However, Rafiqian’s fortunes completely changed three months later when US District Court Judge Anthony Trenga overturned the rulings and ordered Rafikyan to acquit him, ruling that the evidence admissible in the case was not sufficient to support the jury’s apparent conclusion that the project was undertaken at the order of the Turkish government.
Tringa said the evidence of the link with the Turkish officials was highly speculative to remove reasonable suspicion in the case.
However, the three appeals judges appeared to believe the government had a decent circumstantial case against Rafiqian. One judge, James Wayne Jr., held that direct evidence of foreign government control would always be difficult to obtain in a case alleging that working for a foreign government appeared to be routine pressure on behalf of a foreign company.
“If you’re going to do such a case, I think these are not easy cases to prove,” said Wayne, appointed by President Barack Obama. “You have to rely on reasonable inferences. It’s very rare that you ask an agent to come and testify, and the state has asked me to do something, and so I’m working with them. If you were to do it, it would happen that way.”
Wayne and other judges noted that the work Flynn claimed it was doing for a Dutch company was nearly identical to the Flynn team’s proposal and Turkish citizen Ekim Alptekin, which was set up for Turkish officials just before the initiation of the Alptekin contract.
“This is a very powerful thing because that looks so bad,” said Wayne. “It’s the same person and you do the same things … I don’t understand how you could say the jury couldn’t connect the two.”
“It seems to me that the parallel projects are part of chance – part of circumstantial evidence,” said Judge Paul Niemeyer, appointed by President George H.W.Bush. “It’s all a little funny.”
James Tess, two comrades’ attorneys, insisted that unless there was some form of espionage, criminal charges should not stem from mere suspicion that Americans were acting at the request of a foreign government.
“This was the government’s strategy at the trial, to indicate that there were a lot of funny things happening, but in the end they did not show that he was acting on the directives of Turkey or Turkey’s control, because that would require showing that some foreign officials were actually involved in passing the instructions,” Tess said.
Jewish groups from time to time have expressed concern about the strict enforcement of US foreign agent laws because American Jews often lobby issues of concern to Israel while they communicate regularly with Israeli officials.
The appeals court’s arguments also raised the possibility that something Flynn’s critics were keen to see follow the presidential pardon last month: The former National Security Adviser was forced to testify under oath about his activities now because he could no longer plead his right against the self-incriminating. Flynn was expected to be a witness against Ravikian at his trial, but prosecutors abandoned him at the last minute after the alleged shift in Flynn’s anticipated testimony led to a sharp rift with Flynn’s new attorney.
“If this case returns to a new trial, you can call [Flynn] Now? ”Asked Wayne.
“Probably your honor,” said Tessie. “We couldn’t have contacted him before, probably because he was going to take his fifth, but it is possible now, after he’s been pardoned.”
In May, Ravikian’s attorneys wrote to Attorney General William Barr, requesting a review of the Ravikian case in light of Barr’s decision to move to drop the 2017 false criminal statement case made by Special Counsel Robert Mueller against Flynn in 2017. While Flynn pleaded guilty, there was an FBI interview that changed Related, and apparently Flynn confessed during his guilty plea that he had provided false information to the Ministry of Justice about Turkey’s work.
Despite two comrades ’defense requests, the Department of Justice continued its efforts to revive the case against the California businessman, who served as George W. Bush appointed to the board of directors of the Export-Import Bank before joining Flynn.
The appeals judges did not issue any decisions on Friday. It was not clear from the discussion session whether the committee would re-issue the convictions or return the case to Tringa, while allowing him to grant Ravikian the new trial, which the judge said he would approve if the defendant’s acquittal was revoked on appeal.
Two judges on the Appeals Committee expressed concerns about the fairness of last year’s trial. Tringa allowed extensive rumor evidence in the form of emails, with jurors warning about restrictions on the use of that evidence. He later concluded that the jury may have ignored his instructions.
“What interests me in this case are all the rumors that have been recognized,” said Judge Barbara Kennan, appointed by Obama. “Judge Trenga is a good judge and I think he really got out of this trial with great anxiety.”
It is unclear if the government will seek a second trial, with the potentially unruly card of Flynn’s testimony.
Given Trump’s conviction that Flynn’s trial was a political revenge, two comrades – who served as an advisor to Trump’s transition team after the 2016 election – could seek pardon from Trump during his five weeks in office. Rafiqian’s lawyers declined to comment on this possibility.