As our James Lynch reported earlier, the Hunter Biden criminal case — the first of two, this one involving gun charges — is wrapping up. After summations ended this afternoon, Judge Maryellen Noreika gave instructions on the law to be applied to the three felony charges to the jury, which began deliberations.
Hunter’s decision not to testify was prudent. The evidence in the case is overwhelming. As I explained in Friday’s column, I do not believe the sentencing guidelines in this case would necessarily call for imprisonment even if Hunter is convicted on all three charges. In fact, to the extent that Hunter may have put himself in the danger zone for an incarceration sentence, it is because he forced the government and the court to trial. That, of course, is his constitutional right. By asserting it, though, the president’s son forfeited the two-point reduction the guidelines award to defendants who plead guilty and accept responsibility for their actions.
The last thing Hunter should have risked was testimony the court may well have found contradicted by the proof. Under the guidelines (§3C1.1), the sentencing judge is advised to add 2 offense-level points if a defendant provides false testimony. If that happened in this case, a prison sentence would have become more likely.
As the application notes of the relevant guideline elaborate, the false-testimony enhancement is not added if a defendant merely refuses to admit guilt or pleads not guilty. But if the defendant provides a false exculpatory account, the points are typically added. It would thus have been perilous for Hunter to testify in a manner refuted by the evidence — e.g., to insist (as his lawyer argued) that in Hunter’s mind at the relevant time, he wasn’t a drug addict. The evidence shows that (a) he was trying to score drugs proximate to the date of the gun purchase; (b) the gun was found in a bag with traces of cocaine residue; (c) Hallie Biden testified that she discarded the gun because she was afraid of the damage Hunter might do in his condition; and (d) Hunter had done a rehab stint at which he’d have been instructed that addiction is a condition that endures even when the addict is not actively using.
I thought it was interesting that Judge Noreika decided to instruct the jurors this afternoon — which took only about 20 minutes — then had them start deliberating. Sometimes, after jurors have had to sit through lawyers’ summations — which can be complicated and a strain on nonlawyers — the judge will dismiss the jury for the day; that way, they return fresh the next morning to hear jury instructions and start deliberating.
Moving straight into instructions and deliberations right after summations can be taken to suggest that the case is straightforward — the inference being: Might as well get on with deliberations, even relatively late in the day, because the case shouldn’t take forever to decide, and the sooner that happens, the sooner everyone can get back to their lives.
In any event, the jury apparently did not reach a verdict today after a short period of deliberations. The jury has been dismissed for the evening, and deliberations will resume in the morning.