A federal appeals court on Thursday reinstated the conviction of a one-time business partner of former National Security Adviser Michael Flynn for acting as an unregistered agent of the Turkish government.
A jury in Alexandria convicted Bijan Kian at a 2019 trial. After the conviction, though, the trial judge, Anthony Trenga, intervened and overturned the conviction.
He ruled that there was no way a rational jury could have concluded from the evidence that Kian was a foreign agent acting under the control of Turkey.
Prosecutors' trial plans were thrown into disarray on the eve of trial when they opted against putting Flynn on the stand, even though he had been expected to be their star witness. Flynn acknowledged in a separate case that he made false statements about work he performed that benefited Turkey; he had hoped at one point that his cooperation with prosecutors in Kian’s case would help him receive a lighter sentence in his own case. But he later sought to rescind his guilty plea and stopped cooperating with prosecutors.
The case spun off from special counsel Robert Mueller’s investigation of Russian election interference.
Prosecutors alleged Kian and Flynn were acting at Turkey’s behest when they undertook a project to discredit an exiled cleric, Fethullah Gulen, a Turkish cleric living in the U.S.
Kian and Flynn were partners in the Flynn Intel Group. Gulen has been sought for extradition by Turkish President Recep Tayyip Erdogan, who blames Gulen for an attempted coup in that country.
Flynn wrote a November 2016 opinion piece comparing Gulen to former Iranian leader Ayatollah Ruhollah Khomeini. Prosecutors said Turkey directed the effort through a middleman, businessman Kamil Alptekin, and pointed to a series of irregular payments flowing back and forth between Kian and Alptekin.
Trenga, though, said in his ruling that “there is no substantial evidence that Rafiekian agreed to operate subject to the direction and control of the Turkish government” and that there was no “competent evidence” that Alptekin was an intermediary for the Turkish government.
But the 4th U.S. Circuit Court of Appeals in Richmond, in a unanimous ruling, said Trenga should have been more deferential to the jury.
Judge James Wynn, an Obama appointee, wrote that the trial judge “gave insufficient deference to the ‘almost invariable assumption of the law’ that the jury was capable of following its ... instructions.”
Judges Paul Niemayer, a George H.W. Bush appointee, and Barbara Milano Keenan, an Obama appointee, joined in Wynn's opinion,
The appeals court also rejected granting Kian, also known as Bijan Rafiekian, a new new trial. So if the ruling is not appealed, Kian's case will go back to Alexandria for sentencing.
Kian's lawyers did not immediately respond to request for comment Thursday.
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