The Fourth Circuit made mincemeat of Bijan Kian’s acquittal after-the-fact, saying the trial court was also wrong to conditionally grant a new trial.
RICHMOND, Va. (CN) — Do not pass Go. Do not collect $200. An ex-business partner of former national security adviser Michael Flynn got a rude awakening Thursday as the Fourth Circuit reinstated his conviction for acting as an unregistered foreign agent of the Turkish government.
In a case spun off from special counsel Robert Mueller’s investigation of Russian election interference, a federal jury in Alexandria, Virginia, had returned the verdict against Bijan Kian related to his work as vice chair of the Flynn Intel Group.
Co-founded by and named after the U.S. military general who served briefly and infamously in the early days of the Trump administration, the now- dissolved Flynn Intel Group earned $600,000 from a secret 2016 lobbying campaign aimed at discrediting Fethullah Gulen, a cleric Turkish President Recep Erdogan has blamed for a failed coup against him.
Kian’s jury convicted the 66-year-old Iranian-American of covering up that payment after less than six hours of deliberations in 2019. Months later, however, U.S. District Judge Anthony Trenga vacated the verdict on the basis of insufficient evidence.
“There is no substantial evidence that Rafiekian agreed to operate subject to the direction or control of the Turkish government,” wrote Trenga, an appointee of President George W. Bush.
On Thursday, a three-judge panel of the Fourth Circuit unanimously reversed.
“We are convinced that the jury heard sufficient evidence that Rafiekian acted as ‘an agent of a foreign government,’” U.S. Judge James Wynn wrote for the majority, referring to Kian by an alternate surname.
“Under our deferential standard of review, we must uphold the jury’s verdict if ‘any trier of fact could have found that the evidence — either direct, circumstantial or a combination of both — along with any reasonable inference established the essential elements of the crime beyond a reasonable doubt,” the Obama-appointed Wynn wrote.
U.S. Circuit Judges Paul Neimeyer and Barbara Keenan concurred.
They faulted Trenga for giving “insufficient deference to the ‘almost invariable assumption of the law’ that the jury was capable of following its … instructions.”
Prosecutors said the anti-Gulen campaign was brokered by businessman Ekim Alptekin, who had reportedly funneled hundreds of thousands of dollars through his Dutch company to Flynn’s account.
“Alptekin claimed to have pitched high-ranking Turkish officials on hiring Flynn Intel Group for a project related to Turkey’s ‘security and stability.’” Wynn wrote.
Turkey sought Gulen’s extradition after the coup attempt, but the Justice Department declined to immediately arrest him.
Among other efforts to discredit Gulen following the decision not to arrest him, Flynn wrote an op-ed piece in 2016 calling Gulen “radical” and likening him to former Iranian leader Ayatollah Ruhollah Khomeini.
After several meetings and communications, according to the ruling, Flynn Intel’s project to smear Gulen “ramped up in the fall.” Flynn Intel Group hired a public relations firm, Sphere Consulting, to help investigate Gulen, conduct media outreach and produce a video.
“Meanwhile, Rafiekian lobbied at least two members of Congress to push for public hearings on Gulen and his activities. Alptekin was kept in the loop via weekly conference calls,” Wynn wrote.
The panel decided not to grant a new trial to Rafiekian.
“In conditionally granting a new trial, therefore, the court failed to “adequately . . . take into account judicially recognized factors constraining” its authority and rested its decision on “erroneous . . . legal premises,” Wynn concluded.