A federal judge overstepped and should not have thrown out a Virginia jury’s conviction of Michael Flynn’s former business partner on charges of illegal lobbying, an appeals court held Thursday.
The jury found that Bijan Rafiekian, while operating a consulting business with Flynn, illegally lobbied the U.S. government to expel a dissident Turkish cleric. Prosecutors said they used a Dutch-Turkish businessman named Kamil Alptekin as a conduit for Turkish officials who wanted to exploit Flynn’s prominence as a surrogate for then-presidential candidate Donald Trump.
“A reasonable jury could conclude that Rafiekian and Alptekin conspired to act subject to Turkey’s direction,” according to the 40-page ruling from Judge James A. Wynn Jr. of the U.S. Court of Appeals for the 4th Circuit. He was joined by Judges Paul V. Niemeyer and Barbara Milano Keenan.
Rafiekian is likely to appeal the decision to the full court. If he is unsuccessful, he could still seek a new trial, but his path is severely limited by this ruling. “The district court gave four reasons for granting a new trial, but we find none to be a sufficient justification,” the panel wrote. If a new trial is not granted, the case would be set for sentencing on the guilty verdict.
Flynn, who went on to serve as Trump’s national security adviser, was pardoned last fall by the former president both on his conviction in D.C. federal court for lying to the FBI and for any activity investigated in the Eastern District of Virginia and so cannot be tried. Around that time, Flynn and his attorney Sidney Powell were spreading false claims about the 2020 election and urging Trump to refuse to concede to Democrat Joe Biden.
That pardon came 10 days before oral argument in Rafiekian’s case, leaving prosecutors open to fraught questions about Flynn’s role — and then-U.S. Attorney G. Zachary Terwilliger open to political blowback from the White House. The government maintained that Flynn was an unindicted co-conspirator in the case. In the ruling, the panel referred to Flynn repeatedly but did not weigh in on his guilt or innocence: “Because we find sufficient evidence of such a conspiracy between Rafiekian and Alptekin, we refrain from drawing conclusions with respect to Flynn’s alleged participation.”
An attorney for Rafiekian said at oral argument in December that he could “potentially” call Flynn as a witness at a new trial “now that he has been pardoned.”
Before the pardon, defense attorney James Tysse said, Flynn “presumably” would have invoked his own Fifth Amendment right against self-incrimination.
The government’s burden was to prove that Rafiekian acted as an “agent” operating at Turkey’s “direction or control” without required public disclosure.
The court noted that the list of evidence that the government did not produce at trial was long: no emails or phone calls between Rafiekian and any Turkish official, no bank records of funds flowing back to governmental accounts, no direct evidence clarifying Alptekin’s role vis-a-vis Turkey, and no live testimony from Rafiekian, Flynn or Alptekin.
But the judges concluded that the government “lassoed enough stars to reveal a distinct constellation.”
Tysse told the appeals court at oral argument that the “watered-down” definition of a foreign agent used here would be “criminalizing merely acting in a way that benefits a foreign country.”
The judges found that while the definition might be “hazy,” there was “no reason to believe that Congress” did not intend for this kind of relationship to count.
Trenga ruled that should the appeals court find that the evidence for conviction was sufficient, Rafiekian still deserves a new trial.
The appeals court rejected Trenga’s reasons for setting aside the jury’s verdict and said the decision to grant Rafiekian a new trial was “an abuse of discretion.”
“In conditionally granting a new trial based on the ‘great weight of the evidence,’ the district court simply pointed back to its acquittal analysis without further elaboration. As described above, we conclude that the evidence was sufficient to support the verdict,” the court held.
Raj Parekh, acting U.S. attorney for the Eastern District of Virginia, said the office was pleased with the ruling and the 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.”
An attorney for Rafiekian declined to comment.