United States v. Bijan Rafiekian
991 F.3d 529
| 4th Cir. | 2021Background
- Bijan Rafiekian, co-founder/executive at Flynn Intel Group, worked with Turkish businessman Ekim Alptekin in 2016 on a project begun as “Project Truth” (for Turkey) and later rebranded as “Project Confidence” (nominally for Dutch company Inovo) targeting Fetullah Gulen.
- Flynn Intel Group produced press work (including an op-ed published under Michael Flynn’s name) and retained PR/lobbying consultants; payments flowed through Alptekin and Inovo, with indications of confidentiality and concern about revealing Turkey’s role.
- DOJ sent an inquiry about possible Foreign Agents Registration Act obligations; Covington investigated and submitted a FARA filing for Flynn Intel Group denying Turkish direction/control for the op-ed and expressing uncertainty about Turkey’s involvement.
- A grand jury indicted Rafiekian under 18 U.S.C. § 951 (acting as an unregistered foreign agent) and conspiracy (18 U.S.C. § 371) including a FARA-filing-object; trial jury convicted on both counts.
- The district court granted a full judgment of acquittal and, conditionally, a new trial (on assorted grounds). The Government appealed; the Fourth Circuit reversed the acquittal, vacated the conditional new trial, and remanded.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Rafiekian) | Held |
|---|---|---|---|
| 1) Meaning of “agent” under §951 — direction/control requirement | §951 is broad; “direction or control” should be read expansively (including unilateral willingness to follow requests) | §951 requires an agency relationship akin to common-law agency — mutual assent and substantial direction/control | Court: §951 resonates with common-law agency (requires mutual assent), but does not demand employer‑style day‑to‑day control; lesser direction than employee control can suffice |
| 2) Whether the “legal commercial transaction” exception is an element or an affirmative defense | The exception is part of the offense and thus must be alleged/proved by Government | The exception is an affirmative defense that the defendant must raise/prove | Court: Exception is an affirmative defense (defendant bears burden to raise it); not an element of the offense |
| 3) Sufficiency of evidence for substantive §951 conviction (Count Two) | Circumstantial evidence (timing, project overlap, Alptekin’s role, New York meeting, payment routing, op‑ed) supports finding Rafiekian agreed to operate subject to Turkish direction/control without notifying AG | Insufficient direct evidence of Turkish instruction/control; projects were commercial and independent; no direct communications with Turkish officials | Court: Viewing all evidence and reasonable inferences in Government’s favor, a rational juror could find beyond a reasonable doubt that Rafiekian acted as an agent of Turkey; conviction reinstated |
| 4) District court’s conditional new‑trial grant under Rules 29/33 | District court identified weight‑of‑evidence, hearsay‑instruction, Flynn‑instruction, and mens rea defects justifying new trial | Rafiekian sought new trial on those grounds (and benefits from district court’s grant) | Court: District court abused discretion. Vacated conditional new trial because (1) weight rationale mirrored erroneous acquittal; (2) no basis to doubt jury followed hearsay limiting instructions; (3) jury‑instruction complaint about Flynn was not raised in defendant’s Rule 33 motion; (4) mens‑rea instruction error rested on incorrect view that exception was an element |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency of the evidence review)
- Neder v. United States, 527 U.S. 1 (courts may import common‑law meaning of statutory terms where appropriate)
- Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318 (use of common‑law definitions in statutory interpretation)
- United States v. Royal, 731 F.3d 333 (4th Cir. 2013) (statutory exception as affirmative defense; analogous analysis)
- McKelvey v. United States, 260 U.S. 353 (indictment need not negative an exception; burden normally on defendant)
- Meacham v. Knolls Atomic Power Lab., 554 U.S. 84 (background conventions about burden allocation)
- In re Winship, 397 U.S. 358 (Government must prove every fact necessary to constitute offense beyond reasonable doubt)
- Griffin v. United States, 502 U.S. 46 (for dual‑object conspiracy, conviction sustained if evidence supports either object)
- United States v. Burgos, 94 F.3d 849 (en banc) (holistic review of trial evidence and reasonable inferences)
- Francis v. Franklin, 471 U.S. 307 (jurors presumed to follow instructions)
- Richardson v. Marsh, 481 U.S. 200 (limiting instructions generally effective)
- Donnelly v. DeChristoforo, 416 U.S. 637 (do not lightly infer prosecutor intended most damaging meaning from ambiguous remarks)