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In an agreement made public June 20, Hunter Biden, President Joe Biden’s son, agreed to plead guilty to two misdemeanor tax charges and enter a pretrial diversion program to avoid prosecution on a felony firearm charge.
Observers have compared Hunter Biden’s outcome with those from cases against actor Wesley Snipes and rapper Kodak Black. Snipes served a prison sentence for tax evasion and Black for weapons charges.
Legal experts said the cases cannot be directly compared. Snipes owed far more in taxes than Hunter Biden and his case proceeded to trial, while Black had a long history of violent criminal offenses that were taken into account during his sentencing.
Why is Hunter Biden, President Joe Biden’s son, likely to avoid prison time after accepting a plea deal with federal prosecutors, while actor Wesley Snipes and rapper Kodak Black served prison sentences on similar charges?
That’s what some observers have asked after Hunter Biden’s June 20 agreement to plead guilty to two tax-related misdemeanor offenses and enter a pretrial diversion program to avoid prosecution on a separate felony firearm offense.
The younger Biden is not expected to serve prison time, though ultimately that will be up to a judge at a hearing scheduled for July 26. Some reports suggest the Justice Department will recommend probation for the tax charges. Following former President Donald Trump’s indictment, some people criticized what they called a "sweetheart deal" for Hunter Biden.
Rep. Byron Donalds, R-Fla., suggested a double standard in the Justice Department’s handling of criminal cases in a June 20 tweet. Referring to Snipes, who was sentenced in 2008 to three years in prison for tax evasion, Donalds tweeted, "When does evading millions in federal income taxes get a slap on the wrist? (Ask Wesley Snipes)."
Biden’s weapons charge also sparked comparisons to Black, who in 2019 was sentenced to nearly four years in prison after pleading guilty to lying on federal gun background-check forms about his history of violent criminal offenses. By comparison, Biden possessed a gun while using illegal drugs.
"2 tiers of justice? Kodak was charged for the same crime. Got over 3 years. Mr. Biden will not serve a day. Feels right? Do FBI agents and federal authorities take cases personally?," said Black’s attorney, Bradford Cohen, in a June 20 Instagram post.
Legal experts told us the three highly publicized cases cannot be directly compared.
They said in the Snipes case, two key factors were different than in Biden’s case: Snipes owed the U.S. government significantly more money, and he proceeded to trial rather than agreeing beforehand to plead guilty. Sentences are typically harsher in cases that go to trial, as sentencing guidelines permit lower sentences for plea deals. Federal plea deals are also common because the odds of acquittal at trial are low, PolitiFact reported.
In Black’s case, an extensive criminal history factored in his sentencing, experts said.
News reports citing unnamed sources said the Justice Department would recommend probation instead of jail time for Biden on the tax charges. In 2021, Hunter Biden paid off the taxes he owed, according to news reports.
U.S. Attorney David Weiss in Delaware, who was appointed by former President Donald Trump, had been investigating Hunter Biden’s finances since 2018.
The Justice Department said June 20 that its investigation into Biden continues. Biden’s attorney, Christopher Clark, said in a statement to The Associated Press that he believed the investigation was over.
Also, Biden agreed to enter a pretrial diversion program to avoid prosecution on a felony charge of possession of a firearm while being "an unlawful user of or addicted to a controlled substance," the documents say. That law’s constitutionality is being challenged in federal court after a Supreme Court ruling last year, and news reports have said Biden’s lawyers cited that as a consideration for prosecutors to take into account.
Biden, according to news reports, was under investigation for lying on a federal gun-purchase form when asked if he was a drug user — a crime that could have carried a 10-year prison sentence. But he was not charged with that offense.
Federal pretrial diversion programs such as the one Biden agreed to are sometimes offered in cases involving substance abuse. Failure to complete the program can sometimes result in later charges.
Jeffrey Fagan, a Columbia School of Law professor, said diversion in a gun case such as Biden’s is typical.
"With no prior record, I’m surprised that charges were even filed," Fagan said.
On its face, Snipes’ tax evasion case bears some resemblance to Biden’s. In 2008, a federal jury found Snipes guilty on three misdemeanor counts of failing to file federal income tax returns from 1999 to 2001. The actor was tried alongside co-defendants Eddie Ray Kahn, who owned a company that helped tax deniers avoid paying taxes, and Douglas Rosile, a former accountant for Kahn’s company.
Snipes disputed the charges against him with common anti-tax arguments, including that his 14th Amendment rights had been violated as a "legal nontaxpayer."
Snipes, who owed the government about $7 million in unpaid taxes, also was acquitted for other charges: two felony charges of fraud and conspiracy and three other misdemeanor tax charges of not paying taxes from 2002 to 2004.
After losing a 2010 appeal for a retrial, Snipes served 28 months in prison and was released on April 2, 2013. He then spent about three more months under house confinement.
Snipes’s stiffer sentence was a result of denying responsibility for his actions and taking his case to trial, experts said.
Michael Weinstein, a lawyer and former federal prosecutor, said the amount of the loss, and the statutes under which Snipes and Biden were prosecuted, were the major differences in the cases.
"Tax case resolutions can range from probation to prison. I’ve seen both," he said.
Black, whose legal name is Bill Kapri, in 2019 reached a plea deal with prosecutors and was sentenced to nearly four years in prison. He admitted lying about his criminal history on federal background-check forms on two separate occasions when trying to purchase firearms in Florida, according to news reports.
Black had other charges pending against him in other states when he was sentenced, including drug, weapons and sexual assault charges. Prosecutors said one of the guns he purchased was found at the scene of a Florida shooting with Black’s fingerprints on it. He was not charged in that case, the Sun-Sentinel, a southeast Florida newspaper, reported.
Experts said Black’s criminal record led to prison time even though he pleaded guilty.
"The guidelines rely on the criminal history of a defendant," said David Haas, a defense attorney and former federal prosecutor, who added that Black faced a different gun charge than Biden.
Trump, in a flurry of pardons and commutations on his final day in office, commuted Black’s sentence, of which the rapper had served nearly half. A White House press release cited Black’s charitable efforts. At the time of the commutation, Black was under indictment in a 2016 sexual assault case. In 2021, he pleaded guilty in that case to first-degree assault of a teenage girl in a South Carolina hotel room and received probation, The Associated Press reported
Robert Leider, a George Mason University assistant law professor, said he was surprised the Justice Department didn’t push for a felony conviction of Biden, even if it didn’t seek significant jail time.
"I think what’s most surprising here is structuring the deal to avoid the collateral consequences of a felony conviction," said Leider, adding that prosecutors often will seek the most serious charge the evidence will bear. He cited the 2019 college admissions bribery scandal, in which actor Felicity Huffman pleaded guilty to a felony and was sentenced to two weeks in federal prison.
Weinstein said prosecutors may sometimes agree to a misdemeanor charge if they think their evidence is shaky or a defense argument is stronger than originally understood. A misdemeanor charge could also be an enticement for the defendant to plead, he said
Leider said prosecutors were in a tough spot in Biden’s case.
"If they don’t prosecute him at all, there are going to be allegations of special treatment. If they brought all the felonies they could have brought there are going to be allegations they’re treating him more harshly," he said. "They kind of split the baby here."
PolitiFact researcher Caryn Baird contributed to this report.
Robert Leider, assistant Professor of Law at George Mason University, phone interview, June 21, 2023
Jeffrey Fagan, professor at Columbia School of Law, email interview, June 21, 2023
Michael Weinstein, defense attorney at Cole Schotz and former federal prosecutor, email interview, June 23, 2023.
David Haas, defense attorney at Haas Law and a former federal prosecutor, email interview, June 21, 2023
United States Attorney’s Office, District of Delaware, "Tax and Firearm Charges Filed Against Robert Hunter Biden," June 20, 2023
Byron Donalds, Tweet, June 20, 2023.
Bradford Cohen, Instagram post, June 20, 2023.
United States Department of Justice, "Pretrial Diversion Program," accessed June 21, 2023
U.S. Attorney's Office, Southern District of Florida, "Broward County Resident Pleads Guilty to Knowingly Making False Statements in Order to Unlawfully Acquire Firearms," Aug. 22, 2019
PolitiFact, "Why are federal plea deals common? Because the odds of acquittal at trial are low," June 20, 2023
NBC News, "Court date set for plea hearing in Hunter Biden criminal case," June 21, 2023
The New York Times, "Hunter Biden Paid Tax Bill, but Broad Federal Investigation Continues," March 16, 2022
The New York Times, "Wesley Snipes Cleared of Serious Tax Charges," Feb. 2, 2008.
The New York Times, "Kodak Black Sentenced to Nearly 4 Years in Prison," Nov. 13, 2019
The New York Times, "By Turns Tearful and Stoic, Felicity Huffman Gets 14-Day Prison Sentence," Sept. 13, 2019
The New York Times, "Hunter Biden’s Lawyers Cite Landmark Gun Ruling in Bid to Stave Off Charges," May 31, 2023
The New York Times, "Supreme Court Strikes Down New York Law Limiting Guns in Public," June 23, 2022
Politico, "Could Hunter Biden be the next poster child for Second Amendment rights?," June 1, 2023
The Associated Press, "Rapper Kodak Black gets probation in teen’s assault case," April 28, 2021
The Associated Press, "Rapper Kodak Black gets prison sentence in weapons case," Nov. 13, 2019
Trump White House, "Statement from the Press Secretary Regarding Executive Grants of Clemency," Jan. 20, 2021
South Florida Sun-Sentinel, "Kodak Black sentenced to 3 years and 10 months in federal prison," Nov. 13, 2019
Miami New Times, "A Timeline of Kodak Black's Legal Troubles," July 22, 2022
United States District Court for the state of Delaware, "Hunter Biden Criminal Action 23-247M," June 20, 2023
United States District Court for the state of Delaware, "Hunter Biden Criminal Action 23-247M," June 20, 2023
United States District Court for the state of Delaware, "Hunter Biden Case Letter from Weiss 1:23-cr-00061-UNA," June 20, 2023
Bureau of Alcohol, Tobacco, Firearms and Explosives, "Federal Prosecutors Aggressively Pursuing Those Who Lie in Connection With Firearm Transactions," Jan. 10, 2023
United States Department of Justice, "Four Florida Promoters of Tax Defier Schemes Convicted of Tax and Mail Fraud," May 26, 2010.