Michael Flynn associate Bijan Rafiekian, whose conviction under the Foreign Agents Registration Act (“FARA”) was overturned in September 2019, had his conviction reinstated by the Fourth Circuit Court of Appeals on March 18, 2021.
Rafiekian, who ran a consulting a consulting firm with Michael Flynn hired by the Turkish government to advocate for the extradition of Turkish dissident cleric Fethullah Gulden, was convicted of acting as an unregistered foreign agent in the U.S. and conspiracy to violate the Foreign Agents Registration Act (FARA). The district court judge found that there was no substantial evidence to support the United States’ allegation that Rafiekian agreed to operate under the direction or control of the Turkish government.
Regarding the other conviction, that on the count of conspiracy to make willful and material false statements and omissions in a FARA filing, the district court judge opined there was no evidence of discussions or suggestions, let alone an agreement, to avoid filing under FARA or file a false FARA registration statement. The judge ultimately granted Rafiekian’s motion for acquittal and provided that if his decision were vacated or reversed by a higher court, a new trial would be warranted.
While the Fourth Circuit agreed with the lower court that the direct evidence was slim, it noted that this is often true in cases involving the statute Rafiekian was prosecuted under – a statute similar to FARA that is aimed at non-political activities. The Court noted that often, “savvy operatives cover their tracks,” and the government often needed to rely on circumstantial evidence and reasonable inferences to make its case. Under a deferential standard of review, the Court wrote, it was obligated to uphold the jury’s verdict if any trier of fact could have found that the evidence, along with any reasonable inferences, established the essential elements of the crime beyond a reasonable doubt.
The Court vacated the lower court’s conditional grant of a new trial, remanding the case back to the lower court for further proceedings.
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