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Leo Wise Buries Bill Barr with Six Year Sentencing Recommendation

To be absolutely clear, David Weiss’s lead prosecutor Leo Wise did not bury Bill Barr with a recommendation that Bill Barr be sentenced to six years in prison for framing Joe Biden.

No.

Leo Wise argued that Alexander Smirmov should be sentenced to six years in prison for (in addition to cheating on his taxes over three years) providing a false claim that Mykola Zlochevsky had bribed Joe Biden via the side channel that Bill Barr set up in the wake of Trump’s search for bribery allegations against Joe Biden.

In 2020, Smirnov and his willingness to make false claims about Donald Trump’s opponent were magically discovered by a team Barr ordered Pittsburgh US Attorney Scott Brady to convene. After that team magically discovered Smirnov, the FBI magically failed basic vetting, such that they took travel records showing no evidence Smirnov took trips he claimed to have taken and, from those, declared his travel records corroborated his claims.

Remember, vetting was, if you believe in magic, the entire point of the Brady side channel!

That would have been the end of things. Except then, one after another Republican kept magically rediscovering Smirnov’s false claim, each time using it as an excuse to ratchet up further investigation into Hunter and Joe Biden.

That happened in October 2020 after Donald Trump yelled at Bill Barr. That happened in May 2023. That happened in June 2023. And that happened when Leo Wise decided to chase the allegation in July 2023.

And in his sentencing memo, Leo Wise has argued that Smirnov should be punished with six years in prison because of Scott Brady and Bill Barr and Jamie Comer and Jim Jordan and Donald Trump and Leo Wise’s lust to pursue a claim that Joe Biden took a bribe.

Before I get into the story Wise tells to get there, check out how his sentencing recommendation compares to Charles McGonigal’s, who in addition to lying on FBI disclosure forms in order to hide that he had a side foreign partner paying him $225,000, like Smirnov, caused a false investigation to be filed against someone (the rival of McGonigal’s Albanian partner).

The left column is sentencing guidelines mumbo jumbo, but what you need to know is that prosecutors were arguing sentences for the same base level crime, 18 USC 1519 (altering a document) with a baseline of 14 points. Both were slapped with enhancements because their false claims led the government to take investigative steps (more on that below). Leo Wise argued that non-employee FBI informant Smirnov should get the same penalty for abusing his position of trust, 2 points, as a NY Field Office Special Agent in Charge (though that may be the only available enhancement). Then on top of the enhancements McGonigal got for hiding his side business from the FBI and investigating his partner’s rival, Wise argued Smirnov should get 2 points for how important the document is, and then first 3 and then another 2 points for framing a former Vice President during a Presidential election and also because his document was used again while Biden was President, including when Leo Wise decided to chase it.

One way you can tell this whole sentencing process — likely this whole plea deal — is a sham, is that Smirnov’s excellent attorneys didn’t do the analysis I just did (to say nothing of comparing Smirnov to Kevin Clinesmith, who altered an FBI email and whose victim was a former Trump campaign aide, yet got probation), showing that Leo Wise wants to punish Smirnov more aggressively than a guy who sold out the FBI and also caused a false investigation to be opened. The comparators Smirnov’s excellent attorneys invoked all involve people who got probation for conduct similar to Smirnov’s (but again, mysteriously not Clinesmith). Even if you assume Smirnov should go to prison for framing Joe Biden, though, it’s hard to see how his betrayal is worse than McGonigal’s.

Another way we can tell the whole sentencing process is a sham is that, as I speculated, the 4-6 year sentencing included in the deal was totally arbitrary, probably intended to serve some other purpose, maybe frame Joe Biden? Turns out even with all those enhancements, Leo Wise still only got to a 57 to 71 month range, but that didn’t stop him from asking for 72 months anyway. The range was, indeed, not based on guidelines, nor is it yet.

Which is where we finally get to the story Leo Wise told about all this, and ultimately to where he has hidden Bill Barr, the guy who ordered up the side channel that magically found a way to frame Joe Biden and then, in 2023, who made claims about the process with the result that the same Smirnov claim ended up framing Joe Biden a second time.

Leo Wise tells the story of how this all went down twice. The first time (in the section laying out Smirnov’s crime), he mostly stuck to what Wise put in the indictment, starting with the Brady side channel, to which Wise adds the letter to Jerry Nadler intended for public consumption, attributing the side channel to Jeffrey Rosen, not the guy mentioned in Trump’s perfect phone call who ordered Brady to open the side channel and to whom Brady personally reported on it.

In June 2020, the Handler reached out to the Defendant concerning the 2017 1023. Obstruction of Justice Indictment (Exhibit 2) ¶ 22. This was done at the request of the FBI’s Pittsburgh Field Office (hereafter “FBI Pittsburgh”). Id. In the first half of 2020, the United States Attorney’s Office for the Western District of Pennsylvania (hereafter “USAO WDPA”) had been tasked by the Deputy Attorney General of the United States to assist in the “receipt, processing, and preliminary analysis of new information provided by the public that may be relevant to matters relating to Ukraine.” Id.; see also February 18, 2020 Letter to The Honorable Jerrold Nadler (Exhibit 8). As part of that process, FBI Pittsburgh opened an assessment, 58A-PG-3250958, and in the course of that assessment identified the 2017 1023 in FBI holdings and shared it with USAO WDPA. Id. USAO WDPA then asked FBI Pittsburgh to reach out to the Handler to ask for any further information about the reference in his 2017 1023 that stated, “During this call, there was a brief, non-relevant discussion about former [Public Official1]’s son, [Businessperson 1], who is currently on the Board of Directors for Burisma Holdings [No Further Information]”. Id.

From there, Wise vaguely describes how, in July 2023, the FBI asked the people who were already investigating Hunter Biden to look into the Smirnov allegation, mentioning as well that, having magically gotten a copy of the 1023, Charles Grassley released it on a date Leo Wise chooses not to include: July 20, 2023.

In July 2023, the FBI requested that the U.S. Attorney’s Office for the District of Delaware assist the FBI in an investigation of allegations related to the 2020 1023. Obstruction of Justice Indictment (Exhibit 2) ¶ 41. At that time, the United States Attorney’s Office for the District of Delaware was handling an investigation and prosecution of Businessperson 1. Id.

Also in July 2023, a member of the United States Senate posted the 2020 1023 on his official website, making the Defendant’s false allegations against Public Official 1 public. https://www.grassley.senate.gov/news/news-releases/grassley-obtains-andreleases-fbi-record-alleging-vp-biden-foreign-bribery-scheme (Exhibit 5).

On August 11, 2023, the Attorney General appointed David C. Weiss, the United States Attorney for the District of Delaware, as Special Counsel. Obstruction of Justice Indictment (Exhibit 2) ¶ at 42. The Special Counsel was authorized to conduct the investigation and prosecution of Businessperson 1, as well as “any matters that arose from that investigation, may arise from the Special Counsel’s investigation, or that are within the scope of 28 C.F.R. § 600.4(a).” Id

On August 29, 2023, FBI investigators spoke with the Handler in reference to the 2020 1023. Id. at ¶ 43. During that conversation, the Handler indicated that he and the Defendant had reviewed the 2020 1023 following its public release by members of Congress in July 2023, and the Defendant reaffirmed the accuracy of the statements contained in it. Id.

No need to tell Judge Otis Wright about how sometime before July 10 — and probably as early as June 19, when Leo Wise came in and David Weiss started to renege on a signed plea deal — David Weiss was already investigating the allegation. Blame it on Chuck.

In this telling, Wise buries Barr’s personal role in setting up the side channel in January 2020, as well as Barr’s personal role in inflaming things in June 2023 — about the time that Weiss started reneging on a plea deal — by telling Margot Cleveland that he had told David Weiss to investigate this in 2020.

It’s not true. It wasn’t closed down,” William Barr told The Federalist on Tuesday in response to Democrat Rep. Jamie Raskin’s claim that the former attorney general and his “handpicked prosecutor” had ended an investigation into a confidential human source’s allegation that Joe Biden had agreed to a $5 million bribe. “On the contrary,” Barr stressed, “it was sent to Delaware for further investigation.”

[snip]

But that’s just not true, according to the former attorney general. Instead, the confidential human source’s claims detailed in the FD-1023 were sent to the Delaware U.S. attorney’s office for further investigation, according to Barr.

Wise then tells the story again later, when he tries to lard on how much work Smirnov caused because he had the bad luck of having his willingness to make shit up about Joe Biden discovered by people who were hoping to make shit up about Joe Biden.

Wise doesn’t explain how Brady’s folks would even come across Smirnov’s allegation if all they were doing was vetting open source tips. It’s Smirnov’s fault Brady magically started searching on Burisma and Hunter Biden and discovered a guy who started offering to make shit up about Joe Biden a month earlier.

In 2020, the FBI, through the Pittsburgh Field Office, and the U.S. Department of Justice, through the U.S. Attorney’s Office for the Western District of Pennsylvania, assigned investigators and prosecutors to pursue the false allegations that the Defendant made that were memorialized in the 2020 1023. For example, the document titled “Open Items for Completion by PG” shows various investigative steps that FBI Pittsburgh and FBI Seattle, where the Defendant’s Handler was located, took in an attempt to assess the credibility of the allegations the Defendant first reported in 2020 that were memorialized in the 2020 1023. Exhibit 6

In 2023, the FBI assigned a second team of investigators, through the FBI’s Wilmington RA and the U.S. Department of Justice, through the U.S. Attorney’s Office for the District of Delaware and later the Special Counsel’s Office, to investigate the Defendant’s allegations. This second group of FBI agents and prosecutors took investigative steps that caused them to conclude that the Defendant was lying and that he should be prosecuted himself for these lies.

In any event, significant Justice Department resources were expended determining that the Defendant’s false allegations were lies

Then it blames Smirnov — and not the GOPers seeking to frame Joe Biden — for the efforts FBI had to take in an effort to tamp down GOP efforts to find a way to frame Joe Biden.

In addition, the 1023 caused the substantial expenditure of government resources by the U.S. Congress and the FBI and Department of Justice in the Congressional oversight process. The following is a summary by FBI Director Wray of the actions taken by the Congress and the FBI and Justice Department specifically related to the 2020 1023

Most remarkably, given the way Leo Wise obscures that, after Barr publicly declared that David Weiss had been ordered to investigate the Smirnov allegation, a claim backed by multiple public records, David Weiss had publicly confirmed he was looking at the Smirnov allegations before someone magically gave Chuck Grassley a copy to leak, to argue for the extra two point enhancement for a super duper victim, the President of the United States!, Wise complains that Smirnov retold his lie when Wise (and Weiss) came calling, or maybe it’s that Comer and Jordan were trying to frame Joe Biden while he was President, or maybe it was all an election interference stunt.

The upward departure contemplated in Application Note 5 differs from Section 3A1.2 in two important ways. First, it uses the present tense “if the official victim is an exceptionally high-level official …” (emphasis added). When the Defendant was interviewed in September 2023 and repeated his false accusations against Joseph R. Biden, which is described in the indictment and is relevant conduct, Joseph R. Biden was the President of the United States. So that requirement is met. Second, the last phrase in the application note refers to “potential disruption of the governmental function,” which is an additional requirement that must be met to justify an additional upward departure. Congressional oversight is a “governmental function.” At the time the Defendant repeated his false accusations in September 2023, the Congress was actively involved in examining the Defendant’s false claims in the 2020 1023. The 2020 1023 was released publicly in July and, as described above, the Congress and the Executive Branch had taken numerous steps to address its claims. The Defendant’s choice to repeat his false claims when he was interviewed by the FBI in September 2023 had the potential to further disrupt the oversight process, which is a governmental function.

Further, at the time the Defendant was interviewed President Biden was a candidate for re-election. The Supreme Court has long recognized a state’s compelling interest in regulating elections, i.e. in securing the right to vote freely and effectively. Burson v. Freeman, 504 U.S. 191 (1992); see also Mills v. Alabama, 384 U.S. 214 (1966); Oregon v. Mitchell, 400 U.S. 112 (1970). The Defendant’s false statements had the potential to disrupt the conduct of federal elections by spreading misinformation about the presumptive nominee of one of the two major American political parties in the 2024 elections.

This all gets to be a bit much.

The truth of the matter is Donald Trump ordered his people to frame Joe Biden, Bill Barr set up a way to facilitate that process, they magically found a way to do that, and after Lesley Wolf tried to save David Weiss from all this in 2020, Leo Wise came along and — goaded on by an entire Congress trying to frame Joe Biden — decided he knew better and would pursue the same allegations that didn’t make sense three years earlier.

And here we are and all of this is the fault of Alexander Smirnov, and — according to Leo Wise — he should face the kind of obstruction sentence never before seen because the entire Republican party facilitated his effort to frame Joe Biden.

Alexander Smirnov was willing to frame Joe Biden and he got caught. But he got caught because the entire GOP renewed the effort to frame Joe Biden, over and over and over again.

Yet for that, only Alexander Smirnov should face a six year sentence, Leo Wise says.

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David Weiss Dons His “Let’s Go Brandon” Frame

November 19, 2024/13 Comments/in 2016 Presidential Election, 2020 Presidential Election, emptywheel, Hunter Biden /by emptywheel

In a bid to defeat a motion in limine from Alexander Smirnov prohibiting mention of his nine lawfully owned guns, David Weiss’ prosecutors revealed that they only want to use the guns, if necessary, to prove ownership of other things found in a search of Smirnov’s home, including an anti-Biden hat.

On February 21, 2024, after securing a search warrant signed by United States Magistrate Judge Brenda Weksler, FBI agents executed a search of the defendant’s residence in Las Vegas. During the search, agents found nine firearms. Agents also found other items, including electronic devices, and other evidence, such as a hat emblazoned with an anti-Public Official 1 euphemism. These items are directly relevant to the charges in this case. For example, the government plans to introduce communications found on the defendant’s electronic devices that similarly evidence bias again Public Official 1. And the hat seized from his residence demonstrate the same bias, which bears on the defendant’s motive in providing the FBI with false derogatory information about Public Official 1, who was a candidate for President of the United States, in the months leading up to the 2020 election.

On one level, by all means, show us Alexander Smirnov’s Let’s Go Brandon hat! It’ll work wonders in Los Angeles!

On another level, I can’t help but think that David Weiss’ team has just given Smirnov (who might well get a pardon anyway after Trump is inaugurated) a case for selective prosecution.

Smirnov, recall, is accused of lying to the FBI and in so doing causing the filing of a false report.

But these very same prosecutors — Derek Hines and Leo Wise — were in the last year faced with witnesses with an anti-Biden bias, the guy who sold Hunter Biden a gun in 2018 and the Delaware cop who first spoke to the gun shop owners, the former of whom (according to a filing from Abbe Lowell) similarly caused a false document to be filed, the gun purchase form to which his staffer belatedly added a claim that Hunter had provided a second form of ID when he purchased the gun. Hines and Wise have not charged those people, even though they reportedly sent WhatsApp texts during the 2020 election in an effort to publicize the gun purchase, the same kind of biased messages that Hines and Wise intend to submit to prove their case against Smirnov.

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.

I’m at a loss to imagine how Hines and Wise would distinguish the doctored gun form from the FD-1023 from Smirnov they claim is false. Both were an effort to criminalize the Biden family during the 2020 election. If anything, the retroactively doctored gun purchase form was more dangerous. And yet Hines and Wise charged Smirnov but didn’t charge the gun shop owner. Indeed, they successfully buried precisely the kind of texts showing bias they want to use against Smirnov.

This apparent double standard regarding doctored forms comes even as prosecutors are trying to prevent Smirnov from invoking Hunter’s failed plea hearing to claim (falsely) that Hunter got a sweetheart plea deal. In a filing signed by Wise, prosecutors claim that Smirnov was not mentioned at Hunter’s failed plea hearing, and so he would have no evidentiary reason to rely on the transcript.

[C]ontrary to the defendant’s representation, in the 110 pages of transcript attached to his motion, there is not a single reference to (1) the defendant or this prosecution, (2) “the sitting President,” (3) any accusations against the defendant, (4) the defendant’s “loyal service” to the FBI, or (5) that the defendant was a “Russian Spy.”

I asked Weiss’ spox whether Leo Wise was really claiming that Smirnov went unmentioned. “We will decline to comment beyond our statements and filings in court,” he replied.

But when Leo Wise responded to Judge Maryellen Noreika that, yes, even though Hunter Biden had been assured a month earlier there was no ongoing investigation, that there was in fact was an ongoing investigation,

THE COURT: All right. So you said there might be additional charges. Are you at liberty to tell us what you’re thinking those might be or is that just a hypothetical that there might be?

MR. WISE: It was a hypothetical response to your question.

THE COURT: Is there an ongoing investigation here?

MR. WISE: There is.

THE COURT: May I ask then why if there is we’re doing this piecemeal?

MR. WISE: Your Honor may ask, but I’m not in a position where I can say.

And then said he could still charge FARA violations,

MR. WISE: So I can tell you what I think we can’t charge. I can’t tell you what the ongoing investigation is. So, for instance, I think based on the terms of the agreement, we cannot bring tax evasion charges for the years described in the factual statement to the Plea Agreement. And I think we cannot bring for the firearms charges based on the firearm identified in the factual statement to the Diversion Agreement.

THE COURT: All right. So there are references to foreign companies, for example, in the facts section. Could the government bring a charge under the Foreign Agents Registration Act?

MR. WISE: Yes.

And then got Special Counsel status that would only be required if Weiss were pursuing something implicating Joe Biden — like Smirnov’s bribery claim — he almost certainly was invoking Alexander Smirnov.

Wise made that claim even while Smirnov was still fighting to obtain material on David Weiss’ decision to chase the Smirnov allegation (there was a hearing on this yesterday, but nothing is docketed on it yet).

The Defendant requested communication related to the request that U.S. Attorney David Weiss’s team “assist” with “an investigation of allegations” related to the FD-1023. The government refuses to produce this material and ignores that fact that the government chose to include the following language in the Indictment: “In July 2023, the FBI requested that the U.S. Attorney’s Office for the District of Delaware assist the FBI in an investigation of allegations related to the 2020 1023. At that time, the United States Attorney’s Office for the District of Delaware was handling an investigation and prosecution of Businessperson 1.” Accordingly, not only did the government, in its Indictment, place the communications at issue, it is clear that the communication are relevant and discoverable. This request has been outstanding since March 5, 2024.

And the apparent double standard comes as Smirnov is attempting to put the conduct of Smirnov’s FBI handler — the guy who didn’t take alarm when Smirnov sent him already debunked Fox News disinformation — at issue.

The dispute over the handler’s conduct is taking two forms. First, prosecutors are trying to exclude Smirnov’s expert witness Gregory Scott Rogers, a former FBI agent who would testify to errors that Smirnov’s handler made. They’re also trying to exclude the content of three reports on the handling of Smirnov.

It has, predictably, declined into a display of prosecutorial dickishness.

In their motion to exclude Rogers, for example, the same prosecutorial team who claimed sawdust was cocaine made much of the that Smirnov’s expert witness said “upmost” instead of “utmost.”

Next, the disclosure states, “A CHS providing the type and amount of information provided by Smirnov should be handled with the upmost [sic.] diligence.” Disclosure at 5. According to Merriam-Webster, “upmost is frequently used as a mistaken spelling of utmost in its adjective and noun forms.” https://www.merriamwebster.com/grammar/utmost-vs-upmostdifference#:~:text=In%20its%20dictionary%20sense%2C%20upmost,its%20adjective% 20and%20noun%20forms (last viewed by author on November 1, 2024). The government assumes that Rogers meant to say “utmost,” but the fact that he can’t even produce an error free disclosure speaks to the quality of his proposed testimony. In any event, like his opinion that the defendant was “poorly handled,” his opinion that the defendant should have been handled with the “upmost diligence” is also undefined. So what does “upmost diligence” mean? The disclosure doesn’t tell us.

Of course, these prosecutors aren’t above making their own typos, as when a filing signed by Leo Wise uses “again” instead of “against.”

For example, the government plans to introduce communications found on the defendant’s electronic devices that similarly evidence bias again Public Official 1.

Yet they want to treat far more significant errors made by Smirnov’s handler as “essentially ministerial errors.”

Among the errors documented in the Source Reports include getting Smirnov’s name and birth country wrong.

The reports are also critical to the defense, including based on the anticipated testimony of the Defendant’s noticed expert. For example, in the February 13,2013, Field Office Annual Source Report, FOASR, the following deficiencies were noted:

1. The Handler failed to give the CHS extraterritorial travel admonishments;

2. The Handler allowed the CHS to conduct otherwise illegal activity, OIA, outside of approved time periods;

3. The Handler documented the CHS’s true name in the wrong CHS subfile;

4. The Handler placed an unrelated CHS’s NCIC record in this CHS’s file;

5. The Handler identified the wrong country of birth for this CHS in his file;

6. The Handler failed to document appropriate receipts for payments to the CHS;

7. CHS was allowed to conduct personal international travel without appropriate approval and documentation in his file.

In a later Standard Validation Report covering 2013-2021 it was noted:

1. HA continued to fail to appropriately obtain approval and document CHS’s international travel;

2. Derogatory information reported about the CHS and more unreported/undocumented otherwise illegal activity, OIA.

In the Source Validation Report for the period March, 2021-November, 2023 FBIHQ recommended that FBI Seattle, the office where the HA had transferred to from FBI San Francisco in 2019 and brought Smirnov’s file with him, stop operating the CHS noting that they believed that the CHS was no longer fully under the HA’s control, may be committing unauthorized illegal activity, UIA, and concern that the media’s reporting of the CHS’s information concerning the Biden family’s influence peddling in Ukraine would vitiate his ability to continue to function as a CHS. In that same document, it was recommended that CHS be polygraphed. Based upon the records provided by the government, it does not appear that a polygraph of Mr. Smirnov was ever scheduled or conducted.

Smirnov claims he can prove that he said and did things with his handler that did not get documented. If he can prove that, then it’s going to be hard for prosecutors to prove that Smirnov’s claims are lies rather than that the FBI agent fucked up.

That said, there’s something more interesting about the validation reports on Smirnov: They go through November 2023 and still treat him as a viable informant. November is when, on November 7, David Weiss said the Brady side channel would only appear in his final report. November is when, on November 15, Abbe Lowell asked for discovery on the side channel. And November is when, on November 16, CNN reported that the FBI had dropped its pursuit of FARA and bribery allegations.

Smirnov’s lawyers are right there’s a tie between how Hunter Biden was treated and why he was charged. But they’ve got the emphasis wrong.

All the evidence suggests that prosecutors had to charge him or risk their Hunter Biden case too.

Filings

September 26: Smirnov motion to continue

September 27: Weiss response on motion to continue

October 14: Smirnov warns of motion to compel

March 5 discovery letter asking for communications involving Pittsburgh
May 28 discovery letter reiterating request for all FD-1023s
August 28 discovery letter asking for request Hunter Biden made of State
September 27 letter asking (among other things) for all FD-1023s from Smirnov and his handler
October 2 email following up on discovery requests

October 15: Judge Otis Wright denies continuance

October 28: Government response to discovery

October 31: Smirnov reply on discovery

October 31: Smirnov motions in limine

Preclude reference to lawfully owned guns
Preclude reference to disloyalty
Take judicial notice of Hunter Biden’s failed plea hearing
Preclude reference to September 27, 2023 interview

November 1: Government motions in limine

Preclude expert witness Gregory Scott Rogers (regarding handling errors)
- Expert notice
Exclude handling agent’s alleged mistakes
Exclude evidence of honesty
Exclude defects in prosecution
Exclude irrelevant factual issues

November 4: Renewed bid to continue trial based on delayed discovery

November 5: Motion to dismiss for discovery violations

November 5: Opposition to renewed bid to continue

November 8: Judge Wright denies motion to compel

November 12: Response to motion to dismiss on discovery violations

November 15: Defense response to motions in limine

Preclude expert witness Gregory Scott Rogers
Exclude handling agent’s alleged mistakes
Exclude evidence of honesty
Exclude defects in prosecution
Exclude irrelevant factual issues

October 31: Government response to motions in limine

Preclude reference to lawfully owned guns
Preclude reference to disloyalty
Take judicial notice of Hunter Biden’s failed plea hearing
Preclude reference to September 27, 2023 interview

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Hunter Biden’s Prosecutors Complained about the Laptop, Once, Too

June 17, 2024/11 Comments/in 2020 Presidential Election, 2024 Presidential Election, Hunter Biden /by emptywheel

Just over a month ago, Judge Maryellen Noreika denied Hunter Biden’s request to compel prosecutors to provide better guidelines about where it had obtained evidence they would use against him. Because Derek Hines had identified the individual messages he used in a filing — including the Keith Ablow picture of sawdust Hines claimed was cocaine — she deemed the request moot.

Defendant closes his motion with a request that the government be ordered to “generally point defense counsel” to where, on a forensic image of Defendant’s “Apple MacBook Pro,” certain text and photographs can be located. (D.I. 83 at 18). That forensic image was produced to Defendant in October 2023 without an index, without any Bates stamps and without any indication of what will be used at trial. (Id. at 17). Although the government produced the laptop in the specific format requested by Defendant (D.I. 86 at 19), he complains that he has been unable to locate on the image certain text and photographs relied upon by the government (D.I. 83 at 17-18). In its opposition, the government provides an exhibit with images and annotations that appears to identify where the information resides on the laptop. (See D.I. 86 at Ex. 1). As best the Court can tell, this response satisfied Defendant, and there are no further outstanding requests with respect to the laptop. (See D.I. 89 at 19-20 (recognizing that the government has no index and expressing appreciation for the government’s disclosure of location of information)). Therefore, Defendant’s request as applied to the Apple MacBook Pro appears moot.

Noreika’s refusal to require a searchable format came up at least twice at trial (probably three times). I’ve already described how prosecutors sprung the 7-Eleven texts on Hunter the morning of closing arguments. Hunter’s team surely looked for communications between Hunter and Naomi Biden before they put the daughter on the stand, but they seem to have been surprised by some texts changed that week (note, those texts were only used to refresh her memory, so did not come in as exhibits).

But even prosecutors complained that they couldn’t find things that had been on the laptop.

Before dropping four pages of new texts on Hunter Biden the last morning of trial, days earlier, Leo Wise complained that Hunter’s team had only identified the location of eight pages of texts they wanted to use to cross-examine Hallie the night before Hallie testified.

MR. WISE: The first issue is globally, we got this at 11:07 last night that actually provided the sources for these messages. We have been asking for it since Monday when they sent it to us. We of course provided our summary chart months ago. The whole point of the rule, 1006 to allow each side to check the accuracy of the statements that are in the summary chart. So we think the whole thing should be kept out because we haven’t had the time and they haven’t followed the rules to give us the time. And it’s eight-pages long.

Lowell responded that they had given the texts earlier; they had just provided the location the night before.

MR. LOWELL: Yes, of course. So as to the first one, Mr. Wise would indicate that the first time he saw these texts was whenever he just said. Actually, over the last few days we have back and forth, they keep asking us for source material and we keep trying to provide it.

THE COURT: What are these sources that they all have exactly the same number?

MR. LOWELL: I would like my colleague to address the source if I could have that happen.

MR. WISE: I didn’t say we saw the text for the first time last night, I said we saw the source.

Judge Noreika suggested that one thing prosecutors were trying to do was challenge the authenticity of the texts. Lowell reminded that he got Agent Jensen to vouch for authenticity on the stand.

THE COURT: I understand, you were trying to check the accuracy and authenticity.

MR. LOWELL: Again, one of the things I asked Agent Jensen was whether or not that material, the Cloud material, and the laptop was in the condition that they got it and whether they provided it to us in discovery and whether it was the same material and she said it was. That is the source, they have it and they sent it to us, we sent it back to them, but I’ll have Mr. Kolansky address the source for it.

MR. WISE: I don’t think they sent it back to us. But again, if you look at our chart, we literally have page 1001, I’m looking at a message 86, page 1412, so that they could go back exactly to where this message comes from and it was provided months ago.

That’s when Hunter attorney David Kolonsky revealed he was working from the hard drive of the laptop prosecutors provided and Hunter’s team used a different extraction tool to work from there.

MR. KOLANSKY: Your Honor, these messages that start on October the 11th, they’re extracted from the hard drive that we received in discovery from the government. It was a single hard drive with essentially, if you think about it —

THE COURT: So was there a way for you to say it’s on page whatever of the hard drive?

MR. KOLANSKY: There is not, Your Honor.

THE COURT: How did they do it?

MR. KOLANSKY: I don’t know how they do it, I don’t know what software they used.

THE COURT: How did you give them a specific place to go and he’s saying you can’t.

MR. WISE: We gave it to them both ways, they asked for the raw data and then we also gave them these extraction reports that reflect all of the messages that we are using with page numbers and all of the messages they’re using, they’re just somewhere in these 18,000 pages and they won’t tell us where.

THE COURT: You’re assuming they’re somewhere in these 18,000 pages, you don’t know?

MR. HINES: They keep saying they’re from the same data, so that means they should be on the extraction reports and the extraction reports are pages that are–

THE COURT: Can you get them that information?

MR. KOLANSKY: We can get them the information based on an extraction report that we created using an extraction software we have. It’s not going to match —

THE COURT: Did they give you an extraction —

MR. WISE: We gave them an extraction report, they did not give us whatever he’s referring to that has page numbers that we can look at.

THE COURT: So you gave them an extraction report, the same extraction report you used to come up with page numbers?

MR. WISE: Exactly.

THE COURT: Can you use that extraction report and give them page numbers?

When Judge Noreika asked why Kolansky didn’t just use the extraction report prosecutors provided, he said he couldn’t find all of them.

MR. KOLANSKY: When I searched these messages last night, Your Honor, for each of the 42 rows, I did not find these messages in the extraction report that they’re referring to.

MR. WISE: So they have discovery, an extraction report that they’re relying on that they haven’t give us which is the underlying material that supports under 1006 the summary report and they should have given it to us.

MR. KOLANSKY: Your Honor, we’re happy to provide the extraction report that we generated.

THE COURT: Why are you doing that today when you expect to use the exhibit today?

MR. KOLANSKY: It’s an extraction report that we used in order to thread the messages so that they’re readable.

THE COURT: Yes, but — what I’m confused about is you’re not giving them the information in the same way that they gave it to you. You’re saying — he’s saying look, tell us where it is, we gave you an extraction report and you’re telling me but it’s not in, it’s something new that wasn’t in the government’s extraction report and you can’t tell us where it is?

MR. KOLANSKY: Let me try to rephrase it, maybe I’m mischaracterizing it. When we —

THE COURT: Was it in the — so the government gave you an extraction report, you’re telling me these messages you want to use were not in there.

MR. KOLANSKY: Correct. They were in something else.

MR. LOWELL: They were in a separate sub-data, the extraction reports were from the iCloud, these messages were derived not from the source file, but from Macintosh HD, Macintosh hard drive, so there is two worlds of discovery, iCloud, and those were the extraction reports, and then material from the hard drive, which we extracted ourselves based on the forensic images they provided.

THE COURT: Did you give them an extraction from the hard drive?

MR. WISE: Yes, from the laptop. There is an extraction– that’s why if you remember when Agent Jensen was testifying, the format changed —

THE COURT: So these are messages that you’re using from the laptop, not from the — not from the iCloud.

MR. KOLANSKY: They’re from the hard drive that we received from the government.

THE COURT: The hard drive image is from the laptop. You guys are talking, I got laptops and hard drives, and I don’t even know what else I got, iClouds, oh my.

MR. KOLANSKY: Yes, that’s right.

THE COURT: So the hard drive, though, is the hard drive that correlates with the laptop.

MR. KOLANSKY: Yes, Your Honor.

THE COURT: So these are messages you want to rely on from the laptop that are not in the iCloud?

MR. KOLANSKY: That’s correct, Your Honor.

THE COURT: Okay. And you’re saying, Mr. Wise, that you gave them extraction files from the hard drive/laptop.

MR. WISE: Exactly.

THE COURT: And why didn’t you give them from that extraction file, the page numbers?

MR. KOLANSKY: I have not seen that extraction report, Your Honor.

MR. WISE: We provided it in discovery. It was — that’s how we made the chart, I mean, which they’ve had for months. So if they looked at that chart and said wait a minute this says laptop, we don’t have an extraction report from the laptop, where are you getting this from, we would have expected to hear that months ago. There is clearly an extraction report, that’s what the 1006 reflects and we reattached it when we provided our expert discovery.

MR. LOWELL: One point on that, by the way, if we’re talking about authenticity, which I think is half the issue, we talked to the government and have the stipulation about it being authentic.

Finally, Wise and Hines started claiming that the reason they can’t find these texts are because maybe they were filtered as privileged.

MR. WISE: There is sort of two things with that. We didn’t get everything that’s on that laptop. It went through a filter review. So we may or may not have. They have the whole set. So first thing —

THE COURT: Filter review from whom?

MR. WISE: A separate team that we have no access, we’re walled off for, it’s in the search warrant, that is the protocol that would be followed. The first thing is whatever they would want to show her, they should give us, we should see it so we know, and we’re not going to be able to sitting here sort of find it on the fly. If the question is authenticity, sure a witness can testify that, you know, this is a text I sent or an e-mail I sent and that gets them through the authenticity gate, but it doesn’t necessarily get them through the admissibility gate and the admissibility gate is often things like is it a business record, that’s how it comes in, is it some other exception —

[snip]

MR. LOWELL: Yes. So we will try to get that done quickly and figure that out. Again, not that I feel like I need to apologize, but we have been going back and forth. The data is incredibly dense and we have gotten it from the government in various ways. And now I’m hearing that they’re saying in their extraction report or what they did, there may be things missing, well we have them from them, so I don’t know how things we put here could be missing because we didn’t invent this, we got it from them.

THE COURT: So anything — maybe I should address this to your colleague. So anything that you have gotten or put on this chart is something you got from the government, not from any other source?

MR. KOLANSKY: That’s correct, Your Honor, and I proffer that and it comes directly from the government and that is why I endeavored to be as precise as possible to the original source file path they can stick it on the hard drive and get exactly to the folder where that message is derived from on the hard drive we received.

MR. LOWELL: Like last night I think, or yesterday afternoon, whenever we were able to go back, we provided them with the media that they can go and do exactly what Mr. Kolansky just said and check it. Now if they chose not to, I’m sorry but we gave it to them because that’s the best you can do with the data they gave us.

THE COURT: All right.

MR. WISE: No, no, we didn’t get any media, I got, 11:07, I saw something on my phone that has this path name that I don’t know what it is.

MR. LOWELL: I’m sorry, we gave them the file path one by one of something they gave us.

MR. WISE: Yeah.

THE COURT: The file path one by one, but the file path is identical.

MR. HINES: It’s filtered, we can’t see that but we can’t — and they know that from the search warrant, it’s in the search warrant.

THE COURT: So you’re limited in what you can do because you’re trying to protect rights using only the information allowed from the search warrant.

MR. WISE: Exactly.

MR. LOWELL: What I’m learning for the first time, understand this, they have provided us in discovery things that they’re saying that the investigative team does not have. So I didn’t realize that, I thought it was a one to one match, you would have assumed that otherwise I don’t know why they would have sent it to me, it’s not attorney/client materials we’re talking about, it’s conversations between Mr. and Ms. Biden, so I don’t understand that.

MR. WISE: It’s Rule 16, it’s his statement, we have to turn it over, if it’s privileged, we don’t get to see it if it goes through a filter, this is not anything new, the search warrant says it went through a filter.

Even Judge Noreika scoffed that the government would have filtered communications between Hunter and Hallie as privileged, which led Wise to channel Donald Rumsfeld invoking known unknowns.

THE COURT: He’s saying this is conversation between Mr. Biden and Ms. Biden, there is no arguable privilege here.

MR. WISE: Again, we don’t know what we don’t know, when they say we got it, we don’t have it

Again, Hunter’s team blew the deadline for exhibits, so part of this was their fault (though these were exhibits for cross-examination).

But ultimately, Hines and Wise’s silly claims that they couldn’t find individual comms either stems from the failure to do an index of the laptop in the first place.

Even prosecutors had a problem with the complexity of the laptop, and in that moment, tried to claim (in part) that they could exclude material from the laptop they had testified was authentic because they couldn’t find it.

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The Pee Tape: The Media’s Obsession with Jill Biden May Undermine the Jury

June 14, 2024/8 Comments/in 2024 Presidential Election, Hunter Biden /by emptywheel

Let say at the outset, I absolutely support the decision of the jury to convict Hunter Biden, based on the evidence submitted to them.

This description, from Juror 10, describes that Abbe Lowell’s attempt to explain away the 7-Eleven texts sprung on the defense the morning of closing arguments convinced the jury that Hunter had been trying to buy crack shortly before he denied being an addict on the gun form.

The 68-year-old juror from Sussex County, Delaware described the case to Fox News but said he didn’t buy the defense’s narrative that Hunter may have gone to a 7-Eleven to buy coffee — and said he thought he was probably buying crack-cocaine.

“Nobody is above the law, doesn’t matter who you are,” the juror said.

Prosecutors had suggested that Biden was trying to reach out and find drug dealers when he was arranging to meet someone at a Wilmington convenience store at 5 a.m. 7-Eleven was referenced in Biden’s Oct. 15-16, 2018, text messages. Biden also wrote about the convenience store in his memoir, “Beautiful Things,” explaining it was the type of place he would go to buy drugs.

That would suggest any question about the verdict would focus more on the way the prosecution submitted these texts, without identifying them as exhibits first, as a rebuttal case.

As zscoreUSA and I were discussing when I described the background of the texts, by submitting them in this way, Abbe Lowell had no opportunity to conduct a technical review of how those SMS texts, probably sent from a phone that Hunter lost the day he sent them, came to be found on a laptop that didn’t first associate to Hunter Biden’s iCloud account for another ten days. (He may later have found the phone, but this particular instance is a case that prosecutors would need to explain.)

So admitting them in this way did two things: Admitted case-in-chief evidence as rebuttal evidence, even though it had no plausible tie to rebutting Naomi Biden’s testimony, the pretext prosecutors used for doing so, and in so doing, depriving Lowell of making a technical challenge to their admission.

As I said before those texts came in, the case that Hunter used drugs during the period he owned the gun was strong. That made the decision on Count Three, possession, fairly clear cut. Short of nullification, the biggest question was whether jurors would find the sketchiness surrounding the form raised enough questions about it to give pause on the two form-related charges. Apparently it did: according to one report the last thing the jury decided was whether the form could be deemed material in a case where the gun shop admitted they sold the gun even though the paperwork was improper.

But once those 7-Eleven texts came in, it made any attempt to explain mindset at the gun shop far less convincing. As Lowell said, the texts were “case changing.”

So any question about the verdict will focus not on the jury, but on five decisions Noreika made:

To permit the prosecution to rely on laptop evidence without indexing and Bates stamping it first
To admit laptop evidence via summary, evading any technical validation
To prohibit virtually all discussion of the gun shop’s own alleged misconduct with respect to the form
To allow prosecutors to admit these texts as rebuttal, when they should have come in — as identified exhibits — in their case in chief
To keep “knowingly” off the verdict form

Again, with regards to the substance of the evidence, all of the many juror interviews demonstrate that the verdict was proper. I’m grateful for their service and happy that they’re not terrified of being doxxed, as all the Trump jurors (wisely) appear to be.

That said, the media’s obsession on whether Jill Biden’s presence in the courtroom played a factor — a question they seemed to ask every time a juror gave an interview — could undermine the jury in another way, because it introduces questions of juror credibility and raises further questions about their discussions before deliberating.

That’s because this tweet from Glenn Thrush suggests that jurors and the media were, at a minimum, aware of, if not interacting with, each other as they all stayed at the Doubletree Hotel next to the courthouse.

Juror 10, who lives an hour away from the courthouse, is among those who might have stayed at the hotel.

The jurors all promised they would keep an open mind. But there wasn’t a single journalist at the trial who exhibited an open mind — and almost none of them exhibited an understanding of the elements of offense for each of the three charges. Almost none of them understood that the four years of evidence of addiction was not dispositive about Hunter’s mindset on October 12, 2018.

The jurors were much smarter about the case than the tabloid journalists covering it. So even if jurors just heard reporters discussing the case at breakfast or the hotel bar, it might taint their understanding of the case (though Judge Noreika asked jurors Tuesday morning and they said they had not “[heard] anything” outside of the courtroom).

All the more so given that jurors went from a 6-6 split on the verdict on Monday to coming to unanimity after a few hours on Tuesday.

Because of the import of the 7-Eleven texts, any such taint likely wouldn’t matter.

But there is something that jurors have said that might raise questions.

Because the press asked and asked and asked about Jill Biden’s presence, there are many descriptions of how the jury viewed her presence, such as this claim from the ubiquitous Juror 10.

Some jurors confessed that they didn’t initially recognize the first lady, who was a constant figure sitting behind Hunter Biden in the courtroom gallery.

“People were saying, ‘I didn’t even know what President Biden’s wife looked like,’” juror No. 10 said, adding that he felt badly that Hunter Biden’s daughter, Naomi Biden, was called to testify.

Juror 10 balked at that same question here.

CNN, however, said that all the jurors it spoke with “acknowledged the weight of having her in the courtroom,” (with yet another quote from Juror 10).

The reason this matters is that one juror and two alternates ran into Jill Biden and Melissa Cohen Biden last Wednesday when they decided to use the public bathroom rather than the dedicated jurors’ bathrooms.

THE COURT: So during the break, three jurors decided that they didn’t want to wait in line in the jury room because there are 16 of them and one bathroom or two, and so they went out in the hall and they went to the bathroom. It was juror number nine, and it was two of the alternates, I believe it was the remaining — the first two remaining alternates, not the older woman on the —

MR. KOLANSKY: Younger woman.

THE COURT: Yes, the two younger women. And so they went to the bathroom and the Marshal saw them in there and came back. Mr. Biden’s wife was in there at the time. And she was in the stall, and she was coming out of the stall when they were — when they were — I guess washing their hands or something.

So I instructed my deputy that he needs to be much sterner that they — with all the jury, that they cannot leave unaccompanied. I then called in each of the jurors one at a time into my chambers to reinforce that, but also to ask them what happened.

They each gave very similar stories. They said you know, didn’t want to wait in line, they opened the door from my chambers, there is a hallway back here, my chambers is on the other side, so they walked down this hallway, got to the door, and they saw security. I assume it was Secret Service, because I think Mrs. Biden stands out there. They said they waited and someone gave them a thumbs up and they walked to the bathroom, went to the bathroom, were coming out and as they were coming out, they saw Mrs. Biden, the younger Mrs. Biden, coming out of the stall. That there were no — there was no discussion, no interaction, but they saw her, and then one of the jurors said when it was — one of the alternates, she said when she was walking back, she looked sideways, and saw the first lady, that one didn’t bother me because you can see the first lady sitting in the courtroom. That’s what happened, if you guys want to do anything, if you want to ask them any questions you can, but I just want to put on the record that happened.

MR. LOWELL: Appreciate you telling us that, there was no verbal interaction?

THE COURT: There was no verbal interaction, were you guys discussing anything you’re not supposed to be discussing about the case, were you discussing anything in the bathroom?

MR. LOWELL: There is nothing I need to say.

THE COURT: No, she didn’t do anything wrong.

MR. LOWELL: She just went to the bathroom?

MR. HINES: Today?

MR. LOWELL: Right. I understand.

Getting questioned — without warning to the lawyers in advance — about this interchange changed the focus on Jill Biden.

We know, from the sidebar on Hallie Biden’s interactions with her spouse, that jurors were discussing interactions with family members when they shouldn’t have been. Indeed, one of the alternate jurors was the one who first raised the exchanges Hallie Biden was having from the witness stand.

And Juror 10’s chummy interviews with the press raises questions about discussion of Jill Biden’s presence, possibly in response to this exchange.

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Leo Wise’s Performed Ignorance

June 14, 2024/7 Comments/in 2020 Presidential Election, 2024 Presidential Election, emptywheel, Hunter Biden /by emptywheel

I want to look at a tactic that Leo Wise — who purports to be enforcing Rule of Law — used at the Hunter Biden trial, because it demonstrates how aggressively he polices the boundaries of his own plausible deniability, plausible deniability he used elsewhere in these proceedings to make claims he should know are false.

I’ve already pointed to the nutty response Abbe Lowell elicited from Jason Turner who, when he worked at the gun shop where Hunter bought a gun (he now works for the US Mint!), was in charge of ensuring paperwork was in order.

Turner’s testimony appears to be totally honest. He said, first, that he told Gordon Cleveland to get a second form of ID. And then, without saying whether Cleveland did do so or not, said that if he had, Turner would have written it on the line for doing that.

Q. Then you said that you told Mr. Cleveland something, right?

A. He needed to get further government issued identification with an address on it.

Q. Right. And if he did, what would you do with that?

A. I would have written it right in there. [my emphasis]

When Lowell asks Turner why it’s not on the form, Turner then changes from the conditional tense to the past tense. “I would have written it … I wrote that.”

Four times Turner asserts he did write that he had gotten a vehicle registration.

According to the publicly known facts, he did write it — two or three years after the fact.

Q. But you don’t see such writing in there, do you?

A. When I wrote that out, I wrote the car registration.

Q. You don’t see such a writing in there, do you?

A. When I wrote that out, I wrote car registration.

Q. When you wrote this out, you wrote car registration here or car registration there?

A. 18(b), car registration.

Q. You wrote it?

A. I wrote it.

Q. Where is it?

A. I wrote vehicle registration in there. [my emphasis]

But then Lowell asks him where it is on the form. “It’s not there,” Turner also truthfully describes.

Q. I’m asking you if you did and this is the form, where is it on the form that you say you wrote?

A. It’s not there.

Leo Wise — who purports to be enforcing Rule of Law — interrupts to halt this line of questioning. He states that this line of questioning has been excluded (expanding the already expansive limits on Hunter’s Sixth Amendment Judge Noreika authorized), and then offers up that poor Jason Turner is simply describing his memory of writing the form.

The second form of identity required by rule of law, Leo Wise — who purports to be enforcing rule of law — says, is irrelevant.

MR. WISE: Your Honor, may we approach side-bar?

(Side-bar discussion.

MR. WISE: So this line of questioning was excluded, he has a memory of writing it, he hasn’t established when, he’s not impeached him, he said he remembered writing it in. He’s asking him about the day, but he’s not distinguishing, and this is simply irrelevant, a secondary form of ID is irrelevant.

Lowell responds (and while all the lawyers in this case were willing to game the limits of trial conduct, in this case, this is completely believable) that he had no idea how Turner would respond to his question.

MR. LOWELL: Wow. I have no idea he was about to say what he just said, that he wrote in a different form of identification.

THE COURT: He’s confused as to the time.

MR. LOWELL: I know he is and I’m not going there but he said it, so I just wanted to ask who wrote it, where is it, I didn’t know he was going to say that, judge.

MR. WISE: He did know that because the [Jencks] that we gave you from Palimere, said Palimere told him to write it.

MR. LOWELL: Two years later.

MR. WISE: That’s not your question.

MR. LOWELL: I’m asking him on that day, I’m asking him on that day.

THE COURT: What you can do now is you can just say there is nothing about the vehicle registration. It is not written in this box on this version of the form.

Ultimately, Judge Noreika believes that Lowell had no idea how Turner would respond, because she was surprised herself.

MR. LOWELL: Okay. But let’s be clear on the record, when you say I knew he was going — I had no idea he was going to say that.

THE COURT: I take your word for that. I didn’t know he was going to say that.

After that exchange, Lowell got Turner to concede that the registration was not marked on the form.

(End of side-bar.

BY MR. LOWELL: Q. So what I was asking you is from whatever you just said about the testimony of anything having to do with the registration, you and I can be clear that on this form that has the date on it, there is no such reference in line 18(b), right?

A. There should be.

Now, note that Leo Wise handled cross of Turner and — as we’ll see — of Ron Palimere, the gun shop owner. We know that Derek Hines attended an interview with Palimere in May, and neither prosecutor attended an interview with Cleveland; FBI Agent Erika Jensen did that by herself.

But Wise undoubtedly knows that Hines met with Palimere mere weeks ago, at which Hines reiterated the proffer that prohibited prosecutors from using Palimere’s admission that, “No one thought to get supplemental information” substantiating that Hunter lived at his father’s address because, “everyone in the area knows who lives” there. Wise undoubtedly also knows that Palimere described just writing something convenient in on the form, because “it was all they could think of.”

Palimere decided to write Delaware registration in the box labeled 18.b. Palimere does not know why that was chosen but he knew it had to be an official document and it was all they could think of. Turner was the one who wrote Delaware vehicle registration in the box.

Palimere thinks that if Biden presented a vehicle registration on the day of the sale, it would have been documented on the certified 4473.

Normally, they would call a customer if they found an error/omission and needed to annotate the Form 4473. The ability to annotate the Fom 4473 is allowed by the ATF. For this case, a typical customer would have been called and told they needed to come back in and bring registration to show the residency.

Palimere was not about to call Biden. Palimere felt they could not have him come into the store. Plus, Palimere did not want to contact Biden and tell him he needed to come in and he was being investigated.

Wise undoubtedly knows all that.

But he did something notable to pretend to have plausible deniability about it, to pretend to have nothing to do with any uncertainty that Lowell might introduce.

When Lowell asked Palimere a question he didn’t ask of Turner (whether they had ever met before, a fairly standard trial question), Leo Wise objected when Lowell said that Palimere had met with “prosecutors,” plural.

Q. My name is Abbe Lowell, we’ve never met?

A. No, sir.

Q. Never spoken?

A. No, sir.

Q. You have spoken to the prosecutors and investigators in the case, right?

A. Yes, sir.

Q. And we have —

MR. WISE: Your Honor, I object to that question, prosecutors and investigators, we’ve never met as well.

MR. LOWELL: I’m sorry.

BY MR. LOWELL: Q. You have met with members of the FBI?

A. Yes, sir.

Q. Even recently; correct?

A. Yes, sir. [my emphasis]

Wise objected to the question, one that Palimere had already answered in the affirmative, creating the illusion of plausible deniability, one that served to obscure that Derek Hines had not only met with Palimere, but learned that Palimere knowingly sold a gun without proper paperwork.

Wise had no questions for Parlimere.

But he did for Turner.

Indeed, even before he introduced himself, he asked Turner whether Hunter’s attorneys had succeeded in meeting with him before trial. Turner didn’t respond. Instead he suggested that they had set up a meeting but Hunter’s attorneys, “can’t be on time for nothing.”

Q. Good morning, Mr. Turner.

A. Good morning.

Q. So you were subpoenaed by the defense as a witness, right?

A. Correct.

Q. Did they try to talk with you before they did that, before you testified here today?

A. That’s a whole mess of stuff right there.

Q. Really?

A. I got the subpoena, I had to call them.

Q. Uh-huh.

A. And they can’t be on time for nothing.

Q. What does that mean?

A. I work third shift.

Q. Uh-huh.

A. And so I should be sleeping right now.

Q. What does third shift mean?

A. Third shift, that’s on the other side of the clock from everybody else, I go in at 6:00 p.m., I get done at 5 a.m.

Q. Is that what you got done today?

A. Yes.

Q. All right. So I just have a — you and I have never met, right, Mr. Turner?

A. I don’t even know you from nobody.

Q. I just have a couple of questions?

In fact, Judge Noreika even interrupted to remind Wise to introduce himself!

THE COURT: Did you introduce yourself?

MR. WISE: I’m not sure. I will.

THE COURT: He said he doesn’t know you.

BY MR. WISE: Q. My name is Leo wise, I represent the United States in this case. Nice to meet you.

So if we could have government Exhibit 10A on the screen. This is the form that Mr. Biden filled out that Mr. Lowell asked you about, right?

A. Correct. Actually that form is wrong.

As she did not do when, for example, Kathleen Buhle answered a question that had been excluded from questioning by offering up that Hunter had, “gotten kicked out of the Navy for testing positive for cocaine,” Judge Noreika warned Turner not to answer questions prosecutors had not asked.

THE COURT: Just take it one step at a time, only answer the questions that he asks.

THE WITNESS: Yes, ma’am.

Wise badly wanted to know whether Lowell had learned any of the details prosecutors were hiding from him, so much so he forgot his manners.

Part of this was about preventing jurors from learning that Leo Wise’s application of Rule of Law is, in fact, selective, from learning that Wise’s sidekick Derek Hines had in fact already immunized a potential crime, one with potentially greater impact on society, from these witnesses.

But part of it was also about policing his own plausible deniability.

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What Happened to Hunter Biden’s Plea Agreement

June 12, 2024/47 Comments/in 2020 Presidential Election, 2024 Presidential Election, emptywheel, Hunter Biden /by emptywheel

Because people who ignored the motion to dismiss proceedings have now decided to weigh in on what happened with Hunter Biden’s failed plea agreement last year, I wanted to lay out what is actually known to have happened, rather than what pretty faces like Ken Dilanian falsely claim happened.

The timeline makes several things clear: First, Weiss did revoke the terms of the immunity agreement he offered in June 2023. But that’s not what killed the plea deal. Hunter was willing to accept a narrowed plea deal. What killed it was Judge Noreika’s intervention in the Diversion Agreement. Once she gave David Weiss the opportunity, he withdrew all remaining meaningful terms of the plea deal, got Special Counsel status, and chased the Alexander Smirnov hoax.

Weiss was personally involved in a plea offer on June 6 that would have immunized Hunter against further charges on the fact set under discussion (so guns, taxes, drugs, and FARA). It remains uncontested that Weiss’ office told Chris Clark on June 19 there was no ongoing investigation.

On July 20, Probation agreed to changes to the Diversion Agreement, seemingly indicating approval. But then, as Wise and Hunter were signing the Diversion Agreement on July 26, the head of Probation told AUSA Ben Wallace she would not sign the Diversion Agreement; no one ever told Hunter this in the hearing or the negotiations immediately after the hearing, but it appears that Judge Maryellen Noreika knew Probation was not going to sign.

Before any specific discussion of scope of immunity, Judge Noreika suggested Probation could veto Diversion Agreement because grant of immunity is too broad. After that, she complained over and over and over that she didn’t get to sign the Diversion Agreement.

At the plea hearing, Leo Wise asserted (contrary to earlier assurances) there was an ongoing investigation. After Wise said the immunity permitted FARA charges and there would be no deal if FARA were excluded, Clark agreed to orally modify the scope of immunity, and by the end of the hearing both Wise and Noreika recognized that. At that point, Hunter believed he had a signed Diversion Agreement covering guns, taxes, and drugs (but no longer FARA).

After complaining that she didn’t get to sign the Diversion Agreement over and over, Noreika deferred the plea, and ordered more briefing.

Hunter pled not guilty.

In their first offer after the plea hearing, Weiss proposed getting rid of judicial arbitration and also eliminating all immunity, effectively throwing out the plea. After Hunter didn’t immediately accept the no-immunity, no-arbiter plea, Weiss got Special Counsel status.

Hunter was willing to take a plea without FARA immunity. But because Noreika wanted the ability to veto the scope of immunity, she didn’t approve the plea. And that led Weiss’ office to immediately revoke all meaningful substance of a plea offer.

Timeline

June 6, 2023: Chris Clark spoke to David Weiss and told him any “Agreement’s immunity provision must ensure Mr. Biden that there would be finality and closure of this investigation.” In response, Lesley Wolf proposed this language, to which Chris Clark agreed on Hunter’s behalf:

The United States agrees not to criminally prosecute Biden, outside of the terms of this Agreement, for any federal crimes encompassed by the attached Statement of Facts (Attachment A) and the Statement of Facts attached as Exhibit 1 to the Memorandum of Plea Agreement filed this same day.

June 7: Bill Barr tells Margot Cleveland that the Smirnov FD-1023 had been sent to David Weiss for further investigation.

It’s not true. It wasn’t closed down,” William Barr told The Federalist on Tuesday in response to Democrat Rep. Jamie Raskin’s claim that the former attorney general and his “handpicked prosecutor” had ended an investigation into a confidential human source’s allegation that Joe Biden had agreed to a $5 million bribe. “On the contrary,” Barr stressed, “it was sent to Delaware for further investigation.”

June 19: Per claim from Chris Clark that Weiss never contested in Motions litigation, Weiss’ First AUSA told him that there was not another open or pending investigation into Hunter Biden.

Shortly after that email, I had another phone call with AUSA Hanson, during which AUSA Hanson requested that the language of Mr. Biden’s press statement be slightly revised. She proposed saying that the investigation would be “resolved” rather than “concluded.” I then asked her directly whether there was any other open or pending investigation of Mr. Biden overseen by the Delaware U.S. Attorney’s Office, and she responded there was not another open or pending investigation.

July 19: Chief of Probation Margaret Bray recommends Hunter for 24-month diversion.

July 20: AUSA Benjamin Wallace tells Noreika’s Courtroom Deputy that the government, Hunter’s team, and Probation have agreed to changes in the diversion agreement.

The parties and Probation have agreed to revisions to the diversion agreement to more closely match the conditions of pretrial release that Probation recommended in the pretrial services report issued yesterday.

July 20: Chuck Grassley and James Comer release Smirnov FD-1023.

July, ND (per indictment): FBI requests Weiss assistance in investigation of FD-1023.

July 26 Plea agreement (note, the links to the transcript come from references Judge Noreika made in her order denying immunity under the Diversion Agreement, as well as all the complaints about not getting to sign the Diversion Agreement which she left out; the order is best understood as an effort to refashion her own intervention):

Before Noreika enters the room: Leo Wise and Hunter Biden sign Diversion Agreement
As Wise and Biden are signing Diversion Agreement, Wallace approaches Bray regarding Diversion agreement, and she, “expressly declined to sign the draft diversion agreement” [at this point, the prosecution and Probation know she has refused to sign, but Hunter does not; for reasons I laid out here, it appears Noreika did know Bray was not going to sign]
12: Noreika does plea colloquy
40: Hunter says he’s relying on promises in Diversion Agreement
42: Noreika asks whether this is a plea under Rule 11(c)(1)(B) or Rule 11(c)(1)(A)
43: Clark says the plea stands alone
45: Clark says government has reassured him they’ll stand by Diversion Agreement
47: Noreika suggests Probation could reject the Diversion because immunity grant was too broad; Wise says that’s discretion of DOJ
48: Wallace — the only prosecutor who definitely knew Probation had refused to sign — agrees that if the immunity were in the plea, it’d be under Rule 11(c)(1)(A)
51: Wise says there’s an ongoing investigation (conflicting with reassurance offered by Weiss’ office in June)
51: Noreika complains she can’t sign the Diversion Agreement
52: Clark says the Diversion Agreement has been approved by Probation; no one corrects him
52: Noreika complains the Diversion Agreement treats her as a rubber stamp
56: Wise says they could bring FARA charges
56: Wise says if FARA is included, then “there is no deal”
58: Clark agrees to orally modify immunity provision to apply to only drugs, guns, and taxes
84: Wise says the parties to the Diversion Agreement are DOJ and Hunter
90: Wise states that the immunity paragraph has been orally modified to apply only to drugs, guns, and taxes
93: Noreika complains that there’s no place for her to sign off on Diversion Agreement
96: Noreika complains that DOJ won’t be able to charge Hunter if she doesn’t agree he has violated Diversion Agreement
102: Wise repeats that they’ve agreed to terms of Diversion Agreement
105: Noreika complains that she doesn’t have the ability to sign off on immunity
105: Noreika defers plea
106: Noreika asks for briefing on why it’s a plea under Rule 11(c)(1)(B)
106: Noreika recognizes Clark has orally modified the scope of immunity, but tells him to put it into writing
110: Hunter pleads not guilty

July 31 DOJ proposes changes:

Eliminate judge as arbiter
Delete immunity provision
Eliminate cross reference between plea and Diversion agreements

August 7: Clark insists on retaining judge as arbiter and retaining immunity provision

August 9: Wise withdraws all agreements by August 11

August 10: Clark asks to have until August 14

August 11: Before Hunter can respond, Weiss withdraws tax agreement and Garland names Weiss Special Counsel

August 29: FBI interviews Smirnov handler

August 29: Weiss tells Lowell they insist on felony pleas, claims they don’t have to rely on laptop

September 27: FBI interviews Smirnov

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The Scolding that Hunter Biden Should Have Pled Guilty Ignores the Complexity of What Happened

June 12, 2024/21 Comments/in 2020 Presidential Election, 2024 Presidential Election, Hunter Biden /by emptywheel

In the wake of yesterday’s verdict against Hunter Biden, there are a lot of armchair quarterbacks and hacks mulling why Hunter Biden didn’t simply plead guilty.

One of the only thoughtful, factually accurate pieces I’ve seen is this, from Dennis Aftergut. After accurately describing how David Weiss reneged on the original plea deal in the face of Republican pressure, Aftergut nevertheless describes that Hunter should have pled guilty anyway, assuming that the judge who intervened to kill the diversion that would have amounted to a probation sentence would sentence Hunter leniently if he took responsibility as he tried to last July.

Maybe he thinks he’s got a chance on appeal, given the Supreme Court’s expansion of Second Amendment rights. But successful appeals of criminal convictions are historically very long shots — about 1 in 15 get reversed — and it’s hard to see appellate courts ruling that the right to buy a gun includes the right to lie to get one.

The conviction will hurt Hunter Biden’s father personally, and it can’t help him politically. The right wing’s fact-free attempts to link President Biden to his son’s criminality would have been there even with a plea, but Hunter taking responsibility for his conduct would have diminished the MAGA narrative’s staying power.

One thing’s for sure: The hung jury or the acquittal Hunter Biden was hoping for would have been a political disaster for his father — and for the nation, in this election where the rule of law is on the ballot. For many in the media and for a substantial portion of the electorate, former President Donald Trump’s conviction for falsifying business records in connection with buying Stormy Daniels’ silence to corrupt the 2016 election contrasted with Hunter’s non-conviction would have exponentially amplified the MAGA screams claiming that there are two standards of justice.

Even ignoring Noreika’s statements (including a comment in a bench conference that she thinks Hunter violated the law by putting his dad’s address on the gun form), one problem with these think pieces is, to the extent they consider appeals, they usually limit their consideration of the nature of appeal. Most, as Aftergut did, focus primarily on a Breun appeal of the gun charge.

Prosecutors charged this to make such a challenge almost useless. Even at the plea hearing, Judge Noreika inquired why prosecutors hadn’t included a felony false statements charge, particularly in light of constitutional challenges to the underlying statute.

THE COURT: I have had one or two cases involving a person struggling with addiction who bought a gun, we usually see a felony charge for false statement. The Defendant has admitted that his statement was false, but he wasn’t charged. Again, I’m not trying to get into the purview of the prosecutor, and I understand the separation of powers, it’s in your discretion, but I just want to ask, does the government have any concern about not bringing the false statement charge in light of our discussion of 922(g)(3) and the constitutionality of that charge.

And in their response to Hunter’s constitutional challenge, prosecutors argued that the false statements charges would survive even if SCOTUS overturned the possession charge.

The Supreme Court has concluded in many cases, across many decades, and in many different contexts that a defendant cannot make a false statement to evade a statute the defendant believes is unconstitutional and escape criminal liability for the false statement by arguing the unconstitutionality voids his knowingly false statement: “Our legal system provides methods for challenging the Government’s right to ask questions—lying is not one of them. A citizen may decline to answer the question, or answer it honestly, but he cannot with impunity knowingly and willfully answer with a falsehood.” LaChance v. Erikson, 522 U.S. 262, 265 (1998) (quoting Bryson v. United States, 396 U.S. 64, 72 (1969)). In 1937, for example, the Supreme Court held that defendants charged with defrauding the United States by misrepresenting the identity of hog producers could not escape criminal liability by arguing that the statute and regulations requiring the information to be furnished were unconstitutional. See United States v. Kapp, 302 U.S. 214, 215, 218 (1937)

By charging possession and false statements, prosecutors made it risky at best to plead guilty with the intent of appealing on constitutional grounds alone, because the false statements charges with the same punishment may well survive a successful constitutional challenge anyway.

At least until Judge Noreika prohibited Hunter from introducing the doctored purchase record or even pressing gun shop employees about it, Hunter had a shot at raising questions about other elements of offense on the two documents charge. Indeed, per Juror 10, the question of whether Hunter’s lie on the form was material is the one thing that held up a conviction yesterday, so a bid for acquittal on the document charges had more promise than defeating the possession charge.

Biden also filed an as-applied challenge after the government rested, arguing that the facts as presented at trial make the charge unconstitutional, something that required developing a trial record. That, too, may have been defeated by Leo Wise’s exceptional prosecutorial dickishness. Notably, Lowell argued there was no location data showing him at 7-Eleven.

There is no video of Mr. Biden at the 7-11 or CCTV of him near the intersection where he was supposedly sleeping on his car, no location evidence (and if there was, there are bars and restaurants in the areas as well) , or any other evidence.

And then prosecutors used the pretext of an answer Naomi Biden made to introduce just such evidence, effectively using their pretextual rebuttal argument to fight this as-applied appeal.

Aftergut notes in his piece that Hunter also challenged the indictment on a selective and vindictive basis, which he also describes is almost impossible to win. That remains true. But even in the lead-up to the trial, prosecutors had to confess that the government discovered in 2021 that the gun shop may have also violated the law with regards to this sale by doctoring the form after the fact, but nevertheless extended a proffer to the gun shop owner so he could confess he sold the gun without second ID because he wanted to get Joe Biden’s son out of his store quickly. Prosecutors also turned over evidence that the gun shop owner had worked to make this gun sale public in 2020 in hopes of raising the political pressure on the case not being charged. By going to trial, Hunter developed evidence that prosecutors chose to charge Hunter while providing a proffer to the guy who brought pressure to charge it in the first place.

And there’s a fact set regarding claims of vindictive prosecution that are unprecedented. Noreika simply ignored the import of Weiss’ decision to renege on the deal because he decided to chase the transparently false Alexander Smirnov lead that he had first gotten in 2020, something that Abbe Lowell preserved before her (but did less well before Judge Scarsi). It is literally the case that Donald Trump’s Attorney General set up a side channel for dirt from known Russian spies that resulted in an attempt to frame Joe Biden and that attempt to frame Joe Biden was the reason prosecutors reneged on the deal last summer.

Aftergut is silent about an appeal on the immunity claim, Hunter Biden’s belief that the original diversion agreement which both parties signed prohibited the government from charging these felonies. As it is, there is a District conflict, with Judge Mark Scarsi ruling that the diversion agreement was valid but had not been put into effect, and Judge Noreika ruling that — after her own head of Probation had refused to sign a deal she had already approved — the deal never went into place. If an appeal of that succeeds, especially if it were quick and succeeded before September, then the September trial might be affected as well.

Abbe Lowell also seems to at least suspect that prosecutors have withheld Brady material, which if he can ever prove it, is another thing that would undermine this prosecution.

Now, Hunter could have challenged some of these without going through the pain of trial. But not all of them.

What we have watched since last July is an incredibly contentious fight in which prosecutors who, as Republicans wailed and threats proliferated, chased the false claims of a guy with ties to Russian intelligence, and now demand that Hunter simply suck up felonies because they did so.

And things get worse as we move to Los Angeles. There, the felony counts for writing off payments to people like Lunden Roberts (and several other women, one of whom may be Zoe Kestan, whose fashion business Hunter was fronting) are charged along with three counts of dubious propriety: the 2016 failure to pay (for which Hunter has argued statutes of limitation have expired) and 2017 and 2018 failure to file, for which venue is either definitely (for tax year 2017) or arguably (for tax year 2018) invalid. Hunter could plead to that indictment, but he’d be pleading to charges that were improperly filed.

Prosecutors have promised to make the Los Angeles trial even more cruelly embarrassing than the Delaware trial, introducing a bunch of evidence of influence-peddling that should be unrelated to the tax charges charged. That is, if Hunter goes to trial to argue that he didn’t remember some of the expenses he wrote off and got advice supporting others, Weiss’ team at least plans on airing Hunter’s relationship with people like Tony Bobulinski, yet another witness in this case alleged of wrong-doing on his own part but not charged.

But here’s the thing everyone keeps forgetting: going to trial may not matter. Because Merrick Garland capitulated to David Weiss’ demand for Special Counsel status to chase Alexander Smirnov’s false claims, Weiss gets to write a report. We’ve already seen John Durham simply fabricate things in his report, including things (like a narrative of all the investigations into Hillary during the 2016 election that Durham deceitfully claimed showed special treatment) that were far afield of the investigation itself. And Weiss’ prosecutors have already proven even more dishonest, with Derek Hines falsely implying he found Hunter Biden’s 2019 New Haven crack pipe in Wilmington in October 2018 on four different occasions, the narrative equivalent of a dirty Baltimore cop framing a defendant by bringing a crack pipe to an alleged crime scene and planting it.

Because David Weiss got the mandate to file a report because he chased Alexander Smirnov’s false claims, recent practice means he can say pretty much anything about Hunter Biden in a report he wants. Weiss’ prosecutors did something incredibly stupid and as a result they’re rewarded with a guaranteed opportunity to dirty up Hunter Biden some more.

So the only difference between deliberate humiliation in a September trial and deliberate humiliation in a report is when it takes place. Leo Wise and Derek Hines have made it clear they plan to continue humiliating Hunter Biden no matter what he does.

And that changes the calculus.

It may not change the wisdom of pleading out, perhaps pleading out in Los Angeles before a September trial brings out the obscene Tiger Beat journalists again for the election period.

But it does make simple bromides about how much better it would be to plead out overly simplistic.

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What Jurors Noticed about Hallie Biden’s Testimony

June 11, 2024/23 Comments/in 2020 Presidential Election, 2024 Presidential Election, Hunter Biden /by emptywheel

As I’ve said over and over, Hallie Biden was the most important prosecution witness against her brother-in-law.

In his close yesterday, Leo Wise described that Hallie’s testimony that she found remnants of crack cocaine in Hunter’s truck days after, according to Naomi Biden, it was clean, is compelling circumstantial evidence that Hunter smoked crack in the truck between those days.

And if you compare what Naomi Biden said that she returned the truck to her father clean on October 19th, 2018, that there were no drug remnants in it and there was no drug paraphernalia in it, to Hallie Biden’s testimony that she searched the truck on October 23rd, just a few days later, that she found drug remnants. Remember, the way she testified what a drug remnant is, is when you break pieces, smaller pieces of crack off a larger rock, a lot of it falls and breaks off, that’s what a remnant is, and that’s what Hallie Biden saw in that truck on October the 23rd, and she also found drug paraphernalia.

So what does that mean? What does a clean truck with no drug remnants and no drug paraphernalia on October 19th, as in the testimony of the defendant’s own daughter, and then a truck with drug remnants and drug paraphernalia on the October the 23rd, what does that mean?

Abbe Lowell attempted to pitch her testimony as more inconsistent than that, describing how key parts of her testimony might confuse what happened on October 23, 2018, when she found the gun, and earlier times when she had searched his truck, noting that her testimony that Hunter had spent that night with her was inconsistent with him calling her and then taking an Uber back to her house.

But even she said she did not see Hunter using drugs in this period. And said only that when she went into the truck on October 23rd, first she said there were remnants and paraphernalia, but then when asked said a dusting of powder, I guess. And when I asked her to be more specific and tell us whether those remnants were on the console, steering wheel, floor mats, or car seat, all do you remember she said is, I do not recall.

And when asked what type of paraphernalia, she again said, I do not recall.

Was she remembering what she saw that day or dozens of other days when she, too, was using, where that more likely than not happened, okay. But if you noticed, she could remember that which the prosecutors asked her, the prosecutors who also gave her immunity, but not so much for any number of things. When she saw Hunter when he came back from LA, even if it was on the day he came back to go with her at an appointment she had at a Caron rehabilitation center or facility, when she saw him — or when she saw him, whether it was October 22nd or 23rd, whether it was the night, whether it was the night before, whether it was the early morning or when. And you’ll remember that I asked her whether or not when I could refresh her recollection, did she know that she was not with him that morning. And do you remember when I had to do that by saying do you remember the reference to calling an Uber? And then she said yes. You don’t need an Uber to go from her driveway into the house.

Before he launched that section of his closing arguments, however, he evinced sympathy that Hallie was put into this situation in the first place.

Where else did they go? Poor Hallie Biden, who had to be dragged through this period of her life again, who understandably did not remember a lot of the details.

Poor Hallie Biden didn’t remember a lot of the details…

This is something that we won’t be able to measure, unless and until jurors speak publicly about their deliberations after a verdict. It’s one thing to have sympathy or no for Joe Biden’s son, who was known to have addiction problems in Delaware. It’s another thing to have sympathy for Hallie Biden, the widow of the state’s much better loved former Attorney General.

And that’s why something that happened the day Hallie testified is of interest.

It showed up publicly in this exchange with Leo Wise on redirect, something some journalists covering the trial found odd.

BY MR. WISE: Q. I just have a few questions, Ms. Biden. The first is were you married just this past weekend, recently?

A. Yes.

Q. And is your husband in the audience?

A. Yes.

Q. And at the breaks have you been looking at him and him looking at you?

A. Yes.

Q. Has any of that had anything to do with your — the substance of your testimony?

A. No, just support.

But two sidebars in the middle of Abbe Lowell’s cross-examination of Hallie explain the background to Wise’s comment: A juror had told Judge Noreika’s courtroom deputy that they had seen Hallie communicating with someone in the courtroom and seemed to find it suspicious.

THE COURT: So one of the jurors said to Mark when she was leaving that when we were over here at side-bar, that they noticed that she was communicating with someone in the back. Now, I don’t know if she has a lawyer here.

MR. HINES: She does.

MR. WISE: Well, it’s her husband. She got married this weekend and I can see him in back.

THE COURT: So she was communicating with someone. They were like mouthing something to her. My guess is it was something on the order of, you know —

MR. LOWELL: What a jerk I am.

THE COURT: My guess.

MR. LOWELL: Could you clean that one up. What a jerk I am. Thank you.

MR. HINES: No objection.

THE COURT: Okay. So they noticed — so one juror, it’s the second alternate, so we know we have the two younger women, so it’s one of them. And then she said to him — and you can ask Mark questions, too, she said to him and other jurors noticed, too.

MR. LOWELL: So I’m sorry to get this right, Mark, Mr. Buckson, the first — second alternate says it to you?

COURTROOM DEPUTY: She stays behind and says, “I have to talk to you a minute.”

MR. LOWELL: When she did, she said other jurors saw it, too?

COURTROOM DEPUTY: She told me what happened and said other jurors saw it, too.

This created two concerns: The juror had found the exchange suspicious. And jurors talked about it.

MR. LOWELL: Meaning that they talked about it.

THE COURT: That’s what I said to Mark, that’s why I want to tell you guys everything that they said. Now what I don’t know — my guess is, it was on the way out the door, so it wasn’t like they had talked about it in the jury room. It was probably one of those things where they were like this, you know, but I don’t know that.

MR. LOWELL: I understand

THE COURT: So if you guys want to ask, you can. So what I thought I would do is tell you now, even though I interrupted your lunch, so you can go back, you can figure out who the person was.

MR. WISE: I saw him.

MR. LOWELL: She also has her lawyer.

MR. WISE: I mean, if someone is mouthing like hang in there, doing, whatever it is, I’m guessing it’s the husband, I don’t think a lawyer is mouthing something.

THE COURT: I don’t know who she was doing it with. Maybe you can go figure out. Maybe you can find out what they are saying and you guys can figure out what you want to do if you want to talk to the jury or you want me to talk to the jury.

MR. LOWELL: Or maybe we let it be.

THE COURT: Let it be with a reminder that don’t talk to each other.

So Judge Noreika and the lawyers discuss how to address this — both the jurors discussing among themselves, and the impression of something suspect going on be allayed — without making the problem worse.

MR. WISE: My only concern if she think she’s being coached or something.

THE COURT: If she’s doing something improper.

MR. WISE: I don’t want that impression to be left on them.

MR. LOWELL: Unfortunately, to figure that out, you would have to start inquiring who were you talking to, what were you mouthing, what was he mouthing back, and that concerns me as much as, you know, as anything because why — how is that helpful, right.

Let’s figure out before we bring them back what is the least that is necessary, if anything, because if you start inquiring, how is that helpful, right, I don’t think that’s helpful. I understand you don’t want the jury to think she’s being coached, certainly not by my party.

MR. WISE: Right.

MR. LOWELL: But I wonder how do you do that with finesse. Nothing comes to my mind at the moment, but I’ll try to put my mind to it. Thank you for telling us. And right now I don’t have anything I would suggest, but I’ll talk to you all about it.

THE COURT: Maybe you guys, somebody can just check with her lawyer and husband and find out what that was.

MR. LOWELL: Thanks, Your Honor, for bringing it to our attention. (End of side-bar.)

COURTROOM DEPUTY: All rise.

THE COURT: All right. So can I just see counsel for one second. (Side-bar discussion.)

THE COURT: So you want me to do what?

The agree that Judge Noreika will admonish the jurors not to talk to each other about the case. But that still left the problem of what to do with the appearance that someone might be coaching Hallie.

MR. LOWELL: I thought the, we talked, I think what we agreed was you don’t have to do it right away or whenever you would, it would just be the normal instructions to the jury just a reminder that you shouldn’t be talking to each other about the case, among yourselves of anything that’s happening, you have that, I don’t know exactly the words.

THE COURT: And then with respect to the discussions, are you okay if they just want to ask her, do you have someone here supporting you or something so the jury understands?

MR. LOWELL: I would object to that as somebody here supporting you.

THE COURT: Someone here —

MR. LOWELL: I mean, if you want to say do you have a relative — I mean, I don’t know. My view is do the least. But if you feel like something needs to be said. But I don’t know how that doesn’t make it worse.

MR. WISE: Was your impression that they thought it was something wrong going on?

COURTROOM DEPUTY: Kind of.

MR. WISE: Okay.

COURTROOM DEPUTY: It was a suspicious.

MR. LOWELL: Let’s say she has a relative, the problem, it still opens the door, what was your relative saying to you, were they just giving you a high five.

MR. WISE: The question would be Ms. Biden were you recently married, yes, just this week, is your husband here in audience to support you, yes.

MR. LOWELL: Not support you.

MR. WISE: Yeah, that’s what spouses do.

THE COURT: Is your husband here with you.

Leo Wise proposes to ask whether the person Hallie has been exchanging words of support with said anything about her testimony. I think that Lowell objected to this, though not vociferously.

MR. WISE: At the breaks, have you been looking at him and exchanging supportive words, has anyone been telling you what to testify about.

MR. LOWELL: I object to all those questions.

THE COURT: Well, I don’t object to has anyone told you what to testify.

MR. LOWELL: I mean in general, yeah.

MR. WISE: I don’t know what the prejudice is for her to say my husband is in the audience, I have been looking at him and he’s been looking at me for support.

MR. LOWELL: For support, how about I have been looking at him and he’s been looking at me.

THE COURT: And anything in that, was he telling you what to say, or something like that?

MR. WISE: Okay.

THE COURT: People are telling you what your testimony should be, something like that.

MR. WISE: Yeah.

THE COURT: Because I — look, I’m just concerned that the jury, there was nothing — I don’t think there is anything that she did wrong.

Over lunch, prosecutors confirmed that Hallie was exchanging comments with her spouse, whom she married the weekend before the trial.

MR. WISE: We confirmed with the lawyer, we said is she talking to you, no, no, the husband is here. He’s not going to obviously tell her anything about her testimony, but I am concerned that we’re leaving an impression with the jury that she’s doing something wrong, so if you just want to say, were you recently married, is your husband here with you, and then have you during breaks looked to him, and did anything that you do — any of your interactions about your testimony or something like that.

MR. WISE: Okay.

MR. LOWELL: Say that, were any of your interactions, sorry, were any of your interactions about your testimony.

THE COURT: Yes.

MR. LOWELL: Is that the phrase?

THE COURT: Yes. I was just trying to get at that it’s not influencing her testimony, but if there is a better word for that.

MR. WISE: I think maybe while you are on the stand.

THE COURT: Yes. While you were on the stand did you occasionally look to him, was any of that about your testimony?

MR. LOWELL: I mean —

THE COURT: I know, and you can object and if you have to object now.

Lowell again objects to any comment specifically about her spouse.

MR. LOWELL: Why don’t, we could that now, let me do it now. Yeah, I just think the more we inquire, the worse it gets, so I object to anything other than the instruction to the jury, telling them that you’re not supposed to be talking about the case before you deliberate.

THE COURT: I understand. The problem is that horse is out of the barn and I can instruct them on that going forward, but for this particular horse and barn, I don’t want the jury left with the impression that something nefarious was going on. I have enough issues with her testimony let alone something wrong.

MR. LOWELL: Let’s put this horse back in the barn, but can we do it with the fewest number of kicks to the side, to use the analogy.

THE COURT: Yes. I think that’s what it is, if you think there is a way that we can kick less, I took out support.

MR. LOWELL: Right.

THE COURT: I took out support and all I wanted to clarify is it didn’t have anything to do with — he doesn’t know anything about her testimony.

MR. LOWELL: But we don’t have to explain that.

THE COURT: Exactly.

MR. LOWELL: Okay. (End of side-bar. )

THE COURT: All right. We can bring in the jury.

Maybe Wise’s comment alleviated any concerns the jurors had about Hallie’s testimony. And who’s to say whether jurors thought someone coaching her would be on behalf of prosecutors or the defense?

But it’s the kind of thing that could significantly impact the impression jurors got of the testimony from the most important witness at trial.

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Leo Wise Makes Excuses for the Reams of Evidence from Periods Hunter Didn’t Own a Gun

June 11, 2024/19 Comments/in 2020 Presidential Election, 2024 Presidential Election, Hunter Biden /by emptywheel

If Hunter Biden’s prosecutors, Leo Wise and Derek Hines, fail to win a conviction on Count Three, the easiest charge to prove, it will be because of their own hubris, their decision to overwhelm the defendant with evidence of his four years of addiction, most of it from times when he did not own a gun, rather than simply present the very good circumstantial evidence showing he remained addicted, he continued to use crack, when he did own the gun.

Over 45 minutes into Wise’s closing argument, he laid out succinctly that circumstantial evidence, including — as I predicted — analogizing the state of Hunter’s truck before and after he used it to snow falling overnight.

What do we know specifically about that month of October. You see on the screen those drug messages on the 13th and the 14th. You see the addiction messages depicted on the 15th and the 23rd. You see the meeting messages on the 10th and the 11th, the day before he bought the gun on the 12th, and you see on the 23rd both addiction messages and drug remnants and drug paraphernalia recovered by Hallie Biden in the truck. That’s a lot of evidence of drug use and addiction in the month of October. It is evidence beyond a reasonable doubt.

And what else do we see in October? We see that persistent cash withdraws, hundreds and thousands of dollars every day.

[snip]

And if you compare what Naomi Biden said that she returned the truck to her father clean on October 19th, 2018, that there were no drug remnants in it and there was no drug paraphernalia in it, to Hallie Biden’s testimony that she searched the truck on October 23rd, just a few days later, that she found drug remnants. Remember, the way she testified what a drug remnant is, is when you break pieces, smaller pieces of crack off a larger rock, a lot of it falls and breaks off, that’s what a remnant is, and that’s what Hallie Biden saw in that truck on October the 23rd, and she also found drug paraphernalia.

So what does that mean? What does a clean truck with no drug remnants and no drug paraphernalia on October 19th, as in the testimony of the defendant’s own daughter, and then a truck with drug remnants and drug paraphernalia on the October the 23rd, what does that mean?

It means the defendant used crack in the truck between October 15th, 2018, and October 23, 2018, October 19th, when he got it back. Now nobody saw it, right? But you heard Her Honor instruct you that we rely on circumstantial evidence just as much as we rely on direct evidence. And this is circumstantial evidence beyond a reasonable doubt that he used drugs in that truck in that period.

It’s like if you go to bed at night in the winter and there is no snow on the ground, and you wake up the next morning and there is snow on the ground, you know it snowed.

But before he got there, in his very first words when presenting his case, he dismissed the Bidens, Hunter’s supporters in the courtroom, whom he had forced to relive the pain of providing an addict unconditional love.

MR. WISE: All of this is not evidence. The people sitting in the gallery are not evidence. You may recognize some of them from the news or from the community. In the course of this trial, you may have looked at them and they may have looked at you. You may have seen them reacting to the testimony or the photographs, or something that one of the lawyers said. But respectfully, none of that matters.

And then, like the lady that doth protest too much, he invented a reason why he had to do that, why he had to show the jury evidence of Hunter’s addiction from the periods he didn’t own a gun instead of focusing on the period he did.

In opening, Mr. Lowell said the prosecutors plan to call witness after witness who will tell you, and they plan to show you dozens of e-mails or texts which reference what Hunter does not dispute. He had abused alcohol since he was a teenager, and drugs as an adult. The defendant does dispute it. He pleaded not guilty to the charges, which is his right. And what Mr. Lowell says isn’t evidence. The fact that he said the defendant doesn’t dispute his drug use isn’t a stipulation to it. You heard Mr. Hines read the stipulations. They’re Exhibit 43. None of them are that the defendant admits he used drugs as an adult. So the United States had to prove it. And that’s why we had to call witnesses, and show you photographs and text messages, and play parts of the nonfiction book that the defendant wrote and read. All of which establishes, beyond a reasonable doubt, that the defendant used crack and was addicted to crack, and that he knew he used crack and was addicted to it during the relevant time period.

To be clear the evidence was personal, it was ugly, and it was overwhelming. It was also absolutely necessary. There is no other way to prove the use of drugs or addiction to drugs than through the kind of evidence that you saw.

[snip]

And that is because as the instruction provides, an inference that a person was a user of a controlled substance may be drawn from evidence of a pattern of use or possession of a controlled substance that reasonably covers the time the firearm was possessed. That’s why we introduced evidence from 2015 to 2019. In other words, before, during, and after the time when the defendant bought the gun and when he possessed it, because that establishes the pattern of use or possession of a controlled substance that reasonably covers the time that the firearm was possessed.

[snip]

And again, the evidence and the reason it was introduced from 2015 to ’19 shows the defendant habitually used a controlled substance. It isn’t something that started the day before he bought and then possessed the gun, or the week before, or the month before, it started years before and it continued for months thereafter. All of that is part of the pattern of use.

[snip]

Now I would like to turn to the evidence of a pattern of use or possession of a controlled substance that reasonably covers the time the firearm was possessed, including October 12th. First, you see the defendant’s own words and messages from 2018 and 2019, a year worth of messages from the spring of 2018 to the spring of 2019.

[snip]

We see messages in November 18th where he’s buying. We see addiction messages in 2018. We see both drug messages and addiction messages later in December of 2018, including images. And we see messages in 2019. And in February of 2019. And in March of 2019.

We don’t just have his messages from the time, although I submit that would be enough to convict. We also have his own words in his memoir describing buying and using drugs during that whole period from 2015 to 2019, four years, what he called four years of active addiction, and how he relapsed after numerous attempts at rehab, including after The View, the rehab center he went to for about a week late in August of 2018 in California.

Wise even made the grotesque argument that if only Hunter hadn’t gone to rehab, he might make the argument that he didn’t know he was an addict.

Maybe if he had never been to rehab, he could argue that he didn’t know he was an addict when he bought the gun on October the 12th, but he had been to rehab over and over again, and he kept going to rehab, which evidences that he knew he was — he had an addiction when he bought and possessed the gun.

The argument is inadequate on the law, because it sidesteps his obligation to show Hunter’s mindset at the moment he bought a gun (something he barely attempted more generally). But it is as obscene from a policy perspective as this prosecution is: because it punishes someone for the effort to get clean.

The hubris may undermine their case for one of two reasons.

Prosecutors had shown the jury what Hunter’s purchase and use of crack looked like, and then failed to show the same kind of evidence for the 11 days he owned a gun. The sheer overkill of the evidence they presented from different times made the very strong circumstantial evidence they had for the period that mattered look thin, at least to me. As Lowell argued throughout the trial and again in close: the book, the comms, and Zoe Kestan’s pictures all show explicit evidence of drug use. But Kestan’s picture from September 2018, between the time Hunter went to rehab and the time he bought a gun, is about the only one that doesn’t show drug paraphernalia. And none of the comms the DEA guy reviewed and none of the drug purchases captured in the comms and none of the descriptions of debauchery in the book took place in October 2018.

And more importantly, the overkill may harm prosecutors’ case because it was cruel. Jurors aren’t supposed to nullify the case before them — that’s what Wise seemed to be attempting to say when he dismissed the Bidens because they are Bidens (something that should have been prohibited by the motion in limine they got Judge Noreika to approve that barred Hunter’s team from presenting evidence about how the gun shop had treated Joe Biden’s kid differently because they wanted him out of the store).

The Bidens are Bidens.

But in that court room, they were also precisely what about half the jury is: family members of an addict.

And there’s a possibility that at least some of the jurors will refuse to join in Wise’s cruelty.

Update: In his close, Abbe Lowell noted that of the hour prosecutors spent playing audio of Hunter’s book, 40 minutes was from 2016 and 2017, and most of the rest was from the first half of 2018.

Do you recall they spent 40 minutes on 2016 and 2017. They spent 20 minutes plus on the first half of 2018. And then some minutes following in 2019. But did you hear even a minute about any of the events that happened in this period of time in 2018, when he came back from Los Angeles to be back home?

In response, Derek Hines suggested that they could have provided more and better evidence by playing more than the hour they played.

Now, Mr. Lowell suggested that it was unfair and that we were playing portions of the defendant’s book in this trial. We played about an hour of audio in this case. And he made two different arguments regarding that audio, first of all, he said we picked and choose out of context what we were playing. Well we played a full hour, would you like to have heard more of that audio book?

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Demons: The Greek Tragedy of America’s Hunter Biden Addiction

June 8, 2024/95 Comments/in 2020 Presidential Election, 2024 Presidential Election, emptywheel, Hunter Biden /by emptywheel

While Hunter Biden’s team hasn’t officially decided whether he will take the stand, I’m confident we have seen the last witness testimony in the trial. Friday’s testimony might lead to a split verdict from the jury, with the easiest possession charge solidified, but more reason a jury might balk at the two documents charges.

But, after reading the transcript, I can’t help but view the last day as emblematic of the tragedy of the American addiction to prosecuting Hunter Biden.

Familial Tragedy

Start with Naomi Biden’s testimony.

As I’ve been saying from the start, Hallie Biden was the most important witness for prosecutors, not just because she’s the one who found and discarded of the gun at the center of the case, but because Hunter sent Hallie texts during the time he owned the gun discussing buying crack.

In addition, at trial, Hallie testified that she searched Hunter’s truck because he had come to her house overnight on October 22 and she thought he might have been using. She described finding “remnants” of crack cocaine which, given the fact that the pouch in which Hallie put the gun before disposing of it had trace remnants of cocaine, was particularly damning.

Q. When you searched his car, what did you find? Or when you cleaned out his car, to use your words, when you went through the car?

A. Aside from trash and clothes.

Q. Full of trash and clothes?

A. Yeah. I did find some remnants of crack cocaine and some paraphernalia.

Q. And just to be clear, this is the morning of the 23rd?

A. Yes. Oh, and the gun, obviously.

In real time, there was a discrepancy between Hallie’s explanation to Hunter of why she disposed of the gun — because it was not locked up — and Hunter’s — that it was locked and her disposal of it publicly made it more risky.

On the stand, Hallie described that the lock on the console “had been broken.”

Q. Where did you find the gun in the truck?

A. In the console, the arm console, it was like a box.

Q. Was the box part of the truck like in the —

A. Yes.

Q. Was that box locked?

A. It had a lock, but the lock had been broken. So it was like two inches ajar, you couldn’t like click it.

Hallie’s testimony on the stand — that she searched the truck because Hunter looked like he had been using — conflicted with the police report (which quoted her saying “I think he is screwing around on me”) and some of her contemporaneous texts (which Abbe Lowell struggled to get admitted under the rules of evidence).

I assume these inconsistencies were why Hunter’s team called Naomi Biden to testify. She had used the truck in which the gun was found to help move her boyfriend to New York days earlier, so she knew what it looked like when she gave it back. But rather than helping Hunter’s defense, it will end up matching the classic examples of circumstantial evidence.

You go to sleep and the ground is bare, you wake up and there’s snow on the ground, you have circumstantial evidence it snowed overnight.

Someone comes in from outside carrying a wet umbrella, you have circumstantial evidence it’s raining.

You give your dad his truck and it’s clean and the console is locked, but days later your aunt finds drug paraphernalia in it and the console guarding the gun has the lock broken?

Here’s how that testimony played out.

Q. When you took the truck from Washington D.C. to New York, what was the condition of the inside of the truck?

A. It was in good condition.

Q. By that I mean was there any laundry thrown around, any things that you could determine were left in the truck by your dad?

A. No.

Q. I want to talk about the Raptor truck a minute. Would you put up DX — can you look at Exhibit 12 in your book. So the condition of the truck is where we were at. I asked you what was inside and you said there was nothing particular left behind. When you gave the truck to your dad in New York, did you see strewn about, any, what we’ll call drug paraphernalia?

A. No.

Q. Did you see any white powder residue or anything like that?

A. No.

All the more so given the line of questioning from Leo Wise suggesting that, at a time Hunter was trying to collect the truck in the middle of the night, a drug dealer Zoe Kestan had identified, Franky, had gotten a code to access Hunter Biden’s Wells Fargo account.

Q. Did he tell you he was meeting with someone named Franky?

A. I don’t remember.

Q. Did he tell you that he had Franky come to his hotel room?

A. No. I don’t remember.

Q. I’m sorry, I didn’t hear you?

A. I don’t remember.

Q. Did he tell you he had given someone named Franky an access code to his Wells Fargo account?

A. No.

It’s clear now that prosecutors called Kestan for that testimony — that Hunter gave her and his drug dealers five minute codes to access his bank account — as much as anything else. Prosecutors have some idea who was making the cash withdrawals that, without the five minute codes, were just a proxy for drug purchases.

Not only will Naomi’s testimony provide circumstantial evidence that between the time she gave the truck back and the time Hallie searched it, Hunter had gotten and was using drugs.

But she displayed the tragedy of a family desperate to provide Hunter the love he needed to get and stay clean and instead be met with a wall of deceit. And I’m sure the Biden family is wondering, as I am, whether and if so what might have led Hunter to break the lock on his own console where he had a gun and from which two bullets were taken out of their box (but, according to Hallie, found loose in the console and disposed with the rest).

The trial as a whole has been a week-long display of unconditional love, a sharp contrast with the mob-like attack on rule of law from Trump and his supporters, a contrast that really should have been the focus of the Tiger Beat style trial coverage.

But this moment — the moment Naomi thought she might help her dad but instead may have sealed his prosecution — must have exhibited to the jury the heartbreak such unconditional love faces when supporting someone with addiction, something with which a number of jurors have first hand experience.

Hitjob Backlash

That might have sunk Hunter entirely and it still might.

But other witnesses yesterday completely discredited the testimony of Gordon Cleveland, the guy who sold Hunter the gun, the single witness to the two other counts charged, that Hunter lied on a gun form.

As I laid out here, Cleveland described that selling the gun to Hunter went this way.

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 pellet gun — he claims he did not

His former colleague, Jason Turner (whom the owner of the shop blamed for altering the document after the fact, but jurors don’t know that), offered an entirely different timeline. He described:

Cleveland puts form (which Hunter has not signed) and passport (and, Turner later claims, the gun) on stack of background checks Turner is doing
Before doing background check, he reviews the paperwork and sees Hunter has not signed it
Turner brings the form and passport to Cleveland and — without ever speaking to Hunter — tells Cleveland that Hunter needs to sign the form and provide a second form of ID
Turner than stood by the back office door and watched as Cleveland got Hunter to sign the form and provide a second form of ID
Turner runs the background check
Turner fills out the form and in the process records the car registration (and the passport)
Turner brings the form and the gun back out to Cleveland
He never speaks to Hunter
Palimere was not in the gun shop and witnesses and witnesses none of this

The shop owner, Ron Palimere (the guy who has a proffer agreement immunizing truthful testimony), offered a third story:

At some point Palimere comes over to the store from his pawn shop because he has been informed there is a celebrity customer
Cleveland comes back into the office with the form and the passport
Cleveland asks if he can use just the passport for ID
Palimere says he can
Palimere does so because he was trying to avoid holding up the sale

The gun shop owner — the one guy with immunity — says he approved selling the gun without getting proper ID. The guy on the hook for the background check, Turner, claims he instructed Cleveland that the gun could not be sold without a second ID. And Cleveland, the guy who signed the form, says Turner interacted with Hunter and via that process got a second form of ID. Statutes of limitation have expired on the sale itself — Weiss was too busy chasing Hunter to figure out whether a still-active gun dealer has a practice of letting celebrities buy guns without proper paperwork — but they have not for any document alteration in 2020 or 2021, and if either man provably lied on the stand, they could face perjury charges.

All this might pass unnoticed to the jury. But I have to imagine they’d be surprised by Turner’s insistence that he recorded the car registration in the form, when no such thing is recorded on the form.

Q. You see the books next to it, line 18(b), right under it?

A. Correct.

Q. It says supplemental government issued documentation, if the identification document does not show current residence, government issued photo identification, do you see that?

A. Yes.

Q. If it doesn’t show residence, do you see that?

A. Correct.

Q. You a moment ago said that the passport doesn’t have somebody’s address?

A. Correct.

Q. Then you said that you told Mr. Cleveland something, right?

A. He needed to get further government issued identification with an address on it.

Q. Right. And if he did, what would you do with that?

A. I would have written it right in there.

Q. But you don’t see such writing in there, do you?

A. When I wrote that out, I wrote the car registration.

Q. You don’t see such a writing in there, do you?

A. When I wrote that out, I wrote car registration.

Q. When you wrote this out, you wrote car registration here or car registration there?

A. 18(b), car registration.

Q. You wrote it?

A. I wrote it.

Q. Where is it?

A. I wrote vehicle registration in there.

Q. I’m asking you if you did and this is the form, where is it on the form that you say you wrote?

A. It’s not there.

The conflicting stories of the gun shop employees — particularly Turner’s testimony that he ordered Cleveland to do something that Cleveland says Turner did — certainly undermines Cleveland’s credibility, and therefore his value as a witness to the way in which Hunter filled out the form.

But as I’ve described there is another element of the offense to both the form-related charges, beyond just that Hunter knowingly lied on the form. One requires that a false claim be material to the sale; in this case, the gun shop owner testified that not having proper ID was not material to this sale. The other arises from the obligations on the gun shop to keep proper paperwork, which Turner’s testimony makes clear they did not (though discussion of which remained largely barred by Judge Noreika’s order prohibiting discussion of the later alterations).

Even without knowing that the form got doctored years after the fact, jurors may have reasonable doubt about what actually happened here.

And the conflicting testimony may oblige David Weiss to do something about it, something his prosecutors have been trying to avoid.

Somewhere between three and four years ago, according to Palimere, Turner altered a form in violation of instructions that Turner acknowledged are right there on the form. The men gave irreconcilable testimony on the stand.

If you’re going to prosecute Hunter Biden for lying on a form, how do you avoid prosecuting a gun shop that doctors a form after the fact? In other words, one of these guys risks joining Alexander Smirnov in legal hot water, because the imperative to prosecute Joe Biden’s son has revealed that one after another after another after another person did something really shady to make sure he’d be prosecuted.

DEA’s Los Angeles traffic expert

All of which may lead jurors to ask what they are doing here — not least, why they have spent days of their lives seeing evidence that Hunter Biden used drugs anytime other than the days leading up to October 11 (showing his mindset when he purchased the gun) and between then and October 23 (when Hallie disposed of it), when he wrote a book admitting to just that.

Prosecutors have buried the jury with one of the few things not in contention: that Hunter Biden struggled with addiction, with periods of sobriety and periods of desperate addiction.

The absurdity of all this may have come into focus on Friday during the testimony of Joshua Romig, the DEA expert brought in to to translate for jurors topics that were not in dispute.

As Romig described, his day job is investigating drug trafficking, including “some firearm offenses when it comes to drug traffickers.” But it is the trafficking itself that DEA is trying to shut down.

I did that for over five of the years that I was assigned to the DA’s office, was just investigate drug trafficking offenses. I was very briefly assigned to the warrant unit before I got hired by DEA, because my boss didn’t want me to get involved in anymore court cases because he knew I was leaving. And then since I have been a DEA agent, the only thing, we’re a single mission agency, all we do is investigate drug trafficking. There are nuances to those drug trafficking cases, we investigate money laundering when it comes to drugs, we investigate some firearm offenses when it comes to drug traffickers, theft of firearms, but my primary responsibility is to investigate drug trafficking.

Derek Hines — he of the sawdust as cocaine — started Romig’s testimony with a focus on how the drug trade works, which led Abbe Lowell to object and this contentious sidebar.

MR. HINES: It’s not going to be a long road, I’m merely establishing if the jury understands what cocaine is and generally where it comes from to get to its source distribution points, and that forms the basis for Mr. Romig to testify about how he knows what the drugs are and how the language works in the drug trade so he can give an opinion to the messages which I seek to put up. This won’t be a long road.

MR. LOWELL: Ten feet, 2 miles, what’s the length of the road?

MR. HINES: Not as long as the roads you travel, Mr. Lowell.

Then Hines launched into a review of communications from times other than October 2018 that continued for 37 minutes.

Lowell responded by going on at length himself, noting that all the communications Romig reviewed were for times other than October 2018, and with two exceptions, there were no communications with drug references from that period, neither of which required an expert to interpret them.

Q. You see the date, these are now October of 2018; right?

A. Yes, sir.

Q. Take a look at those. All right. If you go to the next page, please. And you see those texts?

A. Yes, sir.

Q. Okay. Now, you see on the 13th, go back one, please, Mr. Radic. Now go forward one, and go forward one. Okay. Look at those texts. Go forward one. Go forward one. That’s still in October of ’18. Please go forward one. Would you go another one? Do you see a reference to a Bernard at 10:13; right?

A. Yes. 119.

Q. Do you see that one?

A. I do.

Q. You didn’t do any independent investigation of who Bernard is or whether he even exists did you?

A. No, I didn’t do any investigation in this case.

Q. Got it.

A. I just was provided the messages that you see in front of you.

Q. And no need to interpret, because there is a word dealer there, so you didn’t need to interpret that one?

A. A lot of these messages don’t need much interpretation for me, correct.

Q. Go to the next one. That’s to Rows 125. Please go one more, please. I’m sorry, go back, you saw there is a reference in that to sleeping on a car, smoking crack, you don’t need to interpret that?

A. I don’t think I need to interpret that, no, sir.

Q. You don’t know whether that’s accurate or not, whether that’s where he was at the time; right? A. I don’t.

Q. Next one. Look at those. Next one, please, Mr. Radic. And again, we’re in October of 2018, right?

A. Correct.

Q. If you go to the next one, take a look at those. Like, for example, 1:35 on the 16th of October is one that says “hey buddy, it’s Richie Jones, checking in”, that’s no reference to drugs or anything like that, right?

A. It doesn’t appear to be, no.

Q. Go to the next one, Mr. Radic. With that. Go to one more, please. Okay. We’re in the end of October 2018. Go to one more. 1:49. And we’re still in October. Right? And then the next one. Do you see that’s at the going into November and after, do you see that?

A. Yes, sir.

Q. When you reviewed this chart before you came to court or at any point in your investigation, in what I just showed you from the period of time from August of 2018 through November of ’18, there is no reference in what you saw or analyzed of 1.4, is there, in those texts that I just went through with you?

A. No, I’m not sure when that 1.4 text was, but no, not in the ones we just reviewed.

Q. No reference or photo of any scale with white rocks on it in the texts I identified for you between August and November of 2018; correct?

A. Correct.

Q. No reference to baby powder in that period of time?

A. Correct.

Q. No reference to soft stuff in that period of time?

A. Correct.

Q. No reference to party favor in that period of time?

A. Correct. Q. No reference to grams in that period of time?

A. Correct.

Q. No reference to chore boy in that period of time?

A. That’s correct.

Q. No reference to one full in that period of time?

A. Correct.

Q. No reference to fentan in that period of time?

A. Yes. Correct.

Q. And no reference of a ball in that period of time?

A. Correct.

Q. Those last 4 or 5 were all the way into 2019 as we went through on the screen a moment ago, right?

A. Yes, sir.

Q. And in that period of time, there is no pictures of a drug being used, right, no holding of a pipe, right?

A. None that I reviewed.

Q. No bags on a scale, right?

A. No, sir.

Q. No bags at all?

A. Correct.

Q. No videos of him weighing any drugs, right?

A. None that I reviewed, no.

Q. So all that you identified and what I went through with you, were for the years I said before and after the period of August of 2018 through the time that we identified those in November of ’18, that would be a fair statement I just made, isn’t it?

A. With the exception of the October text that we talked about, where he said he was smoking crack.

Q. I did those too. We identified those too. You’ll agree with me, no pictures, no photos, no scales, no white rocks, no chore boy, no fentan, no ball, no ounce, no grams, none of that?

A. Yes, sir, outside those two messages, you are correct.

Romig did describe that the size of cash withdrawals Hunter was making were consistent with drug use, but admitted he didn’t do any analysis of Hunter’s cash flow at the time.

And it’s not just the fact that Derek Hines (he of the sawdust as cocaine) asked this DEA expert to spend his time analyzing comms from periods other than October 2018. More importantly (as Lowell elicited), the DEA doesn’t spend its time reviewing the comms of end users, because the goal is to break up large scale drug trafficking.

Q. In your introducing your expertise and what you are testifying about, you indicated that your job and the job of your colleagues is to be trying to break up large scale distribution of drugs?

A. Correct.

Q. Usually not individual users?

A. That’s correct.

Q. And you don’t have any reason to understand that what Mr. Biden is on trial for has anything to do with him being a distributor?

A. Nothing that I have reviewed would indicate that.

Q. And you’re not investigating, or you didn’t investigate him for the time he was using?

A. I have never done that, no.

Q. You went over all those texts that had people’s names and numbers, some of which you just went over with Mr. Hines, and there were people that seemed to be the distributors, or at least the people that were selling him narcotics. Did you see those people’s texts?

A. Yes, sir.

Q. So as your job to try to break up large scale distribution, did you look into those people?

[snip]

Q. My question was, you didn’t do that, not that you don’t know that it was done, not withstanding that you said your goal —

A. The DEA, as far as I know, but specifically me, or any of the groups that I supervise did not investigate any of the people based on my review of the sellers in this investigation.

Derek Hines’ DEA witness made it clear that this was not an effort to combat drug trafficking. Nor was it an effort to analyze even primarily the communications Hunter sent during the period he owned a gun.

This testimony put the issue of priorities before the jury.

As Manuel Estrada described when explaining to HJC why his top aides advised against getting involved in this case, there are — there should be — far higher priorities.

A Just around that. I mean, just to put it into perspective, it was a crisis mode when I came in because one of the major areas we have is national security. National Security covers not just foreign actors. It includes terrorist actors. It includes domestic extremism. And I’ve had to double the size of that division during the time I’ve been there, and we still can’t handle all of the cases we have there. Q And that’s today, even doubled, you don’t have sufficient attorneys to handle all of the cases? A Well, that’s true in every one of our areas. We don’t have enough AUSAs to handle our national security matters. We could be doing every AUSA in my office could be doing PPP fraud cases we have so much PPP fraud. Every Q PPP is the

A That’s the COVID fraud, COVID19 money fraud. Every AUSA in my office could be doing healthcare fraud cases we have so much healthcare fraud. We have to deploy our resources in the most effective manner to address the needs of the district. As I mentioned, we have a fentanyl epidemic. That includes not just deathresulting cases, it includes going after cartels which are distributing these pills, not just in powder form but in pill form. We routinely seize over a million pills at a time from vehicles, and we need to prosecute those cases. Each pill could be a death. And routinely now we’re finding cartels transporting fentanyl in liquid form, which is a new thing that they’re doing. So we have to do those cases.

We have a violent crime crisis where, for a variety of reasons, including some of the local policies, there has been an increase, certainly in our view, of violent crime and use of handguns in crimes. We have taco vendors on the streets getting robbed at gunpoint. So we are doing more of those types of offenses than we ever have before. We don’t have enough resources to do those.

But David Weiss reneged on a plea deal to chase a hoax from someone with ties to Russian intelligence and since then has been throwing everything he had — including this DEA expert’s time — reading texts from Hunter Biden from periods not remotely close to the period he owned a gun.

Judge Noreika has, properly, been working hard to guard against the jury nullifying this vote, voting that this whole thing is just so stupid and such a waste of time.

But Jeebus: with the human tragedy and the increasing consequences for those who campaigned to target Hunter Biden, what the fuck is the point. What are we doing such that the most important legal case in America serves primarily to subject Joe Biden’s family to the tragedy of his son’s addiction all over again?

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Posts

Leo Wise Buries Bill Barr with Six Year Sentencing Recommendation

David Weiss Dons His “Let’s Go Brandon” Frame

Filings

Hunter Biden’s Prosecutors Complained about the Laptop, Once, Too

The Pee Tape: The Media’s Obsession with Jill Biden May Undermine the Jury

Leo Wise’s Performed Ignorance

What Happened to Hunter Biden’s Plea Agreement

Timeline

The Scolding that Hunter Biden Should Have Pled Guilty Ignores the Complexity of What Happened

What Jurors Noticed about Hallie Biden’s Testimony

Leo Wise Makes Excuses for the Reams of Evidence from Periods Hunter Didn’t Own a Gun

Demons: The Greek Tragedy of America’s Hunter Biden Addiction

Familial Tragedy

Hitjob Backlash

DEA’s Los Angeles traffic expert

Interesting links

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