United States v. Rafiekian

• Decision Date: 18 March 2021
• Docket Number: No. 19-4803,19-4803
• Citation: 991 F.3d 529
• Parties: UNITED STATES of America, Plaintiff - Appellant, v. Bijan RAFIEKIAN, a/k/a Bijan Kian, Defendant - Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

991 F.3d 529

UNITED STATES of America, Plaintiff - Appellant,

v.Bijan RAFIEKIAN, a/k/a Bijan Kian, Defendant - Appellee.

No. 19-4803

United States Court of Appeals, Fourth Circuit.

Argued: December 11, 2020

Decided: March 18, 2021

ARGUED: Aidan Taft Grano, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellant. James Edward Tysse, AKIN GUMP STRAUSS HAUER & FELD LLP, Washington, D.C., for Appellee. ON BRIEF: Steven L. Lane, Evan N. Turgeon, National Security Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; G. Zachary Terwilliger, United States Attorney, James P. Gillis, Assistant United States Attorney, John T. Gibbs, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellant. Robert P. Trout, TROUT CACHERIS & SOLOMON PLLC, Washington, D.C.; Mark MacDougall, Stacey H. Mitchell, John C. Murphy, Adam A. Bereston, Margaret O. Rusconi, AKIN GUMP STRAUSS HAUER & FELD LLP, Washington, D.C., for Appellee.

Before NIEMEYER, KEENAN, and WYNN, Circuit Judges.

Reversed in part, vacated in part, and remanded by published opinion. Judge Wynn wrote the opinion, in which Judge Niemeyer and Judge Keenan joined.

WYNN, Circuit Judge:

A jury convicted Bijan Rafiekian of acting as an unregistered foreign agent and conspiring to do the same. But the district court later acquitted him of all charges and, in the event we disagreed with that decision, conditionally granted a new trial. The Government appeals. For the reasons that follow, we reverse the judgment of acquittal, vacate the conditional grant of a new trial, and remand for further proceedings.

I.

A.

In late July 2016, the Turkish government made a request to the Department of Justice ("DOJ") for the extradition of Fetullah Gulen, a Turkish preacher and scholar living in Pennsylvania. Once an ally of Turkish president Recep Tayyip Erdogan, Gulen had since become a dissident. And after an attempted coup against Erdogan failed, Turkey blamed Gulen and sought his extradition. DOJ declined to immediately arrest Gulen, but the State Department placed the extradition request under review.

At that time, Rafiekian was an executive at the now-dissolved Flynn Intel Group—an eponymous consulting and lobbying firm that he co-founded with retired Lt. Gen. Michael T. Flynn. Within ten days of the failed coup—and just six days after DOJ rebuffed Turkey's initial demand for Gulen—Rafiekian and Flynn began dialoguing with Ekim Alptekin, a Turkish businessman. Alptekin claimed to have pitched high-ranking Turkish officials on hiring Flynn Intel Group for a project related to Turkey's "security and stability." J.A. 2176.¹ The project was informally referred to as "Truth." See, e.g. , J.A. 2178.

The dialogue with Alptekin progressed quickly. For instance, Rafiekian sent Alptekin a list of initial action items for Project Truth on July 30, 2016. A few days later, Alptekin reported that he had shared the "proposed approach" with Turkey's Foreign Affairs and Economic Ministers, who were receptive. J.A. 2184, 2187. Rafiekian responded that the project would be given "priority." J.A. 2191. And on August 10, Alptekin messaged Rafiekian and Flynn to say that he had received "a green light" to discuss "confidentiality, budget[,] and the scope of the contract." J.A. 2201. The next day, Rafiekian notified Alptekin that he and Flynn had "activated" Flynn Intel Group's "investigative laboratory" and were "ready to push the start button." See J.A. 2207, 2221.

Thereafter, neither Rafiekian nor Flynn made any further references to Project Truth. Instead, Rafiekian informed Flynn Intel Group employees that the firm had been engaged by a Dutch company—Inovo BV—on a project he called "Confidence." J.A. 2212. Per a separate agreement, Alptekin would consult on the project as a paid "outside advisor"—an unusual arrangement, given that he was also Inovo's lone shareholder and employee. J.A. 2240, 2571–72.

Project Confidence's broadly stated mission was to "restore ‘confidence through clarity’ in [Turkey's] trade and investment climate." J.A. 2207. But as the record here shows, the project's primary objective was to investigate and publicly disparage Gulen, so as to foster his extradition. According to an early "playbook" circulated by Rafiekian, Project Confidence's "end product" would be a documentary-style video highlighting "Gulen's network of loyalists and his influence over them" and comparing him to Iran's Ayatollah Khomeini. J.A. 2226–30.

On September 19, 2016, Alptekin hosted a late-night meeting between Rafiekian, Flynn, and Turkey's Energy and Foreign Affairs Ministers at a hotel in New York ("the New York meeting"). The topic of conversation at the meeting was Gulen—specifically whether he had broken any U.S. laws or could be labeled a terrorist. After the meeting, Rafiekian emailed Flynn to say that he had received positive "feedback," but that Alptekin had also conveyed "very specific expectations" from "their side." J.A. 2249. Rafiekian thought some of those "expectations" were borderline "unreasonable," but he assured Alptekin that Flynn Intel Group would "deliver what [it had] promise[d]." Id.

Work on Project Confidence ramped up in the fall. Flynn Intel Group hired a public relations firm, Sphere Consulting, to help investigate Gulen, conduct media outreach, and produce the aforementioned video.² Meanwhile, Rafiekian lobbied at least two members of Congress to push for public hearings on Gulen and his activities.³ Alptekin was kept in the loop via weekly conference calls.

On November 2, 2016, Alptekin went to Flynn Intel Group's headquarters for an update and presentation on Project Confidence. He was apparently disappointed with the firm's progress, stating that he had been "expecting congressional hearings ... [,] big news stories ... [, and] the Department of Justice to be involved," but was "not seeing anything." J.A. 1290.⁴ That evening, however, Rafiekian emailed Alptekin a draft of an op-ed he had composed. The piece—which was deeply critical of Gulen—was published in The Hill on November 8 under Flynn's name. Alptekin praised it as "right on target." J.A. 2320.

The op-ed evidently caught the Government's eye. On November 30, DOJ sent an inquiry letter to Flynn to probe whether Flynn Intel Group (or related persons or entities) might have a "possible obligation to register under the Foreign Agents Registration Act," 22 U.S.C. § 611 et seq. J.A. 2421–23 (capitalization altered). The letter noted that, in the wake of the op-ed's publication, "numerous media reports ha[d] suggested" that either Flynn, personally, or Flynn Intel Group "may have engaged in activities on behalf of the Government of Turkey through [their] affiliation with [Alptekin]." Id. It also sought clarifying information.

Despite their formal agreements with Inovo and Alptekin—both foreign partners—Rafiekian and Flynn had debated how (or whether) to disclose their work on Project Confidence to American authorities. Early on, Rafiekian suggested to Flynn that the firm register its activity "under [the] Lobbying Disclosure Act representing a Dutch entity."⁵ J.A. 2226. Flynn was apparently of the mind that their work should be "file[d] with DOJ" instead.⁶ J.A. 984. But Rafiekian worried that doing so would expose the project to "members of Congress who were favorable to Gulen." Id. And so, on September 30, 2016, Flynn Intel Group registered under the Lobbying Disclosure Act, explaining in a single sentence that it would be "advis[ing] [Inovo] on U.S. domestic and foreign policy." J.A. 2581–82.

In its inquiry letter sent two months later, DOJ requested information far in excess of that provided in Flynn Intel Group's Lobbying Disclosure Act filing: descriptions of any agreements, written or otherwise, between the firm and "the Government of Turkey," Alptekin, the Turkish–American Business Council, or Inovo; details of any activities performed on their behalves; copies of emails pertaining to the op-ed; and answers to several specific questions. J.A. 2422.

Flynn Intel Group hired the law firm of Covington & Burling LLP ("Covington") to help craft a response. Covington conducted extensive fact-gathering—collecting emails, interviewing Flynn Intel Group personnel, and reviewing "work product generated under the Inovo contract." J.A. 793. During the investigation, Rafiekian was adamant that Project Truth and Project Confidence were "completely separate"; that although the client for Project Truth "would have been the government of Turkey," the project "never came to fruition"; and that, "after [Turkey] backed out," Alptekin sought to engage Flynn Intel Group for a distinct venture, Project Confidence, in which "the Turkish government played no role." J.A. 799–801. Rafiekian also insisted that the New York meeting with Turkish officials and the op-ed were both "unrelated to Project Confidence"—even though the meeting took place and the op-ed was published while work on Project Confidence was ongoing. J.A. 802, 805.

At the conclusion of its investigation, Covington submitted a Foreign Agents Registration Act filing for Flynn Intel Group. According to that filing, the op-ed "was not written or published at the request of, or under the direction or control of, Inovo, the Republic of Turkey, or any other party." J.A. 2350. And more generally, it stated that "Flynn Intel Group d[id] not know whether or the extent to which the Republic of Turkey was involved with its retention by Inovo." J.A. 2334.

B.

Unassuaged by the Foreign Agents Registration Act filing, DOJ continued its probe of Flynn Intel Group's activities. In December 2018, a federal grand jury indicted Rafiekian on two counts.⁷ In Count One, the grand jury charged Rafiekian with criminal conspiracy under 18 U.S.C. § 371. The conspiracy charge had two objects: (a) acting as an undisclosed Turkish agent, in violation of 18 U.S.C. § 951 ; and (b) making a materially false Foreign Agents Registration Act filing, in...