Hunter Biden's options for appeal after gun conviction

Hunter Biden was found guilty of federal felony gun charges Tuesday by a Delaware jury, but the first son still has avenues for appeal to try to overcome his conviction. Before his trial concluded, his attorneys filed three motions for acquittal last Friday on which Judge Maryellen Noreika has yet to rule. 

Defense lawyer Abbe Lowell expressed disappointment in the guilty verdict returned by the jury Tuesday in a statement soon afterward and said "we will continue to vigorously pursue all the legal challenges available to Hunter."

During trial, Biden's attorneys attempted to sow doubt about the viability of the government's evidence of his abuse of crack cocaine during the period of time encompassing his purchase and possession of a firearm in October 2018. But legal experts — and the positions the defense team has taken so far — suggest the bases for his appeal may rely primarily on two constitutional arguments.

Second Amendment

Perhaps the most likely one the president's son is likely to pursue — and has already tried once — is that the charges, arising from his purchase and possession of a gun while he was addicted to crack cocaine, are not constitutional under the Second Amendment. 

Noreika rejected Hunter Biden's motion to dismiss on Second Amendment grounds before the trial began, but denied his motion without prejudice, allowing him to renew his motion "on an appropriate trial record," that is, if he were convicted. 

The Supreme Court's 2022 expansion of gun rights in its decision in New York State Rifle & Pistol Association Inc. v. Bruen created a test for gun laws that means judges must now determine whether they are "consistent with the nation's historical tradition of firearm regulation." And the high court is also now weighing a case that Hunter Biden's team is watching closely, U.S. v. Rahimi, about 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 justices seemed to agree that those who are deemed dangerous to society could be disarmed, but they have not yet issued an opinion. That's expected some time this month.

"If the statute at issue in Rahimi is upheld it means that it will be harder for Hunter Biden to argue that the statute that he's charged under violates the second amendment," says CBS News legal contributor Jessica Levinson. It would mean the Supreme Court is open to more firearm restrictions, she said. 

While this outcome could make it more difficult for an appeal under the Second Amendment to succeed l, Levinson said his lawyers could still argue that he had been charged under a statute that is legally dubious under the Supreme Court's Bruen decision. 

A ruling that strikes down the law preventing 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 argued that the law should stand.

"What's good for a Democratic president who wants the legislature to be able to pass gun control measures is likely 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 thread that Hunter Biden's attorneys tugged on during the trial to try to unravel the case was related to the Sixth Amendment, which guarantees defendants certain rights in criminal proceedings. They tried — and failed — to admit as evidence in the trial a second allegedly altered version of the ATF firearms registration form he filled out to purchase the gun. The original form omitted information about Hunter Biden's address, 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 moved to exclude the second form as evidence during trial, Hunter Biden's Sixth Amendment right to "present a complete defense" was violated. 

But in a last-minute ruling just before the trial began, Noreika precluded Hunter Biden's defense team from even mentioning the "doctored" document at any point during the trial. 

In her order, Noreika found that the form was "irrelevant and inadmissible," noting that both forms "have the same check mark ('X') responding 'no'" to the question about unlawful use or addiction to a controlled substance. The addition of Hunter Biden's Delaware vehicle registration to the second form, she said, does not make the facts that he both filled the form out and said he wasn't a drug user or addict "more or less probable." Allowing the form, she said, could end up confusing and misleading the jury.

"Some of that back and forth is really just about preserving these issues for appeal," explained Andrew Willinger, executive director of the Center for Firearms Law at Duke Law School, prior to the jury's verdict. "The defense could raise that if Hunter's convicted on one or more of the charges and they appeal that to the Third Circuit."

Levinson thinks that 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 a mistake with which form was provided, I don't think any of that goes to the heart of whether or not Hunter Biden checked 'no' when he should have checked 'yes,'" Levinson said. 

Hunter Biden 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, it's unlikely that he would receive the maximum penalty.

Erica Brown contributed to this report. 

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