Hunter Biden pictured during the 2020 Democratic National Convention (Photo by Handout/DNCC via Getty Images)
The special counsel notched a win in his efforts to keep Hunter Biden’s Delaware gun trial on track for early June, as an appellate panel rejected the defense’s last-second appeal of the trial judge’s refusal to throw out the case.
On Thursday, 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 for the simple reason that he has “not shown” the trial court’s rejections of his motions to dismiss were “appealable before final judgment.”
U.S. Circuit Judge Patty Shwartz, a Barack Obama appointee who replaced Donald Trump’s since deceased sister 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.
More Law&Crime coverage: Hunter Biden’s simmering feud with frustrated special counsel ramps up as prosecution demands that judge force compliance with court order in tax case
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, for her part, has already responded to the appellate ruling by setting key deadlines and pointing out that the June 3 trial date is still in place:
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 appellate court’s decision here.
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