A former partner in the consultancy firm of retired Lt. Gen. Michael Flynn is asking a federal court for a new trial, claiming multiple issues, including weak evidence, prejudice, and a flawed indictment.
Bijan Rafiekian, former vice chair of the now-defunct Flynn Intel Group (FIG), was convicted on July 23 of lobbying in the United States on behalf of Turkey in 2016 without disclosing it to the U.S. government and of a separate count of a conspiracy to do so.
U.S. District Judge Anthony Trenga seemed on the cusp of throwing the case out on July 18. He ultimately allowed it to proceed, but reserved his decision on the matter and set a hearing for Sept. 5, when he could still rule to acquit Rafiekian.
On Aug. 17, Rafiekian’s lawyers filed a memorandum, again calling on Trenga to throw out the case or at least to order a new trial.
They argued that Trenga already acknowledged the evidence was too weak when he ruled on July 9 to exclude from evidence hearsay statements of Rafiekian’s alleged co-conspirator, Turkish businessman Ekim Alptekin. Trenga said then that prosecutors failed to establish the existence of a conspiracy by a preponderance of the evidence.
“By definition, this Court has already found that the evidence … contradicted the jury’s verdict,” the lawyers said.
In the end, the judge allowed the prosecutors to use a sizable list of Alptekin’s statements, such as emails and Skype chat messages he sent to Rafiekian, “though solely for [their] effect on the listener, rather than for [their] truth,” the defense said.
“None of this hearsay evidence … was shown to actually have had any effect on Rafiekian,” the lawyers said. “[And yet the prosecution] repeatedly cited these hearsay statements for their truth, despite the Court’s limiting instruction.”
The jury was forced “to ignore the volumes of seemingly relevant—but unquestionably inadmissible—hearsay evidence that comprised the bulk of the government’s case,” the defense said, concluding that “the cumulative effect of this evidence ended up being highly prejudicial to Rafiekian.”
The lawyers also criticized that the prosecution several times implied that Rafiekian put up a weak defense, as if it was his job to prove his innocence.
“Improper burden shifting may well have misled the jury,” they said.
They further argued that the indictment failed to list some of the statutes that the prosecutors later argued Rafiekian broke. While a technicality, the defense found a case in which an appeals court in the past reversed a conviction on such grounds.
Also, the jury wasn’t properly instructed on some points of the law, they said.
Alptekin, who is known to have ties to the Turkish government, paid more than $500,000 to FIG in 2016 to do research and lobbying focused on an Islamic cleric living in exile in Pennsylvania named Fethullah Gulen, who runs a group that Turkish President Recep Tayyip Erdogan blames for an attempted coup in 2016.
On Nov. 8, 2016, Rafiekian had an op-ed published under Flynn’s name in The Hill arguing for the extradition of Gulen.
When FIG retroactively registered under the Foreign Agent Registration Act in March 2017, it disclosed the op-ed as benefiting Turkey, but said it was unrelated to the lobbying job.
The prosecution argued that the op-ed was part of a conspiracy to lobby in the United States on behalf of Turkey without disclosing it to the U.S. government.
Flynn, former head of military intelligence in the Obama administration and former national security adviser to President Donald Trump, wasn’t charged in the case, as a part of a deal in which he pleaded guilty to lying to the FBI.