Hunter Biden is expected to appeal his felony conviction for falsifying a federal firearms application, likely arguing that the judge in the case violated his constitutional rights in her instructions to the jury, according to people in his orbit and legal experts.
Biden’s lawyer Abbe Lowell has also signalled that any appeal would be based on the Supreme Court’s landmark decision in 2022 that vastly expanded gun rights, a ruling that spawned legal challenges to the part of the federal firearms form at the centre of the Biden case. In Biden’s case, it included a question asking buyers about their drug use.
Any appeal would be an uphill climb, and the lawyers representing President Joe Biden’s son cannot officially file one until he is sentenced at the courthouse in Wilmington, Delaware, within 120 days, or about a month after he is scheduled to go on trial on federal tax charges in Los Angeles.
There is still a possibility that David C. Weiss, the special counsel in the case, will seek a plea agreement before the tax trial begins, and would have leverage in negotiations now that Hunter Biden is already a convicted felon, according to former prosecutors. Biden might have greater incentive to reach a deal to avoid another public airing of his personal ordeal beyond what was presented in Wilmington.
On Tuesday, after deliberating for a little more than three hours, a jury convicted Biden of three felony counts related to lying on a federal firearms application and illegally possessing a weapon.
Lowell suggested that he might appeal, vowing to “vigorously pursue all the legal challenges available to Hunter.” Joe Biden said in a statement that he would “accept the outcome of this case and will continue to respect the judicial process as Hunter considers an appeal.”
That Hunter Biden, 54, would base an appeal on a Supreme Court decision that his father has described as an affront to “common sense and the Constitution” is perhaps the crowning paradox in a case replete with complexities.
The Supreme Court’s ruling in New York State Rifle and Pistol Association v. Bruen paved the way for potential challenges to other gun laws, including those that deny firearms to people addicted to drugs.
One of the biggest tests of the scope of that decision unfolded in New Orleans, in February 2023, when a conservative appeals court panel struck down part of a federal law that prohibited people under domestic violence restraining orders from owning firearms. The Supreme Court will soon decide whether to uphold or reverse that decision.
Biden’s team believes that however the court rules, the decision is likely to provide a road map for further challenges to other provisions in the law, including whether drug abusers can possess guns.
Lowell is also likely to base an appeal on the actions of the judge in the gun trial, Maryellen Noreika, who he believes created a viable path for a challenge by issuing what he sees as overly narrow instructions to the jury.
In her brief and blunt instructions, Noreika effectively demolished a pillar of Biden’s defence: that the government needed to prove beyond a reasonable doubt that Biden was taking drugs on the exact day he signed the application in October 2018.
She said prosecutors had to demonstrate only that Biden was “addicted to controlled substances” or was an “unlawful” user around the time he bought the gun. The parameters were a sharp but not unexpected setback for the defence, which argued that her instruction “substantially broadens the scope of the offence.”
Lowell may also make other points in an appeal: Noreika’s refusal to admit into evidence a version of the gun form revised by a gun store employee, questions about the government’s decision last July to scrap an earlier plea deal, and legal points raised in a motion to dismiss the charges filed by Lowell before the jury deliberated.
The week-long trial in Wilmington laid bare Biden’s ruinous addiction to crack cocaine and reckless spending – narrated by three former romantic partners and anguished, incriminating text exchanges.
But it was, nonetheless, a prelude to his tax trial in California stemming from the investigation into his overseas business dealings begun by Weiss, the Donald Trump-appointed U.S. attorney in Delaware, six years ago.
Hunter Biden was paid millions to serve on the board of Burisma, a Ukrainian energy company – “and spent this money on drugs, escorts and girlfriends, luxury hotels and rental properties, exotic cars, clothing and other items of a personal nature, in short, everything but his taxes,” prosecutors wrote in his indictment on tax charges in December.
It is unclear how the Delaware case might affect the California trial. But the fact that Biden has already been convicted of a felony in federal court could help kick-start negotiations in the tax case. Neither Weiss nor his hard-driving top deputy, Leo J. Wise, has signalled an inclination to cut a deal after prevailing so decisively in Delaware, people close to Biden said.
Michael S. Weinstein, a former Justice Department prosecutor, said the government would most likely entertain a plea deal as long as it sent a message to other Americans: “You have to pay taxes, whether you’re the president’s son or not.”
Weinstein, who leads the white-collar criminal defence and government investigations practice at the law firm Cole Schotz, said that prosecutors typically look for specific elements in plea deals regarding tax offences. One of those, he said, is repayment of the taxes, which Biden has done.
Prosecutors have given no indication that they would be open to a deal, people close to Biden said.
Republicans allied with Trump sharply criticized Weiss last year after he negotiated a plea agreement that would have allowed Biden to participate in a counselling program for people who commit nonviolent firearms offences in lieu of prosecution or prison time.
The deal later imploded under intense questioning from Noreika.
Biden faces up to 25 years in prison on the gun charges, although federal sentencing guidelines call for a fraction of that penalty.
First-time offenders who did not use their weapons to commit violent crimes receive relatively light sentences, and Weiss suggested on Tuesday that he would not seek a sentence “more severe” than for any other person convicted in such a case.