{"id":2263729,"date":"2024-06-10T07:23:01","date_gmt":"2024-06-10T11:23:01","guid":{"rendered":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/everything-you-need-to-know-about-hunter-bidens-motion-to-dismiss-criminal-gun-charges\/"},"modified":"2024-06-10T07:28:22","modified_gmt":"2024-06-10T11:28:22","slug":"everything-you-need-to-know-about-hunter-bidens-motion-to-dismiss-criminal-gun-charges","status":"publish","type":"post","link":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/everything-you-need-to-know-about-hunter-bidens-motion-to-dismiss-criminal-gun-charges\/","title":{"rendered":"Key Points on Hunter Biden&#8217;s Request to Dismiss Gun Charges"},"content":{"rendered":"<aside class=\"mashsb-container mashsb-main mashsb-stretched\"><div class=\"mashsb-box\"><div class=\"mashsb-count mash-medium\" style=\"&quot;\"><div class=\"counts mashsbcount\">20<\/div><span class=\"mashsb-sharetext\">SHARES<\/span><\/div><div class=\"mashsb-buttons\"><a class=\"mashicon-facebook mash-medium mash-nomargin mashsb-noshadow\" href=\"https:\/\/www.facebook.com\/sharer.php?u=https%3A%2F%2Fwww.conservativenewsdaily.net%2Fbreaking-news%2Feverything-you-need-to-know-about-hunter-bidens-motion-to-dismiss-criminal-gun-charges%2F\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Facebook<\/span><\/a><a class=\"mashicon-twitter mash-medium mash-nomargin mashsb-noshadow\" href=\"https:\/\/twitter.com\/intent\/tweet?text=&amp;url=https:\/\/www.conservativenewsdaily.net\/breaking-news\/?p=2263729&amp;via=ConservNewsDly\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Twitter<\/span><\/a><a class=\"mashicon-subscribe mash-medium mash-nomargin mashsb-noshadow\" href=\"#\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Subscribe<\/span><\/a><div class=\"onoffswitch2 mash-medium mashsb-noshadow\" style=\"display:none\"><\/div><\/div>\n            <\/div>\n                <div style=\"clear:both\"><\/div><\/aside>\n            <!-- Share buttons by mashshare.net - Version: 4.0.47--><p>The statute, as the court must, in the light most favorable to the government, the court is required to credit the \u200devidence provided by the government, not Hunter. Reasonable jurors could find Hunter \u201cknowingly\u201d possessed the \u2064gun while using \u200ddrugs and \u2064therefore violated the law.<\/p>\n<p>Hunter also argued that the way the federal statute criminalizes possession alone is a violation of his Second Amendment rights. However, the <a href=\"https:\/\/www.supremecourt.gov\/opinions\/11pdf\/11-7827ybs3.pdf\" rel=\"noopener\" target=\"_blank\">Supreme Court ruled in 2012<\/a> that simply possessing a firearm does\u200c not necessarily trigger Second \u2062Amendment protections. Thus, this argument also likely falls flat.<\/p>\n<p>Hunter\u2019s other argument in this motion is that a conviction based on the evidence\u200c introduced would violate his Fifth\u200c Amendment right to a fair \u2062trial. \u2063Because the \u200cprosecution\u2019s case is based entirely on circumstantial evidence, Hunter\u2019s lawyers maintain their client has been \u201cprejudiced by the\u2062 government\u2019s failure to alert the defense to facts sufficient \u200cto meet its\u201d burden of persuasion required to garner a conviction. As a result, they argue, the \u2064indictment must be\u200d dismissed on this ground as well.<\/p>\n<p>These arguments, like those on sufficient evidence, lack a solid factual foundation. They\u2062 rely on and benefit from the defense\u2019s re-statement of the facts\u2064 and\u200d choice of how to interpret those facts that the court and the judge may not make or embrace. In its response, the government will cite how, viewing the \u200dfacts in \u2063the light most favorable to the prosecution, any \u201cexculpatory\u201d \u200devidence simply does not outweigh\u200b the evidence pointing \u200dto Hunter\u2019s guilt. <\/p>\n<\/p><\/div>\n<p>Hunter Biden&#8217;s legal team has filed three motions to dismiss the federal gun trial case against \u200dhim. The first\u2062 motion argues that there is insufficient evidence \u200cto \u200cconvict him,\u200c and the second argues that one of\u200b the charges against him is for a non-existent crime. The\u2063 third motion presents a Second Amendment challenge, arguing that his possession of the firearm does not violate the Second Amendment and that his conviction would also violate his Fifth Amendment right to a fair trial. However, it is unlikely that these motions will succeed as they\u200c lack \u2063solid factual evidence to support them.  <\/p>\n<p class=\"readmore\">\n    <button onclick=\"showReadMore()\" id=\"readmorebtn\">Read more&#8230;<\/button>\n<\/p>\n<hr id=\"line\">\n<span id=\"more\"><\/p>\n<p><?xml encoding=\"utf-8\" ?><?xml encoding=\"utf-8\" ?><?xml encoding=\"utf-8\" ?><\/p>\n<div class=\"article-content\">\n<p>Hunter Biden\u2019s <a href=\"https:\/\/www.conservativenewsdaily.net\/breaking-news\/trump-asks-court-not-to-release-tax-returns-to-congress\/\" title=\"Trump Asks Court Not To Release Tax Returns To Congress\">legal team asked<\/a> the <a href=\"https:\/\/www.conservativenewsdaily.net\/breaking-news\/elizabeth-holmes-jury-says-its-deadlocked-on-3-of-11-criminal-charges-in-theranos-fraud-trial\/\" title=\"Elizabeth Holmes Jury Says It\u2019s Deadlocked on 3 of 11 Criminal Charges in Theranos Fraud Trial\">federal judge presiding<\/a> 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. <\/p>\n<p>Here\u2019s your lawsplainer on the three motions to dismiss.<\/p>\n<div class=\"fdrlst__b89e9-paragraph-2-long d-flex justify-content-center\" style=\"margin-left: auto; margin-right: auto; text-align: center; \" id=\"fdrlst__b89e9-161677562\">\n<div id=\"div-gpt-ad-1379703300879-0\" class=\"mb-30\"><\/div>\n<\/div>\n<div class=\"fdrlst__b89e9-f3e6e4a2e11c4d68c140b8b27bc859a2 fdrlst__b89e9-paragraph-2\" id=\"fdrlst__b89e9-f3e6e4a2e11c4d68c140b8b27bc859a2\"><\/div>\n<h2 class=\"wp-block-heading\">Motion to Dismiss for Insufficient Evidence<\/h2>\n<p>The first motion the lawyers <a href=\"https:\/\/storage.courtlistener.com\/recap\/gov.uscourts.ded.82797\/gov.uscourts.ded.82797.222.0.pdf\">filed<\/a> on behalf of Hunter Biden was the standard motion for acquittal that argued prosecutors failed to present sufficient evidence to convict the president\u2019s son of the crimes charge. Defense lawyers routinely \u2014 and by default \u2014 make a motion for acquittal because otherwise, the defendant cannot challenge the sufficiency of the evidence on appeal.<\/p>\n<p>A motion for acquittal tests whether the government has presented sufficient evidence to convict the defendant. As the Supreme Court has <a href=\"https:\/\/supreme.justia.com\/cases\/federal\/us\/577\/237\/\">explained<\/a>, \u201cSufficiency review essentially addresses whether \u2018the government\u2019s case was so lacking that it should not have even been submitted to the jury.\u2019 \u2026 The reviewing court considers only the \u2018legal\u2019 question \u2018whether, after viewing the evidence in the light most favorable to the prosecution, <em>any<\/em> rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.\u2019\u201d<\/p>\n<p>Given this standard, it is extremely rare for a court to grant a motion for acquittal, and there is little chance in Hunter Biden\u2019s case that he will succeed in his motion.<\/p>\n<p>In arguing for dismissal of the charges based on insufficient evidence, Hunter\u2019s legal team maintains that \u201c[t]here is no evidence of contemporaneous drug use and a gun possession.\u201d Instead, defense counsel argues, there is a \u201cplethora of evidence\u201d of Hunter\u2019s drug use \u201cbefore and after\u201d the time period in which he bought the gun. If the president\u2019s son were using drugs when he owned the gun, there would have also been evidence of such drug use, Hunter\u2019s legal team reasons, so the lack of such evidence requires dismissal.<\/p>\n<div class=\"fdrlst__b89e9-088b5ba2b490c5db3aeba246aaba5a8b fdrlst__b89e9-paragraph-6\" id=\"fdrlst__b89e9-088b5ba2b490c5db3aeba246aaba5a8b\"><\/div>\n<p>That argument presumes that the prosecution could only establish Hunter\u2019s drug use through direct evidence, which is not the law. Rather, a jury may rely on circumstantial evidence, such as evidence of Hunter\u2019s 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\u2019s possession of the weapon and his use of illegal substances. <\/p>\n<p>While Hunter\u2019s 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\u2019s evidence \u2014 not Hunter Biden\u2019s. Under this controlling standard, the court will deny Hunter\u2019s motion to dismiss.<\/p>\n<h2 class=\"wp-block-heading\">Motion to Dismiss Count Three For Charging a \u2018Non-Crime\u2019<\/h2>\n<p>The second motion to dismiss that Hunter\u2019s legal team filed Friday solely challenged the criminal charge alleged in count three of the indictment. That count charged Hunter with \u201cknowing that he was an unlawful user of and addicted to\u201d a narcotic and \u201cknowingly possess[ing] a firearm\u201d \u201cin violation of 18 U.S.C. \u00a7\u00a7 922(g)(3) and 924(a)(2).\u201d<\/p>\n<p>Originally, Section 924(a)(2) had made it a crime punishable by imprisonment of up to 10 years in prison for an individual to \u201cknowingly violate\u201d 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 \u201cwho is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act[)]\u201d to knowingly possess a firearm.<\/p>\n<div class=\"fdrlst__b89e9-1f1fba7bce0532c0e234d328d910a8da fdrlst__b89e9-paragraph-10\" id=\"fdrlst__b89e9-1f1fba7bce0532c0e234d328d910a8da\"><\/div>\n<p>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 <a href=\"https:\/\/www.conservativenewsdaily.net\/breaking-news\/5-key-takeaways-from-clinton-lawyer-michael-sussmanns-latest-attempt-to-get-criminal-charges-dismissed\/\" title=\"5 Key Takeaways From Clinton Lawyer Michael Sussmann\u2019s Latest Attempt To Get Criminal Charges Dismissed\">federal criminal code<\/a>, the motion to dismiss notes, removing Section 924(a)(2)\u2019s 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) \u2014 the section under which Hunter Biden was charged in count three \u2014 that count must be dismissed for charging a non-crime, according to lawyers for the president\u2019s son.<\/p>\n<p>In making this argument, defense lawyers acknowledge that Congress, in removing Section 924(a)(2)\u2019s reference to Section 922(g)(3) \u201csimultaneously created a new Section 924(a)(8),\u201d which made it a crime to \u201cknowingly violates subsection (d) or (g) of section 922.\u201d 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\u2019s attorneys posit.<\/p>\n<p>Unlike the first motion to dismiss filed by Hunter\u2019s 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.<\/p>\n<p>Whether this motion will succeed depends on how courts have interpreted such challenges in the past. Hunter Biden\u2019s lawyers present a persuasive analysis and cite case law that seemingly supports their position, but the special counsel\u2019s team has yet to respond. What precedent prosecutors cite in response to this argument will likely prove dispositive \u2014 at least for now. The issue is sure to be raised on appeal should the court reject Hunter\u2019s position.<\/p>\n<h2 class=\"wp-block-heading\">Motion to Dismiss Based on the Second and Fifth Amendments<\/h2>\n<p>In the third motion to dismiss filed Friday, Hunter Biden\u2019s 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.<\/p>\n<p>Under the controlling Supreme Court precedent of <em>Bruen<\/em>, when a law is challenged on Second Amendment grounds, \u201ca 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.\u201d Citing <em>Bruen, <\/em>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 \u201chistorical precedent for disarming citizens based on their status of having used a controlled substance.\u201d <\/p>\n<p>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 <a href=\"https:\/\/storage.courtlistener.com\/recap\/gov.uscourts.ded.82797\/gov.uscourts.ded.82797.114.0_1.pdf\" target=\"_blank\" rel=\"noreferrer noopener\">rejected<\/a> Hunter\u2019s facial challenge, concluding that colonial-era laws allowed for the disarming of loyalists and the mentally ill. Seeking to \u201ckeep guns out of the hands of presumptively risky people,\u201d such as addicts or drug users, the court concluded, was comparable to those founding-era laws. In rejecting Hunter\u2019s facial challenge, the court further noted that \u201cto date, no Court of Appeals has found \u00a7 922(g)(3) unconstitutional on its face under <em>Bruen<\/em>.\u201d<\/p>\n<p>While the court had previously rejected a Second Amendment facial challenge, it left open an \u201cas-applied attack\u201d 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.<\/p>\n<p>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.<\/p>\n<p>This argument falters, however, for the same reason Hunter\u2019s 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\u2019s as-applied Second Amendment challenge is likely to fail.<\/p>\n<p>Finally, in this final motion, Hunter presents a Fifth Amendment argument that his due process rights were violated because he <a href=\"https:\/\/www.conservativenewsdaily.net\/breaking-news\/trump-attorneys-argue-vindictive-special-counsel-indictment-criminalizes-speech\/\" title=\"Trump's lawyers claim that the Special Counsel's indictment unfairly criminalizes speech as an act of vengeance.\">lacked fair notice<\/a> 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 <a href=\"https:\/\/www.conservativenewsdaily.net\/breaking-news\/breaking-kraken-released-attorney-sidney-powell-files-104-page-bombshell-complaint-of-massive-fraud-in-georgia-election-update-michigan-too\/\" title=\"BREAKING: KRAKEN RELEASED! Attorney Sidney Powell Files 104 Page BOMBSHELL COMPLAINT of Massive Fraud in Georgia Election - Update: Michigan too\">due process clause<\/a> of the Fifth Amendment.<\/p>\n<h2 class=\"wp-block-heading\">What to Make of This<\/h2>\n<p>Of the three motions Hunter Biden\u2019s 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)\u2019s 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. <\/p>\n<p>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.<\/p>\n<div class=\"fdrlst__b89e9-3090d79c6a0550763825f2822820e1b5 fdrlst__b89e9-after-post-content\" id=\"fdrlst__b89e9-3090d79c6a0550763825f2822820e1b5\"><\/div>\n<hr class=\"wp-block-separator\">    \t\t\t\t\t   \t\t\t\t\t\t\t\t\t<\/div>\n<p><\/span><\/p>\n","protected":false},"excerpt":{"rendered":"<p>Hunter Biden&#8217;s attorneys have filed three motions urging the federal judge overseeing his gun trial to dismiss the case. These motions, submitted on Friday, provide legal grounds for consideration separate from factual issues potentially facing the jury as soon as Monday, should Hunter Biden choose<\/p>\n","protected":false},"author":499,"featured_media":2263730,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_mo_disable_npp":"","fifu_image_url":"https:\/\/thefederalist.com\/wp-content\/uploads\/2024\/06\/Revolver-pistol-on-ground.jpg","fifu_image_alt":"","footnotes":""},"categories":[],"tags":[],"class_list":["post-2263729","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry"],"fifu_image_url":"https:\/\/thefederalist.com\/wp-content\/uploads\/2024\/06\/Revolver-pistol-on-ground.jpg","_links":{"self":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts\/2263729","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/users\/499"}],"replies":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/comments?post=2263729"}],"version-history":[{"count":0,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts\/2263729\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/media\/2263730"}],"wp:attachment":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/media?parent=2263729"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/categories?post=2263729"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/tags?post=2263729"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}