United States v. Rafiekian, No. 19-4803 (4th Cir. 2021)
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The Fourth Circuit reversed the district court's judgment of acquittal after a jury convicted defendant, a former executive of the now-dissolved Flynn Intel Group, of two counts. In Count One, the grand jury charged defendant 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 violation of 22 U.S.C. 618(a)(2). In Count Two, the grand jury charged defendant with a substantive section 951 violation—i.e., for acting as a foreign agent in the United States without first notifying the Attorney General.
The court largely agreed with the district court that, similar to common-law conspiracy, section 951’s definition of "agent" envisions a mutual agreement to operate subject to foreign direction or control. However, the court disagreed with the district court as to the degree of foreign involvement required to violate section 951. The court concluded that, to be an "agent of foreign government," a person must "agree[] to operate . . . subject to [foreign] direction or control." The court explained that such an agreement cannot be one-sided, and a person does not become an "agent" for purposes of section 951 simply by acting in accordance with foreign interests or by privately pledging allegiance. Nonetheless, a foreign principal's involvement does not need to mirror an employer's control over the workings of an employee; a lesser degree of "direction" is sufficient, as it would be under the common law. The court also conculded that the "legal commercial transaction" exception found in section 951(d) provides for an affirmative defense—which must be raised first, if at all, by a defendant—rather than an essential element of the offense.
In this case, the court concluded that the jury heard sufficient evidence that defendant acted as "an agent of a foreign government" in violation of section 951. The court explained that 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 a Turkish businessman, Turkey communicated both general and specific instructions; and that defendant hewed to those directions over the life of the engagement—all without notifying the Attorney General. The court also concluded that a reasonable jury could conclude that defendant conspired to act subject to Turkey's direction without first notifying the Attorney General. Finally, the court concluded that the district court abused its discretion in conditionally granting a new trial and the district court's reasons for granting a new trial provided insufficient justification for doing so. Accordingly, the court vacated the conditional grant of a new trial and remanded for further proceedings.
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