Hunter Biden was found guilty of a federal weapons charge by a Delaware jury on Tuesday, but the first son still has appeals to try to overturn his conviction. Before his trial concluded, his lawyers presented three requests for acquittal last Friday on which Judge Maryellen Norieka has yet to rule.
Defense attorney Abbe Lowell expressed disappointment at the guilty verdict returned by the jury Tuesday in a statement shortly afterward, saying “we will continue to vigorously pursue all legal challenges available to Hunter.”
During the trial, Biden's lawyers sought to cast doubt on the credibility of the government's evidence of his abuse of crack cocaine during the time period that included his purchase and possession of a firearm in October 2018. But legal experts and the positions the defense team has taken so far suggest that the basis of their appeal may be based primarily on two constitutional arguments.
second amendment
Perhaps the most likely thing the president's son will pursue — and he's already tried once — is that the charges, stemming from his buying and possessing a gun while addicted to crack, are unconstitutional under the Second Amendment.
Norieka denied Hunter Biden's motion to dismiss on Second Amendment grounds before trial began, but denied his motion without prejudice, allowing him to renew his motion “on an appropriate trial record,” is that is, if he were convicted.
In 2022 of the Supreme Court expansion of gun rights in its decision in New York State Rifle & Pistol Association Inc. v. Bruen created a test for gun laws that means judges must now determine whether they are “consistent with the nation's historic tradition of regulating firearms.” And the high court is also now weighing a case that Hunter Biden's team is watching closely, USA v. Rahimi, on whether a federal law that keeps guns out of the hands of alleged domestic abusers should stand under the new test.
In oral arguments in November, judges appeared to agree that those deemed a danger to society could be disarmed, but have yet to issue a ruling. This is expected sometime this month.
“If the statute at issue in Rahimi is upheld, it means it will be harder for Hunter Biden to argue that the statute he's charged with violates the Second Amendment,” says CBS News legal contributor Jessica Levinson. It would mean the Supreme Court is open to more restrictions on firearms, he said.
While that outcome could make it more difficult for an appeal under the Second Amendment to succeed, Levinson said his lawyers could still argue that he had been charged under a statute that is legally dubious according to the decision de Bruen of the Supreme Court.
A ruling striking down the law barring domestic abusers from owning guns would likely help Hunter Biden's case, but the other party in the Rahimi case is the Justice Department, which argued the law should stand .
“What's good for a Democratic president who wants the legislature to be able to pass gun control measures probably isn't good for his son's appeal, at least as far as the argument that the statute it's unconstitutional under the Second Amendment,” Levinson said. this potential attractiveness strategy.
sixth amendment
One thread that Hunter Biden's lawyers pulled during the trial to try to unravel the case had to do with the Sixth Amendment. They tried — and failed — to admit into evidence at trial a second, allegedly altered version of the ATF firearms registration form he filled out to buy the gun. The original form omitted Hunter Biden's address information, while the second version of the form included his Delaware car registration, which was not on the first form.
Lowell argued that when special counsel David Weiss decided to exclude the second form as evidence shown during the trial, Hunter Biden's Sixth Amendment right to “present a complete defense” was violated.
But in a last-minute ruling just before the trial began, Judge Noreika blocked Hunter Biden's defense team from even mentioning the “doctored” document at any point in the trial.
In his order, Norieka found the form “irrelevant and inadmissible,” noting that both forms “have the same check mark ('X') that answers 'no'” to the question about use illegal or addiction to a controlled substance. Adding Hunter Biden's Delaware vehicle registration to the second form, he said, does not make the facts that he filled out the form and said he was not a drug user or addict “more or less likely” . Allowing the form, he said, could end up confusing and misleading the jury.
“Some of the back and forth is really about preserving these issues for appeal,” Andrew Willinger, executive director of Duke Law School's Center for Firearms Law, explained before the jury's verdict. “The defense could raise it if Hunter is convicted of one or more of the charges and appeals to the Third Circuit.”
Levinson thinks the form would do little to advance Hunter Biden's case.
“Whether it was an original form or an annotated form or not, and whether or not there was an error with the form that was provided, I don't think any of that goes to the heart of whether Hunter Biden check 'no' or no when I should have checked 'yes,'” Levinson said.
Hunter Biden faces a maximum sentence of 25 years in prison and fines of up to $750,000 if his conviction is upheld, although as a first offender, he is unlikely to receive the maximum sentence.
Erica Brown contributed to this report.
