A federal court on May 9 turned down an attempt by President Joe Biden’s son to dismiss gun charges filed against him by federal prosecutors, setting him up to go on trial.
A three-judge panel of the U.S. Court of Appeals for the Third Circuit ruled that Hunter Biden had not shown that district court orders he appealed were able to be challenged before the court enters its final decisions on the matter.
“The defendant’s appeal is dismissed for lack of appellate jurisdiction,” U.S. Circuit Judges Patty Shwartz, Cindy Chung, and David Smith wrote in the ruling.
Judge Schwartz is an appointee of President Barack Obama. Judge Chung was appointed by President Biden. Judge Smith is an appointee of President George W. Bush.
Shortly after the appeals court decision was handed down, U.S. District Judge Maryellen Noreika, who is overseeing the case against Mr. Biden, said Mr. Biden’s trial is scheduled to start on June 3.
Judge Noreika, an appointee of President Donald Trump, also scheduled a pretrial conference for May 24 and told the parties to submit proposed jury instructions by May 17.
Mr. Biden was charged in October 2023 with lying on a federal form in 2018 when he bought a gun in Delaware, illegally possessing the revolver he purchased.
According to court documents, Mr. Biden said on a Bureau of Alcohol, Tobacco, Firearms, and Explosives form that he was not an unlawful user of or addicted to any drugs. The form says that the person who signs it understands that any person who answers yes to the drug question is barred from buying or receiving a gun and that making any false statements on the form is a crime.
Mr. Biden has since admitted he was regularly using drugs at the time.
He faces decades in prison if convicted.
Mr. Biden and his attorneys have argued that the charges violate a diversion agreement reached between Mr. Biden and special counsel David Weiss, who is prosecuting the case. They also said that Mr. Weiss was unlawfully appointed, that he brought the charges because of political pressure, and that the charges were unconstitutional.
Judge Noreika declined to dismiss the case earlier this year, finding that Mr. Biden’s arguments were largely based on speculation or otherwise unfounded. She also ruled that the agreement was not in effect because it was never approved by probation officials.
That led to the appeal, in which Mr. Biden said that the circuit court should review Judge Noreika’s decisions, including her choice to rule against him over the agreement.
“Biden’s effort to enforce the Diversion Agreement must be reviewed now or the very purpose of that Agreement, the diversion of a criminal prosecution, will be forever lost,” lawyers for Mr. Biden said in a brief.
Even if the circuit court decided it lacked jurisdiction, it should grant mandamus relief, or act because it has to in order to correct an error by Judge Noreika, they said.
“The district court clearly abused its discretion here,” the lawyers said, pointing out that the parties signed the agreement and are in dispute as to whether it took effect.
Prosecutors responded, telling the circuit court that Judge Noreika’s decisions are not appealable at this time and asserting that the court does not have mandamus jurisdiction in part because Mr. Biden never filed a writ of mandamus.
“Even if he had filed a petition for a writ of mandamus, which he did not, defendant could not meet the requirements for such relief,” they said. The requirements include showing “a clear and indisputable abuse of discretion or error of law” and “a lack of an alternate avenue for adequate relief,” based on prior court rulings.
The circuit court panel sided with the government, finding that none of Judge Noreika’s decisions can be appealed because they may not be final.
The same court held in a 1984 case that it does not have jurisdiction to review certain decisions before final judgment in a case.
“Mandamus is an ‘extreme’ and ‘extraordinary’ remedy reserved for petitioners with a ‘clear and indisputable’ right to relief, no ‘alternate avenue for adequate relief,’ and a likelihood of irreparable injury,” the judges wrote. “The defendant does not meet that standard, so his request for a writ of mandamus is DENIED.”
A spokesperson for the special counsel’s office declined to comment on the new ruling.
A lawyer for Mr. Biden did not respond to a request for comment by press time.
Mr. Biden has also been indicted on tax charges in California. Court documents say he spent millions of dollars from 2016 to 2019 on drugs, escorts, luxury hotels, and other expenses while intentionally avoiding paying taxes.
Mr. Biden owed at least $1.4 million in taxes, charging documents state.
Those charges carry a prison sentence of up to 17 years.
Mr. Biden also tried to get the charges dismissed, filing similar arguments used in the gun case. Those arguments were rejected by U.S. District Judge Mark Scarsi, an appointee of President Trump, earlier this year.
