Judge James Wynn, fourth circuit, acknowledged that the evidence against Rafiekian was far from overwhelming, but he said judges could acquit the accused on the basis of circumstantial evidence and inferences.
“We are convinced that the jury has heard sufficient evidence that Rafiekian acted as an ‘agent of a foreign government,'” Wynn wrote. ‘Based on the evidence presented, a rational juror could conclude that the Turkish government was actually behind the project; that Turkey has communicated through Alptekin both general and specific instructions; and that Rafiekian hacked in these directions during the lifetime of the engagement – all without notifying the Attorney General. ”
Flynn was never charged in the case, though the former national security adviser admitted to approving false reports about the work submitted to the Justice Department as part of a plea deal with Special Counsel Robert Mueller’s office. Flynn later insisted he did not know the information was false and that he had never checked the documents carefully.
While the 4th Circuit opinion essentially concluded that the project pursued by the Flynn Intel Group consulting firm was an illegal, unregistered lobbying work for the Turkish government, Wynn briefly stopped in his opinion to state that Flynn did criminal activities in connection with the work. .
“We refrain from drawing any conclusions regarding Flynn’s alleged participation,” Wynn wrote.
Trenga said jurors did not “adequately instruct” Flynn’s role, but the appellate court said that because Rafiekian’s lawyers did not raise the issue in their motion to set aside the verdicts, Trenga should not have considered it.
Flynn’s legal debt is now a big point. Amid protracted legal battle over Flynn’s guilty plea against a false statement in the Mueller investigation, President Donald Trump issued a major pardon to Flynn in November last year, apparently outlining the possible criminal liability arising from the Turkey-related lobbying or put away alleged attempts to obscure it. US authorities.
Attorney General William Barr ordered an unusual internal review of Flynn’s investigation and prosecution prior to the acquittal. Barr concluded that the attempt was deeply flawed and he dropped the case. A judge at the time had not yet ruled on the motion when Trump granted Flynn’s forgiveness. Justice Department officials did not want to say whether the coverage of the issues related to lobbying in Turkey was covered, but they insisted on the case against Rafiekian.
During the Turkey-related work, Flynn was a top adviser to Trump’s presidential campaign. After the election, Rafiekian becomes an adviser to Trump’s transition team.
The Court of Appeal’s 40 – page opinion appears to contain at least one incorrect fact related to the Flynn-Rafiekian saga. Wynn said Flynn changed his mind about testifying against Rafiekian shortly before Rafiekian’s trial in 2019 in Alexandria, Va.
However, the court documents say prosecutors decided not to call Flynn as a witness after a very controversial conversation with his lawyers, which indicated that his testimony might not be as favorable to the government as prosecutors expected.
Rafiekian can ask the full bench of the Court of Appeal to take up the case or request a review by the Supreme Court. Without further intervention, the case will return to Trenga for the sentencing of Rafiekian. He faces a maximum possible sentence of 15 years in prison, but sentences in similar cases are usually less than the maximum.
An attorney for Rafiekian did not immediately comment on the verdict or take any further steps.
Some aspects of the 4th job decision could complicate future prosecutions by foreign agents. Wynn saw the blame because the government’s interpretation of the term ‘agent’ is used too often under a law to prosecute such cases.
The appeals court noted that prosecutors said someone could be guilty of unregistered conduct for a foreign government when he or she was “willing to do something the foreign principal requested.” But Wynn said Trenga “rightly rejected” the view.
The ruling on that point may make it more difficult for the government to enforce the relevant criminal law on foreign agencies, known as Section 951.
The verdict gives prosecutors the option to prosecute those individuals under the more well-known law on the registration of foreign agencies, but criminal prosecution under the law is more difficult because a conviction requires proof that an accused knew of their obligation to registered and ignored it. The proof is not required under section 951, which is more similar to a traditional espionage law.
Wynn said Trenga had gone too far and suggested that Rafiekian should receive daily instructions from a foreign government or entity to act as a foreign agent. However, the Court of Appeal said that activities that merely coincide with the interests of a foreign government or seek to benefit from it do not make anyone an agent.
The line between an ‘agent’ working under the ‘control’ of a foreign government and one who instead agrees to work subject to a more practical form of ‘direction’ – as an agent-independent contractor could – can be a hazy one. Yet we find no reason to believe that Congress has tried to exclude the latter variety of agencies [Section] 951, ”Wynn wrote.
‘Given the heavy fines for a [Section] “In violation of 951, we refuse to conclude that a congress’ intention is to deviate from the foundation and impose the law on every wannabe missionary in the absence of explicit language,” the judge said. the Court of Appeal wrote.
Wynn joined the government over another disputed case in the case: whether prosecutors had to show beyond a reasonable doubt that Rafiekian’s work was not part of a ‘legal commercial transaction’ and whether the defense had to show that it was the complaint. had to defeat. The appellate court said prosecutors were not obliged to prove as part of their case that Rafiekian’s actions were not ordinary commercial activities.