4th Circuit Judge James Wynn acknowledged that the evidence against Rafiekian was far from overwhelming, but he said jurors were free to convict the defendant based on circumstantial evidence and inferences.
We are convinced that the jury heard sufficient evidence that Rafiekian acted as an agent of a foreign government, Wynn wrote. Based on the evidence presented, a rational juror could concludethat the Turkish government was, in fact, behind the project; that, through Alptekin, Turkey communicated both general and specific instructions; and that Rafiekian hewed to those directions over the life of the engagementall without notifying the Attorney General.
Flynn was never charged in the case, although as part of a plea bargain with Special Counsel Robert Muellers office, the former national security adviser admitted he approved false reports about the work that were submitted to the Justice Department. Flynn later insisted that he did not know the information was false and that he never closely reviewed the documents.
While the 4th Circuit opinion essentially concluded that the project pursued through the Flynn Intel Group consulting firm was an illegal, unregistered lobbying effort for the Turkish government, Wynn stopped short in his opinion of declaring that Flynn had engaged in criminal activity in connection with the work.
We refrain from drawing conclusions with respect to Flynns alleged participation, Wynn wrote.
Trenga said jurors werent adequately instructed about Flynns role, but the appeals court said that because Rafiekians lawyers didnt raise that issue in their motion to set aside the verdicts, Trenga shouldnt have considered it.
Flynns legal culpability is now a moot point. Amidst protracted legal wrangling over Flynns guilty plea to a false statement charge in the Mueller probe, President Donald Trump issued Flynn a sweeping pardon last November that appears to extinguish any potential criminal liability arising from the Turkey-related lobbying or alleged efforts to obscure it from U.S. authorities.
Prior to the pardon, Attorney General William Barr ordered an unusual internal review of the investigation and prosecution of Flynn. Barr concluded the effort was deeply flawed and he moved to drop the case. A judge had not ruled on that motion at the time Trump granted Flynn the pardon. Justice Department officials have declined to say whether the review covered the Turkey-related lobbying issues, but they pressed with the case against Rafiekian.
During the Turkey-related work, Flynn was a top adviser to Trump’s presidential campaign. After the election, Rafiekian became an adviser to Trump’s transition team.
The appeals courts 40-page opinion appears to misstate at least one key fact related to the Flynn-Rafiekian saga. Wynn said that shortly before Rafiekians 2019 trial held in Alexandria, Va., Flynn changed his mind about testifying against Rafiekian.
However, court filings say prosecutors were the ones who decided not to call Flynn as a witness following a highly contentious exchange with his attorneys, who signaled that his testimony might not be as favorable to the government as prosecutors expected.
Rafiekian could ask the full bench of the appeals court to take up the case or seek review at the Supreme Court. Without further intervention, the case will return to Trenga for Rafiekian to be sentenced. He faces a maximum possible sentence of 15 years in prison, but sentences in similar cases are typically far short of the maximum.
An attorney for Rafiekian had no immediate comment on the ruling or any next steps.
Some aspects of the 4th Circuit decision could complicate future foreign-agent prosecutions. Wynn faulted as too broad the governments interpretation of the term agent under a law frequently used to prosecute such cases.
The appeals court noted that prosecutors said someone could be guilty of unregistered actions for a foreign government any time he or she is willing to do something the foreign principal requests. But Wynn said Trenga rightly rejected that view.
FILE – In this Dec. 17, 2018, file photo, Bijan Kian, whose full name is Bijan Rafiekian, leaves the FBI Washington Field Office in Washington. | Jacquelyn Martin/AP File Photo
The decision on that point could make it harder for the government to use the criminal foreign-agent law in question, known as Section 951.
The ruling leaves prosecutors the option of pursuing those individuals under the better-known Foreign Agent Registration Act, but criminal prosecution under that law is more difficult because a conviction requires proof that a defendant knew about their obligation to register and ignored it. That proof is not required under section 951, which is more akin to a traditional espionage statute.
Wynn said Trenga went too far in suggesting that Rafiekian had to be receiving day-to-day instructions from a foreign government or entity to be acting as a foreign agent. However, the appeals court said activity that just coincides with a foreign governments interests or seeks to curry favor with it doesnt make someone an agent.
The line between an agent who works under a foreign governments control and one who, instead, agrees to operate subject to a more hands-off form of directionas an agentindependent contractor couldmight be a hazy one. Still, we find no reason to believe that Congress sought to exclude the latter variety of agency from [Section] 951s reach, Wynn wrote.
Given the stiff penalties for a [Section] 951 violation, we decline to infer a congressional intention to depart from that foundation and impose the statutes disclosure requirement on every wannabe emissary in the absence of explicit language to that effect, the appeals court judge wrote.
Wynn sided with the government on another disputed issue in the case: whether prosecutors had to show beyond a reasonable doubt that Rafiekians work wasnt part of a legal commercial transaction or whether the defense had to show that it was to defeat the charge. The appeals court said prosecutors were not obligated, as part of their case, to prove that Rafiekians actions were not ordinary commercial activities.