Hunter Biden’s options for appeal after gun conviction

Hunter Biden was found guilty of federal gun charges Tuesday by a Delaware jury, but the first son still has appeal options to try to overcome his conviction. Before the trial concluded, his lawyers presented three requests for acquittal last Friday, on which Judge Maryellen Norieka has not yet ruled.

Defense attorney Abbe Lowell expressed disappointment with the jury’s guilty verdict Tuesday in a statement shortly afterward and said that “we will continue to vigorously pursue all legal challenges available to Hunter.”

During the trial, Biden’s lawyers tried to sow doubt about the viability of the government’s evidence about his crack cocaine abuse during the period encompassing the purchase and possession of a firearm in October 2018. But legal experts — and the positions they the defense team has taken so far – suggest that the grounds for their appeal may rest primarily on two constitutional arguments.

Second amendment

Perhaps most likely the president’s son will pursue – and I already tried once – is that the charges, arising from the purchase and possession of a weapon while addicted to crack, are not constitutional under the Second Amendment.

Norieka rejected Hunter Biden’s motion to dismiss on Second Amendment grounds before the trial began, but denied his motion without prejudice, allowing him renew your movement “on a proper trial record”, that is, if he were convicted.

The Supreme Court of 2022 expansion of gun rights in his decision in the New York State Rifle & Pistol Association Inc. case. Bruen created a test for gun laws that means judges must now determine whether they are “consistent with the country’s historical tradition of regulating firearms.” And the high court is also now considering a case that Hunter Biden’s team is watching closely, US v. Rahimi on whether a federal law that keeps guns out of the hands of alleged domestic abusers should be upheld under the new test.

In oral arguments In November, the judges appeared to agree that those considered dangerous to society could be disarmed, but have not yet issued an opinion. This is expected later this month.

“If the statute at issue in Rahimi is upheld, it means it will be more difficult for Hunter Biden to argue that the statute under which he is charged violates the Second Amendment,” said CBS News legal contributor Jessica Levinson. That would mean the Supreme Court is open to more restrictions on firearms, she said.

While this outcome could make it more difficult for a successful appeal under the Second Amendment, Levinson said his lawyers could still argue that he was charged under a law that is legally dubious under the Supreme Court’s Bruen decision.

A ruling overturning the law that prevents 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 has argued that the law should be upheld.

“What’s good for a Democratic president who wants the legislature to be able to pass gun control measures is probably not good for his son’s appeal, at least as it relates to the argument that the statute is unconstitutional under the Second Amendment,” Levinson said of this potential appeal strategy.

Sixth Amendment

One topic that Hunter Biden’s lawyers addressed during the trial to try to unravel the case was related to 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 information about Hunter Biden’s address, while the second version of the form included the car’s Delaware registration, which was not listed 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 full defense” was violated.

But in a last-minute decision, just before the trial began, Judge Noreika prevented Hunter Biden’s defense team from even mentioning the “altered” document at any point during the trial.

In her request, Norieka concluded that the form was “irrelevant and impermissible,” noting that both forms “have the same check mark (‘X’) answering ‘no'” to the question about illegal use of or dependence on a controlled substance. The addition of Hunter Biden’s Delaware vehicle registration to the second form, she said, does not make it “more or less likely” that he filled out the form and said he was not a drug user or addict. Allowing the form, she said, could end up confusing and misleading the jury.

“Some of this back and forth is just to preserve these issues for appeal,” Andrew Willinger, executive director of the Center for Firearms Law at Duke Law School, explained before the jury’s verdict. “The defense could raise this if Hunter is convicted of one or more of the charges and appeal 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, and whether or not there was an error in the form provided, I don’t think any of this goes to the heart of whether Hunter Biden checked ‘no’ or not. when he should have marked ‘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-time offender he is unlikely to receive the maximum sentence.

Erica Brown contributed to this report.