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United States v. Rafiekian

United States District Court, E.D. Virginia, Alexandria Division

September 24, 2019

UNITED STATES OF AMERICA
v.
BIJAN RAFIEKIAN, et al. Defendants.

          MEMORANDUM OPINION

          Anthony J. Trenga, United States District Judge.

         On July 23, 2019, after a six-day jury trial, Defendant Bijan Rafiekian was convicted on one count of conspiracy in violation of 18 U.S.C. § 371; and one count of acting in the United States as an unregistered agent of a foreign government, namely the government of Turkey, in violation of 18 U.S.C. § 951. The Defendant moved for a judgment of acquittal at the close of the Government's case in chief, renewed that motion at the close of all the evidence and following the verdict, filed a Motion for Judgment of Acquittal Under Federal Rule of Criminal Procedure 29 [Doc. No. 342] (the "Motions for Acquittal") and Motion for a New Trial [Doc. No. 361] (the "Motion for New Trial") (collectively, the "Motions"). The Court held a hearing on the Motions on September 12, 2019, at the conclusion of which it took them under advisement. For the reasons stated below, the evidence was insufficient as a matter of law for the jury to convict Rafiekian on either count. Because the verdict was against the heavy weight of the evidence and because of other issues pertaining to the conduct of that trial, as discussed below, a new trial is also warranted in the interests of justice should the Court's judgment of acquittal be later vacated or reversed. Accordingly, the Motions for Acquittal are GRANTED; and the Motion for New Trial is conditionally GRANTED.

         I. BACKGROUND

         A six-count indictment [Doc. No. 1] was issued against Rafiekian and Kamil Ekim Alptekin on December 12, 2018, and a superseding indictment was issued against them on May 23, 2019 [Doc. No. 141]. Count One of the superseding indictment charged Rafiekian and Alptekin under 18 U.S.C. § 371 with conspiracy to (1) act as an agent of the Turkish government without prior notification to the Attorney General in violation of 18 U.S.C. § 951 and (2) file a materially false filing under the Foreign Agents Registration Act ("FARA") in violation of 22 U.S.C. § 618(a)(2). Count Two charged both Defendants under 18 U.S.C. § 951 ("Section 951") with knowingly acting and causing others to act in the United States as agents of the Turkish government without prior notification to the Attorney General, as required by law. Alptekin, who resides in Turkey and has not appeared in this action except for the limited purpose of opposing the Government's Motion to Establish the Crime-Fraud Exception as to him, see [Doc. Nos. 188, 216], was also charged with four additional counts of making false statements in violation of 18 U.S.C. § 1001(a)(2). Beginning on July 15, 2019, the case against Rafiekian was tried before a jury. On July 23, 2019, the jury found Rafiekian guilty on Counts One and Two of the superseding indictment.

         In summary, the following evidence was presented:

         Rafiekian was the Vice-Chairman, Director, Secretary, and Treasurer of the Flynn Intel Group ("FIG"), which he co-founded and co-owned with retired Lt. Gen Michael Flynn, FIG's Chairman and CEO.[1] Alptekin is a Turkish businessman who is the owner of Inovo, BV, a Dutch company located in the Netherlands, and who was previously the Chairman of the Turkish-American Business Council.

         On or about September 8, 2016, Flynn, on behalf of FIG, and Alptekin, on behalf of Inovo, entered into a written agreement, titled the Independent Advisory Services Agreement (the "Agreement").[2] See GEX 58 at 6. The Agreement stated that "[Inovo] is desirous of engaging [FIG] for a specified scope of work aimed at design and delivery of a series of results in discovery, analysis, packaging and presentation of findings in a credible, durable and easy to disseminate format over a period of three months from the execution of this agreement." Id. The Agreement described the contemplated work as an "independent study and investigation engagement," and specified that "[FIG's] team" dedicated to the engagement would include Sphere Consulting ("Sphere"), "a top-tier public affairs and strategic reputation management firm based in Washington DC with global reach." Id. With regard to the nature of the relationship between FIG and Inovo, the Agreement stated:

[FIG] is not an employee or agent of [Inovo]. [FIG] is an independent contractor engaged for specific purpose of providing advice relating to assisting the client with accomplishing the objectives of this engagement. [Inovo] expects [FIG] to act with complete objectivity in the design and execution of its investigative mission pertaining to this engagement. Further, [Inovo] is by no means dictating to [FIG] a specific predetermined outcome or a particular result. [FIG] acts in good faith and on the basis of best effort to obtain the goals of the engagement. The parties to this agreement recognize that [FIG] is not in a position to guarantee results in matters outside of [FIG]'s control.

Id. As to the scope of services, the Agreement provided:

[FIG] will activate its investigative laboratory comprised of its most senior principals including but not limited to former Director of United States Central Intelligence Agency, Former Director of the United States Defense Intelligence Agency, Former [C]hairman of the Audit Committee of the Export Import Bank of the United States, former Director of Intelligence for the Joint Chiefs of Staff, Former Special Operations (Green Beret) investigator and intelligence officer, former Deputy Assistant Director of Federal Bureau of Investigations of the United States, [f]ormer senior legal counsel to the United States Senate Committee on Intelligence, two senior former FBI specialist investigators, Chairman of the Asymmetric Institute of the Department of Military Studies at Johns Hopkins University and the head of Flynn Intel Group's Special Operations Cyber Force. [FIG] has also retained an experienced filming and production crew with top-quality experience with outlets such as Reuters, Aljazeera, CNN, France 24 and other major media outlets. [FIG] shall hold weekly calls throughout the engagement over the period of 90 days to report engagement progress to [Inovo]. [FIG]'s Public Affairs unit will continue its specialized work throughout the engagement period. Lieutenant General Michael T. Flynn, Ret. U.S. Army, former Director of Defense Intelligence Agency shall lead this engagement.

Id. at 6-7. The Agreement recited that as compensation for its professional services, FIG would receive "a firm, fixed price of $600, 000," comprised of three payments of $200, 000 each, together with expenses. Id. at 7. The parties agreed that the Agreement should remain confidential "throughout the course of this engagement and after its termination" because "disclosing the details of this engagement will adversely impact the quality of investigations." Id.

         As outlined in a "draft playbook" prepared by Rafiekian and sent to Flynn on September 5, 2019 (the "Playbook"), FIG's contemplated team for the engagement with Inovo was to include as many as 19 individuals who would play various roles, including Flynn as "Engagement lead"; Rafiekian and Phil Oakley of FIG as "Strategy"; Alptekin as "Strategy support"; Brian McCauley of FIG as "Investigation lead"; Mike Boston of FIG as "Engagement coordinator"; Jim Courtovich of Sphere as"Public Affairs/media"; and others for roles such as "Video production team lead," "Finance support," "Interviewer/ commentator," "Investigations," "Senior Advisor," "Legal and Compliance," "Cyber Ops," and "Sentiment Analysis."[3] See GEX 23 A, 23B. The Playbook also identified the "[m]ission" of the engagement as the investigation and documentation of the activities of "X", known to be Fethullah Gulen, including his ideology, influence, and relationships with American political leaders.[4] GEX 23B at 1-2; see also Trial Tr. 472:9-12, [Doc. No. 330] (Boston) (confirming that "X" referred to Gulen). The "[e]nd product" of the engagement was identified as "[a] 60 minutes video production documenting the investigations." GEX 23 B at 1. As part of the engagement, the Playbook provided that Flynn would participate in one hour "weekly briefings with [Inovo]/ client." Id. at 3.

         The Playbook also included the "Sphere Plan of Action," id., which was originally prepared by Courtovich of Sphere on August 18, 2016 following an August 16, 2016 meeting between Sphere and FIG about the proposed engagement, and was sent to Rafiekian that same day by Graham Miller, another Sphere partner, see GEX 96A, 96B; Trial Tr. 701:24-702:3, [Doc. No. 333] (Courtovich); Trial Tr. 602:22-604:5, [Doc. No. 331] (Miller). The Plan of Action stated that Sphere was being engaged "to implement an effective public affairs campaign to support and promote the work undertaken by [FIG]" and that "this effort would be funded directly by private businesses seeking to improve investment in business to drive a stronger economy."[5] GEX 23B at 3. At the time the Plan of Action was drafted, the details of Sphere's engagement with FIG were to be worked out in order to find "a path forward." Id. at 6. FIG subsequently retained Sphere as a subcontractor in connection with its engagement by Inovo; and for that purpose, on or about September 20, 2016, FIG entered into a separate Memorandum of Understanding with S.G.R. LLC Government Relations and Lobbying ("SGR"), Sphere's "sister entity" through which it handled lobbying-related projects.[6] See GEX 107A, 107B. This MOU stated that SGR would work with FIG "to develop and execute a public affairs plan to encourage and strengthen relations between the governments and business communities of Turkey, Europe, and the United States." GEX 107B. As compensation for these services, SGR would be paid $30, 000. Id.

         FIG also appears to have entered into a separate Independent Advisory Services Agreement with Alptekin personally, pursuant to which Alptekin was to be compensated by FIG for his "professional services" at a rate to "be negotiated and agreed upon on each task," with an additional $40, 000 "mobilization fee" paid to him at the time the agreement was executed.[7] See GEX 127B. The agreement provided that "subsequent payments shall follow task orders to be issued by [FIG], followed by an invoice by [Alptekin]. Invoices issued by [Alptekin] shall be based on approved task orders by [FIG] prior to the performance of advisory work. [FIG] shall pay all approved invoices within five business days from receiving said invoices."[8] Id. The agreement specified that Alptekin was not an agent or employee of FIG, but rather "an independent contractor engaged for the specific purpose of providing advice relating to assisting [FIG] in any given tasks assigned to [Alptekin].[9] Id.

         In August, 2016, Rafiekian contacted Robert Kelner and Robert Lenhard of Covington & Burling LLP ("Covington") to obtain advice concerning FARA. Covington was not retained at that time because of those lawyers' political views pertaining to the then-candidacy of Donald Trump for President of the United States. See Trial Tr. 270:12-272:23, [Doc. No. 326] (Kelner). Rafiekian then consulted with Robert Kelley, a lawyer with experience in FARA and related statutory registration requirements who went on to become FIG's general counsel. See GEX 173. In response to Rafiekian's inquiry concerning any FARA filing obligation, Kelley asked whether the client was a foreign government or a foreign political party, and Rafiekian said that it was a private company. Id. at 1-2; Trial Tr. 858:4-8, [Doc. No. 334] (Kelley). Based on that representation, Kelley advised Rafiekian that no FARA registration was required, and that it would be sufficient for FIG to register under the Lobbying Disclosure Act ("LDA"). Trial Tr. 859:14-860:19, [Doc. No. 334] (Kelley); GEX 173 at 1. Sometime after his conversation with Kelley, Rafiekian told McCauley that, while Flynn had wanted to register with the Department of Justice ("DOJ") under FARA, Rafiekian wanted to "keep [the project] under the radar" by instead registering with Congress - seemingly referring to registering under the LDA. Trial Tr. 412:23-413:5, 414:1-13, [Doc. No. 330] (McCauley). FIG did, in fact, register under the LDA in September of 2016 in accordance with Kelly's advice. See GEX 166.[10]

         On September 19, 2016, in a meeting arranged by Alptekin, Rafiekian, Flynn, and Brian McCauley met with Alptekin, MC, and then-Turkish Minister of Energy and Natural Resources Berat Albayrak ("BA"), President Erdogan's son-in-law, in New York City. See Trial Tr. 405:20-24, [Doc. No. 330] (McCauley).[11] The meeting lasted about twenty-five to thirty minutes, Id. at 409:13-14, 440:11-13, and mostly consisted of the Turkish officials expressing their negative opinions regarding Gulen, see Id. at 440:18-441:8. During that meeting, there was no discussion concerning any work that FIG was doing or of FIG's relationship with Inovo or the Turkish government, nor was there any request from the Turkish officials or Alptekin for FIG to do anything. Id. at 440:14-17, 442:1-3.

         FIG continued its work on the engagement following the meeting, and as contemplated in the Agreement, FIG's representatives - Rafiekian, Flynn, and Michael Boston - held weekly telephone conferences with Alptekin, who was viewed as the client, to update him on the work being performed. See Trial Tr. 458:25-459:15, 465:1-25, [Doc. No. 330] (Boston); 525:13-19, [Doc. No. 331] (Boston).

         On November 2, 2016, Rafiekian, McCauley, Boston, and Kelley, along with Miller and Courtovich from Sphere, met with Alptekin to present an update on the project. Alptekin was not pleased with the scope or substance of what was presented to him, which included a presentation by McCauley summarizing the findings of the investigation into Gulen and a mockup of the Gulenopoly board game conceived by Sphere. See Trial Tr. 720:2-8, 720:19-721:4, [Doc. No. 333] (Courtovich); 526:25-527:8, [Doc. No. 331] (Boston).[12]

         Later that same day, Rafiekian drafted an op-ed to be published under Flynn's name, which he circulated to Alptekin and Bob Kelley with the message, "A promise made is a promise kept." GEX 45A, 45B.[13] On November 3, 2016, Rafiekian forwarded a draft to Flynn and asked him "to make any changes you see necessary and let me know if we can release this to Sphere so that they can place it too." GEX 70A, 70B. On November 6, Flynn returned the op-ed to Rafiekian "with substantive changes." GEX 76A, 76B. Miller and Sphere were tasked with having the op-ed published and through those efforts, the op-ed entitled Our Ally Turkey Is In Crisis and Needs Our Support was published under Flynn's name in The Hill newspaper on November 8, 2016. See DEX 50 (op-ed as published in The Hill).

         That same day, Donald Trump was elected President of the United States; and subsequently, Flynn was selected as National Security Advisor and FIG ceased operations. As a result, the engagement covered by the Agreement, including the contemplated video, was never completed, and no video, research, or information related to the Agreement was presented or distributed by FIG or Rafiekian to the public or to any public official. See DEX 60 at 1 ("After General Flynn was named in mid-November 2016 to serve as National Security Advisor in the new administration, [FIG] shut down its operations, did not renew its contract with Inovo BV, and filed, on December 1, 2016, a final public disclosure report terminating its lobbyist registration for Inovo BV."); Id. at 25 ("Because the project was terminated early, the full scope of the contract was not performed, and to the best of [FIG's] knowledge, none of the research materials prepared by [FIG] were disseminated to third parties."); Trial Tr. 564:2-11, [Doc. No. 331](Enders).

         Following the publication of the op-ed, the FARA Registration Unit of the United States Department of Justice sent a letter to Flynn, dated November 30, 2016, in which it asked for additional information concerning the op-ed and FIG's relationship with Alptekin and Inovo so that it could determine whether FIG, Flynn, or anyone else should file a registration statement under FARA. See GEX 90. FIG and Flynn subsequently retained Covington to represent them in connection with any potential FARA filing; and Covington initially responded by letter dated January 11, 2017, [14] in which it advised how it contemplated responding on behalf of FIG and Flynn. GEX 92. Covington conducted an investigation, which involved reviewing documents and communications related to the Agreement, including an opinion letter prepared by Alptekin's counsel, as well as conducting interviews with Rafiekian, Flynn, and other FIG personnel, see Trial Tr. 223:9-13, [Doc. No. 326] (Kelner). Covington ultimately decided based on its investigation to file a complete FARA registration statement on March 7, 2017 on behalf of FIG, see DEX 60, including short form registration statements filed on behalf of Flynn and Rafiekian as the directors and officers of FIG, see GEX 64, 65.[15] These registration statements listed Inovo, and not the government of Turkey, as the foreign principal.

         On December 1, 2017, Flynn pled guilty in a separate case to unrelated charges and entered into a plea agreement and cooperation agreement with the Government, pursuant to which he agreed to cooperate with the Government in its ongoing investigations and prosecutions, including by providing information, documents, and testimony for this case, if requested to do so by the Government. See Trial Tr. 317:3-319-9, [Doc. No. 326] (Kelner).

         Neither the original nor superseding indictment in this case references Flynn as a member of the alleged conspiracy or as an agent of the Turkish government; and in response to the Court's explicit questioning, the Government stated in open court that Flynn, who it planned to call as a witness, was not a member of the charged conspiracy and that it would not rely upon his testimony to establish the foundation for the admission of Alptekin's hearsay statements under Fed.R.Evid. 801(d)(2)(E). See June 13, 2019 Hearing Tr. 65:9-22, [Doc. No. 213]; see also [Doc. No. 109] (Government's Bill of Particulars not listing Flynn as a co-conspirator whose statements would be used at trial). Then on July 3, 2019, the Government filed a Notice of Correction to the Record [Doc. No. 261], in which it advised the Court that it no longer planned to call Flynn as a witness in its case in chief. The Government also took the position for the first time, contrary to its earlier in-court statements, that Flynn was regarded as a co-conspirator and that it would seek to have his out-of-court statements introduced pursuant to Fed.R.Evid. 801(d)(2)(E).

         In its Memorandum Opinion and Order dated July 9, 2019 [Doc. No. 292] (the "July 9 Order"), the Court concluded that the out-of-court hearsay statements of Alptekin and Flynn were not admissible under the co-conspirator exception to the hearsay rule set forth in Fed.R.Evid. 801(d)(2)(E); and these documents were admitted for the limited purpose of showing what information was received by Rafiekian, not for the truth of the matters asserted in those statements. See e.g., Trial Tr. 154:6-9, [Doc. No. 325] (Rosecrans) (admitting GEX 9 "solely for the purpose of establishing what Mr. Rafiekian received, the information he received, and not for the truth of what's stated in this email").

         Against this background, the Government claimed that Rafiekian (but no one else who was part of the FIG team) engaged in the alleged conspiracy and acted as an undisclosed agent of the Turkish government; and that the evidence was sufficient for a jury to convict Rafiekian of those offenses based on (1) communications between Rafiekian and Alptekin; (2) Rafiekian's other statements; (3) the payments to Alptekin; (4) a meeting with officials from the Turkish government in New York City on September 19, 2016, attended by Rafiekian, Flynn, Alptekin, and others; (5) the periodic reporting to Alptekin; (6) the publication of Flynn's op-ed in The Hill on November 8, 2016; and (7) the substance of the FARA filing prepared by Covington and the information provided to Covington for that purpose.

         Generally summarized, the evidence of Rafiekian's communications included, in addition to what is referenced above, the following:

         Starting on July 27, 2016, Rafiekian began to exchange email messages with Alptekin about the potential engagement of FIG for a project that Rafiekian viewed as important to promoting Turkey's "security and stability," which he viewed as "extremely important to world security." GEX 8A. On July 29, 2016, Alptekin stated by email that he had met with Turkish Minister of Foreign Affairs Mevlut Cavusoglu ("MC"), who was "interested in exploring this seriously," had asked Alptekin to prepare an "indicative budget," and would likely want to meet with Rafiekian and Flynn. GEX 9. On July 30, 2016, Rafiekian sent an email to Alptekin, copying Flynn, with the subject line "Truth," in which he outlined the general contours of an engagement that he called, for the first time, the "truth campaign." Several emails between Alptekin, Rafiekian, and Flynn with the subject line "Truth" followed, in which Alptekin described the discussions he was having with various Turkish officials about retaining FIG for the purpose of promoting the extradition of the Islamic cleric Fethullah Gulen, a U.S. resident whose extradition the Turkish government had been unsuccessfully attempting to procure following an attempted coup d'etat in Turkey on July 15, 2016. See GEX 14, 15, 16; see also Trial Tr. 95:13-99:18, [Doc. No. 325] (Olson) (describing the Turkish government's unsuccessful attempts to extradite Gulen following the attempted coup). In the last email in this chain, dated August 10, 2016, Alptekin reported to Rafiekian and Flynn that he had "just finished" several meetings with MC and Turkish Minister of the Economy Nihat Zeybekci ("NZ"), and had a "green light to discuss confidentiality, budget and the scope of the contract." GEX 16.

         The next day, August 11, 2016, Rafiekian sent an email to Alptekin to set up a call with Alptekin and Flynn. In that e-mail, he stated that he and Flynn had "activated the FIG LAB" (referring to FIG's inventory of associated consultants) and were "ready to push the start button immediately" on the project, which Rafiekian described as an engagement of FIG by the "business community" to restore "confidence through clarity" in Turkey's trade and investment climate. GEX 17. Rafiekian's email suggested that he had reached out to Jim Courtovich, Sphere's founder and managing partner, about the project, and that he had structured the engagement so that Alptekin would receive an "advisory support fee" of 20% of the compensation FIG received for its services. Id. That same day, Rafiekian sent an internal FIG email in which he informed others within the company that they were "about to be engaged by a Dutch client" for the "Confidence Through Clarity Campaign," where the end product would be a 30-45 minute video production, and provided a budget for the project. GEX 18A, 18B.[16]

         There is little evidence of further communications between Alptekin and Rafiekian or anyone else at FIG concerning the proposed engagement over the next two weeks, though FIG did meet with Sphere on August 16, 2016, which led to Sphere's submitting a proposal to FIG titled "Partnership to Promote a Prosperous and Stable Turkey" two days later on August 18, 2016.[17] See GEX 96A, 96B; see also Trial Tr. 701:24-702:3, [Doc. No. 333] (Courtovich); Trial Tr. 602:22-604:5, [Doc. No. 331] (Miller). Based on Rafiekian's representations at the August 16 meeting, Sphere's proposal stated that the engagement was being "funded directly by private businesses seeking to improve investment in business to drive a stronger economy" and Sphere's role was to "[p]roduce and promote a documentary-style video that uses fact-based, unbiased information and research to 1) highlight Fethullah Gulen's network of loyalists and his influence over them, and 2) showcase a resilient investment climate in the wake of the recent attempted coup." GEX 96B; see Trial Tr. 603:14-21, 604:1-11, [Doc. No. 331] (Miller).

         On August 25, 2016, Rafiekian sent an email to Alptekin thanking him for engaging FIG on Operation 'CONFIDENCE.'" GEX 19. The email further stated that Flynn would personally lead the engagement; that FIG would provide a draft engagement letter between FIG and Inovo that would "not entail operation details for obvious reasons"; that the parties would finalize the allocation of costs for Sphere; and that Alptekin would receive twenty percent of the money paid to FIG for his "professional advisory services." Id. That same day, Rafiekian and Alptekin exchanged Skype chat messages in which Alptekin told Rafiekian, "We are confirmed to go[.] Meeting him tomorrow evening for details." GEX 20. Alptekin went on to say (in an apparent reference to Turkish President Recep Tayyip Erdogan) that he believed he was meeting MC's boss, "not direct boss but [you] know who," and that his assumption was "based on [MC's] request to come to 3rd bridge opening tomorrow for final instructions."[18] Id. Alptekin went on to say "[E]ither way he said we are a full go," to which Rafiekian responded, "We are very pleased to see that [President Erdogan] is taking a decisive stance on fighting Radical Islam. We believe that [he] is 'uniquely' qualified to take this global leadership role." Id.

         Rafiekian and Alptekin continued to exchange Skype messages in the following weeks, and on August 29, 2016, Alptekin sent Rafiekian a message saying, "We are contemplating the best way to pay and avoid additional cost. I will be depositing the total 200k on the [FIG] account. I will let you know when it is settled and will honor the deadline. We are also scheduling a meet[ing] with [Flynn] and MC and perhaps even [President Erdogan] in third week of NY. Will keep you posted." GEX 21. Rafiekian and Alptekin also exchanged several Skype messages regarding the engagement agreement between FIG and Inovo, which Rafiekian was having reviewed by a law firm for compliance, see GEX 67H, 671, and on September 8, 2016, Alptekin sent Rafiekian two messages saying he would "send the agreement" and had "just left [the Prime Minister's] office," GEX 67J. The next day, September 9, 2016, Alptekin messaged Rafiekian saying that he "urgently need[ed] a BIC/swift code" for FIG's bank account as well as other account information, because Alptekin had "the money but need[ed] to deposit it [ASAP] before banks close." GEX 67K. Rafiekian provided the requested information and that same day a $200, 000 wire transfer from Alptekin's bank account was deposited into FIG's account. See GEX 25A at 3.

         Rafiekian and Alptekin also exchanged several Skype messages regarding the meeting in New York City that Alptekin had proposed between representatives of FIG and high-level Turkish government officials. See GEX 670, 67P, 67Q; see also GEX 21 (Skype message from Alptekin to Rafiekian discussing scheduling a meeting between Flynn, MC, and potentially Erdogan). On September 15, 2016, Flynn reported to a U.S. Government agency that he planned to meet with Turkish officials, including the Turkish Foreign Minister and possibly including President Erdogan, in New York on September 19; and that FIG was supporting a Dutch company "to assist in renewing the confidence of the [international [c]ommunity in the Turkish [g]overnment," which he referred to as the "confidence project." DEX 6. On September 18, 2016, Rafiekian circulated talking points to Alptekin and Flynn in advance of the meeting, primarily relating to Gulen, see GEX 103 A, 103B, to which Flynn then made minor edits, see GEX 104A, 104B.[19] The next day, on September 19, 2016, the meeting with the Turkish officials took place.

         Following that meeting, in an email dated September 22, 2016, Rafiekian reported to Flynn on the positive feedback he had received from Alptekin about the meeting, but also noted that Alptekin, "[S]hared some very specific expectations with me which I dismissed immediately. I told him that the expectations are unreasonable ... [and] [w]e deliver what we promise." GEX 29. On September 28, 2016 Rafiekian voluntarily disclosed in a meeting with a U.S. Government agency that he had "been asked to consult on a documentary-style commercial to raise awareness about" Gulen's charter schools and identified Alptekin "as a business contact" who had "senior level contacts in the Turkish government" and was "the sole owner of Inovo, a Dutch company." DEX 14.

         Following the publication of the op-ed on November 8, 2016, the only evidence of any further communications between Rafiekian and Alptekin is an e-mail dated November 11, 2016, in which Rafiekian forwarded to Alptekin a statement describing Inovo BV, which he intended to send to Sphere, GEX 83; and an e-mail dated January 18, 2017, from Alptekin to Rafiekian, forwarding an opinion letter from Alptekin's lawyer concerning "Advice on Regulations for the Foreign Economic Relations Board of Turkey," which Rafiekian forwarded to his lawyer, who forwarded it to Covington.[20] See GEX 93A, 93B; Trial Tr., 238:22-25; 239:1-3 [Doc. No. 320] (Kelner).

         During Covington's investigation, Rafiekian stated that his early communications with Alptekin related to a possible engagement by the Turkish government, [21] but that the Turkish government backed out of those discussions and the contract with Turkey never came to fruition. Id., 231: 1-5 [Doc. No. 320] (Kelner). He further stated that after the Turkish government backed out, Alptkin said he wanted to engage FIG under a separate project through his Dutch company Inovo. Id., 230:11-15 [Doc. No. 320] (Kelner). Rafiekian also stated that when it was originally contemplated that the client would be the government of Turkey, the project was originally referred to as Project Truth and that the name was changed to Project Confidence when the client became Inovo. Id. 228:6-7; 229:9-13 [Doc. No. 320] (Kelner). Based on this explanation, Rafiekian described Project Confidence as "completely separate" from "Project Truth," that Project Truth "never happened" and that the Turkish government played no role in the contract that was actually entered into. Id., 229:23-24; 231:10-11 [Doc. No. 320] (Kelner). Similarly, he said that the meeting with Turkish officials on September 19, 2016 was unrelated to Project Confidence. Id., 232:5-6 [Doc. No. 320] (Kelner). As to Flynn's op-ed, Rafiekian stated that the op-ed was not part of Project Confidence and that it was Flynn's idea. Id. 235:5-12 [Doc. No. 320] (Kelner).

         II. LEGAL STANDARD

         The U.S. Constitution "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). Federal Rule of Criminal Procedure 29 provides an important safeguard for criminal defendants by requiring that "the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." It is the sole province of the jury to "resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts," id., and "where the evidence supports differing reasonable interpretations, the jury will decide which interpretation to accept," United States v. Moye, 454 F.3d 390, 394 (4th Cir. 2006) (en banc). For that purpose, circumstantial evidence "is treated no differently than direct evidence, and may be sufficient to support a guilty verdict even though it does not exclude every reasonable hypothesis consistent with innocence." United States v. Jackson, 863 F.2d 1168, 1173 (4th Cir. 1989). The dispositive question on a Rule 29 motion is whether, after viewing the evidence in the light most favorable to the prosecution and assuming that the jury resolved all contradictions in the testimony in favor of the Government, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). When, as here, a motion for judgment of acquittal is made at the close of the Government's case and the court reserves decision, "it must decide the motion on the basis of the evidence at the time the ruling was reserved." Fed. R. Crim. P. 29(b).[22]

         Federal Rule of Criminal Procedure 33 provides that "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." "In deciding a motion for a new trial, the district court is not constrained by the requirement that it view the evidence in the light most favorable to the government." United States v. Campbell, 977 F.2d 854, 860 (4th Cir. 1992) (citation omitted). "[A]ny error sufficient to require a reversal on appeal is an adequate ground for granting a new trial." 3 Wright & Miller, Fed. Prac. & Proc. Crim. ยง 589. But in considering whether to grant a new trial, "the district court should only overturn a jury verdict in the 'rare circumstance' when the verdict is against ...


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