We knew it was in the works: Following his conviction in federal court in Delaware on three felony gun charges, Hunter Biden was expected to seek a new trial of the matter (and ultimately appeal the verdict if that proved unsuccessful). There is nothing out of the ordinary about that aside from the identity of the defendant.
What made the move a bit unconventional in this instance was the fact that Biden’s lawyers initially filed the motion for new trial a week ago Monday and then promptly withdrew it and a correction note was added to the court’s docket.
CORRECTING ENTRY: The Motion for a New Trial (formerly DI 233) has been deleted at the request of counsel.
Now You See It, Now You Don’t: Hunter Biden Legal Team Files Motion for New Trial Then Abruptly Rescinds
That left folks scratching their heads a bit, but we should wonder no more. The Biden legal team filed/re-filed a motion for new trial yesterday (Monday), seeking to have Biden’s convictions vacated on the basis that the court lacked jurisdiction to try the case.
This appears to be largely the same basis upon which the initial motion was filed. In a nutshell, Biden is claiming that because the Third Circuit Court of Appeals had not formally issued a mandate (the document that closes out the appeal and transfers jurisdiction back to the lower court with instructions) following its dismissal of his two (interlocutory) appeals on the case, the appeals remained pending, thus preventing the district court from having/reassuming proper jurisdiction over the matter before it went to trial.
The motion first lays out the procedural chronology:
Mr. Biden filed two notices of appeal in this case to the Third Circuit raising claims on appeal that would prevent a trial on any count in this case — a first notice on April 17, 2024(D.E.105) and a second notice on May 20, 2024 (D.E.133). The Third Circuit entered an order dismissing the first appeal on May 9, 2024, but the issuance of the mandate was delayed while the Third Circuit considered Mr. Biden’s petition for rehearing and rehearing en banc. SeeFed. R.App. P. 41(b) (addressing issuance of the mandate). The Third Circuit entered an order dismissing Mr. Biden’s second appeal on May 28, 2024, and denied Mr. Biden’s rehearing petition on the first appeal on May 31, 2024. The Third Circuit, however, did not then and has not yet issued its mandate as to the orders dismissing either appeal. Thus, when this Court empaneled the jury on June 3, 2024 and proceeded to trial, it was without jurisdiction to do so.
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It’s an interesting argument, but here’s the catch: Both Third Circuit orders dismissing Biden’s appeal did so on the basis of…lack of appellate jurisdiction. In essence, as to both appeals, the Third Circuit said Judge Maryellen Noreika’s district court orders denying Biden’s motions to dismiss weren’t final and appealable orders, so the Third Circuit couldn’t consider the issues yet.
So…can Biden realistically argue that the district court didn’t have proper jurisdiction over his case to try it when the appellate court said it didn’t have proper jurisdiction over the case to hear the appeals? Moreover, can Biden plausibly argue that the district court now has the jurisdiction and ability to vacate his convictions and grant him a new trial while simultaneously arguing that the district court did not have jurisdiction to try the case? I guess we’ll find out.
In the meantime, I’ll simply say: It’s a bold strategy, Cotton…let’s see if it pays off for ’em.
RHB – MNT – 6-24-24 by Susie Moore on Scribd
