UPDATE: On March 18, 2021, Rafiekian’s FARA conviction was reinstated by the Fourth Circuit Court of Appeals. The Court opined that the circumstantial evidence and reasonable inferences were sufficient for the jury to rely on to convict Rafiekian.
. . .
On September 24th, Judge Trenga of the U.S. District Court for the Eastern District of Virginia set aside the conviction of former Michael Flynn associate Bijan Rafiekian. In July, a federal jury had convicted Rafiekian, who ran a consulting firm with Michael Flynn hired to advocate for the extradition of Turkish dissident cleric Fethullah Gulden, of acting as an unregistered foreign agent in the U.S. and conspiracy to violate the Foreign Agents Registration Act (FARA).
Judge Trenga’s opinion cited insufficient evidence to sustain Rafiekian’s conviction on both counts. The statute Rafiekian was prosecuted under, 18 U.S.C. § 951, defines an agent of a foreign government as “an individual who agrees to operate within the United States subject to the direction or control of a foreign government or official.” The statute is similar to FARA but is aimed at non-political activities. The Court found that there was no substantial evidence to support the Government’s allegation that Rafiekian agreed to operate under the direction or control of the Turkish government. Under the statute, the Court noted, it is not enough to act simply as a representative on behalf of a foreign government. The Government’s construction of the statute “fundamentally and substantially broadens what can be discerned as Section 951’s intended reach.” The Court determined that the Government had impermissibly conflated Section 951’s definition of “agent” with the broad definition “agent” under FARA.
The Court noted that the only contact between Rafiekian and any Turkish official occurred during on meeting in 2016, and there was nothing said at that meeting that indicated Rafiekian had agreed to operate under the direction or control of the Turkish government. None of the agreements involved reflected any involvement by the Turkish government, nor did the day-to-day details of the work actually performed by Rafiekian reflect that he was acting on instructions from the Turkish government.
The other conviction, that on the count of conspiracy to make willful and material false statements and omissions in a FARA filing, was also deficient, the Court said. According to Judge Trenga, there was no evidence of discussions or suggestions, let alone an agreement, to avoid filing under FARA or file a false FARA registration statement. The Court pointed out that Rafiekian “consulted with two law firms concerning his obligations to register under FARA before ultimately filing under the Lobbying Disclosure Act (LDA in accordance with the legal advice he obtained.” The judge ultimately granted Rafiekian’s motion for acquittal and provided that if his decision were vacated or reversed by a higher court, a new trial would be warranted.
 18 U.S.C. § 951(d).
 Department of Justice, FARA Related Statutes, available at https://www.justice.gov/nsd-fara/fara-related-statutes.
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