Why Wash. pot users should pay attention to the Hunter Biden case

Attorneys warn marijuana users in Washington might be breaking the same law Hunter Biden is accused of breaking.

People who acknowledge drug use or addiction when filling out Federal Form 4473 are not allowed to buy a gun.

Prosecutors say Hunter Biden, the son of President Joe Biden, lied about his cocaine usage in October 2018 when filling out Federal Form 4473 to buy a gun. It’s a period when Hunter Biden has acknowledged struggling with addiction to crack cocaine, according to the three-count indictment filed in federal court in Delaware by a special counsel overseeing the case. Hunter Biden allegedly lied on the form required for every gun purchase when he bought a .38-caliber Colt Cobra Special at a Wilmington, Delaware, gun shop.

Federal Form 4473 asks about the usage of any illegal drug, and it offers a warning to people who live in states where marijuana is legal. “The use or possession of marijuana remains unlawful under federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside,” the form reads.

The need to follow federal law

Former State Supreme Court Justice Phil Talmadge says it doesn’t matter if marijuana is legal in Washington, and gun buyers need to follow federal law. He says marijuana users should “be very, very cautious about certifying anything in that federal gun application. This hang up is a real problem for a lot of people, and they are not aware of it.”

Talmadge says, in the eyes of federal prosecutors, there’s not much difference between lying about cocaine and lying about marijuana. “From the standpoint of federal law, it doesn’t make any difference,” he says.

“The federal government looks for opportunities to remind people in the states that marijuana is still illegal federally,” former Pierce County Prosecutor Mark Lindquist said. “Theoretically, this could be 10 years in prison. In reality, this is the sort of thing that people get sent to drug treatment for.”

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Both Lindquist and Talmadge say defense attorneys would have a strong case. “It seems like it seems like a real ‘gotcha,'” Talmadge says. “It just seems like the kind of thing that juries find very uncomfortable to convict somebody about.” Although marijuana and cocaine are seen as the same in federal law, Talmadge says juries may be more sympathetic to pot users. “Defense counsel would have a pretty good argument, I think, to a jury.”

Hunter Biden’s defense attorney argues he didn’t violate the law and remains protected by an immunity provision that was part of his original plea deal. The charges, as The Associated Press (AP) notes, are rarely filed as stand-alone counts and a federal appeals court recently found the measure he was charged under unconstitutional.

Hunter Biden, 53, is charged with two counts of making false statements, first for checking a box falsely saying he was not addicted to drugs and second for giving it to the shop for their federally required records. A third count alleges he possessed the gun for about 11 days despite knowing he was a drug user.

The counts are punishable by up to 25 years in prison if convicted, though “actual sentences for federal crimes are typically less than the maximum sentence,” a U.S. Justice Department statement from lead prosecutor, Trump-appointed Delaware U.S. Attorney David Weiss said.

Surprise about the charges

Lindquist says he’s surprised these are the only charges Biden faces. “On the rare occasions we see charges like this, they’re always secondary to something major.” In the Hunter Biden case, he’s been charged with two counts of lying on the form, and one count of owning a gun while using cocaine. “These charges are highly unusual as standalone charges,” he says.

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Adam Winkler, a constitutional law professor and expert in gun policy at the University of California, Los Angeles School of Law, essentially agreed with Lindquist’s conclusion, as the AP noted. “It’s relatively rare to prosecute someone for being a substance abuser in possession of firearms, absent other criminal activity, or unusual circumstances,” Winkler said.

Lindquist contends that Form 4473 isn’t clearly written. “One of the problems with that form is vagueness. And I would expect Hunter Biden’s attorneys are probably going to challenge the constitutionality of that form for vagueness.”

“One of the similarities, arguably, between this prosecution of Hunter Biden, and some of the prosecutions of Donald Trump is that they appear political,” says Lindquist. “It’s a dangerous trend when politics starts influencing prosecutorial decisions.”

Contributing: The Associated Press

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