The Justice Department celebrated an appeals court decision to reinstate a conviction against retired Lt. Gen. Michael Flynn’s former business partner after a district judge tossed out the jury decision on charges of an illegal unregistered lobbying scheme on behalf of Turkey’s government.
California businessman Bijan Rafiekian was accused of working with Turkish co-conspirator Kamil Ekim Alptekin in an alleged covert conspiracy in the United States at the instruction of Turkey’s government in a 2016 plot to employ the Flynn Intel Group, founded by Rafiekian and Flynn, to influence U.S. politicians and U.S. public opinion against Fethullah Gulen, a Turkish imam and writer living in U.S. exile. Turkish President Recep Tayyip Erdogan has been repeatedly, and unsuccessfully, pushing the U.S. to extradite Gulen to Turkey since 2015.
Rafiekian was charged with acting as an unregistered foreign agent and with conspiring to submit a false Foreign Agents Registration Act filing in 2018 and was convicted after a jury trial in 2019, but presiding Judge Anthony Trenga, appointed to the U.S. District Court for the Eastern District of Virginia in 2008 by President George W. Bush in 2008, granted the Flynn partner an acquittal, citing a lack of strong evidence. Flynn, a former Trump national security adviser, was charged in the lobbying scheme, and prosecutors considered calling him as a witness at the trial, though that did not happen.
The Rafiekian case made its way up to U.S. Court of Appeals for the 4th Circuit, and on Thursday, it reinstated the guilty verdict. Circuit Judge James Wynn, picked for the appeals court gig by President Barack Obama in 2009, authored a lengthy opinion detailing the three-judge panel’s unanimous opinion that the conviction should be upheld.
“The list of evidence that the Government did not produce at trial is long. No emails or phone calls between Rafiekian and any Turkish official. No bank records tracing the flow of funds back to governmental accounts. No direct evidence clarifying Alptekin’s role vis-à-vis Turkey. No live testimony from Rafiekian, Flynn, or Alptekin,” the appeals court said. The court added: “Savvy operatives cover their tracks. So, if the prosecution is to prove that a defendant acted as an ‘agent of a foreign government,’ it may need to rely on circumstantial evidence and reasonable inferences to make its case — as it is entitled to do. And here, the Government lassoed enough stars to reveal a distinct constellation.”
The court concluded: “We are convinced that the jury heard sufficient evidence that Rafiekian acted as ‘an agent of a foreign government.’ … Based on the evidence presented, a rational juror could conclude that Project Truth was synonymous with Project Confidence; 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.”
The Justice Department celebrated the decision, noting in a press release that the purpose of the alleged conspiracy was to use the Flynn Intel Group “to delegitimize Gulen in the eyes of the American public and U.S. politicians, with the goal of obtaining his extradition, which was meeting resistance at the U.S. Department of Justice” while “the conspirators sought to conceal that the Government of Turkey was directing the work.”
John Demers, the head of the DOJ’s National Security Division, and Raj Parekh, the acting U.S. attorney for the Eastern District of Virginia, issued a joint statement after the appeals court reimposed the guilty verdict and sent the case back to the lower court for sentencing.
“We are pleased the Fourth Circuit concluded that the jury’s verdict was amply supported by the evidence,” the DOJ officials said, adding, “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. The Department will continue to combat covert foreign influence operations using the Foreign Agents Registration Act and all the tools at its disposal.”
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Flynn fought to dismiss a government case against him in 2020 after he pleaded guilty in December 2017 to lying to investigators about his December 2016 conversations with Russian Ambassador Sergey Kislyak. The U.S. government intercepted Flynn’s discussions with Kislyak, after which now-fired FBI special agent Peter Strzok and FBI agent Joseph Pientka grilled him on the contents of the conversation on Jan. 24, 2017.
Flynn told the court in January 2020 that he was “innocent of this crime.” He filed to withdraw his guilty plea after the Justice Department asked the judge to sentence him to up to six months in prison — though, afterward, the department said probation would also be appropriate. The Justice Department later moved to drop the charges in May, following a deep-dive review by DOJ investigators. The DOJ later said, “Continued prosecution of this case would not serve the interests of justice.” Former President Donald Trump granted Flynn a broad pardon in November.