US v. Rafiekian: Rafiekian worked with Michael Flynn’s lobbying and consulting group. After a failed coup in Turkey, which Turkey’s leader blamed partly on a dissident cleric who resided in Pennsylvania, Rafiekian became involved in various activities related to pressuring the United States to extradite the cleric. This was done in concert with a Turkish businessman and involved a shell organization to do PR and lobby. Ultimately, Rafiekian never disclosed any of these contacts to the Government as required and was charged with conspiracy and acting as a foreign agent without notifying the Attorney General. After a jury trial where he was convicted on both counts, the district court granted a motion for a judgment of acquittal, concluding that there was insufficient evidence that Rafiekian had been operating “subject to the direction or control of that foreign government.” In the alternative, the court granted Rafiekian a new trial on several grounds.
On appeal, the Fourth Circuit reversed the district court in both matters. As to the judgment of acquittal, the court concluded that the district court erred in identifying what the Government was required to prove with regard to acting as a foreign agent. It was enough, the court concluded, to show some degree of “direction” by the foreign government short of a direct employer/employee style relationship and sufficient evidence of that was presented here (it “lassoed enough stars to reveal a distinct constellation”). The court also held that the district court abused its discretion in ordering a new trial. Aside from issues related to the sufficiency of the evidence, the court held that there was no problem with the use of certain hearsay testimony (with appropriate limiting instructions from the district court) or with the lack of instruction related to Flynn’s role in the conspiracy, an issue which Rafiekian had not raised in the first place.
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