Devon Archer appeals criminal case to Supreme Court

Former Hunter Biden business associate Devon Archer has appealed his criminal fraud case to the Supreme Court, arguing he should receive a new trial, Archer’s lawyers said.

Archer was sentenced to a year and a day in prison after being convicted in 2018 of defrauding a Native American tribe. Biden is not implicated in the case.

If successful, Archer would be able to avoid serving out his prison term and other parts of his sentence.

His petition at the Supreme Court, which has not yet been docketed, marks the second time he has appealed his case to the high court.

As they do with the vast majority of appeals they receive, the justices two years ago declined to take up Archer’s previous request for a new trial.

He is now bringing the same request back to the justices after a lower court again denied Archer’s demand.

Archer has become a key figure in House Republicans’ investigation into Hunter Biden’s business dealings.

He sat for a closed-door interview before the House Oversight Committee in late July, with each side of the aisle offering conflicting interpretations of his testimony. 

A transcript released days later showed Archer testified that Hunter Biden put his father, then-Vice President Joe Biden, on speakerphone during some meetings with associates, but Archer said he was not aware of President Biden committing any wrongdoing.

At issue in Archer’s unrelated criminal case is the scope of a criminal procedure rule that gives federal judges the ability to set aside a jury’s verdict and order a new trial “if the interest of justice so requires.”

In 2018, a federal jury in New York convicted Archer and several others of securities fraud and conspiracy to commit securities fraud. They were charged over a scheme of fraudulently issuing and selling more than $60 million of tribal bonds.

The judge, however, ordered a new trial for Archer after harboring concerns that the evidence may show he is innocent. But the 2nd U.S. Circuit Court of Appeals said that decision was improper, because the rule doesn’t grant the judge any discretion to reweigh evidence.

“The Second Circuit’s decision is wrong. It is contrary to the text of Rule 33, and it takes from district courts a much-needed tool to avoid miscarriages of justice in the most extreme cases,”  Archer’s attorneys wrote in court filings.

“Although different courts of appeals give district courts more or less discretion to reweigh the trial evidence under Rule 33, Petitioner’s appeal would have been decided differently—and correctly—by any other court,” the filing continued.

The Justice Department declined to comment.

Beyond his prison term, Archer was sentenced to one year of supervised release and ordered to forfeit $15.7 million and pay $43.4 million in restitution.

Unlike Archer’s first petition at the Supreme Court, his new request also asks the court to take up a second issue concerning the sentencing.

The trial court inflated Archer’s recommended prison sentence based on a miscalculation of the Federal Sentencing Guidelines, Archer’s attorneys wrote in court filings.

Though the judge ultimately gave Archer a sentence well below the recommendation, the error went unnoticed until Archer was in the middle of appealing his conviction. 

The appeals court declined to consider the issue after finding that Archer had “forfeited” the error. Archer is asking the justices to rule that the court was obligated to review it for plain error.

“This Court should grant review to clarify this important and recurring principle of criminal procedure to ensure that clear, unwaived, and fundamental errors do not go uncorrected,” Archer’s attorneys wrote.