A federal appeals court has reinstated a jury’s guilty verdicts on the business partner of former Trump administration National Security Adviser Michael Flynn over the pair’s lobbying for Turkish interests in the midst of the 2016 presidential campaign.
A three-judge panel of the 4th Circuit Court of Appeals overturned a judge’s ruling last year tossing out the guilty verdicts against Bijan Rafiekian, a California businessman who worked with Flynn on a lobbying and public relations campaign targeting a longtime opponent of the Turkish government, Fethullah Gulen.
The unanimous decision Thursday from the Richmond, Va.-based appeals court said U.S. District Court Judge Anthony Trenga erred by rejecting the jury’s verdicts and by concluding that his own rulings may have led jurors to base their decision on emails he admitted at the trial only for a limited purpose.
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 conclude…that 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 engagement—all without notifying the Attorney General.”
Flynn was never charged in the case, although as part of a plea bargain with Special Counsel Robert Mueller’s 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 Flynn’s alleged participation,” Wynn wrote.
Trenga said jurors weren’t “adequately instructed” about Flynn’s role, but the appeals court said that because Rafiekian’s lawyers didn’t raise that issue in their motion to set aside the verdicts, Trenga shouldn’t have considered it.
“We are pleased that the Fourth Circuit thoroughly reviewed the government’s case and found that the jury’s verdict was amply supported by the evidence,” Raj Parekh, the acting U.S. attorney for the Eastern District of Virginia, said in a statement. “The Court’s careful legal analysis confirmed the broad scope and importance of the disclosure requirements for individuals acting within the United States at the direction of foreign governments. This case is a reminder to those who act covertly within our country on behalf of a foreign power that they face criminal consequences for their conduct.”
Flynn’s legal culpability is now a moot point. Amidst protracted legal wrangling over Flynn’s 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 court’s 40-page opinion appears to misstate at least one key fact related to the Flynn-Rafiekian saga. Wynn said that shortly before Rafiekian’s 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 government’s 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.
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 Agents 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 government’s interests or seeks to curry favor with it doesn’t make someone an agent.
“The line between an ‘agent’ who works under a foreign government’s ‘control’ and one who, instead, agrees to operate subject to a more hands-off form of ‘direction’—as an agent–independent contractor could—might be a hazy one. Still, we find no reason to believe that Congress sought to exclude the latter variety of agency from [Section] 951’s 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 statute’s 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 Rafiekian’s work wasn’t 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 Rafiekian’s actions were not ordinary commercial activities.