Key Points on Hunter Biden’s Request to Dismiss Gun Charges

Hunter Biden’s legal team asked the federal judge presiding over his criminal gun trial to toss out the case in three motions filed on Friday. Those motions present legal arguments for the court to consider apart from the factual questions that could be put before the jury as early as Monday should Hunter Biden opt against taking the stand to testify in his own defense.

Here’s your lawsplainer on the three motions to dismiss.

Motion to Dismiss for Insufficient Evidence

The first motion the lawyers filed on behalf of Hunter Biden was the standard motion for acquittal that argued prosecutors failed to present sufficient evidence to convict the president’s son of the crimes charge. Defense lawyers routinely — and by default — make a motion for acquittal because otherwise, the defendant cannot challenge the sufficiency of the evidence on appeal.

A motion for acquittal tests whether the government has presented sufficient evidence to convict the defendant. As the Supreme Court has explained, “Sufficiency review essentially addresses whether ‘the government’s case was so lacking that it should not have even been submitted to the jury.’ … The reviewing court considers only the ‘legal’ question ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’”

Given this standard, it is extremely rare for a court to grant a motion for acquittal, and there is little chance in Hunter Biden’s case that he will succeed in his motion.

In arguing for dismissal of the charges based on insufficient evidence, Hunter’s legal team maintains that “[t]here is no evidence of contemporaneous drug use and a gun possession.” Instead, defense counsel argues, there is a “plethora of evidence” of Hunter’s drug use “before and after” the time period in which he bought the gun. If the president’s son were using drugs when he owned the gun, there would have also been evidence of such drug use, Hunter’s legal team reasons, so the lack of such evidence requires dismissal.

That argument presumes that the prosecution could only establish Hunter’s drug use through direct evidence, which is not the law. Rather, a jury may rely on circumstantial evidence, such as evidence of Hunter’s use of drugs and the possession of drug paraphernalia around the time he purchased the gun, to infer that Hunter was also using drugs when he purchased the gun. Likewise, the jury could infer that Hunter possessed the gun during that time even if no one saw him with the gun after he purchased it. The drug residue on the gun pouch provided further circumstantial evidence of both Hunter’s possession of the weapon and his use of illegal substances.

While Hunter’s attorney attacks this evidence, as noted above, the court must view the evidence in the light most favorable to the prosecution. That means the court must credit the government’s evidence — not Hunter Biden’s. Under this controlling standard, the court will deny Hunter’s motion to dismiss.

Motion to Dismiss Count Three For Charging a ‘Non-Crime’

The second motion to dismiss that Hunter’s legal team filed Friday solely challenged the criminal charge alleged in count three of the indictment. That count charged Hunter with “knowing that he was an unlawful user of and addicted to” a narcotic and “knowingly possess[ing] a firearm” “in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2).”

Originally, Section 924(a)(2) had made it a crime punishable by imprisonment of up to 10 years in prison for an individual to “knowingly violate” several subsections of Section 922, namely subsection (a)(6), (d), (g), (h), (i), (j), or (o). In turn, Section 922(g)(3) provided it was unlawful for a person “who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act[)]” to knowingly possess a firearm.

However, before the special counsel indicted Hunter for violating Sections 922(g)(3) and 924(a)(2), Congress amended Section 924(a)(2) of the federal criminal code, the motion to dismiss notes, removing Section 924(a)(2)’s reference to Section 922(g)(3). Thus it is only a crime under Section 924(a)(2) to knowingly violate Sections 922(a)(6), (h), (i), (j), or (o). Because Section 924(a)(2) no longer references Section 922(g)(3) — the section under which Hunter Biden was charged in count three — that count must be dismissed for charging a non-crime, according to lawyers for the president’s son.

In making this argument, defense lawyers acknowledge that Congress, in removing Section 924(a)(2)’s reference to Section 922(g)(3) “simultaneously created a new Section 924(a)(8),” which made it a crime to “knowingly violates subsection (d) or (g) of section 922.” Such violations are now subject to 15 prison sentences as opposed to 10. But the grand jury did not indict Hunter Biden for violating Section 924(a)(8); it indicted him for violating Section 924(a)(2). And under current law, being an unlawful user or addict of illegal narcotics is not a violation of Section 924(a)(2). Therefore, count three must be dismissed, Hunter’s attorneys posit.

Unlike the first motion to dismiss filed by Hunter’s lawyers on Friday, this motion presents a more solid legal challenge to the criminal charge and one that will require both the special counsel and the court to address more seriously. While it is obvious that Congress did not intend to do away with the crime of knowingly possessing a firearm as a drug user or addict, Congress also failed to include any language to allow for the circumstance where the crime was committed before the amendment, as it typically does in amending legislation.

Whether this motion will succeed depends on how courts have interpreted such challenges in the past. Hunter Biden’s lawyers present a persuasive analysis and cite case law that seemingly supports their position, but the special counsel’s team has yet to respond. What precedent prosecutors cite in response to this argument will likely prove dispositive — at least for now. The issue is sure to be raised on appeal should the court reject Hunter’s position.

Motion to Dismiss Based on the Second and Fifth Amendments

In the third motion to dismiss filed Friday, Hunter Biden’s legal team first argues that criminalizing his possession of the firearm, absent evidence that he was using drugs at the time he physically handled the gun, violates his Second Amendment right to bear arms.

Under the controlling Supreme Court precedent of Bruen, when a law is challenged on Second Amendment grounds, “a court must ask (1) whether the regulation covers conduct protected by the text of the Second Amendment and, if so, (2) whether the government has shown that regulation is consistent with the historical tradition of firearm regulation in this country.” Citing Bruen, Hunter had previously presented what is called a facial challenge to the indictment, arguing that the statute, by criminalizing the possession of a firearm by an addict, violates the Second Amendment because there is no “historical precedent for disarming citizens based on their status of having used a controlled substance.”

To succeed on a facial challenge, Hunter was required to establish that there would be no circumstances under which it would be constitutional to criminalize possession by an addict. The trial court rejected Hunter’s facial challenge, concluding that colonial-era laws allowed for the disarming of loyalists and the mentally ill. Seeking to “keep guns out of the hands of presumptively risky people,” such as addicts or drug users, the court concluded, was comparable to those founding-era laws. In rejecting Hunter’s facial challenge, the court further noted that “to date, no Court of Appeals has found § 922(g)(3) unconstitutional on its face under Bruen.”

While the court had previously rejected a Second Amendment facial challenge, it left open an “as-applied attack” to the charges against Hunter. In contrast to a facial challenge, with an as-applied challenge, the law is not unconstitutional as written. Rather, it is the application of the law to the specific facts and circumstances that results in constitutional abridgment.

In his motion to dismiss on Second Amendment grounds, Hunter argues that convicting him based on the evidence proffered by the government would violate his Second Amendment rights because the prosecution failed to present any evidence indicating he had possessed the gun while using narcotics. Without such evidence, Hunter posits, his conviction violates the Second Amendment because there is no historical precedent for prohibiting his ownership of the gun just because he may have been a drug user at other times.

This argument falters, however, for the same reason Hunter’s challenge to the sufficiency of the evidence fails: Reading the evidence in the light most favorable to the prosecution, as the court must, a jury could reasonably conclude that Hunter possessed the gun while using drugs. Given the historical analog of criminalizing the possession of a gun by the mentally ill, Hunter’s as-applied Second Amendment challenge is likely to fail.

Finally, in this final motion, Hunter presents a Fifth Amendment argument that his due process rights were violated because he lacked fair notice for when his possession of a gun would be a crime, versus constitutionally protected by the Second Amendment. The court is likely to reject this argument, concluding instead that the statutory prohibition on knowing possession by a user or addict provided sufficient notice for purposes of the due process clause of the Fifth Amendment.

What to Make of This

Of the three motions Hunter Biden’s legal team filed Friday, only one raises a question meriting much analysis, namely his challenge to being charged under Section 924(a)(2), which no longer incorporates Section 922(g)(3)’s prohibition on possession of a firearm by an addict or user. How the court rules on that motion will depend on the precedent cited by the government.

In contrast to the legal questions presented in the three defense motions filed on Friday, it will be up to a jury to decide the factual questions of whether Hunter Biden knowingly made false statements on the firearm purchase forms and whether, knowing he was a user or an addict of illegal narcotics, he knowingly possessed the firearm. Absent a last-minute decision by Hunter to testify in his own defense, which would be a risky move, the jury will begin deliberating on those questions later Monday.

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