Hunter Biden's legal representatives have submitted three motions to the federal judge overseeing his criminal gun trial, requesting the case be dismissed.
These motions, filed on Friday, offer legal arguments separate from the factual issues that could be presented to the jury as early as Monday, should Biden decide not to testify in his defense.
According to The Federalist, the first motion filed by Biden's lawyers was a standard motion for acquittal. This motion argues that the prosecution has failed to provide enough evidence to convict Biden, the son of the President, of the crimes he's been charged with. Defense attorneys frequently file such motions by default, as failure to do so would prevent the defendant from challenging the sufficiency of the evidence on appeal.
A motion for acquittal evaluates whether the government has provided enough evidence to convict the defendant. As the Supreme Court has clarified, this review essentially determines whether the government's case was so lacking that it should not have been submitted to the jury. The reviewing court only considers the legal question of whether, after viewing the evidence in the most favorable light to the prosecution, any rational fact-finder 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. In Biden's case, there is little chance that his motion will be successful. His legal team argues for dismissal of the charges based on insufficient evidence, maintaining that there is no evidence of simultaneous drug use and gun possession. Instead, they argue, there is a wealth of evidence of Biden's drug use before and after the period in which he purchased the gun. They reason that if Biden were using drugs when he owned the gun, there would also be evidence of such drug use, so the lack of such evidence necessitates dismissal.
This argument assumes that the prosecution could only establish Biden's drug use through direct evidence, which is not the case. A jury can rely on circumstantial evidence, such as evidence of Biden's drug use and possession of drug paraphernalia around the time he purchased the gun, to infer that Biden was also using drugs when he purchased the gun. The jury could also infer that Biden 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 provides further circumstantial evidence of both Biden's possession of the weapon and his use of illegal substances.
While Biden's attorney challenges this evidence, the court must view the evidence in the light most favorable to the prosecution. This means the court must credit the government's evidence, not Biden's. Under this controlling standard, the court will likely deny Biden's motion to dismiss.
The second motion to dismiss filed by Biden's legal team on Friday solely challenged the criminal charge alleged in count three of the indictment. This count charged Biden with knowingly being an unlawful user of and addicted to a narcotic and knowingly possessing a firearm in violation of 18 U.S.C. 922(g)(3) and 924(a)(2).
Originally, Section 924(a)(2) made it a crime punishable by up to 10 years in prison for an individual to knowingly violate several subsections of Section 922. However, before the special counsel indicted Biden for violating these sections, Congress amended Section 924(a)(2) of the federal criminal code, removing its reference to Section 922(g)(3). Therefore, it is only a crime under Section 924(a)(2) to knowingly violate certain sections of Section 922. Because Section 924(a)(2) no longer references Section 922(g)(3) the section under which Biden was charged in count three that count must be dismissed for charging a non-crime, according to Biden's lawyers.
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 violate subsection (d) or (g) of section 922. Such violations are now subject to 15-year prison sentences as opposed to 10. But the grand jury did not indict 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, Biden's attorneys argue.
Unlike the first motion to dismiss filed by Biden'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 clear that Congress did not intend to eliminate 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. Biden's lawyers present a persuasive analysis and cite case law that seemingly supports their position, but the special counsels team has yet to respond. The precedent prosecutors cite in response to this argument will likely prove decisive at least for now. The issue is sure to be raised on appeal should the court reject Biden's position.
In the third motion to dismiss filed on Friday, 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 whether the regulation covers conduct protected by the text of the Second Amendment and, if so, whether the government has shown that regulation is consistent with the historical tradition of firearm regulation in this country. Citing Bruen, Biden 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, Biden 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 Biden'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 Biden's facial challenge, the court further noted that 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 Biden. 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, Biden 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, Biden 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 Biden'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 Biden possessed the gun while using drugs. Given the historical analog of criminalizing the possession of a gun by the mentally ill, Biden's as-applied Second Amendment challenge is likely to fail.
Finally, in this last motion, Biden 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.
Of the three motions Biden's legal team filed on 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 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 Biden 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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