68 F.4th 177
4th Cir.2023Background
- Bijan Rafiekian, a Flynn Intel Group (FIG) executive, worked with Michael Flynn and Turkish businessman Ekim Alptekin/Inovo BV on a project (Operation Confidence) aimed at restoring confidence in Turkey’s investment climate by discrediting Fethullah Gulen.
- FIG performed consulting/PR work, paid and received payments involving Alptekin/Inovo, and published a Gulen-critical op-ed under Flynn’s name; DOJ sent an inquiry about FARA obligations after the op-ed.
- FIG initially considered FARA registration; counsel at Covington later filed a FARA disclosure acknowledging possible benefit to Turkey; FIG had earlier registered under the Lobbying Disclosure Act through outside counsel.
- Rafiekian was indicted on (1) conspiracy (18 U.S.C. § 371) to act as an unregistered foreign agent (18 U.S.C. § 951) and to make false FARA filings, and (2) acting as an unregistered foreign agent (18 U.S.C. § 951).
- A jury convicted Rafiekian in 2019, but the district court granted judgment of acquittal and conditionally ordered a new trial; this court reversed the acquittal in Rafiekian I, vacated the conditional new-trial order, and remanded for further explanation.
- On remand the district court again ordered a new trial after a detailed 51‑page opinion finding the jury verdict against the weight of the evidence; the Fourth Circuit affirms that new‑trial grant.
Issues
| Issue | Government Argument | Rafiekian Argument | Held |
|---|---|---|---|
| Standard: May a district court grant a new trial based solely on disagreeing with the jury’s inferences? | A court may not base a new trial solely on disagreement with jury inferences; there must be specific defects or indicia of unreliability in the evidence. | A district court may reweigh evidence and draw different inferences when acting as the "thirteenth juror." | A district court may grant a new trial based on its assessment of the weight of the evidence, including disagreeing with jury inferences, when the verdict would be a manifest injustice. |
| Count Two (§ 951): Did evidence prove Rafiekian acted subject to Turkey’s "direction or control"? | Pointed to circumstantial proof (communications, meetings, payments, project overlap) supporting inference of Turkey’s direction/control via Alptekin. | The evidence shows Inovo was the client, no direct Turkish instructions, FIG resisted certain requests, and the contract was arms‑length. | The district court reasonably found inculpatory inferences weak and innocent inferences stronger; no abuse of discretion to grant a new trial on Count Two. |
| Count One (Conspiracy § 371): Did evidence show agreement to violate § 951 or to make false FARA filings? | Circumstantial pattern supported an agreement to act as an undisclosed agent and to obscure the relationship. | Evidence of legal advice (Kelley, Covington), disclosures to Covington, and commercial contract undercut any conspiratorial agreement. | The court did not abuse discretion in concluding the evidence of an agreement was weak and a new trial was warranted. |
| Abuse of discretion (appellate scope): Did the district court exceed its Rule 33 bounds or rest on erroneous premises? | Argued district court substituted its view for the jury without identifying special defects in testimony or evidence. | District court acted within Rule 33 authority, carefully weighed credibility and cumulative evidence, and identified persuasive innocent inferences. | The Fourth Circuit defers to the district court’s discretionary assessment and affirms the grant of a new trial. |
Key Cases Cited
- United States v. Rafiekian, 991 F.3d 529 (4th Cir. 2021) (prior panel decision defining § 951 "direction or control" and reversing acquittal)
- Tibbs v. Florida, 457 U.S. 31 (U.S. 1982) (distinction between acquittal and new trial based on weight of the evidence)
- United States v. Campbell, 977 F.2d 854 (4th Cir. 1992) (district court may draw inferences contrary to jury when considering a new trial)
- United States v. Arrington, 757 F.2d 1484 (4th Cir. 1985) (new‑trial standard; judge as "thirteenth juror")
- United States v. Burgos, 94 F.3d 849 (2d Cir. 1996) (conspiracy may be proved wholly by circumstantial evidence)
- United States v. Millender, 970 F.3d 523 (4th Cir. 2020) (describing demanding standard for upsetting jury verdict)
- United States v. Chavez, 894 F.3d 593 (4th Cir. 2018) (credibility and evidentiary weighing are factfinder responsibilities)
- Burks v. United States, 437 U.S. 1 (U.S. 1978) (principles on appellate review of sufficiency of evidence)
- United States v. Lincoln, 630 F.2d 1313 (8th Cir. 1980) (discussing the court’s role in weighing evidence when considering new trial)