Case 1:23-cr-00061-MN Document 245 Filed 07/08/24 Page 1 of 11 PageID #: 3580

IN THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF DELAWARE

UNITED STATES OF AMERICA, )

)
v. )
) Criminal No. 23-00061-MN
ROBERT HUNTER BIDEN, )
)
Defendant. )

THE UNITED STATES’ OPPOSITION TO DEFENDANT’S RULE 33 MOTION FOR A

NEW TRIAL ON ALL COUNTS FOR LACK OF JURISDICTION (ECF 237)

Defendant Robert Hunter Biden moves pursuant to Federal Rule of Criminal Procedure 33

for a new trial, arguing that this Court lacked jurisdiction when the trial was conducted. Def.’s R.

33 Mot. for New Trial on All Counts for Lack of Jurisdiction. (“Def.’s Mot.”), ECF 237. His 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. 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.” His motion should be denied.

BACKGROUND

I. The Third Circuit Dismissed the Defendant’s First Appeal & Denied Rehearing
Before Trial

On April 17, 2024, the defendant appealed three of this Court’s pretrial orders: (1) the

denial of his motion to dismiss the indictment for violating the immunity conferred by the

Diversion Agreement, (2) the denial of his motion to dismiss the indictment for the improper

appointment of the Special Counsel and violation of the Appropriations Clause, and (3) the denial

of his motion to dismiss the indictment for violation of separation of powers. See Defendant’s

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Notice of Interlocutory Appeal, ECF 103. On May 9, 2024, the Third Circuit dismissed this appeal

for lack of jurisdiction and denied the defendant’s alternative request for a writ of mandamus,

explaining that the defendant had not shown (1) that he was entitled to an immediate appeal or (2)

that this Court’s rejection of his challenges to his prosecution constituted appealable collateral

orders. United States v. Biden, No. 24-1703, Order at 3-4 (3d Cir. May 9, 2024, Dkt. 17-1) (per

curiam) (citations omitted), attached as Ex. 1. Consistent with the practice in the Third Circuit, the

Third Circuit’s Order dismissing his first appeal was stamped “Certified Order Issued in Lieu of

Mandate.” Id. at 4 (also highlighted in screenshot below):

The defendant petitioned the Third Circuit for rehearing before the original panel and for

rehearing en banc, and he moved in the Third Circuit for a stay of this Court’s proceedings pending

the Third Circuit’s consideration of the petition for rehearing. Emergency Motion of Appellant at

4, United States v. Hunter Biden, No. 24-1703 (3d Cir. May 20, 2024), Dkt. 19. The Third Circuit

denied the motion to stay on May 21, 2024. See United States v. Biden, No. 24-1703, Order at 3-4

(3d Cir. May 21, 2024) (per curiam). The petition for rehearing was denied on May 31, 2024, Dkt.

21. See Denial Order attached as Ex. 2.

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II. The Third Circuit Dismissed the Defendant’s Second Appeal Before Trial

On May 20, 2024, the defendant appealed a second time, challenging the district court’s

denial of his motion to dismiss the indictment on Second Amendment grounds. See May 9, 2024

Order, ECF 114; Notice of Appeal, ECF 134. Because this Court’s order was neither final nor

otherwise appealable, the Third Circuit dismissed his appeal for lack of jurisdiction on May 28,

2024. See United States v. Biden, No. 24-1938 (3d. Cir. May 28, 2024), Dkt.16-1, 16-2, attached

as Ex. 3. Like the dismissal order disposing of his first jurisdictionless appeal, the Third Circuit’s

order dismissing his second appeal was stamped “Certified Order Issued in Lieu of Mandate.” Id.

at 4. The defendant did not petition for rehearing by the panel or rehearing en banc by the full

Third Circuit.

III. Before Trial Commenced This Court Explicitly Found that It Was Not Divested of
Jurisdiction

On May 29, this Court denied the defendant’s second motion to dismiss alleging an

Appropriations Clause violation. The Court held that any appeal from its denial would, like the

defendant’s first two attempted interlocutory appeals, be procedurally and substantively frivolous.

In that context, this Court affirmed its ongoing exercise of jurisdiction despite the defendant’s

repeated divestiture efforts:

Absent further direction from the Third Circuit, the Court understands that should
Defendant opt to appeal, his appeal will not independently divest this Court of
jurisdiction, such that both this Court and the Court of Appeals for the Third Circuit
shall have jurisdiction to proceed.

Memorandum Order, May 29, 2024, ECF 191 at 8-9.1 The defendant did not appeal this order.

1
In its Order, this Court also referenced the fact that the same issue has been raised and rejected
in the defendant’s tax prosecution in the Central District of California. See United States v. Biden,
No. 2:23-cr-599-MCS-1, 2024 WL 1432468 (C.D. Cal. Apr. 1, 2024). Like the Third Circuit, the Ninth
Circuit also found that it lacked jurisdiction and dismissed the defendant’s appeal. See United States v.
Biden, No. 24-2333 (9th Cir. May 14, 2024).

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IV. When Trial Began on June 3, This Court Had Jurisdiction

Accordingly, when trial began on June 3, the Third Circuit had already dismissed both of

the defendant’s appeals with orders stamped “in Lieu of Mandate” and denied his petition for

rehearing. Moreover, while the appeal was pending, the Third Circuit issued an order stating, “[t]he

Court is mindful of the current trial schedule and will resolve the matter before this Court in a

timely manner.” See United States v. Biden, No. 24-1703 (3d. Cir. May 28, 2024), Dkt. 13. The

Third Circuit also denied the defendant’s emergency motion for an administrative stay of the trial.

See id. at Dkt. 20 (Third Circuit order issued one day after appellant filed his motion). In addition,

this Court had explicitly ruled that it was continuing to exercise its jurisdiction and that any

additional, threatened interlocutory appeals were anticipated to be as frivolous as the first two and

would not divest this Court of jurisdiction. Mem. Order, May 29, 2024, ECF 191 at 8-9.

On June 24, 2024, two weeks after the jury convicted the defendant of the crimes with

which he was charged, the defense filed this motion for a new trial under Rule 33, arguing that the

Court had lacked jurisdiction to hold the trial because the Third Circuit has not issued mandates in

either of his two appeals. Def.’s Mot. at 3. While the defendant repeatedly insisted before trial that

his appeals divested this Court of jurisdiction, this is the first time he has spun this laughable tale

of the mystery of the missing mandates. But both dismissal orders are plainly stamped “Issued in

Lieu of Mandate” and provide no basis for this Court to reconsider its earlier rulings with respect

to jurisdiction when non-appealable orders are appealed. For the reasons stated below, the Court

should deny this motion.

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DISCUSSION

I. This Court Had Jurisdiction to Conduct the Trial Because the Defendant’s Appeals
Had Been Dismissed & Fully Disposed of Before Trial
Despite the defendant’s unsupported assertion to the contrary, the Third Circuit did follow

its “mandate rule and certification process,” Def.’s Mot. at 6. Consistent with Federal Rule of

Appellate Procedure 41, the certified dismissal orders in this case were issued in lieu of formal

mandates and clearly bear certification stamps saying that. United States v. Biden, No. 24-1703,

Order at 4 (3d Cir. May 9, 2024, Dkt. 17-1) (per curiam), Ex. 1; United States v. Biden, No. 24-

1938, Order at 2 (3d Cir. May 28, 2024, Dkt. 16-1, 16-2), Ex. 3. The trial in this case began after

both of the defendant’s interlocutory appeals were dismissed and after the rehearing he sought was

denied. In neither appeal did the Third Circuit ever reach the merits; both appeals were dismissed

quickly because the orders were not appealable and there was no other basis for appellate

jurisdiction. Thus, when trial started, there was no uncertainty regarding this Court’s jurisdiction

and there were no additional matters pending in the Third Circuit.

Federal Rule of Appellate Procedure 41(a) explains that other devices besides a formal

mandate document may be used to return jurisdiction to the lower court: “Unless the court directs

that a formal mandate issue, the mandate consists of a certified copy of the judgment, a copy of

the court’s opinion, if any, and any direction about costs.” The Third Circuit’s Internal Operating

Procedures confirm that its normal practice is not to issue a formal mandate in a separate document.

See “Post-Decision Practice Information Sheet,” available at

https://www.ca3.uscourts.gov/sites/ca3/files/noj-amd.pdf (“the Court’s normal practice is to issue

a certified copy of its judgment, with any opinion attached, in lieu of issuing a formal mandate in

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a separate document”). Therefore, the mandate in the defendant’s first appeal issued on May 9,

20242 and the second mandate on May 20, 2024. See Exs. 1, 3.

Contrary to the defendant’s claim, the Third Circuit will not “ultimately issue a mandate”

because its certified orders were issued “in Lieu of Mandate.” It is unclear why the defendant

believes he is waiting for the issuance of some additional, superfluous document, when the orders

he received clearly indicate no further mandate will issue. See Def.’s Mot. at 2 (“The Third

Circuit…did not then and has not yet issued its mandate as to the orders dismissing either appeal”);

id. at 3 (“…the Third Circuit May Ultimately Issue a Mandate” “…the Third Circuit may later

issue a mandate”). His argument reveals a misunderstanding of the mechanics of the mandate

process or the possibility that he failed to fully read the Third Circuit’s dismissal orders.

The caselaw the defendant cites confirms that this practice is customary. He points to

Shahin v. PNC Bank NA, 678 F. App’x 62, 63 (3d Cir. 2017) as supporting his argument that

“jurisdiction follows the mandate” and suggests that because no formal mandate issued here, this

Court is awaiting jurisdiction. Def.’s Mot. at 2. But the mandate in Shahin consisted only of a

“certified judgment” that the Third Circuit had specified “was to be treated in all respects as the

2
Because the defendant filed a petition for rehearing in his first appeal, United States v. Biden,
No. 24-1703, any staying effect of that petition would have terminated with the Third Circuit’s
denial on May 31, 2024, if the Third Circuit had jurisdiction. See Ex. 2; Bell v. Thompson, 545
U.S. 794, 802 (2005) (“The timely filing of a petition for panel rehearing, petition for rehearing en
banc, or motion for stay of mandate, stays the mandate until disposition of the petition or motion,
unless the court orders otherwise”) (quoting Fed.R.App.P. 41). Prior versions of Fed.R.App.P. 41
included additional detail regarding the petition having the effect of a stay, but that language was
removed in 2018 only because it was considered redundant. See Comment to 2018 Amendment
(“it seems redundant to state (as subdivision (d)(1) did) that timely filing of such a petition or
motion stays the mandate until disposition of the petition or motion. The deletion of subdivision
(d)(1) is intended to streamline the rule; no substantive change is intended”). Therefore, both
mandates were in full effect before trial began on June 3, 2024.

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mandate.” 678 F. App’x at 62. In other words, the device used by the Third Circuit in Shahin was

not a formal mandate in a separate document, but a certified judgment. Similarly, in Mary Ann

Pensiero, Inc. v. Lingle, 847 F.2d 90, 97-98 (3d Cir. 1988), a case embedded in the Shahin decision,

the appeal became final when the Third Circuit’s Clerk of Courts issued a certification in lieu of a

mandate. That is exactly what the Third Circuit did in this case. There was nothing insufficient or

irregular about the process used here; the Third Circuit used the same process in cases the

defendant cited. The certified-order-as-mandate process in this case provides no basis for the court

to reconsider its earlier rulings regarding its jurisdiction.

The defendant’s failure even to place on the record his uncertainty regarding the issuance

or format of the mandate at any point before the start of trial reveals the weakness of his argument.

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. 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. There is no legitimate reason to revisit

this Court’s prior rulings regarding this Court’s continuing jurisdiction or the procedural and

substantive frivolousness of his appeals.

II. This Court Had Jurisdiction to Conduct the Trial Because the Defendant Appealed
Non-Appealable Orders
His apparent misunderstanding about the mandate process aside, the defendant’s

interlocutory appeals from this Court’s non-appealable orders never divested this Court of

jurisdiction. Thus, even if a mandate was required (which as discussed in Section I, it was clearly

not), his argument should be rejected. As has been set forth extensively in prior filings, appeals

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from denials of motions to dismiss are not immediately appealable.3 Nor does a notice of appeal

automatically divest the district court of jurisdiction. See, e.g., United States v. Jackson, No. CR

13-290 (SDW), 2023 WL 5994640, at *2-3 (D.N.J. Sept. 15, 2023). To mitigate the risk of a

defendant filing a notice of appeal to delay trial, courts have held that an appeal from a clearly

non-appealable order fails to divest the district court of jurisdiction. See e.g., Venen v. Sweet, 758

F.2d 117, 120–21 & n.3 (3d Cir. 1985) (“the jurisdiction of the lower court to proceed in a cause

is not lost by the taking of an appeal from an order or judgment which is not appealable”) (quoting

Plant Economy, Inc. v. Mirror Insulation Co., 308 F.2d 275, 277 n.7 (3d Cir. 1962), and citing

numerous cases)); Tucker v. Reading Co., 53 F.R.D. 453 (E.D.Pa. 1971) (holding that a premature

appeal does not divest district court of jurisdiction). The Third Circuit lacked jurisdiction over the

defendant’s two interlocutory appeals because this Court’s denials of the defendant’s motions were

neither a final judgment nor orders within the scope of the collateral order doctrine.4

3
The non-appealability of the pretrial rulings has been the subject of many filings both in this
Court and in the Third Circuit. See the Government’s Opposition to Defendant’s Motion to Stay
Proceedings, Apr. 19, 2024, ECF 108; the Government’s Opposition to Defendant’s Motion to
Enjoin the Special Counsel’s Investigation and Prosecution for Continuing Violations of the
Appropriations Clause, May 22, 2024, ECF 172; United States v. Biden, Case 24-1703, Dkts. 10,
14, 16; United States v. Biden, Case 24-1938, Dkts. 11, 15.
4
The defendant’s improper notices of appeal did not automatically stay the proceedings and the
defendant did not seek a stay in this Court. In fact, the defendant criticized the government for
construing his status update as a request for a stay, adhering to his unfounded position that a stay
was automatic upon the filing of the notices of appeal and therefore unnecessary here. See Mr.
Biden’s Response to the Special Counsel’s Opposition to a Motion for Stay That Was Never Filed,
Apr. 22, 2024, ECF 109 at 1. Even if he had sought a stay, as explained in the government’s
Opposition to Defendant’s Motion to Stay Proceedings, Apr. 19, 2024, ECF 108, because there
was no appellate jurisdiction over either of his appeals, a stay would have been unwarranted. Id.
at 1-2 (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). Moreover,
the defendant tried to then argue to the Third Circuit that his appeal required an order to the district
court staying the trial, which the Third Circuit immediately denied. See United States v. Biden,
No. 24-1703 (3d. Cir. May 28, 2024), Dkt. 20.

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The defendant confuses a district court’s finding that an appeal is frivolous with an

improper interlocutory appeal of a non-final order. Both provide independent grounds for a district

court to retain jurisdiction during an appeal. See Venen, 758 F.2d at 120–21 (improper

interlocutory appeal); United States v. Leppo, 634 F.2d 101, 102 (3d Cir. 1980) (frivolousness).

As to the defendant’s first two appeals, because he improperly appealed from two non-final,

interlocutory orders, there was no need for the government to request (or for the Court to make) a

finding of frivolousness in order to enable this Court to “reassert jurisdiction,” as the defendant

claims. Def.’s Mot. at 4-6. Simply put, this Court never lost jurisdiction because district courts

retain jurisdiction over a case when a defendant files an appeal of a non-appealable order just like

district courts retain jurisdiction over a case when a defendant files a frivolous appeal.

As to the defendant’s motion to enjoin the prosecution based on alleged violations of the

Appropriations Clause, the Court took the additional step of clearly asserting its ongoing

jurisdiction, explaining there was “no reason to believe that Defendant’s inevitable appeal of this

denial of his motion for an injunction” would be “any more meritorious than his prior efforts.”

May 29, 2024 Order at 8-9, ECF 191. The Court explicitly held that “[a]bsent further direction

from the Third Circuit” it would continue to exercise jurisdiction. Id. In fact, an appeal from a non-

appealable judgment or order is “sometimes characterized as a nullity.” Venen, 758 F.2d at 121.

The “great potential for disruption” underlies the Third Circuit’s conclusion that district courts

retain jurisdiction over appeals that are not subject to interlocutory review. Id. (quoting Leppo, 634

F.2d at 105).

The defendant cites a seventy-year-old case, District 65, Distributive, Processing and

Office Workers Union of N.Y. and N.J., Formerly Local 65 v. McKague, 216 F.2d 153 (3d Cir.

1954) to support his argument in favor of automatic divestiture, but the District 65 approach has

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been rejected in more recent cases. See Wright & Miller’s Filing the Notice of Appeal, 16A Fed.

Prac. & Proc. Juris. § 3949.1 (5th ed.) (collecting more recent cases and explaining that District

65 is an example of the “Prior (rejected) approach”). See also United States v. Green, 882 F.2d

999, 1001 (5th Cir. 1989) (“Notice of appeal from a non-appealable order, however, does not

render void for lack of jurisdiction acts of the trial court taken in the interval between filing of the

notice and dismissal of the appeal”).

The defendant’s reliance on United States v. DeFries, 129 F.3d 1293 (D.C. Cir. 1997) is

also misplaced because Defries involved an appealable order for purposes of 28 U.S.C. § 1291’s

final judgment rule. See Def.’s Mot. at 2-3. The district court in Defries had dismissed one count

of an indictment before trial, a ruling that the D.C. Circuit reversed shortly before trial was

scheduled to begin. The district court nevertheless commenced trial before any mandate issued

and while the rehearing petition was pending. Because the D.C. Circuit exercised its jurisdiction—

ordered briefing, ruled on the merits of the government’s appeal and reversed the district court—

those proceedings do not “closely track” the facts of this case and it is flat-out wrong that “[t]his

case is no different from Defries.” See Def.’s Mot. at 3. Unlike in DeFries, the defendant appealed

non-final orders and Third Circuit held it had no jurisdiction because they were not appealable.

The Third Circuit never ordered briefing, reached the merits, or reversed any decision of this Court.

In this case, the defendant’s rehearing request had already been denied when trial began. In fact, a

careful reading of Defries underscores the distinction; the decision itself acknowledges the

exception to the divestiture rule which applies here: “Courts have carved out a few narrow

exceptions to this [divestiture] rule, such as where the defendant frivolously appeals … or takes

an interlocutory appeal from a non-appealable order.” 129 F.3d at 1302–03 (internal citations

omitted) (emphasis added).

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CONCLUSION

For all of these reasons, the Court should deny the defendant’s motion for a new trial under

Rule 33.

Respectfully submitted,

DAVID C. WEISS
SPECIAL COUNSEL

By:

________________________________
Derek E. Hines
Senior Assistant Special Counsel

Leo J. Wise
Principal Senior Assistant Special Counsel

U.S. Department of Justice

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