Akin Gump - The New York Times · As summarized in this letter, the ... an examination ofthe prosecution ofRafiekian andmake theappropriate recommendation to the ... FIG did notknow

Akin GumpSTRAUSSHAUER & FELD LLP

MARK J.MACDOUGALL+1202.887.4510/fax: +1202.887.4288

[email protected]

May 22, 2020

VIA ELECTRONICMAIL AND OVERNIGHTDELIVERY

Jensen

United States AttorneyEastern District ofMissouri

Thomas Eagleton U.S.Courthouse111S. 10th Street20th Floor

St. Louis, MO 63102

Re: United States v. Bijan Rafiekian, No.19-4803 (4th Cir. )

Dear Jensen ,

Our law firm , along with the firm Trout Cacheris & Solomon PLLC, represents BijanRafiekian, whose acquittal under Fed. R.Crim . P.29 is currently beingappealed by the

government. Wearewriting to you regarding your examination of the circumstances

surrounding the guilty plea and conviction ofMichaelFlynn in the U.S. District Court for theDistrictofColumbia. Asdiscussed more fully below , the prosecution ofRafiekian was rooted in

the government's prosecution ofMichaelFlynn and rests on far more doubtful grounds than the

prosecution of Flynn - twice affirmed his guilt before a federal judge. Aswe consider thestandards of justice that led you to recommend dismissing the indictment to which Flynn pleaded

guilty, for the reasons that follow , we ask that you apply those same standards to recommend to

the Attorney Generalthat the government dismiss its appealofRafiekian's acquittal.

Background

Bijan Rafiekian is a U.S.citizen , public servant, educator, and businessman, who was

twice confirmed by the Senate to sit on the board ofdirectors of theExport- Import Bank of the

United States. Alongwith Flynn, hewas also a co - founder , shareholder, director, and officer of

Flynn IntelGroup. Hewas indicted by a federal grand jury in the Eastern District of Virginia on

December 12 , 2018 and charged with one count of conspiracy in violation of 18 U.S.C. 371

and one count ofacting in the United States as an agent of a foreign government in violation of18 U.S.C. (the “ Indictment ).

Asyou know , on May 7, 2020 , the interim United States Attorney for the District of

Columbia filed a motion under Fed. R.Crim . P.48(a ), styled “ Government's Motion to Dismiss

the Criminal Information Against the DefendantMichael Flynn” (the “Rule 48 (a)Motion” ). The

Robert S.StraussTower Street, N.W. Washington, DC 20006-1037 202.887.4000 202.887.4288 | akingump.com

Akin GumpSTRAUSSHAUER& FELDLLP

Jeffrey JensenUnited StatesAttorneyEastern District ofMissouri

May 22, 2020

Page 2

content of the Rule 48( a ) Motion appears to have been founded upon ( a ) the conclusions that youreached in your examination of the federal prosecution of Flynn and (b) the recommendations

that you presumably delivered to the Attorney General. Near the conclusion of the Rule 48 a )

Motion, the government concedes that with respect to Flynn's plea of guilty to a single violationof 18 U.S.C. 1001, “ [ Flynn did so without full awareness of the circumstances of the newly

discovered , disclosed, or declassified information as to the investigation ofhim .

Bijan Rafiekian went to trial in Alexandria , Virginia and, on July 23, 2019, a juryreturned a guilty verdict on both counts. On September 24, 2019, however, U.S.District Judge

Anthony Trenga granted a judgement ofacquittal under Fed. R.Crim . P. 29 while also

conditionally granting Rafiekian’smotion for a new trial under Fed. R.Crim . P. In his

memorandum opinion , Judge Trenga concluded thatthe jury verdict was“ against theheavy

weight of the evidence” while also relying on other specific adverse issues relating to the

conduct of the trial.4 The government appealed Judge Trenga’s judgmentofacquittal and thematter is now pendingbefore theU.S. Court of Appeals for the Fourth Circuit.

Thecircumstances surrounding Flynn's guilty plea and the prosecution ofRafiekian are

so closely interrelated that the failure of the government's case against Flynn must, as a matter of

fact andlaw, also bring our client's case to a finalconclusion. The government has now publiclyconceded that the investigation and prosecution of Flynn was a perversion of the duty of

prosecutors to pursue justice in all their charging decisions. As summarized in this letter, the

government's effort to prosecute Rafiekian is the direct progeny of the investigation and

charging of Flynn a process that has now been exposed as fundamentally corrupt.

Webelieve that a review ofRafiekian's case , applying the same standards, will

inexorably lead to the sameconclusion . Our purpose in writing this letter is not to argue ourappealthat is now pending before the Fourth Circuit although wewould certainly invite your

attention to the briefing in that case. Rather, our aim is to respectfully request that you undertakean examination of the prosecution of Rafiekian andmake the appropriate recommendation to the

U.S.Attorney for the Eastern Districtof Virginia and the Attorney General to voluntarily dismiss

Gov.Mot to Dismissthe CriminalInformation Againstthe Def. MichaelT.Flynn, UnitedStates v.

Flynn, CaseNo.1: 17-cr-00232, May7 , 2020 [ ECFNo.198 at 19 ].

2 Jury Verdict, United Statesv. Rafiekian, Case No.1: 18-cr -00457, July 23, 2019[ ECF No.355].

3 United States v. Rafiekian, CaseNo.1: 18-cr-00457, Sept. 24 , 2019 [ECFNo.373].

Mem .Opinion, United States v . Rafiekian , Case No. 1: 18 - cr -00457, Sept. 24 , 2019 [ ECF No.372 at 1].

Notably, the governmentchose notto charge Flynnwith conspiracyinviolationof 18U.S.C. 371or

with violating 18 U.S.C. , even though “ [ t ]heevidenceofFlynn'sinvolvementin the engagementparalleled,and in someaspects, exceeded that of Rafiekian.” See id at 35 n.44.

4



May 22, 2020

Page 3

the appeal ofRafiekian's acquittal. In that regard,wewould ask you to give particularconsideration to the following five elements of thewell-defined nexusbetween Flynn's guilty

plea and the prosecution ofRafiekian .

1. The Criminal Charges Against Rafiekian Stem Directly from a Set of

Allegations in the Flynn Statement ofOffense

The criminalchargesbroughtagainstRafiekian in the Indictmentwere based entirely, itwould seem on a set of allegationsmadeby Flynn in his Statement ofOffense that wasexecuted in support of his plea of guilty to one count of violating 18 U.S.C. Consistent

with the requirements of Fed. R.Crim . P.11, statementsmadeor filed in support of anydefendant's guilty plea are intended solely to provide a factual basis for the conviction . By thesame standard , unrelated allegations or admissions ofmisconduct havenopurpose or place in a

factual statement filed in support of a guilty plea in federal court.

The factual admissionsmadeby Flynn in the StatementofOffense, however, diverge

from that norm . The first few paragraphsofFlynn's statement are properly comprised of factual

admissions supporting his plea of guilty to making false statements to FBIagents during an

interview . The final paragraph of Flynn's Statementof Offense (P ), however, hasnothing to

do with his false statements to the FBIagents. Instead, that paragraph – theapparentbasis of thecharges againstRafiekian – introduces an entirely alien narrative ofallegations ofunlawful

activity relating to filings by the Flynn IntelGroup under the ForeignAgentsRegistrationAct.

6

7

See Statementof Offense, UnitedStatesv. Flynn, CaseNo.1: 17- cr-00232, Dec.1, 2017 [ECFNo. ] .

Paragraph5 ofFlynn'sStatement Offenseprovidesin full: “ On March 7 , 2017, FLYNN filedmultiple

documentswith the Departmentof Justice pursuantto the ForeignAgents RegistrationAct( FARA” ) pertainingtoa projectperformedby him and his company, the FlynnIntelGroup, Inc.( FIG ” ) , for theprincipalbenefitofthe

Republicof Turkey ( Turkey project ). In the FARAfilings, FLYNN mademateriallyfalse statements andomissions, includingby falsely statingthat(a ) FIG did notknow whether or the extentto which the Republic of

Turkeywas involvedin the Turkeyproject, (b ) the Turkeyprojectwas focusedon improvingU.S.businessorganizations' confidenceregardingdoingbusinessin Turkey, and (c ) an op -ed by FLYNNpublishedin TheHillonNovember 8 , 2016 , waswritten athisown initiative; and by omitting that officials from the Republicof Turkey

provided supervision and directionoverthe Turkeyproject.” Id. at 5 .

Oneother criticalfact relatingto Paragraph5 of the StatementofOffenseshould be considered. The

factualallegationsaffirmedby Flynn, his Covington & Burlinglawyers, andthe governmentprosecutorsactually

includedemonstrablyfalse statements. Specifically, Paragraph 5 of the StatementofOffense affirmativelyprovides,“ In the FARA filings, FLYNNmadematerially false statementsand omissions, includingby falsely stating that( a )FIG did notknow whetheror the extenttowhichthe Republicof Turkeywasinvolved in the Turkeyproject....Id. Thisassertion attested as trueby theprosecutors, Flynn, and his lawyers, is not true and canbefoundnowhere

in the FARA filingsmadeby the FlynnIntelGroup. Wewouldbe pleased to provide for your review the relevanttrialexhibitsadmitted into evidence in Rafiekian'scase to confirm this fact.



May22, 2020

Page 4

Notably, the governmentalleged in its appealto the Fourth Circuitthat Flynn was a Turkishagent from thebeginning The government's descriptionsin its Fourth Circuit briefofFlynnas a Turkish agent and felon are in serious tension with its recentdecision to drop the chargesagainst him

The same reasons supportingdismissalof Flynn's case justify dismissing Rafiekian'sappeal and letting the judgmentof acquittal stand. The conclusion that the case againstFlynn

must be dismissed – notwithstandingthe fact thathetwice pleaded guilty open court –ascribed to, “ [t ]hefrail and shiftingjustifications for the ongoingprobe” and the“ irregularprocedure” thatwas followed in that investigation. Ifthe sameanalysis that yieldedthese conclusionswith regard to Flynn is applied to the government'sapproach to Rafiekian,there can belittledoubtthat a substantiallysimilarconclusionmustbe reached.

2. The Government Critically Relied Upon Flynn's Cooperation in the

Prosecution of Rafiekian

first sentencing hearingtook placemore than a year after Flynn entered his guilty

plea , but only one day after the Indictment (charging Rafiekian) was unsealed. Atthat hearing,

which was continued without imposition of sentence, government prosecutors held out Flynn asthe key witness in the prosecution ofRafiekian , stating thatFlynn provided substantial

assistance to theattorneys in the Eastern Districtof Virginia in obtaining th [ e] chargingdocument” to prosecute Rafiekian .

Flynn was interviewed not fewer than twenty times by prosecutors and investigating

agents at least partially in an effort to prepare him to testify against Rafiekian. In the course of

these interviews and cooperation sessions, ” the lead prosecutor in the Rafiekian case – JamesGillis – repeatedly advised Flynn and his counselthat Flynn's sentencing recommendation wouldnot be adversely affected by the outcomeofRafiekian's Moreover, on June 13, 2019 –

lessthan a month before the start ofRafiekian’s trialand in response to a direct question from

the Court – Mr.Gillis assured Judge Trenga that Flynn was not a co - conspiratorofRafiekian,

going so far as to provide the Court with a forecast of the government's expectations regarding

8

9

See OpeningBriefofthe UnitedStates, UnitedStatesv. BijanRafiekian, 19-4803, Jan.24, 2020

[ECFNo.23 at 2 ].

Gov.Mot. to Dismissthe CriminalInformationAgainstthe Def. MichaelT. Flynn, UnitedStates v.

Flynn, CaseNo.1: 17 -cr-00232,May 7, 2020 [ECFNo.198 at 16 .

10 United States v . Flynn, Case No.1: 17 - cr -00232, Hr’g Tr. 46:8–14 Dec. 18 , 2018 .

Mr.Flynn'sMot to Withdraw Plea ofGuilty and UnopposedMot. for Continuance, United Statesv.

Flynn, CaseNo.1: 17- cr -00232, Jan.14 , 2020 [ECFNo.151at3 ] .

11



May22, 2020

Page5

the importance ofFlynn's testimony on Rafiekian's trial: [ F ] rom ] testimony, the jurycould draw a reasonable inference that there was a conspiracy, butwe are not donotcontend thatGeneral Flynn was a part of that conspiracy. In the government's supplemental

sentencingmemorandum in Flynn's case , the governmentnoted that Flynn's “ testimony attrial

would haveprovided the best andmost direct evidence” against Rafiekian, and that its “ strategic

decision” not to call Flynn contributed to “ the district judge's decision to overturn the guiltyverdict” in Rafiekian's case. Relying on specific statements of the prosecutorsmade to the

Court, there can be no doubt that the prosecution ofMr.Rafiekian was engineered by the

government lawyers solely and directly from the guilty plea and purported cooperation ofMichaelFlynn

3. The Government Pressed Forward With Its Prosecution of Rafiekian Despite

Flynn's Repudiation of the Statement Offense

The record ofFlynn's case reflects that, as the date ofRafiekian's trial approached in the

spring of 2019 Flynn repudiated the content of the allegations contained in his Statementof

Offense regarding FARAviolations — yet the government pressed on with its prosecution of

Rafiekian . Specifically, on or about June 27, 2019 while hewas ostensibly being prepared by

prosecutors to testify at Rafiekian’s trial – Flynn informed his counsel that hewould nottestifyto elements of the government's theory becausethey were nottrue. Moreover, Flynn did not

13

12 See UnitedStates v. Rafiekian, Case No.1:18- cr- 00457, Hr’gTr. 65:9–22, June 13, 2019 [ECF No.213].

See Suppl. Mem . in Aid of Sentencing, United States v. Flynn, Case No. 1: 17- cr- 00232, Jan. 7, 2020[ECF No.150 at22–24 & n.10 ] .

Contemporaneous notes taken at the June 27, 2019 meeting between Mr. Flynn's lawyers and

government prosecutors exhibit Mr. Flynn's reversal:

14

John Gibbs] Statement given was that the Turkey project was on business relations [. ] That's the

story they portrayed [ ] When in reality , during theGeneral's telling, he admits that the highestlevels of GOT (Govt of Turkey ) were involved [ .] Telling FARA unit that this [was ] about businessrelations is a false statement [

Neil [Hammerstorm ] [ W ]hy not raise itin colloquy?

Brandon Grack] This agreementwas extensive[ . ] Hewas partof the discussions[ This is

thelanguageyour clientagreed to [ in the] StatementofOffense . ] Hewas aware [ of the false

statement[ . ] [ The]Generalpushedback on somelanguage, butnot this language. Did notwillfullywhy not say something? You are revivingconversationsthat alreadyoccurred[ ] did not say

anythingin frontofjudge[ ]

Sidney [Powell] : [ N ] othing in statement says willfully /knowingly re�garding] FARA[. ]



May 22, 2020

Page 6

state in his grand jury testimony that he knew the FARAregistration containedmaterialfalsestatementswhenhe signed it.15

In this context, it is important to note the conflict of interest ofFlynn's lawyers, who also

represented the Flynn IntelGroup. The Covington & Burling lawyers who counseled Mr. Flynn

to include in his Statement ofOffense allegations relating to false statements in a FARA

registration , are the same lawyerswho ( a) prepared and submitted theFARA filings to theDepartmentof Justice on behalf of Flynn IntelGroup, (b ) counseled Mr. Flynn in subsequent

courthearings until their representation was terminated on or about June 6 , 2019 , (c ) resisted the

production of relevant case files to Mr.Rafiekian's counsel in response to a subpoena issued

pursuant to Fed. R.Crim . P.17, and (d ) in the case of RobertKelner, testified as a governmentwitness againstMr.Rafiekian athis trial in July 2019

4. The Government Pressed Forward With Its Prosecution of Rafiekian Even

After It Reversed Its Longstanding Positions Regarding Flynn

Rather than re-evaluate its continued prosecution of Rafiekian, the government notified

Flynn that he would notbe called as a witness in its case against Rafiekian . The government

then sought a gag order prohibiting anyone from disclosing that fact in advance of Rafiekian'strial.16

Brandon Grack] (very heated) Withoutwillfully/knowinglyitdoesn'tmake this an offense[ ]

Firsttimeyour clientorcounselhasmadeany statementlike what you are saying�representationthat this (whatyou're saying is the case) would havebeen factor inmitigation[. ]Omissions the factsaboutofficialsin Turkey[ ] like you have reviewedthe notes[ ]Thingshe told usbefore[ ] It'sonething to say thathe did notgo lineby linethrough the FARA,

it'sanother thing to say hedidn'tknow [. ] Heprovidedthem misleading/ false information[ ] Want

to be clear – you are saying thathe did notprovideany false/misleadingstatementsto Covington?

Sidney [Powell] You are asking my clientto lie[ . ] Everything I have seen is consistent – if youhave seen something, show us[ ]

See Def.’s Response to the Court's Order of July 9 and Govt.'s FilingofJuly 10, United States v. Flynn, CaseNo.1: 17-cr-00232, July 11, 2019 [ECFNo.98 Ex. 1] .

15See UnitedStates Suppl. Mem . in Aid ofSentencing, UnitedStatesv. Flynn, CaseNo.1:17- cr-00232,Jan 7, 2020 [ECFNo.150, Ex. 2 ] .

16 See Mem . Coconspirator Designation of Non - Party Witness Michael T.Flynn, Enforce theGov.Judicial Admission and Vacate the Non -Disclosure Order, United States v . Rafiekian , Case No. 1:18 -cr -457,July 8, 2019 [ ECF No. 270 ].



May22, 2020

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On July 9, 2019 – than a week before jury selection was to begin in Rafiekian's trial

Mr. Gillis informed the Court ofthe complete reversal of the affirmative representation that hehad made to the Court less than a month earlier. With the key witness no longer telling the

government's story, Mr.Gillis declared Flynn to be a co -conspirator in the case against Rafiekian

for the first time during the prosecution of Rafiekian and despite the fact that hehad announced

the opposite position a month earlier in open court – and then unsuccessfully sought to havehisout of-court statements introduced as co -conspirator evidence.17

This bizarre sequence of eventsmakes clear that the prosecution and purportedcooperation of Flynn as the sole and original source of the decision to charge Bijan Rafiekianwas improperly managed and fatally flawed.

5. TheGovernmentHasNever Produced theExculpatoryEvidenceRegardingthe Relationship Between Flynn and Turkey

Atthe finalpre-trialhearingbeforejury selection, on July 12, 2019, the governmenthanded to Rafiekian’s counsel a one-sentencesummary of classified information pertainingtoFlynn( the" Flynn Turkey Disclosure” ), which stated in itsentirety:

[ T ] he United States is in possession of multiple, independent pieces of

information relatingto the Turkish government's efforts to influenceUnited

States policy on Turkey and FethullahGulen, including information relating

to communications, interactions, and a relationship between Ekim Alptekinand Michael Flynn, and Ekim Alptekin's engagement of Michael Flynn

because of Michael Flynn's relationship with an ongoing presidentialcampaign, without any reference to the defendant or FIG .

Despite the repeated requests ofhis counsel ( all of whom held Top Secret/SCI security

clearances), Rafiekian never obtained access to the underlying classified information for which

the Flynn Turkey Disclosure was intended to serve as a substitution. In closing argument, the

prosecutors tried to use this apparently exculpatory evidence against Rafiekian by making the

blanket assertion that the undisclosed facts – known only to the government would furtherinculpate the defendant

17 See id

18 United Statesv. Rafiekian CaseNo.1: 18-cr- 00457, Hr’g Tr. 1182–83, July 23, 2019 [ ECFNo.351].Judge Trenga conditionallygrantedRafiekiana new trialbased, in part, upon the government'suse of thisevidence,

noting

[ T ]herewas a substantialdangerthat the jury drew inferencesagainstRafiekian with respect to the

existenceof and his participation in the alleged conspiracybased on a belief that Flynn could be



May 22, 2020

Page 8

The DepartmentofJustice elected to evaluate theprosecution and conviction ofMichaelFlynnmore than two years after he entered his plea and acknowledged his guilt, for the firsttime, in open court. The result of thatevaluation was the rare filing ofa Rule 48( a) Motionseeking to dismiss the chargeto which Flynn pleaded guilty. TheDepartmentof Justicehasconcluded and announced thatFlynn'sprosecution was fundamentally defective and inconsistentwith standards of federal prosecution and process.

The prosecution of Rafiekian is a direct consequence of the governmentmisconductuncovered in yourreview of Flynn's guilty plea and articulated in the Rule 48 a ) Motion.

Rafiekian does not have the samerecognition or enjoy the same public support of the President

ofthe United States as Flynn. Butpoliticalnotoriety and the affection of the Presidentmust not

influence – much less play the dispositive role in – how the Department ofJustice makesdecisions that go to the of the principles of federal criminal prosecution .

Accordingly, wewould respectfully request that you undertakean examination of theprosecution ofRafiekian andmake the appropriate recommendation to the AttorneyGeneral to

dismiss the pending appeal ofRafiekian's acquittal. Wewould be happy to discuss any aspect ofthis matterwith you by telephone if you require additionaldetails ordocumentation .

Sincerely,

Mark J.MacDougall

Stacey H.MitchellJames E. Tysse

Attachments

regarded as a memberof the alleged conspiracy, particularly given the Government'suse of [ the

Flynn Turkey Disclosure) to support its claim thatRafiekianparticipatedin the alleged conspiracy,eventhough the information inthatexhibitrelated solely to Flynn and explicitly excludedRafiekian.”

SeeMem .Opinion,United States v. Rafiekian, Case No.1: 18 -cr-00457,Sept.24, 2019 [ECF No. 372 at 3637 ]



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cc : Robert Trout, Esq.Trout Cacheris & Solomon PLLC

G.Zachary Terwilliger, U.S.Attorney –John T. Gibbs, AUSA

James P.Gillis, AUSAAiden T.Grano, AUSA

Evan N.Turgeon, Trial Attorney DOJ– NSD

Documents

Akin Gump - The New York Times · As summarized in this letter, the ... an examination ofthe prosecution ofRafiekian andmake theappropriate recommendation to the ... FIG did notknow