Here Are the Details — And Problems — With The Aborted Plea Agreement Involving Hunter Biden

by Shipwreckedcrew:

It is the job of a criminal defense attorney to represent the interests of his client “zealously” within the boundaries of the law. A criminal defense attorney should take every opportunity, cut every corner (lawfully), assert every advantage, and extract every concession he can out of the Government in trying to win a better outcome from his client in a criminal matter.

The Government can always say “No.”

When a shady deal is arranged that provides an unwarranted and unjustified outcome to a criminal defendant, the defense attorney should be applauded for having accomplished that. His only obligation is to his client’s interests, not the public’s.

But the Government should and must be condemned for allowing such a deal to take shape, then walking it into court and attempting by subterfuge to slip it past a federal district judge who must sign off on the deal for it to become reality.

Whose interests are the prosecutors serving when they willingly enter into a shady deal by which they provide benefits that would NEVER be provided to “
Joe Q. Taxpayer” under the same facts.

The DOJ attorneys only needed to ask themselves one question before they rejected the idea that they ended up carrying forward into U.S. District Court in Delaware yesterday:

“Would this disposition even be considered for anyone not named Hunter Biden?”

But it’s not just the disposition that reeked, it was the structure of the paperwork that showed a clear intent by the parties to try to slip this past the public and avoid the political firestorm and backlash that was certain if they had set forth the terms in clear and obvious language.

Again – for Hunter’s attorneys — kudos on a job well done.

For DOJ — what the fook were you thinking in trying to avoid public scrutiny of the the deal you made?

So, let’s get into the details and why “this fish rots from the head down.”

Here is the basic outline, and I break down the details in some additional detail further down.

Hunter was charged in two separate charging instruments and each had a separate document resolving those charges.

In Information #1 he was charged with two misdemeanor tax crimes, both related to failure to file and pay taxes owed in individual tax years — 2015 and 2018.

Information #1 was to be resolved by “Plea Agreement A.”

In Information #2 he was charged with a knowingly possessing a firearm while an unlawful user of controlled substances.

Information #2 was to be resolved with “Diversion Agreement B.”

Each agreement contained a “Statement of Facts” as related to the separate charges set forth in each.

Normally, when the Government enters into a plea agreement, in exchange for the guilty plea that the defendant agrees to enter, the Government agrees to dismiss the remaining charges. The Government also typically agrees to not prosecute the defendant for any other crimes about which the Government has knowledge and has communicated that knowledge to the defendant. Not prosecuting those crimes is part of the bargained-for exchange. But the Plea Agreement also includes a provision that evidence of any such uncharged criminal activity will be provided to the Probation Officer and the Court, and each can use that evidence for purpose of determining the appropriate sentence on the crime to which the defendant is pleading guilty.

This is referred to as “relevant conduct” — the other stuff you did — as contrasted with “offense conduct” which is your actual conduct in committing the crime to which you are pleading guilty. Sentencing in federal court is based on all the “relevant conduct” and not just the “offense conduct”, that’s why dismissing counts doesn’t necessarily have a huge impact on the ultimate sentencing determination. The judge is made aware of all a defendant’s criminal activity and can take all that activity into consideration in determining an appropriate sentence.

The tax case plea agreement is pretty straightforward — except in just a couple of its provisions.

Rule 11 of the Federal Rules of Criminal Procedure covers in detail the manner in which a guilty plea must be taken, and different kinds of agreements that can be fashioned between the parties and presented to the Court. For the most part, written plea agreements are binding only between the parties and are not binding on the Court. The Court can accept or reject the terms of the plea. Some plea agreements include a specific clause that the guilty plea is contingent on the Judge accepting the agreement — if the judge rejects the agreement then a “not guilty” plea is entered. That is called an “11(c)(1)(C)” agreement — named after the Rule 11 subsection that covers such agreements.

The Hunter Biden plea agreement was a Rule 11(c)(1)(B) agreement, and here’s why:

 
Rule 11(c)(1)(B) covers plea agreements where the Government agrees in the terms of the agreement — as part of the deal made — to recommend a particular sentence or it agrees to not oppose the sentence requested by the Defendant at the time of sentencing. The Rule states that such recommendations are not binding on the Court if the agreement is accepted — that would be an 11(c)(1)(C) agreement — and the terms of the written plea agreement must reflect that the recommendation is not binding on the court. Hunter’s agreement did that.

This is an objectionable term because of the facts as set forth in the agreement. Hunter is charged with an “A” misdemeanor — punishable by up to one year in custody. That means the U.S. Sentencing Guidelines apply.

The agreement contains a stipulation between the two sides that the amount of the tax loss is between $1.2 and $1.6 million in round numbers.

 
A rough estimate of the U.S. Sentencing Guideline calculation for non-payment of tax obligation with a loss at the lower end of that range ends up with a recommended Guideline Range of imprisonment of 24-30 months.

So the Government is agreeing to recommend — without explaining why at this point — that a sentence of probation is appropriate when the Guidelines say a typical probation for John Q. Taxpayer would be 2 years in prison.

Hunter is only pleading guilty to a misdemeanor, so by statute the Judge could not impose a sentence of more than 1 year (sort of).

The lack of any public articulation — saving it until later after the deal is done — about why an almost certain custodial sentence for anyone else should be a probationary sentence for Hunter Biden is the first big problem with this deal.

But it is just a “favoritism” problem — Hunter is the President’s son and putting him in a federal prison presents a litany of practical security issues.

But the favoratism problem is a SMALL problem in my opinion as compared to the corruption problem revealed in another part of the agreement. This problem involves the willing participation by DOJ in an exercise of subterfuge to try to make all of Joe and Hunter Biden’s foreign income and influence peddling problems disappear without drawing much scrutiny. This is where the structure of the two documents becomes an issue — and that is on the DOJ prosecutors for having agreed to the following arrangement.

As I mentioned above, both the Plea Agreement and then Diversion Agreement contain “Statements of Fact” that amount to admissions by Hunter Biden to the details of the crimes with which he is charged. As noted above, the Plea Agreement resolving the tax charges is straight forward — even with the recommendation of probation — except in one peculiar aspect that jumped off the page at me.

I’ve written a few hundred “Statements of Fact” to go along with a plea agreement. I’ve read a hundred or more similar statements written by DOJ prosecutors in cases where I’ve been a defense attorney. I’ve NEVER seen a statement of facts like this one which was so obviously the product of work done by the defense attorney rather than the prosecutor. The language of the “Statement of Facts” includes a huge amount of extraneous details that are unnecessary and immaterial to the purpose of the statement of facts — they would have never been included by a prosecutor.

In a tax case, the only material facts for a “Statement of Facts” are that the defendant engaged in certain actitivities through which he earned income. Based on that earned income the defendant incurred an obligation to file tax returns and pay over certain amounts in taxes to the U.S. Treasury. For specific years the defendant failed to file the necessary returns (filing false returns would be tax evasion), and for those same specific years the defendant failed to pay over tax amounts that were lawfully owed.

The statement of facts would include the details for all those issues — dates, amounts, etc., — but that’s it. Nothing further is necessary to establish a factual basis for the guilty plea being entered, and that is all the Judge cares about.

All the excuses and “why’s” will be relevant at sentencing, but they have no relevance to the question of whether you did or did not violate the tax laws.

Here are some examples of the information that is reflected in the “Statement of Facts” for Hunter’s guilty pleas to the two misdemeanor charges of failure to file returns and pay taxes:

 
“I spent the money on hookers and blow” isn’t relevant to not having paid the taxes when owed.

And, as I noted, this is NOTHING like something a prosecutor would write. All the details about his finances — what he earned and what he spent it on — is what the IRS Criminal Investigators spent 4 years documenting. The DOJ attorneys didn’t need to let the defense attorneys write this out of some belief that they had more information than the DOJ prosecutors did. There is no reason — no LEGITIMATE reason — for allowing this to be crafted the way it was.

But there was an illegimate reason, and it’s contained in Paragraph 15 of the Diversion Agreement.

“Diversion Agreement? What’s that Shipwrecked?”

I’m glad you asked.

As it turns out, the existence of the gun charge just happened to become the perfect vehicle for the “sleight of hand” trick to make all the problems of the “Joe and Hunter Follies” disappear beneath the waves.

“Diversion Agreements” are the “Bigfoot” of DOJ — you hear about them but sightings are extremely rare. I saw one once that involved a well-known criminal defense attorney in New York. He was caught passing along information about one client’s cooperation to a second client, thereby obstructing the investigation of the second client. But when he was confronted by FBI with the wire tap evidence of his obstruction, he revealed that he had prostate cancer and his doctors said he had 12-18 months to live. They resolved his case with a Diversion Agreement that required him to close his law practice and retire. He also had a 2 year Diversionary period whereby his guilty plea to obstruction would be dismissed if he did not commit any new crime. Last I knew he was still alive 6 years later, but his legal problems had all gone away.

That was the purpose of the Diversion Agreement for Hunter with regard to the his guilty plea to being a user of controlled substances in possession of a firearm. For two years he would be subject to supervision by U.S. Probation. If he successfully completed the two year period with no violation of the agreement, his guilty plea would be set aside and the charge dismissed.

And then some.

Here is a very curious passage from the transcript of yesterday’s hearing:

 
So the Judge didn’t get Paragraph 15 of the Diversion Agreement ahead of the hearing?

Q: What was in Paragraph 15??

A: Everything.

 
This is part of the Diversion Agreement, not the Plea Agreement.

The Diversion Agreement expressly relates to only the firearm charge, not anything having to do with taxes or the myriad of other issues that have come to light over the past several years concerning the Biden Family Influence Peddling Business.

The Statement of Facts that is part of the Diversion Agreement is short — a single page — drafted like a DOJ prosecutor would draft it. It is entirely different in that respect from the separate Statement of Facts on the tax charges that was part of the SEPARATE DOCUMENT — the plea agreement.

This entire exercise could have been done in one document. The charges could have been in one information. There was no need for two separate Informations. But having two separate Informations created the excuse to have two separate documents resolving the charges. THAT IS THE FIRST CLUE OF DOJ’s DUPLICITY in this exercise.

And that brings me to the critical question of why are BOTH statements of facts referenced in the Diversion Agreement when the Diversion Agreement relates only to the gun charge?

BECAUSE ONLY THE DIVERSION AGREEMENT HAS A CLAUSE CAPTIONED “AGREEMENT TO NOT PROSECUTE.”

Again — for Hunter, he’s getting the benefit of high priced attorneys who are clever and have the connections to talk DOJ into making certain efforts to gain an extraordinary outcome on Hunter’s behalf.

The language of that Clause is very carefully crafted: … “for any federal crimes encompassed” by the two Statements of Facts.

“Encompassed”?? That word is wildly imprecise and a tenet of interpreting Plea Agreements is that ambiguous terms are construed in favor of a defendant and against the Government.

By taking this approach, the GOVERNMENT avoided disclosing to the Court — AND TO THE PUBLIC — the nature of the other criminal activity that is under investigation and might be bound up in how Hunter earned the income detailed in the statement of acts. The Government could have listed: bank fraud, wire fraud, mail fraud, bribery, extortion, Foreign Agent Registration Act, Foreign Corrupt Practices Act, and money laundering — just off the top of my head — but it CHOSE TO NOT DO SO.

For the DOJ Prosecutors to go along with this is rank corruption because it is not in the public’s interest — it is in the political interests of Joe Biden, the Biden Family Influence Peddling Business, and everyone who benefits from Joe Biden not burning the Democrat Party down around him.

By allowing Hunter’s attorneys to submit a ridiculous and unnecessarily expansive statement of facts as part of the Plea Agreement for the two tax misdemeanors, and then including that statement of facts into the scope of the “Agreement to Not Prosecute” clause of the Diversion Agreement, the DOJ created the ability for Hunter’s lawyers to sweep all the other potential issues of criminality swirling around him and others into that “Non-Pros” clause, and give them the opportunity to argue later — if necessary — that any prosecution of Hunter connected to those subjects is barred by “Agreement to Not Prosecute” even though they have zero to do with the gun charge that the Diversion Agreement applies to.

That would have accomplished two things:

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