Hunter Biden is seen in a photo from the 2020 Democratic National Convention (Photo by Handout/DNCC via Getty Images)
The special counsel secured a victory in ensuring that Hunter Biden's Delaware gun trial will proceed in early June, as a panel of judges dismissed the defense's last-minute appeal against the trial judge's decision to continue the case.
Three judges on the U.S. Court of Appeals for the Third Circuit, including one appointed by President Joe Biden, unanimously ruled against Hunter Biden, stating that he failed to demonstrate that the trial court's rejections of his motions to dismiss could be appealed before the final judgment.
U.S. Circuit Judge Patty Shwartz, an appointee of Barack Obama who replaced Donald Trump's deceased sister, Maryanne Trump Barry, on the bench, along with U.S. Circuit Judge Cindy Chung, appointed by Biden, and Senior U.S. Circuit Judge D. Brooks Smith, appointed by George W. Bush, issued a straightforward per curiam decision stating that the court lacked jurisdiction to consider the appeal. Maryanne Trump Barry on the bench, U.S. Circuit Judge Cindy Chung, a Biden appointee, and Senior U.S. Circuit Judge D. Brooks Smith, appointed by George W. Bush, issued a straightforward per curiam decision that concluded by saying the court lacked jurisdiction to take up the appeal.
The ruling is relevant not just for Biden’s gun case, but also for his California federal tax prosecution.
In April, Hunter Biden’s lawyers filed a notice of interlocutory appeal to the Third Circuit over U.S. District Judge Maryellen Noreika’s denial of three separate motions to dismiss, defense motions that focused on “immunity,” vindictive and selective prosecution, and a challenge of special counsel David Weiss’ authority. That notice was filed on the eve of a deadline to submit a proposed trial schedule, to the dismay of prosecutors.
Weiss said Biden blew off the deadline in a transparent attempt to knock the June 3 trial date off course. He called the notice “improper” and “frivolous” by purporting to automatically strip the trial judge of jurisdiction to move the case forward pending appeal.
The Third Circuit has now sided with Weiss, but Biden’s lawyers previously tried the exact same strategy after a California federal judge refused the throw out the tax case. That time, also in April, they filed a notice of interlocutory appeal with the Ninth Circuit.
As recently as Monday, the special counsel asked U.S. District Judge Mark Scarsi to force Biden to comply with a standing order to submit proposed jury instructions ahead of a June 20 trial date.
The special counsel said Biden “unilaterally decided” not to comply with the court order and, thus, should not be rewarded with delay by filing an “improper notice of appeal of a nonappealable order.”
Biden’s lawyers countered by saying Weiss was “wrong.” They urged Scarsi to take the “prudent course” of waiting on the Ninth Circuit to rule, which has not yet occurred. The Third Circuit’s decision, however, is clearly not a good sign for the defense.
Judge Noreika, on her side, has already answered the appellate ruling by establishing important deadlines and noting that the June 3 trial date is still the same:
SCHEDULING ORDER as to Robert Hunter Biden re ( 95, 102 ): A 3-6 day Jury Trial is set for 6/3/2024 at 8:30 AM in Courtroom 4A before Judge Maryellen Noreika; a Pretrial Conference is set for 5/24/2024 at 02:00 PM in Courtroom 4A before Judge Maryellen Noreika; Expert Disclosures and defendant’s reciprocal discovery due by 4/24/2024; Motions in Limine due by 5/13/2024, responses due by 5/20/2024, and replies due by NOON on 5/22/2024; Proposed Jury Instructions and Voir Dire due by 5/17/2024. To the extent that the parties have not met deadlines that have passed, the Court will hold an in-person status conference on May 10, 2024 at 4:30 p.m. in Courtroom 4B. Signed by Judge Maryellen Noreika on 5/9/2024. (mdb) (Entered: 05/09/2024)
Read the decision of the appellate court here.