his life. As, too, undoubtedly, some of the drug dealers who supported his habit.

This is the kind of thing I’ve focused on for a long time. In the depths of his addiction, Hunter Biden exercised almost no digital security, meaning his girlfriends, his drug dealers, his sex workers, and even the junkies he partied with all had easy means to compromise his devices. And every time Hunter lost a device — the five to six Kasten testified to, the seven or so laptops he had over that year, two more phones she wouldn’t have known about — every single time, it would present the opportunity for someone to take over his digital identity as a bunch of right wing Trump supporters have since and tamper with it.

With all that said, I want to address all the reasons why no one should be admitting Hunter Biden’s digital data into a criminal trial without proving the provenance of each message.

Start with his iCloud. Contrary to widespread belief — belief sown by false claims from prosecutors parroted by credulous journalists — it is not true that all the data on the laptop was backed up to Hunter’s iCloud account.

As I have shown, only half the messages admitted in the trial came from one of two device backups saved to iCloud (these numbers are based off an early draft of the summary).

But there’s a mistaken belief that everything on his iCloud had to be authentic.

That’s because people like Kasten — and people who undoubtedly have a lot less affection for Hunter Biden — have devices that include the login data for Hunter’s iCloud or for phones that were set to back up automatically to iCloud. People with his devices might also be able to access his two main Gmail accounts, his RosemontSeneca one (which frequently suffered what Google believed to be compromises but which might just be Hunter trying to get in), or the droidhunter account he used for adult entertainment (which was accessed by a burner phone in a period when the droidhunter account had access to his iCloud during the period his digital life was packed onto to the laptop that would end up at the FBI).

The reason Hunter’s cloud data was vulnerable to tampering stems from the way he kept his own — and, per Kasten, his associates’ — laptops. We know from the hard drives shared publicly that that laptop included means to access Hunter’s iCloud, an iPad backed up exclusively to the laptop, the phone from which the most important texts used in his trial were extracted (protected by password), and the cookies and passwords to get into much of the rest of his digital life.

What everyone knows as the [multiple hard drives] copied from the laptop is better thought of as a set of a significant chunk of Hunter’s digital activity (much of it unavailable elsewhere), as well as keys that a sophisticated actor could use to access what was stored in the cloud.

And a whole lot of dick pics.

If we believe John Paul Mac Isaac, then he delivered that entire package of Hunter Biden’s digital life plus another two laptops,to the Mac Shop on April 12, 2019. (Remember that there’s another laptop in the wild, which purportedly was left at Keith Ablow’s guest cottage during the period some of this data was being assembled.)

Whether you believe that part of the story or not is not actually all that important. Except insofar as it raises the chances that what went into JPMI’s store was packaged up to maximal damage. Except insofar as right wingers and gossip columnists posing as journalists claim it gives them license to do anything they want with the data. Indeed, the way that story has been used as license to do something grotesque is about all that story does, whether true or not.

Which may be the point.

JPMI has made it clear he started snooping long before he claims his terms and conditions gave him property rights over the device (even if that extended to the data on the device, which Hunter’s team argues it does not). JPMI’s claims about what alarmed him enough to reach out the FBI and Congress and Donald Trump’s personal lawyer aren’t backed by the documents on the laptop. JPMI’s claims about what laptops he received that day don’t match the laptop shared with the FBI.

In other words, there are gaping holes all over JPMI’s story, which differs from the FBI’s story about what they did with the laptop in key ways.

And yet, that didn’t lead the FBI to validate the laptop associated with the iCloud account of the (then) former Vice President’s son beyond confirming that some but not all of the data matched what was in Hunter’s iCloud.

Whether you believe JPMI or not, he has copped to giving Rudy Giuliani, members of Congress, and through them, the whole world, the gateway to Hunter Biden’s digital life. There’s no defense of that, and yet virtually the entire DC press corps likes to pretend they’re doing ethical journalism if they whitewash it.

There’s not much, yet, to add to the discussion above of how David Weiss used the laptop. As noted above, the FBI never did real due diligence on this laptop.

There’s a lot yet to learn — including whether there was a connection between FBI getting a warrant on the laptop and then DOJ Chief of Staff Will Levi’s text to Bill Barr the next day, “laptop on way to you.”

We do know that the (known) December 2019 warrant only permitted the search of the laptop for the three tax crimes charged against Hunter Biden in Los Angeles (which seems inconsistent with the subpoena that described money laundering). The FBI did not have authority to search the laptop or data from Hunter’s iCloud for gun related evidence until December (though Agent Jensen’s summary of the evidence submitted at trial cited earlier warrants for reasons that have not been aired at trial).

The [hard drive containing the contents of the] laptop is not the same thing as the laptop entered into evidence this week.

That’s something about a bazillion trolls who responded to something I said in 2023, about the disseminated laptop: that it had been tampered with.

It has.

There are known (albeit minor) alterations on the content of the hard drive that Rudy Giuliani shared with the NYPost and, after that, the entire world. There are reportedly more significant compromises, which we might learn about if Rudy’s bankruptcy doesn’t entirely kill Hunter Biden’s lawsuit of Rudy. There was far more significant alteration done on two other sets of data: one, disseminated by Guo Wengui (including some of the files taken down by Twitter in October 2020), and another, released by Jack Maxey.

And there were different public and non-public means of using the hard drives passed on from JPMI to access further Hunter Biden data. Garrett Ziegler, for example, fully admits he compromised the encryption of the iPhone backed up to iTunes on the laptop (though in his response to Hunter Biden’s lawsuit, claims it was legal because the drive he hacked had never belonged to Hunter). Vish Burra is more outspoken about having hacked Hunter Biden.

Many many many of the people who froth over content from the laptop — and journalists who whitewash the hit job against Hunter — don’t know there are multiple versions of altered laptops that relied on multiple means to access (or create) the data.

Many — including many journalists — have just decided Hunter must a horrible person so they are not obligated to care what really happened here.

Hunter Biden’s laptop is not any one thing. It’s not real or authentic or not. It is, rather, the shoddy state of affairs when an entire country enthusiastically exploits the fact that an addict’s digital life was in a permanent state of half-compromise for most if not all of the time of his addiction.

Update: Corrected spelling of Kestan’s last name.

Update: Fixed the super confusing reference about why the FBI didn’t respond differently to the compromise of Biden’s son.

Judge Noreika Risks Narrowing Hunter Biden’s Right to Confront His Accuser Even Further

Gordon Cleveland, the man who sold Hunter Biden a gun without seeing an ID with an address on it on October 12, 2018, did not finish testifying at the Hunter Biden trial yesterday. When Abbe Lowell started walking him through the penalties on the gun shop and the guy who signed the form selling the gun, Derek Hines made an objection, leading to a contentious sidebar and a decision to finish Lowell’s cross-examination today.

During the sidebar, Judge Maryellen Noreika seemed inclined to further limit Hunter Biden’s ability to impeach Cleveland’s testimony (though will revisit it this morning).

After having prohibited Hunter Biden from talking about the possible crime the gun shop committed to cover up their own violation of the rules, Judge Noreika told Abbe Lowell that she would not permit him to ask any questions about the penalties on the gun salesman for selling a gun without proper ID. She went so far as to insinuate that Abbe Lowell should have objected when Derek Hines opened the door to such questions, but helpfully offered to strike the testimony that impeaches the testimony of Hines’ key witness.

The question of why the gun shop sold Hunter a gun relying just on a passport goes to the core of a premise Cleveland laid out about how he sold guns: First he makes a customer fill out form 4473 to make sure the gun sale is legal, and only after that does he sell things like ammunition.

Q. Why is it important for you as a salesman?

A. It’s important because after you fill in your personal information, there is a series of questions that can ultimately void the sale before it even gets all the way started with running the background, depending on what the answers are on that form.

[snip]

Q. After the gun is explained to him, the speed loader explained to him, the bullets are explained to him, and he has all that, is that on the counter?

A. Yes.

Q. And that’s when you deal with the form?

A. The form — the form was — no, so you got the sequence messed up. The guns and all that stuff was — I mean the gun, the ammo, and the speed loader was on the counter, but that was after the fact that the background check was already ran.

Q. So before the background check was already done, where was the handgun?

A. The handgun was already on the counter.

Q. Where are the bullets?

A. The bullets are on the shelf because we haven’t even discussed them before the background check.

If he never got a second form of ID, then his narrative of how he does sales — a narrative that is at the core of his claim to have witnessed Hunter Biden fill out the form — is suspect.

Cleveland’s current timeline of what happened that day is:

  • Hunter Biden picks a gun
  • Cleveland hands Hunter Biden form 4473 to fill out as Hunter hands him his passport
  • Cleveland leaves the front room to copy the passport which, he claims, takes less time to do than it does with a driver’s license because it is not double-sided
  • Cleveland returns to the counter and watches Hunter as he fills out the gun form
  • Only then does Cleveland take the passport — but not the form — in the back to ask whether he can use the passport
  • He and Jason Turner return to the counter
  • Turner reviews the form and sees that Hunter hasn’t signed it
  • Turner then tells Hunter he needs to go get a second form of ID
  • Turner goes back into the back room to run the background check
  • Turner fills out the rest of the form — including dating Cleveland’s signature
  • Cleveland proceeds to sell Hunter a bunch of other things, some of which he claims to have consulted on, some of which — a utility tool and a BB gun — he claims he did not (note, this may explain the 16 minutes that elapsed between the background check and the sale that I pointed out here)

To substantiate that he remained in the room while Hunter filled out the form, Cleveland said that he wouldn’t ask Turner to run a background check until he was sure the sale would be legal. But Turner ran the background check, without anyone recording receiving a second form of ID.

There are several reasons this goes to Cleveland’s credibility.

First, at least according to Abbe Lowell’s citations from a 302, in 2021 Cleveland told ATF Agent Hnat that his general practice is to get two forms of ID, but did not see a second form of ID from Hunter Biden.

Speaking of his general practice he said, “He then gathers the information provided by the customer for the background check, the customers two forms of identification . . .” (TAB 3, 10/12/21 ATF EF 3120 at 1, ¶2).

With specific reference to Biden, “He said he would provide the copy of the U.S. Passport and the firearm information on a sheet of paper to the person sending the background check in. Mr. Cleveland said he did not see the document with the ATF Form 4473 he was shown.” (TAB 3, 10/12/21 ATF EF 3120 at 2, ¶6) [Lowell’s italics, his bracketed comments omitted]

Since his representation that he generally gets two forms of ID but did not when he sold Hunter a gun appears inaccurate, it raises questions about whether the things he said yesterday that he did routinely — such as telling someone to answer the form truthfully — are true.

Q. Let’s go through each of those things you just said. You said he’s supposed to fill out the form truthfully?

A. Yes.

Q. You used those words truthfully?

A. Yes.

Q. Do you do that as a matter of practice?

A. Always.

Q. Why do you do that?

A. Because of the questions that are on the form.

Secondly, Cleveland’s sworn testimony yesterday is not entirely consistent with his testimony weeks ago, in a way that makes his signature on the form problematic, on precisely the issue to whic Hines raised an objection.

Last month, Cleveland said that after speaking to Jason Turner, he told Hunter that they would need to see a second form of ID.

When Biden presented his passport as identification, Cleveland went into the back and asked Ronald Palimere and Jason Turner if it could be used. Cleveland recalls going back out to Biden and saying something to the effect that if Biden was going to use a passport, they would need another form of identification.

Here’s what he said yesterday.

Q. Now, at this point, what happens next after you witnessed Mr. Biden filling out the entire page 1?

A. So, that’s when I went to go get clarity on the passport.

Q. When you say get clarity, why did you get clarity on the passport?

A. I figured it was all right, I just needed to double-check because it was my first time using a passport, and I know like as far as with the ID’s, it’s a form of ID, you’re able to use that for a lot of different things.

Derek Hines then coached Cleveland to say that he had been told it was okay to sell a gun relying on the passport.

Q. Did you have a discussion with them?

A. Yes. I said I think the passport is okay, just double-checking.

Q. Let me stop you there. So you had a discussion with them because you had a question about passport, correct?

A. Yes.

Q. Now, at that point did you go — end up going back to the sales floor after your question had been answered?

A. Yeah.

Q. To your satisfaction?

A. Yep, I went right back to the sales floor.

Q. And what did you believe you could do at that point in the transaction?

A. You could take the passport, I was told.

Only after describing directing Hunter to sign the form (which is on the second page and, if accurate, undercuts Abbe Lowell’s claim that Hunter might have referred to the definitions in the back), as Cleveland describes, did Turner purportedly tell Hunter to go get a second form of ID.

Q. What happens next after you see Mr. Biden sign the form and date it?

A. What happened next is Jason said also we would need for the passport, another form of like identification stating his address, it could be a bill, or it could be a vehicle registration.

Q. What’s the next thing you observe?

A. I observe Mr. Biden leave out and then come back in.

Cleveland never saw a second form of ID, but nevertheless signed a form saying the “information recorded in Sections B and D is true, correct, and complete” and attesting to “my verification of the identification recorded in question 18.”

It was this section that Lowell was asking Cleveland if he had read when Hines objected, which is material not only for Cleveland’s credibility, but for a retention aspect of one of the charges.

Lowell had not yet elicited Cleveland’s testimony from a few weeks ago, in which he said,

Cleveland would not have paid attention to the paperwork side of the sale because he had already done his part by working with the customer and making the sale.

The comment undercuts Cleveland’s claim to have watched Hunter closely as he filled out the form. And it undercuts Cleveland’s description, yesterday, of walking Hunter through the difference between ammunition types and speed-loaders, parts of the sale which he describes taking place after the paperwork was done.

Here’s how the objection and sidebar went in — with Derek Hines making a desperate bid to force Lowell to finish his cross-examination in 15 minutes so as to prevent him from having the evening to review the testimony of Hines’ single witness to two alleged crimes charged against Hunter Biden.

LOWELL. On page 3, if you’ll go up above, I’m sorry, on page 3, go back down a little bit. On the right side of the column, the second paragraph, it reads, if the transfer/seller, that would be StarQuest, right?

A. Yes.

Q. Or the buyer discovers that a form is incomplete or improperly completed after the firearm has been transferred —

MR. HINES: I object, Your Honor.

THE COURT: All right. Let’s have a side-bar. (Side-bar discussion:)

MR. HINES: So the objection is not only it is outside the scope of direct, it is irrelevant what StarQuest did years later, with the form, and he’s driving towards that, it has no relevancy to whether or not Mr. Biden filled out the form.

THE COURT: Should I let the jury go for tonight?

MR. LOWELL: No, it’s a good time to let them go. Can I respond?

THE COURT: How much more do you have?

MR. LOWELL: For him, quite a lot.

THE COURT: Okay. All right.

MR. LOWELL: Well, I’m sorry, that’s stupid, I apologize.

Hines realizes that Lowell is about to have the night to review other problems with Cleveland’s testimony, and he tries to assert Cleveland’s right to go to work over Hunter’s Sixth Amendment rights.

MR. HINES: He drives a trash truck, he’s away from work.

MR. LOWELL: It won’t be over by 4:30 or even 4:45, and I’m — well, do you want to talk about this in open court before, or how do you want to do this?

THE COURT: I mean, if’s he not going to finish, are you going to finish by 5:00.

MR. LOWELL: Maybe, I don’t know how long it will take. I don’t want —

THE COURT: I’m just sensitive to the fact that he’s missing his work.

MR. LOWELL: Can I see how far — let me respond to his objection.

THE COURT: Yes.

When Lowell explains he should have the right to put it into the record that, having been told a second form of ID was necessary, Cleveland did not insist on seeing one but signed the form anyway, Noreika suggests that Lowell should have objected when Cleveland testified to something that puts his own credibility at issue. She offers to strike the testimony that makes Cleveland’s disinterest in completing documentation clear!

MR. LOWELL: I am not asking something you did years later, not doing that. I am indicating because he opened the door when he said something about somebody getting a second car registration or second form of identification, he said that, I didn’t, and so consequently, I need to ask him what that was.

THE COURT: No. You’re not putting that in. I ruled on that. I don’t think that he opened the door. You didn’t object or I guess, if you want me to strike what he said on that, I will consider it, but we’re not opening the door on that. [my emphasis]

Lowell tries again.

MR. LOWELL: So I cannot ask him, then, was a second form of identification given to him that moment.

THE COURT: At that moment. Why can’t they ask at that moment.

Hines says that because Cleveland doesn’t know whether Turner saw a second form of ID before signing a form that required one, he should not have to testify to that fact.

MR. HINES: He has no basis, he doesn’t know.

MR. LOWELL: To him.

THE COURT: You can say at that moment.

MR. LOWELL: Okay.

THE COURT: But if he misunderstands your question and starts talking about something later, we’re going to cut him off.

MR. LOWELL: Okay.

Noreika tries to resume testimony.

THE COURT: Members of the jury, we’re going to hopefully — (Sidebar discussion:)

MR. LOWELL: I want to be very fair to Mr. Cleveland, but to be fair to the jury, I don’t think I would finish by 5 o’clock. And I want to say that so that I don’t mislead and have them wait around. I’m sorry about him, I didn’t know the time, how long anything would take today. But I’m looking at my outline for the things that you’re lug me to ask and I won’t be done in that period of time.

Hines opines that Hunter Biden’s attorney should not have any more questions for the only witness to two of the charged crimes.

MR. HINES: I don’t know what else is relevant of this witness. We just did a tour of StarQuest.

MR. LOWELL: Why is that not relevant to find out where he was?

Having spent hours with a witness, Zoe Kestan, who introduced a slew of pictures of drug paraphernalia but who had no idea what Hunter was up to during the period of the charged crimes, Hines then whined that Lowell established the organization of the store in a way that may be inconsistent with Cleveland’s testimony. Noreika begins to relent.

MR. HINES: Well, you have taken more than thirty minutes —

THE COURT: I’m not going to cut him off from asking fair questions of the witness. So hopefully Mr. Cleveland won’t have to miss too much work tomorrow.

MR. LOWELL: I’m promise I’ll cut it down based on what you said. I’m being honest with you and you and you, it won’t be over and I know the jury will be here longer. I’m sorry, can I also say I’m trying, but at the same time, you shouldn’t criticize me for how long — you’re taking time on things you could have done shorter as well.

THE COURT: If he’s not going to finish, then why I am going to keep everybody here for a half hour?

Leo Wise insists he knows better than Abbe Lowell about how many questions Abbe Lowell has yet to ask the sole witness to two charged crimes.

MR. WISE: I think he’s going to run out. It’s hard to imagine —

THE COURT: Keep going. I have a lot of faith in Mr. Lowell that he’s not going to run out of things. I do.

MR. WISE: I have less faith.

Lowell notes that forcing him to keep the jury late is going to make them pissed at him.

MR. LOWELL: So I am suggesting, you tell me, I don’t know, this could go for another hour, I’m not saying it will, but I don’t want to invoke the wrath of the jury who has been told at the end of the day it’s 4:30. I think this fairest thing to do is for me to stop. I will go back to my outline and make it as short as possible — I can’t do that now — to save time.

Ultimately, Lowell gets the time to review his questions and streamline.

I feel for Cleveland. He dropped this second job because of health concerns in 2021, even though he was obviously very passionate about the job. Meanwhile, the gun shop totally fucked him over, making him sign a form validating a gun sale without first including the requisite information.

The statutes of limitation have expired on that sale, but thanks to Derek Hines’ obstinance about protecting gun shop owner Ron Palimere, Cleveland’s at risk of missing more than his job today.

Special Agent Erika Jensen Did Not Look, and Did Not Find, Evidence of Tampering with the Laptop

The frothy right has gone nuts today because they took a quote out of context and believed it meant that the FBI had validated the content of the laptop.

That quote they’re using was actually a response to a colloquy between Abbe Lowell and FBI Agent Erika Jensen — who is a summary agent, and who testified she’s not a cybersecurity expert — in which she said she had not done anything to validate the laptop.

It’s not her job to validate laptops.

So she didn’t try to validate it. And having not tried, she did not find evidence of tampering.

As I noted here, it remains the case that this laptop came into evidence relying on less evidence than Lesley Wolf cited to in October 2020, just the serial number proving it had been associated with Hunter Biden’s iCloud account and an email sent to that publicly listed email.

Here’s the exchange between Lowell and Jensen.

Q. You have no reason to believe the time the FBI acquired the data from Apple, or what you just described, they changed any part of it, right?

A. Forensic examiners?

Q. Yes, the FBI, they didn’t change anything that you know of, did they?

A. No, I have a small basis of my understanding of how they work, I know they do a lot — they create images files of what would be considered the original data, so it doesn’t change the original data, but beyond that, I’m providing what I know.

Q. And the material that came into evidence that you discussed with Mr. Hines yesterday, as far as you know is the way the FBI obtained it?

A. Yes.

Q. And you indicated what you know about what they did with it, but you have no reason to believe the material that you just described yesterday, and I asked you about today, had been changed, altered, it was authentic as you understood it?

A. What I can speak to is when we obtain the data.

Q. Yes?

A. It was authentic from that point forward.

Q. And then when you provided it to us in discovery, discovery meaning you provided material to the defense, that’s the way it was sent, in the same way that you retrieved it?

A. My understanding is you received copies both of our extraction reports and of the full forensic images of the original data.

Q. I think you said, I don’t know that you identified, that as to the device, the laptop, it came into the possession of the government in December of 2019?

A. Yes.

Q. You understand that from the invoice that you showed about a repair shop that it was brought, according to the owner, in April of that year?

A. Yes. The invoice is dated in April.

Q. So can you tell what happened between the time the invoice indicates that device was brought to the shop and when the FBI acquired it six months later?

A. No.

Q. You are aware from your investigation that the person who claims to have gotten it in April indicates he made copies —

MR. HINES: Objection.

MR. LOWELL: I’ll withdraw the question.

THE COURT: Sustained.

BY MR. LOWELL: Q. Will you put up government Exhibit 40? So this is an invoice you identified yesterday, and I referred to, dated the 17th; right?

A. Yes.

Q. And you indicated that that’s one of the things you obtained from the data that was recovered and that was extracted and that you had reviewed?

A. Yes.

Q. And the date of this is the 17th; right?

A. The date of the e-mail is the 17th.

Q. But you know from your investigation that the person who sent this indicates that he got this device five days before?

A. I know from the investigation that yes, it was reported that it was April 12th.

Q. Do you have any notion of what happened in that device between April he 12th, where your investigation indicates that’s when the person acquired it, and April 17th when he sent the invoice?

A. I have some knowledge, but it’s through somebody else’s statements.

Q. So no firsthand knowledge?

A. No firsthand knowledge.

Q. Now, the last point on this. If the person acquired it in April, and the FBI says it acquired that in December, six months later, did your investigation indicate whether what was put on that machine in April was the way it was originally done by Hunter before then?

A. I’m sorry, ask that one more time.

Q. I didn’t say that right. Benchmarks. April 2019, the person says “I got the device.” Right?

A. Yes.

Q. December of 2019, the FBI acquires it?

A. Yes.

Q. What I’m asking is, did you do an analysis to determine whether on the date that this person says he got it, the data he got was in the format, content, or in any way what had originally been put there by Mr. Biden?

A. You’re asking if on the 12th the person that received it?

Q. I’m asking whatever that person got on the 12th, was the way it was originally put, do you know? Did you do an analysis? Did you find out whether any of the files had been tampered with, added to, or subtracted?

A. I did not. Right, I did not. [my emphasis]

Derek Hines then responded by getting Jensen to testify that, having not checked, she did not find whether any files had been added or tampered with.

BY MR. HINES: Q. Agent Jensen, picking up where Mr. Lowell left off, yesterday you introduced Government Exhibit 16, the laptop; correct?

A. Yes.

Q. And Mr. Lowell was asking you some questions there about whether you knew anything about tampering or something like that, for all his questions just now?

A. Yes.

Q. Have you seen any evidence whatsoever from the data you reviewed from this laptop to suggest that there was tampering?

A. No.

Q. Does the serial number on the laptop, as you discussed in your testimony yesterday, match the serial number registered with Mr. Biden’s iCloud account?

A. Yes. [my emphasis]

The exchange is useless for the purpose people want to use it.

A summary witness who is not a cybersecurity expert, who “I have a small basis of my understanding of how they work,” who was specifically directed what to look at and what not, did not “do an analysis [to] find out whether any of the files had been tampered with, added to, or subtracted?”

And having not looked, she had not, “seen any evidence whatsoever from the data you reviewed from this laptop to suggest that there was tampering.”

She didn’t look for tampering before the FBI got the laptop, and having not looked, didn’t find any tampering.

Update: Okay, this is crazypants. Remember that Jensen did less validation that Lesley Wolf did in 2020. She cited only the emailed invoice from John Paul Mac Isaac sent to Hunter Biden’s iCloud email, which is something JPMI could have sent without ever speaking to Hunter.

The invoice, as released, has no metadata.

Q. So when you looked through the materials that you just reviewed — just described, do you recall that, for example, you see an entry to an Airbnb? Did you see e-mails which reflected the rental of an Airbnb, or a rental house in that period of time, did you look at that?

A. I did not review e-mails, but beyond that —

[snip]

Q. Agent, I’m going to do better starting right now. To be clear, if — you didn’t see any e-mails?

A. I did not review e-mails, beyond the few that we discussed yesterday.

Q. Okay. I’m sorry. So you did review — where did those e-mails come from?

A. So the e-mails that I — from The View, came from the Cloud. There were e-mails from the Cloud. I did not review the entire set of e-mails.

Q. So meaning you were looking for e-mails from the Cloud that said The View?

A. No. I didn’t review the full set that would have been provided to investigators after the forensic analysis.

Q. So you got from somebody else the e-mails that 102, which you identified yesterday?

A. Yes.

That emailed invoice would have been utterly useless to validate the laptop without metadata, without reviewing his emails generally.

Bringing Receipts: Print Date: 10/22/20

The Delaware Courthouse has started making exhibits from the Hunter Biden trial available. There are a few interesting tidbits about the paperwork from the gun shop.

The background check form shows that it was submitted at 6:36PM on October 12, 2018 and came back at 6:37PM.

We knew that already. Ronald Parlimere, the gun shop owner who tried to politicize this in 2020 only to belatedly attempt to doctor the forms in 2021 when the ATF came asking, emphasized that detail to Derek Hines and Erika Jensen when they asked him about the belatedly doctored records a few weeks ago.

Based on Palimere’s review of the documents related to the sale of the revolver, Biden made the purchase of several items including the Colt Cobra revolver at approximately 6:36 p.m. on October 12, 2018. The FBI National Instant Criminal Background Check System (NICS) check came back in about a minute and was a very fast response.

In the interview, Parlimere made some kind of connection between reviewing the form and media attention from people like Tucker Carlson he says happened in 2021. That seems to be one of his excuses for not properly annotating the change to the form three years after the fact (the other being, he didn’t want to call Hunter Biden to get the proper ID he hadn’t gotten years earlier).

Palimere scanned and emailed the certified 4473 to Reisch using his StarQuest email address, [email protected]. Palimere uses this email address exclusively and it is not shared by other StarQuest employees. The form was then filed away. Palimere did not handle the form again for three years and until he was requested to turn it over to ATF SA Veronica Hnat on September 23, 2021.

In 2021, Palimere had significant media attention and he had news crews, Tucker Carlson, the ATF and the FBI contacting him. He received numerous contacts from media including to his email address and on his phone.

Palimere was contacted by Hnat who said she wanted to come by to take custody of the Form 4473. Palimere ultimately went to the ATF building in Wilmington, Delaware, and turned over the annotated 4473. Palimere received a receipt for property from the ATF. Hnat allowed Palimere to make a copy of the annotated 4473 for his records.

[snip]

At the time it was a big scandal and there was intense attention on the incident. It was on prime time on every news channel and USSS was saying they never went into StarQuest. Palimere and the other employees heard that Mac Isaac of the computer store was in protective custody. They were all scared to death. Palimere felt it was necessary to annotate the Form 4473 because he felt they were going to get in trouble just for going up against Biden.

Anyway, what I find interesting about the timing of the background check is that it took another 16 minutes to ring up the purchase, as indicated by the red rectangle on the receipt.

I’m not sure long it should take after all the approvals are done. I do know that Parlimere told Hines and Jensen he wanted to get Hunter out of the store as quickly as possible.

In the case of Biden’s sale, Gordon Cleveland, was the salesman. Palimere was sitting at his desk in the back and Cleveland said something to the effect of, “Hey, Hunter Biden’s here. He wants to use his passport.” Palimere was familiar with Biden’s father’s not being a gun supporter so Palimere thought it would be bad for Palimere’s business to have Hunter Biden seen in his store. Palimere wanted to get the sale completed and get Biden out of the store, so Palimere said yes to using the passport as identification. Palimere never interacted with Biden.

Should it have taken 16 more minutes?

I have no idea. I look forward to Gordon Cleveland’s testimony. He doesn’t have a proffer immunizing him, after all.

According to Erika Jensen’s testimony yesterday, she herself subpoenaed this exhibit.

BY MR. HINES: Q. So looking at the background check paperwork, what does this document appear to show, could you explain it?

A. This is a response for a check of a subject’s background in order to see if they qualify to purchase a firearm.

Q. And when you look at the status on the bottom, what is the status for whether or not Mr. Biden passed the background check?

A. The status response is proceed.

Q. And is that after — that was in the production after the Form 4473; correct?

A. Yes.

Q. Now, turning to page, government’s Exhibit 13(a), page 1, government’s Exhibit 13(a), page 1, is that a receipt — take it down. Is that a receipt that you received from StarQuest?

A. This is a receipt I received in response to the subpoena to StarQuest.

Given the Bates stamp, it would have been included in the production certified by StarQuest on April 24, 2024.

After admitting the exhibit, which was subpoenaed last fall, Derek Hines walked Agent Jensen through the receipt, showing each of the items Hunter Biden bought back on October 12, 2018.

MR. HINES: Move for the admission of 13(a).

MR. LOWELL: No objection.

THE COURT: Thank you. It’s admitted. (Exhibit No. 13(a) was admitted into evidence.)

BY MR. HINES: Q. If we zoom in on the top. Can you please list what the items are that are listed on this receipt?

A. The first item was an Item Number 18654, was a Colt Cobra 38 Special, Talo Classic, with a serial number RA551363.

Then cuing her by asking not what the date was but whether it was the date that Hunter had withdrawn $500 from an ATM, she noted that the date of the receipt itself is October 12, 2018.

Q. This was the day $500 was withdrawn from the ATM?

A. This was on October 12, 2018.

Q. Looking at the bottom, does it say Robert Biden?

A. Yes.

Q. Did you redact the address that’s listed there?

A. Yes.

Hines made two errors. Hunter didn’t withdraw the money from an ATM. He went to a teller, which was rare for Hunter Biden. And it was $5,000, not $500. We know that, in part, because prosecutors want to compare his signature on the withdrawal form with the signature on the gun purchase form.

Ah well. In the grand scheme of the errors Derek Hines has made, I consider this a fairly minor one.

Anyway, until after we get the Cleveland testimony — to learn why it took another 16 minutes to complete the sale — I’ll hold off on my curiosity about why it took 16 minutes to complete the sale.

In the meantime, though, I want to consider what the other date on the receipt means.

October 22, 2020.

You see, according to Abbe Lowell, in October 2020, Palimere and some buddies had “a plan to send [Hunter’s gun purchase form] to others” to make sure “the gun sale issue and the form [would be] exposed during the Presidential campaign.” But first they “had to get their stories straight.”

It also reveals a now-exposed attempt by the gun store to fabricate a false narrative about the gun sale. Palimere said the addition of the seller transaction serial number (“5,653”) may have been added on October 26, 2018. (TAB 4, Palimere FD-302 at 4). He said the vehicle registration reference was added in 2021. Yet, the government provided WhatsApp communications from October 2020 and February 2021 between Palimere, friends of his, and then-Delaware state trooper Vincent Clemons3 (see TABs 6 – 6C), all of which refer to the form, a plan to send it to others, needing to get their stories straight about what occurred in 2020, and wanting the gun sale issue and the form exposed during the Presidential campaign.

3 Not to be lost is the fact that Clemons was the Delaware State Police officer who first arrived at Janssens’ grocery store on October 23, 2018 when Hallie Biden threw a bag containing the handgun into a trash can in front of the store. It was Clemons who took statements about the handgun from both Hallie and Hunter Biden and was part of filling out an official police report on the issue. Two years later, he is in the communications with Palimere about the Form 4473, one of which states: “Yep your side is simple – Hunter bought a gun from you, he filled out the proper forms and the Feds approved him for a purchase.” (emphasis added). Palimere later responded, “I’ll keep it short and sweet as well: Hunter bought a gun. The police visited me asking for verification of the purchase and that’s all I can recall from that day. It was over 2 years ago.” (TAB 6B, 10/26/20 Palimere-Clemons Texts at 4, 6.) The reference to filling out the “proper forms” is not lost on defense counsel given what transpired thereafter. And, despite the importance of Clemons (e.g., the person who actually took the statements), the Special Counsel is foregoing him as a witness to call two other Delaware officers instead.

Derek Hines says that’s not right, and successfully pitched all this a claim of political bias.

These selected portions3 of communications by Palimere to two friends and also to Sgt. Clemons – were made two years after the events in question when defendant’s father was a political candidate. The defendant inaccurately summarizes them as referring “to the form, a plan to send it to others, needing to get their stories straight about what occurred in 2020, and wanting the gun sale issue and the form exposed during the Presidential campaign.” Supp. Resp. p. 8 and n. 3. Nevertheless, he clearly wishes to confuse the jury by introducing these spliced, non-relevant communications to incite prejudice and emotion among the jury to distract from the elements of the crimes that were complete years before.

And because she fell for one of Derek Hines’ false claims again, Judge Noreika prohibited any of these communications from 2020 from coming in as evidence.

3. Questioning, testimony, evidence or argument, including but not limited to, the additional exhibits designated by the Defendant as tabs “6-6C” to his supplemental submission regarding any witnesses’ political bias are excluded from introduction or admission at trial because such questioning, testimony, evidence or argument is not relevant, is unduly prejudicial and invites nullification.3

2 The government has stated that it intends to call Gordon Cleveland, a gun shop employee, who will testify that he watched Defendant fill out Section A of the Certified Form and that Defendant checked “no” to question 11e about being an unlawful user or addict. Both the Certified Form and the 2021 Form have the same check mark (“X”) responding “no” to question 11e. The addition of “DE VEHICLE REGISTRATION” to a different section of the 2021 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. The Court also agrees with the government that Defendant’s conspiratorial theory about “doctored” forms and currying favor with the government is unsupported rhetoric, which would be prejudicial and confusing to the jury.

Through his considerable power of prosecutorial dickishness, Derek Hines got Judge Maryellen Noreika to exclude these 2020 communications from evidence.

And then he submitted one himself.

Update: In leading gun salesman Gordon Cleveland in the sale yesterday, Derek Hines corrected himself to say that this was a reprint of the receipt.

Q. I’m showing you Exhibit 13(a). Is this the receipt, a reprint of the receipt that rang out the sale for Mr. Biden that day?

A. Yes, it is.

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.

Special Agent Erika Jensen: Watch the Summary Witness’ Blind Spots

The only witness who testified at yesterday’s opening day of the Hunter Biden trial yesterday was a 20-year FBI Special Agent named Erika Jensen. As Derek Hines had her introduce herself, she’s just a summary witness, and as presented so far, almost exclusively with regards to, “addiction and illegal controlled substances.” She’ll probably be on the stand for at least an hour today.

Q. Can you describe the types of crimes you have investigated during the course of your career?

A. I am primarily a criminal agent, so I have worked matters such as drugs, gangs, firearm offenses. I have done white collar, which is bank related crime, corruption, and other criminal matters.

Q. Were you assigned to a criminal investigation of the defendant, Robert Hunter Biden?

A. Yes.

Q. Approximately when were you assigned?

A. In the fall of 2023.

Q. Are you testifying today to summarize certain evidence collected during the investigation?

A. Yes.

Q. What kind of evidence are you summarizing today?

A. It’s going to be evidence of addiction and the use of illegal controlled substances. [emphasis]

Now, it is normal for prosecutors to rely on summary witnesses to admit a bunch of evidence. They used Jensen to admit all the parts of Hunter’s book that made his addiction look really bad, a bunch of communications, and select financial records. It is very common for the summary witnesses to be deliberately compartmented from anything prosecutors want to hide from the defense or jury or public.

In this case, the entire prosecution team (with the very notable exception of David Weiss, who has sat in two courtrooms watching Leo Wise make claims that are not true) is effectively a clean team, made up of people who were not part of a lot of sordid things that happened years ago, sordid things that are likely a big part of the reason David Weiss was originally willing to end this investigation with misdemeanors and a diversion agreement. So after Weiss reneged on that plan, using the disgruntled IRS Agents’ complaints as an excuse, everyone got replaced. Poof! Sordid past becomes plausibly denied.

Jensen adds a layer of compartmentation on top of that. Because she only joined the team in the fall, for example, she is likely entirely compartmented from the way Leo Wise chased Alexander Smirnov’s fabrications about Joe Biden. She didn’t do any of the exploitation of the digital evidence. She’s likely not the person who told Derek Hines that sawdust is cocaine, though whoever did was likely playing the role she’s now playing. She’s not the person who made a show of reviewing the digital data after prosecutors finally got a warrant to search for gun crimes in December 2023; a Special Agent named Boyd Pritchard did that (indeed, her summary claims to be relying on the 2019 and 2020 warrants to access the data, something that may come up in cross today).

Again, all of this is common, if not expected. If trials provided opportunity to learn what really went on in criminal investigations, there’d be fewer guilty verdicts.

There are, however, some embarrassing things that Jensen does or likely knows. For example, it appears that, after prosecutors frothed up the entire dick pic sniffing brigade by claiming the pouch in which the gun was found had cocaine residue, they discovered Hallie Biden put the gun there, as Hines made clear in his opening argument.

Hallie found the gun, as well as his drug paraphernalia, drug remnants scattered in the truck. Concerned about the gun, she decided to get rid of it. She panicked, she put the gun in the defendants leather pouch, which was also in his truck, a leather pouch which he used to store his crack cocaine, an accessory, she put the gun, pouch, speed loader and ammunition in a gift bag.

Additionally, Jensen interviewed Gordon Cleveland — alone, a no-no in FBI procedure — about why the gun shop doctored the gun purchase form. That means she’s the only witness to Cleveland’s observation that he doesn’t much care about the documentation. But since that’s not yet in evidence, it’s not clear Lowell will be able to cross-examine her on it (which may have contributed to prosecutors’ decision to start by proving that Hunter was an addict — to protect both Jensen and Cleveland’s credibility after they both did something stupid, though they could bring Jensen back to summarize everything else).

Prosecutors use summary witnesses to protect weaknesses in their case.

But because they do, you can sometimes learn something about a case from the negative space outlined by the testimony of a summary witness. It points to areas where prosecutors wanted their summary witness to remain intentionally dumb.

A glaring example evident already from Jensen’s testimony is Keith Ablow. Derek Hines had Jensen introduce the invoices from a rehab center Hunter attended in August 2018, which will admittedly be an absolutely critical issue of contention going forward (because prosecutors only have testimonial evidence that Hunter used drugs between then and when he bought a gun).

Q. What does the top show, page 1?

A. So the top shows where the e-mail was received from at The View, and it’s sent to [email protected], and the date of 8/22/2018, the time and the attachment of invoice.

Q. What is The View?

A. The View is a detox center, rehab center.

Q. Where is it located?

But he didn’t have her pull invoices relating to the Keith Ablow Ketamine treatment. And when Abbe Lowell asked her about it on cross, she said she was not going to pull any of that evidence, and so could only offer a vague date about when it was.

Q. That’s when he left Delaware to go to Massachusetts for another form of rehab. Isn’t that what happened in the chapter? Isn’t that the date? After —

A. I have a date when he went to Massachusetts, that I saw — I’m not going to pull that from the excerpts though, I don’t know that we have that, but it was November, mid November is what I believe.

Q. So after the October incidents, he goes to Massachusetts and there he is entering another form of rehabilitation, is that your understanding of the timeline?

A. Yes. Yes.

So it was left to Lowell to point out that a great deal of the texts on which she relied came from after that treatment, well after Hunter ever owned a gun.

Q. And then the texts that I started with when I was asking you questions start in the end of 2018 after November, to 2019, we established that timeline; right? I’m sorry, we established that timeline — sorry, we established that timeline, that the —

A. Yeah. Yes, we went over messages from February of 2019.

Q. Following his going to Massachusetts which you and I just established was in November of 2018?

A. Correct.

Q. And that was after the October purchase of the gun?

A. Yes.

Q. And that was after the gun was no longer in his possession?

A. Yes.

Remember: Hines has always very deliberately buried this passage from Hunter’s book.

The therapy’s results were disastrous. I was in no way ready to process the feelings it unloosed or prompted by reliving past physical and emotional traumas. So I backslid.

Unless I’m misunderstanding the excerpts that did come in (which were wildly skewed to years long before he owned a gun), it’s not in evidence. So when Hines relied heavily on some 2019 communications to try to suggest a continuity to Hunter’s addiction yesterday, he didn’t tell the jury that, at least according to Hunter’s own reconstruction, what Hines is relying on is actually worse than his state in 2018, when he bought a gun.

Hines has always been relying on Hunter’s state after Keith Ablow got to him, but yesterday he tried to entirely obscure that fact.

No doubt because he’s relying on massive bank withdrawals as a proxy for spending on drugs the consumption of which he has no direct proof, Hines similarly did not have Jensen tally out what Hunter was spending money on in fall 2018 (and there has been no mention of sex worker payments, which both the prosecution and defense know, but will not explain, made up a big part of those expenses).

Q. And can you go to the next page. It says August 21st. Can you go to the next page? With the amount 5,000. Can you go to the next page, please? And then the next page. And you see the dates, August 23rd of ’18, do you see that?

A. Yes.

Q. Okay. The next page, please? And there is another amount. And then the next page. And it says stabilization, there is another amount. Do you know who paid those invoices?

A. I think I know who paid part of them

Q. Go ahead.

A. But I don’t — I’m trying to think of my source of information, I think it was partially paid, I seen a record in Mr. Biden’s bank account for at least a payment, yes, and I think there were family assisting.

Q. When you were pointing out, for example, the issues of his bank account and the $5,000 that you then talked with Mr. Hines and the other amounts of a few thousand dollars, did you match up those withdrawals to these invoices?

A. No.

Prosecutors use summary witnesses to introduce a lot of evidence, but also to protect weak parts of their case. So it’s worth tracking the negative spaces of where they don’t ask summary witnesses to look.

That may become interesting this morning, as Lowell continues cross-examination.

Jensen’s introduction of the digital evidence was very cursory. Thus far, for example, Jensen’s description of how investigators validated the laptop is laughable.

Q. Ultimately in examining that laptop, were investigators able to confirm that it was Hunter Biden’s laptop?

A. Yes.

Q. How?

A. Among other things, there was a serial number that’s on the back of this laptop that matches the Apple subpoena records that they obtained in 2019, so it matches the registration of this particular device to the iCloud account at a particular date.

Q. And is that serial number FVFXC2MMHB29?

A. Yes.

Q. And that’s also in the Apple records, you said?

A. Yes.

[snip]

Q. Now, you mentioned being able to corroborate that that was in fact the defendant’s laptop. Did you also see information on the laptop when it was examined that showed that he had dropped it off at the MAC shop?

A. So, there was an e-mail that was obtained from the iCloud warrant returned, that showed an invoice from the MAC Shop to Mr. Biden with the — yes.

Q. I’m showing you Exhibit 40. Is that the e-mail you just referenced?

A. One second. Yes.

All she has done, so far, is show that the laptop was at one point registered to Hunter’s account and that John Paul Mac Isaac sent Hunter’s publicly identified email account an invoice. That’s not remotely adequate validation (and note, Hines uses the word “corroborate,” not “validate”). Notably, Hines didn’t ask her about several other things we know Lesley Wolf originally relied on to claim validation, most importantly, calls to and from a phone number belonging to Hunter, as well as a cigar bar purchase. Hines also asked her whether the was Hunter’s, not whether it had a clean chain of custody.

So this, too, may become an interesting negative space as cross-examination resumes.

Keep an eye on the summary witness’ deliberate blind spots and negative space: because that’s precisely what prosecutors are trying to hide.

Update: I’m reading today’s transcripts and several intentional blind spots are clear.

First, she knows almost nothing about finance. She knows less about Hunter’s corporate person, Owasco PC, than about 50 Congressional interns. She didn’t track money flow. She doesn’t know how Hunter paid for rent or where he lived.

And she looked at almost no emails. Which is especially nutty, because she used an email to validate the laptop.

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.

[snip]

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.

Maryellen Noreika Falls for Derek Hines’ False Claims, Again

If I were a newish judge like Maryellen Noreika, I’d be a bit wary about accepting the representations of a prosecutor like Derek Hines who once claimed that sawdust was cocaine. Particularly when bowing to his request to exclude the original form from a trial about whether Hunter Biden lied on that form.

My post yesterday describing that Judge Noreika had prohibited Hunter Biden from showing the jury the actual physical form on which he is alleged to have lied was based off Derek Hines’ reply to a supplemental response that Abbe Lowell filed on Saturday — but the supplement was still sealed.

So when I suggested that Noreika may have credited as accurate something Hines said, I was just basing that off the fact that every time Hines wails about Abbe Lowell lying, it has turned out that he was covering something up.

Noreika likely credited something misleading Derek Hines said in a reply posted shortly before her order which cites to it (he has, repeatedly, projected his own inaccurate claims onto Abbe Lowell, and this may be an instance where, at the very least, Hines misunderstood a reference Lowell made).

Hines made a big stink about a bracketed reference to “a second form of identification” that Lowell had included in a quote from a 302 recording either one (if you believe Hines) or two (if you believe Lowell) interviews of Gordon Cleveland, the guy who sold Hunter Biden the gun, in 2021.

Cleveland has been entirely consistent on the issue of identification in the two interviews where it came up. Defendants claims he has offered an “evolving story,” but that characterization is not accurate based on defendant’s own quotes from Cleveland’s Jencks material. Supp. Resp. at 5. The only form of ID Cleveland saw was the passport. He never saw a Delaware vehicle registration and never claimed to. Instead, in both interviews he stated that Turner, who handled the background check, may have, but Cleveland didn’t have first-hand knowledge of whether he did or didn’t. In his first interview on September 27, 2021, Cleveland told investigators:

“He said he would provide the copy of the U.S. Passport and the firearm information on a sheet of paper to the person sending the background check in. Mr. Cleveland said he did not see the document [a second form of identification] with the ATF Form 4473 he was shown [by the Agent on September 27, 2021].” (TAB 3, 10/12/21 ATF EF 3120 at 2, ¶6) (emphasis added). Supp. Resp. at 5 (emphasis added).

The government at this point is obligated to point out that the defendant is again making malpresentations to the Court. In the above quote from his filing, the defendant inserted brackets into a real quote from the September 27, 2021, interview report for Cleveland. The defendant writes in those brackets that “Mr. Cleveland said he did not see the document [a second form of identification] with the ATF Form 4473 he was shown [by the Agent on September 27, 2021]. Supp. Resp. at 5. What defendant inserted into those quotes in brackets isn’t accurate. The ATF never showed Cleveland “a second form of identification.” If you look at the report, which defendant has and attached to his filing, it says that the only documents that were shown to Cleveland, at any point during the interview, were the following:

The ATF did not show Cleveland “a second form of identification,” as the above list of documents make clear. Defense counsel made that up. [Hines’ bold, Lowell’s italics]

Then Derek Hines accused Lowell of deliberately leaving out part of the 302: Cleveland describing that his colleague, Jason Turner, may have gotten a second form of ID.

What defense counsel chose not to quote from that report was the next sentence: “He said Jason Turner may have gotten the vehicle registration due to the U.S. Passport issue.

Lowell’s supplemental response got docketed overnight. And it makes clear that (as I predicted), Hines is the one misrepresenting things and leaving pertinent quotations out.

The contested quotation comes in a passage where Lowell lays out inconsistencies in Cleveland’s story.

Cleveland (a government witness) sold Biden the handgun on October 12, 2018 and gave him the 4473 form to fill out. Yet, as to what was and was not on the form, who completed it and when, Cleveland offers divergent explanations at different points in time.

Cleveland was interviewed by ATF Agent Hnat on September 27, 2021, just six days after the actual Form 4473 (with additions) was obtained by ATF, and again on October 7, 2021. The interview notes reflect:

Speaking of his general practice he said, “He then gathers the information provided by the customer for the background check, the customers two forms of identification . . .” (TAB 3, 10/12/21 ATF EF 3120 at 1, ¶2).

With specific reference to Biden, “He said he would provide the copy of the U.S. Passport and the firearm information on a sheet of paper to the person sending the background check in. Mr. Cleveland said he did not see the document [a second form of identification] with the ATF Form 4473 he was shown [by the Agent on September 27, 2021].” (TAB 3, 10/12/21 ATF EF 3120 at 2, ¶6) (emphasis added).

Now being shown the added information, “He said Jason Turner may have gotten the vehicle registration due to the U.S. Passport issue.” (TAB 3, 10/12/21 ATF EF 3120 at 2, ¶6).

Later, under oath before a grand jury in April 2022—months after the altered Form 4473 was obtained and after he was shown it on September 27, 2021—Cleveland was asked no questions about the identification issue, the added registration information, or the two forms. (See TAB 3A).

But after issues concerning the different versions of the form were raised at the May 14, 2024 status conference, the Special Counsel went back to Cleveland and this is what was explained:

When Biden presented his passport as identification, Cleveland went into the back and asked Ronald Palimere and Jason Turner if it could be used. Cleveland recalls going back out to Biden and saying something to the effect that if Biden was going to use a passport, they would need another form of identification. [] Cleveland thinks Biden went outside and got something, but he can not say with certainty. Cleveland would not have paid attention to the paperwork side of the sale because he had already done his part by working with the customer and making the sale. Cleveland does not think they would have competed the sale without the second identification, though. (TAB 3B, 5/17/24 Cleveland FD-302 at 1).

Thus, even with Cleveland’s evolving story, he cannot say that Biden presented the vehicle registration, but simply assumes that someone else at the gun store would have obtained a second form of identification. Biden should be allowed to challenge this assumption that the gun store would have followed the law in obtaining a second form of identification. [Lowell’s italics, my bold]

As a threshold matter, Hines either lied or is painfully sloppy. Lowell did include that quotation about Turner. It’s right there, on the next line, precisely where Hines said it should be!

I asked Weiss’ spox whether Hines’ false accusation was a lie or just sloppiness (I also asked him to clarify whether Hines got the number of Cleveland interviews wrong). He responded, “As this case is before the court, we will decline to comment beyond our filings.”

But what Hines didn’t include is the context (and here, I do fault Lowell for not indicating whether the 302, which he describes as recording two interviews, distinguishes between what Cleveland said on September 27 and what he said on October 7; also he’s the one who put that bracket in the quote that simply reflects a paragraph break).

Line one: What do you normally do? Cleveland: I ask customers for two forms of ID.

Line two: Did you do that with Joe Biden’s kid? Cleveland: Nope. I didn’t see any second form of ID.

Line three: Well then, who added the second ID to the form? Cleveland: I dunno. Maybe Jason did it?

Right there, Cleveland has already undermined his own testimony, making it clear that (he claims) he always gets two IDs, but then admitting he didn’t here.

And in context, that “second form of ID” refers to the previous line (that’s called an antecedent, Mr. Hines, look it up! You’ll be amazed how grammar works!!).

It’s clear to anyone who knows how to read that Lowell was not referring to what the ATF agent showed Cleveland. It refers to what Hunter did or did not show Cleveland back in 2018. But Hines left it off, perhaps because it would undermine his false accusations?

The rest of the story Lowell’s filing tells is just as interesting. He reveals that the cop who first went to the grocery store to search for the gun in 2018, Vincent Clemons, coordinated his story with the gun shop owner.

[T]he government provided WhatsApp communications from October 2020 and February 2021 between Palimere, friends of his, and then-Delaware state trooper Vincent Clemons3 (see TABs 6 – 6C), all of which refer to the form, a plan to send it to others, needing to get their stories straight about what occurred in 2020, and wanting the gun sale issue and the form exposed during the Presidential campaign.

3 Not to be lost is the fact that Clemons was the Delaware State Police officer who first arrived at Janssens’ grocery store on October 23, 2018 when Hallie Biden threw a bag containing the handgun into a trash can in front of the store. It was Clemons who took statements about the handgun from both Hallie and Hunter Biden and was part of filling out an official police report on the issue. Two years later, he is in the communications with Palimere about the Form 4473, one of which states: “Yep your side is simple – Hunter bought a gun from you, he filled out the proper forms and the Feds approved him for a purchase.” (emphasis added). Palimere later responded, “I’ll keep it short and sweet as well: Hunter bought a gun. The police visited me asking for verification of the purchase and that’s all I can recall from that day. It was over 2 years ago.” (TAB 6B, 10/26/20 Palimere-Clemons Texts at 4, 6.) The reference to filling out the “proper forms” is not lost on defense counsel given what transpired thereafter. And, despite the importance of Clemons (e.g., the person who actually took the statements), the Special Counsel is foregoing him as a witness to call two other Delaware officers instead.

[snip]

Moreover, it turns out that profiting off an improper gun sale was not the gun shop’s only motive. The gun shop staff recognized Biden and the newly-disclosed evidence from the Special Counsel shows the store’s owner sought to politicize the sale to influence the election, which provides further evidence of bias.

Hines capitalized on Lowell’s mention of the election and Parlimere’s effort to politicize the purchase by presenting this description of a cop and a gun owner coordinating the story they plan to tell as exclusively political.

Among the items the defendant emailed to the Court on Friday night were proposed exhibits – identified as defense tabs “6,” “6A,” “6B,” and “6C” – which suggest that two witnesses are politically motivated. These selected portions3 of communications by Palimere to two friends and also to Sgt. Clemons – were made two years after the events in question when defendant’s father was a political candidate. The defendant inaccurately summarizes them as referring “to the form, a plan to send it to others, needing to get their stories straight about what occurred in 2020, and wanting the gun sale issue and the form exposed during the Presidential campaign.” Supp. Resp. p. 8 and n. 3. Nevertheless, he clearly wishes to confuse the jury by introducing these spliced, non-relevant communications to incite prejudice and emotion among the jury to distract from the elements of the crimes that were complete years before.

Thanks to this latest filing, the defendant’s strategy is now more apparent. He has returned to a claim that this prosecution was trumped up and politically motivated. But to suggest that the gun store owner’s political opinions, expressed two years after the fact, have bearing on whether or not he lied about his drug use on the form 4473 on Section A is absurd and must be excluded under the rules of evidence. There is no evidence to suggest these communications played any part in the witnesses’ actions or inactions with respect to the defendant. And there is no evidence that the defendant was the target of political animus by either witness.

The fact that witnesses in this case held political beliefs about which they communicated two years after the defendant’s alleged crime cannot possibly have any relevance to any fact at issue. The defendant should therefore not be permitted to present irrelevant, confusing and unduly prejudicial facts regarding witnesses’ political views to the jury. See Fed. R. Evid. 401, 402. Even if the communications were somehow relevant – and they are not – such evidence is unduly prejudicial to the government. Courts have excluded evidence at trial of a witness’s bias under Fed. R. Evid. 403 where admission would confuse the issues before the jury. E.g., Blair v. United States, 401 F.2d 387, 390 (D.C. Cir. 1968) (affirming trial court’s conclusion that the probative effect of the impeaching evidence was far outweighed by the potential prejudice)

That may be enough to get texts showing a cop working on a cover story; Judge Noreika cut and pasted Hines’ language treating these as political, and ruled that Lowell can’t raise politics at all, even though the gun shop owner says he rushed the sale to get Hunter out of the shop because his dad is anti-gun.

But it has me wondering something that Lowell apparently is also wondering.

He learned that Cleveland claimed that he always asks for a second ID because Hines just turned over the earlier 302 and Cleveland’s grand jury testimony, from April 2022, as Jencks. It seems that prosecutors may have provided these WhatsApp texts in response to a request for Brady, after Lowell started looking into the altered document.

But they haven’t provided any earlier interview reports from Ronald Palimere or Jason Turner, the latter of whom is the guy who actually altered the gun form.

2 Because the Special Counsel intends to call only Cleveland as a witness, but likely interviewed and has interview memoranda by other law enforcement who interviewed Palimere and Turner, the Special counsel produced only Jencks material for Cleveland (other than the only recently written FBI 302 of Palimere after the issue was raised at the May 14 status conference). Given the issues raised about the form’s accuracy and reliability, defense counsel believes statements byPalimere and Turner (if they exist) would be Brady material and asked again (after the initial discovery requests in October 2023) for Brady and Giglio material after the May 14, 2024 status hearing and again specifically on May 31, 2024. The Special Counsel has not responded.

It is virtually certain there is at least one earlier interview with Palimere, because Derek Hines began the interview by “remind[ing] Palimere of of the provisions of the proffer agreement,” rather than explaining them as if for the first time.

So … it gets worse, probably.

Nevertheless, Judge Noreika not only cut and pasted Hines’ exclusion of all discussion of politics, but she also parroted Hines’ mockery that someone might shade their testimony to protect their own immunity. (This entire footnote will be ripped to shreds if Hunter Biden has to appeal this case.)

The government has stated that it intends to call Gordon Cleveland, a gun shop employee, who will testify that he watched Defendant fill out Section A of the Certified Form and that Defendant checked “no” to question 11e about being an unlawful user or addict. Both the Certified Form and the 2021 Form have the same check mark (“X”) responding “no” to question 11e. The addition of “DE VEHICLE REGISTRATION” to a different section of the 2021 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. The Court also agrees with the government that Defendant’s conspiratorial theory about “doctored” forms and currying favor with the government is unsupported rhetoric, which would be prejudicial and confusing to the jury.

This is not a judgement — that the fact that the gun shop altered a form after the fact to make it look like they had followed the law wouldn’t suggest they might do that more regularly — is not one I’d want to be living down for the rest of my career as a judge. Especially not given that with Hines, there’s usually something worse about to drop.

On Eve of Opening Arguments, WSJ Launders David Weiss’ Russian Disinformation Problem

WSJ has a weird story that purports to describe Merrick Garland’s oversight of Special Counsels.

It twice suggests only the left has complained about a perception that Garland slow-walked the January 6 investigation.

Garland has also become the subject of ridicule on late-night talk shows, including by comedian Bill Maher, who in May echoed the grievances of many on the left when he referred to Garland as “a purse dog” rather than a pit bull.

[snip]

But many on the left wanted more. Some wanted prosecutors to also pursue an aggressive case against Trump himself, specifically for inciting the mob.

That will come as a surprise to Liz Cheney, who was among those claiming that Garland was working too slowly.

It reveals that Robert Hur was considered for the job given to Jack Smith and confirms my suspicions that the decision to hire him came from Lisa Monaco’s office, not Garland’s.

An aide drafted a secret contingency plan, to assign the Jan. 6 investigation related to Trump to a special counsel. At the top of the list of candidates was Smith, a former U.S. prosecutor who was then the chief prosecutor at The Hague investigating war crimes in Kosovo. The deputy attorney general’s office also considered Hur, who at the time was a defense lawyer in private practice, for the post.

But it makes no mention of how DOJ came to consider Hur for the job after settling Andrew McCabe’s lawsuit because he had been denied due process rights in his firing. Hur was a key player in that process of denying McCabe his due process, and yet Garland hired him to investigate Joe Biden.

It even gets the timeline of Hur’s hiring incorrect, ignoring the months of investigative steps taken by John Lausch before Hur was hired.

It mentions Brad Weinsheimer’s role in allowing Rob Hur to emphasize Biden’s age in his report, rather than the fact that Hur couldn’t even prove the documents that might have been intentionally withheld took the path he imagined they might have.

Biden’s lawyers read it and were aghast, objecting to “certain aspects of his draft report that violate Department of Justice policy and practice by pejoratively characterizing uncharged conduct,” they wrote to Garland. They wanted him to take a firmer hand with the special counsel he appointed and whose report they and some former Justice Department officials saw as gratuitous.

Garland didn’t respond, taking the same approach he had with other special counsels. He wasn’t going to step in to protect his boss. Instead, adhering to the Watergate-era policy he helped enshrine, he left it to the agency’s senior career official, Bradley Weinsheimer, who said the language in the report “fell well within the Department’s standards for public release.” Garland, as promised, released it the following day, Feb. 8.

But it doesn’t talk about how having Weinsheimer serve as supervisor for Special Counsels effectively eliminates any DOJ review of ethical violations, which role Weinsheimer would otherwise play.

Most bizarrely, it makes absolute no mention of John Durham, whose investigation Garland oversaw for over two years. It doesn’t explain, for example, why Durham was permitted to fabricate a conspiracy theory against Hillary Clinton in his report. It doesn’t explain why Durham’s lead prosecutor, Andrew DeFilippis, left with little advance notice, between Durham’s twin failed trials, at a time when many witnesses were making claims of abuse.

In short, whatever else this story is, it is not a story that is remotely useful for understanding Merrick Garland’s oversight of Special Counsels.

And in this story that doesn’t do what it says, on the eve of opening arguments in the Hunter Biden gun case, it launders David Weiss’ Russian disinformation problem.

By 2022, prosecutors and agents had already believed that Hunter Biden committed tax crimes, but Weiss still seemed no closer to charging him or resolving the case. FBI officials asked Garland’s office if he could help move Weiss along.

Garland refused to prod Weiss, saying he had promised him broad independence to pursue the inquiry as he saw fit.

FBI agents drafted a list of final steps to push the probe forward—including to follow up on allegations from an FBI source that tied Hunter Biden’s financial misdeeds directly to his father.

Weiss’s office reached a tentative plea deal with Hunter Biden in June 2023, in an agreement that would likely include no jail time. Republicans in Congress alleged that Hunter Biden was getting a sweetheart deal, which fell apart a month later. In August, Weiss asked Garland to make him a special counsel, pointing to the FBI’s list and asking for independence. Garland agreed, recognizing that he had earlier promised Weiss autonomy and any resources he sought. [my emphasis]

To be sure, this might be one of the only truly interesting pieces of news in the piece.

What WSJ is describing (including a journalist, Sadie Gurman, who has had good access to Bill Barr in the past) is that the FBI, including people senior enough to be able to complain to Garland personally, was demanding that David Weiss follow up on Alexander Smirnov’s attempt to frame Joe Biden.

Indeed, this passage wildly conflicts with what David Weiss claimed in the Smirnov indictment — that the FBI just came along in July 2023 and requested that Weiss help investigate (but we knew that was false in any case).

And it does seem to confirm what has been clear for a while: the reason David Weiss asked to be made Special Counsel is so he could chase Smirnov’s allegations.

But somehow WSJ neglects to mention the issue — the several issues — that go to the core of Garland’s inadequate oversight of Special Counsels. First, how was this allowed to get this far? How were senior FBI people bugging Garland about this allegation when the most basic vetting of travel records debunked it? How was the FBI chasing an allegation from a guy who had recycled debunked Fox News propaganda? How was David Weiss permitted to demand Special Counsel status, and renege on the plea deal he made with Hunter Biden, based on a tip he had been given back in 2020?

How is that not election interference?

Just as importantly for the issue of Special Counsel oversight, how can Garland leave Weiss in charge of the Smirnov allegation, when he is a witness to the process — implicating Bill Barr and Scott Brady — that ended up mainstreaming it?

And more importantly, WSJ never mentions that the tip turned out to be a hoax from a guy with close ties to Russian intelligence.

How do you write a piece describing that the FBI was pushing Garland to chase what may be Russian disinformation (and in any case is a hoax from someone with Russian ties), and fail to mention that it was a fabrication?

How, on the eve of opening arguments in the Hunter Biden case, do you launder the fact that David Weiss reneged on Hunter Biden’s plea deal because he was chasing false claims from a guy with close ties to Russian intelligence?

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