Posted on 07/28/2023 6:02:35 AM PDT by george76
Judge Noreika knew lawyers were trying to paint her into a corner and hide the ball while forcing her to rubber-stamp their absurd bargain.
Hunter Biden arrived in a Delaware federal court on Wednesday morning expecting that, in a few short hours, he would walk out a free man with full immunity from prosecution for an exceedingly wide range of alleged criminal conduct, ranging from gun and drug charges to foreign influence peddling. His expectation was that his deal would be insulated from challenges from the presiding judge, or from a prosecutorial change of heart under a future administration. His expectation was that his legal ordeals were coming to a close.
Instead, U.S. District Court Judge Maryellen Noreika picked apart his plea deal with surgical precision, exposing its legal contradictions, and upbraiding both defense counsel and the Department of Justice for structuring an unprecedented deal that in her view — and mine — was illegal and unconstitutional.
I have reviewed the hearing transcript from Wednesday’s aborted change of plea hearing, as well as the agreed-to plea agreement and pretrial diversion agreement that Hunter thought were his salvation. I have spoken to individuals who were in the courtroom and witnessed Judge Noreika’s upturning of the apple cart. Based on my experience as a federal prosecutor, and based on everything that I have seen and heard, here is what I believe to be the story of Hunter’s blown plea.
An Attempt to Avoid Judicial Oversight Typically, if the government is offering a defendant to either drop charges or decline to bring new charges in return for the defendant’s guilty plea, the plea is structured under Federal Rule of Criminal Procedure 11(c)(1)(A). Pleas under this subsection are subject to judicial approval. So if a judge believes the government’s decision to decline prosecution or dismiss charges in return for a plea to other charges is unjust, the judge can reject the plea agreement.
The deal reached between the DOJ and Hunter seems to have been that, in return for his pleading guilty to the two tax misdemeanor charges that were the subject of his plea, the government would agree not to prosecute Hunter for unlawful possession of a firearm, Foreign Agent Registration Act (FARA) violations, and other crimes related to his international business schemes in China and Ukraine with Bohai and Burisma, among others. In any normal case, this would have been structured as a Rule 11(c)(1)(A) plea, which would have made it subject to judicial approval.
In Hunter’s case, though, the parties were apparently worried that Judge Norieka might reject such a broad grant of immunity from prosecution in return for such minor guilty pleas. As a result, Hunter’s plea was structured under a different provision, Rule 11(c)(1)(B), which is usually just a plea agreement in return for a nonbinding sentencing recommendation, and which does not provide any ability of a court to intervene or reject the plea.
To insulate Hunter’s plea from judicial oversight — and the possibility of judicial rejection — Hunter’s lawyers and the Department of Justice included no mention of the agreement not to prosecute Hunter for further crimes in the plea agreement. Instead, they buried it in a separate pretrial diversion agreement, which they argued the judge was not a party to and therefore lacked the power to reject.
Publicly, this pretrial diversion agreement was described as applying just to the unlawful possession of a firearm charge. This was a wild mischaracterization of the agreement. Included in the agreement was a provision that bound the United States to not prosecute Biden “for any federal crimes encompassed by . . . the Statement of Facts” attached to the Plea Agreement.
The referred-to Statement of Facts includes: Hunter’s role with and compensation from Burisma; Hunter’s role with and compensation from Chinese private equity firm Bohai, Harvest, and Rosemont; Hunter’s holding company Owasco; Hunter’s consulting firm Rosemont Seneca; and many other aspects of Hunter’s controversial web of business relationships.
In other words, if Hunter were to complete probation, this pretrial diversion agreement would prevent DOJ from ever bringing charges against Hunter for any crimes relating to the offense conduct discussed in the plea agreement, which was purposely written to include his foreign influence peddling operations in China, Ukraine, and elsewhere.
Hunter and DOJ put the facts in the plea agreement, but put their non-prosecution agreement in the pretrial diversion agreement, effectively hiding the full scope of what DOJ was offering and Hunter was obtaining through these proceedings. Because this allowed them to, in their view, structure the plea agreement as a Rule 11(c)(1)(B) plea, it insulated the agreement from judicial oversight.
They went even further, though. In an apparent effort to shield Hunter from a new administration, which might try to throw out the pretrial diversion agreement by claiming that Hunter had violated his probation terms, they included a provision — which they admitted was entirely novel, with no precedent — stating that the government could not deem Hunter to have violated the agreement without first proving up violations in front of the judge. So the agreement they stated the judge had no role in and therefore no ability to reject, also placed the judge in a position of having to sign off on any future prosecution.
An Unconstitutional Agreement Judge Noreika smelled a rat. She understood that the lawyers were trying to paint her into a corner and hide the ball while forcing her to rubber-stamp their absurd bargain. Instead of being that rubberstamp though, she backed DOJ and Hunter’s lawyers into a corner by pulling all the details out into the open, explaining the very serious legal and constitutional issues with this unprecedented method of structuring what should have been a simple plea agreement, and demanding that the lawyers explain themselves, which they simply couldn’t to her satisfaction.
DOJ, attempting to save face and save its case, stated on the record that the investigation into Hunter was ongoing and that Hunter remained susceptible to prosecution under FARA. Hunter’s lawyers exploded. They clearly believed that FARA was covered under the deal because as written, the pretrial diversion agreement language was broad enough to cover it. When the parties attempted to paper over the many issues raised, Judge Noreika was not satisfied. She demanded extensive briefing on the constitutional and legal issues raised during the hearing, leaving no chance that Hunter will be able to wrap up this case with any degree of rapidity.
And so here we are. Hunter’s lawyers and DOJ are going to go off and try to pull together a new set of agreements, likely narrower and less novel in its arrangement to satisfy Judge Noreika and move the case. They will have to explain their conduct in a public briefing which may shed some light on the obviously tortured negotiations that led us to this place. And, fortunately, the chances of any agreement proceeding with the kind of blanket immunity the parties had in mind as they walked into court yesterday are essentially nil at this point.
Hunter may in fact have to face up to his crimes one day.
The diversion agreement was supposed to be an independent agreement between the DOJ and Hunter. As an independet agreement, it wasn’t up to the judge to accept or reject. If both sides agreed and it was a legal agreement, then it was a done deal.
But the judge was very careful getting to the FARA issue. Hunter’s team wanted to get rid of it, but the DOJ needed that fig leaf to claim an “ongoing investigation”.
When there was disagreement on that issue, the judge pointed to basic contact law - there was no “meeting of the minds” - so there was no agreement.
That got rid of it. That was a brilliant move.
Best analysis I’ve read to-date.
Finally! An honest Federal judge! I can support this one!
And just imagine how complicated this case would be if the Department of (in)Justice had any conflicts of interest! /s
The FIX wasn’t far enough IN …..yet. 🤑
“ Instead, U.S. District Court Judge Maryellen Noreika picked apart his plea deal with surgical precision, exposing its legal contradictions, and upbraiding both defense counsel and the Department of Justice for structuring an unprecedented deal that in her view — and mine — was illegal and unconstitutional.”
“…illegal and unconstitutional.”
Yep, the same DOJ trying to frame President Trump on phony espionage charges. Nothing to see here. Just the deep state at work.
I would worry about her being anywhere near Fort Marcy Park, Virgina....
Twitter
Will Scharf
@willscharf
7/26/23
Based on conversations with people in the courtroom, and my experience as a former federal prosecutor, I think I know the full story of what happened with the Hunter Biden plea agreement blow-up.
Bear with me, because this is a little complicated:
Typically, if the Government is offering to a defendant that it will either drop charges or decline to bring new charges in return for the defendant’s guilty plea, the plea is structured under Federal Rule of Criminal Procedure 11(c)(1)(A). An agreement not to prosecute Hunter for FARA violations or other crimes in return for his pleading guilty to the tax misdemeanors, for example, would usually be a (c)(1)(A) plea. This is open, transparent, subject to judicial approval, etc.
In Hunter’s case, according to what folks in the courtroom have told me, Hunter’s plea was structured under Federal Rule of Criminal Procedure 11(c)(1)(B), which is usually just a plea in return for a joint sentencing recommendation only, and contained no information on its face about other potential charges, and contained no clear agreement by DOJ to forego prosecution of other charges.
Instead, DOJ and Hunter’s lawyers effectively hid that part of the agreement in what was publicly described as a pretrial diversion agreement relating to a § 922(g)(3) gun charge against Hunter for being a drug user in possession of a firearm.
That pretrial diversion agreement as written was actually MUCH broader than just the gun charge.
If Hunter were to complete probation, the pretrial diversion agreement prevented DOJ from ever bringing charges against Hunter for any crimes relating to the offense conduct discussed in the plea agreement, which was purposely written to include his foreign influence peddling operations in China and elsewhere.
So they put the facts in the plea agreement, but put their non-prosecution agreement in the pretrial diversion agreement, effectively hiding the full scope of what DOJ was offering and Hunter was obtaining through these proceedings.
Hunter’s upside from this deal was vast immunity from further prosecution if he finished a couple years of probation, and the public wouldn’t be any the wiser because none of this was clearly stated on the face of the plea agreement, as would normally be the case.
Judge Noreika smelled a rat.
She understood that the lawyers were trying to paint her into a corner and hide the ball. Instead, she backed DOJ and Hunter’s lawyers into a corner by pulling all the details out into the open and then indicating that she wasn’t going to approve a deal as broad as what she had discovered.
DOJ, attempting to save face and save its case, then stated on the record that the investigation into Hunter was ongoing and that Hunter remained susceptible to prosecution under FARA.
Hunter’s lawyers exploded. They clearly believed that FARA was covered under the deal, because as written, the pretrial diversion agreement language was broad enough to cover it.
The lawyers blew up the plea deal, Hunter pled not guilty, and that’s the current state of play.
And so here we are. Hunter’s lawyers and DOJ are going to go off and try to pull together a new set of agreements, likely narrower, to satisfy Judge Noreika.
Fortunately, I doubt if FARA or any charges related to Hunter’s foreign influence peddling will be included, which leaves open the possibility of further investigations leading to further prosecutions.
Nobody has ever went to jail on tax evasion. No reasonable prosecutor would bring FARA charges either.
I listened to Dan Bonino’s podcast from yesterday. He said that an ordinary defendant would have the hammer come down after agreeing to a plea agreement and then switching to a not guilty plea.
That plea deal wasnt for Hunter. It was for his Daddy.
exactly
Agreement to the plea deal is prima fascia evidence of guilt. Once there is an admission of guilt, there can be no valid expectation of non guilt
It’s a shame Noreika isn’t a man; that way the DS could find at least two women who thought had been sexually harassed by Noreika 25 years ago and who desperately, finally needed to tell their stories to a CNN investigative journalist in time for the Sunday shows.
Al Capone went to Alcatraz on the charge of possession of dormant syphilis with intent to distribute.
According to the D.C. Bar website, Hunter Biden remains a member of the Bar in “good standing,” despite his breaking numerous rules of professional conduct.
The Bar states that it is misconduct for a lawyer to “commit a criminal act”
<><>that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer
<><>that “many kinds of illegal conduct” reflect adversely on fitness to practice law,
<><>such as offenses involving fraud
<><>and the offense of willful failure to file an income tax return.
Hunter Biden faces two counts of willful failure to pay federal income tax......that we know of...... to which he recently pleaded “not guilty” in a court of law.
Attorneys risk the “possibility of probationary conditions” in cases of “addiction to drugs or intoxicants.” According to the text of Hunter’s failed plea deal, he “has a well-documented and long-standing struggle with substance abuse.” And was kicked out of the Navy after testing positive for cocaine.
Another bar rule states it is misconduct to “state or imply an ability to influence improperly a government agency or official.” There is corroborative proof Hunter has engaged in this numerous times.
The District of Columbia Bar
901 4th Street, NW
Washington, D.C. 20001
Office Number
Phone: 202.737.4700
Toll Free: 1.877.333.2227
The first line of the article is this years nominee for “Most mixed metaphors in a single sentence”.
Except (IIRC) that Judge Noreika discovered that the parties unconstitutionally inserted her into their scheme by making her have to prosecute charges if Hunter Biden violated the terms of the diversion program. She said "I’m not doing something that gets me outside my lane of my branch of government," and started asking more questions about the deal. This was the initial reason that she balked at the deal, and the rest of it began to unravel from there.
-PJ
But it's worse than that.
One thing I heard yesterday that nobody's talking about is that Hunter Biden essentially confessed under oath during the allocution portion of the hearing.
Part of the process of hearing the plea deal is that the witness has to prove that he knows the charges against him, he knows the things that the plea deal is offering to him, that he describes the crimes that he committed in enough detail to demonstrate that the prosecution had more than reasonable likelihood of proving their case in court, and that he is not being coerced to take the plea deal.
Hunter Biden, as a part of his allocution under oath, described the business deal he was setting up with a Chinese businessman. If was after this point that the plea deal fell apart when the defense and prosecution disagreed on the terms of the deal. This left Biden stuck with having already described his crime under oath and then pleading not guilty.
I don't know how he will be able to have his confession tossed out as it happened under oath in open court in front of the judge, the prosecution, and his legal team.
-PJ
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