Hunter Biden, left, and his wife, Melissa Cohen Biden, arrives at federal court, Monday, June 3, 2024, in Wilmington, Del. (AP Photo/Matt Slocum); special counsel David Weiss pictured in November 2023. (AP Photo/Jose Luis Magana)
After the Special Counsel’s Office asked a federal judge to reject a post-felony conviction push by Hunter Biden for a new gun trial, calling that request an “invented fiction” brought about by a “failure to read,” the defense on Tuesday withdrew the motion.
Biden’s lawyers had claimed that U.S. District Judge Maryellen Noreika wrongly proceeded to trial in June without jurisdiction to do so since, in their view, the defense’s appeals of her pretrial denials of Biden’s motions to dismiss on grounds of immunity, a violation of the separation of powers, and the “improper appointment” of special counsel David Weiss technically remained pending.
Even though the appellate efforts were resoundingly rejected, the defendant maintained that Noreika still lacked jurisdiction to move forward with jury selection because the U.S. Court of Appeals for the Third Circuit had not “issued its mandate as to the orders dismissing either appeal.”
While Weiss said earlier in the case that the appeals were part of a “frivolous” delay tactic, the special counsel and his team ratcheted up their opposition to the new trial bid on Monday, dinging the defense’s “failure to read.”
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“[Biden’s] motion is based on his belief that prior to his trial, the Third Circuit was required to issue a formal mandate and therefore this Court somehow lacked jurisdiction even though the Third Circuit had held that it did not have jurisdiction,” Weiss said. “The defendant’s motion is meritless and is based on his apparent misunderstanding of appellate practice and his failure to read the Third Circuit’s Orders, issued before trial, which clearly stated ‘in Lieu of Mandate.’”
In case the dismissal order “in lieu of mandate” remained unclear to the defense, the special counsel added in a photo and highlighted the relevant text of Third Circuit clerk’s signature block.
“If he had a genuine belief that the court lacked jurisdiction before trial began, it would have been inexcusable to proceed to trial without so much as asking this Court to consider the mandate issue further, let alone wait to raise the issue until two weeks after the jury convicted him,” the special counsel continued. “Because his ‘missing mandate’ claim is an invented fiction, his Rule 33 motion is effectively a motion for reconsideration without any justification for such relief.”
Biden attorneys Bartholomew Dalton and Abbe Lowell have since responded Tuesday that, upon further review, the motion should be withdrawn [emphasis ours]:
Referencing the procedure used by the Clerk of the Third Circuit explained in the Special Counsel’s opposition, Mr. Biden withdraws his Rule 33 motion for a new trial based on the absence of a mandate. Federal Rule of Appellate Procedure 41(b) requires that a mandate “must issue” within seven days after certain decisions concerning an appeal have passed, while noting that a Court of Appeals can “shorten or extend the time [for doing so] by order.” The Third Circuit usually does the same, issuing a mandate after an appeal has been dismissed for lack of jurisdiction.
However, no mandate was issued by the Third Circuit. Instead, the Clerk of the Court’s signature block, not the Order itself, contains “Certified Order Issued in Lieu of Mandate” language. As it appears that the Third Circuit views issuing a certified order “in lieu” of a mandate as compliant with Rule 41’s procedure for shortening the time for issuance of a mandate, Mr. Biden withdraws his motion.
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