Hunter Biden was convicted of federal gun charges Tuesday by a Delaware jury, but the first son still has avenues for appeal to try to overcome his conviction. Before the end of his trial, his lawyers filed three motions for acquittal last Friday on which Judge Maryellen Noreika has not yet ruled.
Defense attorney Abbe Lowell expressed disappointment with the jury’s guilty verdict Tuesday in a statement shortly afterward and said “we will continue to vigorously pursue all legal challenges available to Hunter.”
During the trial, Biden’s lawyers attempted to cast doubt on the viability of the government’s evidence regarding his abuse of crack cocaine during the period encompassing his purchase and possession of a firearm in October 2018. But the Legal experts – and the positions the defense team has pushed so far – suggest that the basis of his appeal may rest primarily on two constitutional arguments.
Second Amendment
The most likely claim the president’s son could pursue — and she’s already tried once — is that the charges, stemming from his purchase and possession of a gun while addicted to crack, don’t are not constitutional under the Second Amendment.
Noreika denied Hunter Biden’s motion to dismiss on Second Amendment grounds before the trial began, but dismissed his motion without prejudice, allowing him to renew his motion “based on a proper trial record,” c that is, if he was found guilty.
The Supreme Court in 2022 extension of gun rights in its decision in New York State Rifle & Pistol Association Inc. v. Bruen created a test for gun laws, meaning judges must now determine whether they are “consistent with the nation’s historical tradition of gun regulation.” And the high court is also currently 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 pleadings In November, the justices appeared to agree that those considered dangerous to society could be disarmed, but they have yet to issue an opinion. It’s scheduled for this month.
“If the law at issue in Rahimi’s case is upheld, that means it will be more difficult for Hunter Biden to argue that the law under which he is charged violates the Second Amendment,” said Jessica Levinson, an aide. CBS News Legal. That would mean the Supreme Court would be open to more gun restrictions, she said.
Even though this outcome could make it more difficult to succeed in an appeal under the Second Amendment, Levinson said his lawyers could still argue that he was charged under a legally questionable law under the Bruen decision of the Supreme Court.
A ruling striking down the law banning domestic abusers from owning guns would likely help Hunter Biden’s case, but the other side in Rahimi’s case is the Justice Department, which has argued the law should be upheld.
“What’s good for a Democratic president wanting the legislature to be able to pass gun control measures is probably not good for his son’s appeal, at least with respect to the argument that the law is unconstitutional under the Second Amendment,” Levinson said. this potential appeal strategy.
Sixth Amendment
A common thread that Hunter Biden’s lawyers pulled during the trial to try to resolve the case was related to the Sixth Amendment, which guarantees defendants certain rights in criminal proceedings. They tried — and failed — to admit as evidence at trial a second, apparently altered version of the ATF gun registration form he filled out to purchase 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 during the trial, Hunter Biden’s Sixth Amendment right to “present a complete defense” was violated.
But in a last-minute decision just before the trial began, Noreika barred Hunter Biden’s defense team from mentioning the “falsified” document at any point during the trial.
In his order, Noreika found the form to be “irrelevant and inadmissible,” noting that both forms “have the same check mark (“X”) answering “no”” to the question about illegal use or dependence on a controlled substance. Adding Hunter Biden’s Delaware vehicle registration to the second form, she said, does not make it “more or less likely” that he both filled out the form and reported that 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 issue if Hunter is convicted of one or more of the counts and appeals to the Third Circuit.”
Levinson believes the form would do little to advance Hunter Biden’s case.
“Whether or not it was an original form or an annotated form, and whether or not there was an error with the form provided, I don’t think any of that is determinative of whether Hunter Biden checked ‘no’ or no when he should have checked ‘yes,'” Levinson said.
Biden Hunter faces a maximum sentence of 25 years in prison and fines of up to $750,000 if his conviction stands, although as a first-time offender he is unlikely to receive the maximum sentence.
Erica Brown contributed to this report.