Too Cute By Half: Why Hunter’s Plea Went South

Set for Sentencing podcast COVID_sm

Let us journey once more, into the BREACH, dear listeners.  We talked about sentencing implications of Hunter Biden’s proposed plea agreement, but now we have to talk about why it all crashed and burned.  Spoiler alert, it’s because of the plea provision discussing what happens if Hunter is found by the government to be in BREACH of the agreement!

Why are we going into such great detail (yes, long ass episode) about a plea, when this is a sentencing podcast?  Quite simply, because, if you don’t already know, the plea agreement is the FIRST SENTENCING!!  The prosecutor has far too much discretion and power about what to charge, and what kind of plea to offer.  Yes, it’s a negotiation, but prison (and draconian guidelines) can lead to leviathan leverage.  The terms you negotiate (or capitulate to) in a plea agreement can and will seal your fate on the big day.

But too many defense lawyers bend over and recommend shitty pleas with inartfully drafted language.  This case appears to be a prime example.


  • Why Lawyers are like Tequila;
  • Why a plea agreement is the “first sentencing”;
  • The makeup of the Delware District court and Judge’s background;
  • The difference between A, B, and C pleas in federal court;
  • Why lawyers should be willing to plead “open” if the AUSA refuses to make an offer with stipulated sentencing provisions;
  • When pleading “straight up” could come back to bite you;
  • Why Hunter’s plea went off the rails;
  • Speculation as to why the parties insisted on making Judge Norieka the “breach referee”;
  • A full throated debate about whether the judge right or wrong about her separation of powers concern;
  • How this mess could have been avoided;
  • Why the many ways the lawyering on both sides was woefully deficient;
  • Oh yeah, and some boring shit about tax loss issues under the United States Sentencing Guidelines (sorry Mark).

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