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Defendant wins new trial in foreign-agent case

Virginia Lawyers Weekly//June 1, 2023

Defendant wins new trial in foreign-agent case

Virginia Lawyers Weekly//June 1, 2023

Where the defendant was convicted of acting as an unregistered agent of a foreign government, the district court did not abuse its discretion in ordering a new trial. The district court weighed the evidence and provided an explanation for its decision.


In 2019, a jury convicted Bijan Rafiekian of one count of acting as an unregistered agent of a foreign government and one count of criminal conspiracy. But the district court granted a judgment of acquittal as to both charges and conditionally granted a new trial in the event the judgment of acquittal was reversed on appeal.

On appeal, this court reversed the judgments of acquittal, vacated and remanded the court’s new-trial order and noted that the district court “may have additional justifications for its decision” that it failed to explain. On remand, the district court provided additional justifications, again ordering a new trial.


The government asserts that the district court erred by reaching its new-trial determination based solely on its disagreement with the jury’s inferences of guilt. The government notes that this court has not previously addressed whether a district court may grant a new trial based solely on the court’s disagreement with inferences made by the jury. Instead, the government suggests, the district court must find “specific defects or indicia of unreliability in the trial evidence” before granting a new trial.

Although the government asserts that the law among other circuits is “uniform and unequivocal” in declaring that a court cannot grant a new trial based solely on disagreement with the jury’s inferences, this court does not view the other circuits as being so unanimous, or so categorical. It is true that some circuits have suggested — consistent with the government’s view here — that a serious vulnerability in the evidence must exist to warrant a new trial based on the weight of the evidence. Some courts have also concluded that the mere fact that a district court would draw a different inference from a particular piece of evidence than the jury did is not enough to merit granting a new trial.

But even these courts have acknowledged that, in the appropriate circumstance, a trial judge can order a new trial when the evidence “weighs heavily against the verdict” and a “miscarriage of justice” would otherwise result, and in doing so “may weigh the evidence and credibility of witnesses.” More importantly, this court has already determined that disagreement with the jury’s inferences regarding the evidence can support the district court’s decision to grant a new trial.

Here, the government implicitly conceded at oral argument that a new-trial order may be based at least in part on the court’s disagreement with the jury’s inferences regarding a witness’s credibility. The problem, according to the government, arises when the new-trial order relies solely on the court’s disagreement with the jury’s inferences. This court disagrees. The key question in determining whether a new trial is warranted under Rule 33 is not what kinds of evidence support the verdict, but the weight of that evidence.

In this case, because the district court determined that a new trial was warranted based on the weight of the evidence, this court’s role is only to ask whether the court abused its discretion in doing so. Exercising “great deference” to the district court’s “discretionary assessments of the balance of the evidence,” it holds that it did not. At every turn, the court concluded that the exculpatory inferences were more persuasive than the inferences of guilt—and powerfully so. It explained that all of the key evidence in the case “points to Rafiekian’s innocence,” while the convictions relied on “weak inferences, many built upon one another, drawn from narrowly framed circumstantial evidence, without regard to a broader context that substantially undercuts any inculpatory inferences.”


Dissenting opinion

Niemeyer, J., dissenting:

Taking into account the district court’s order granting acquittal, its first order granting a new trial based on its earlier acquittal order and now its second order granting a new trial, the district court revealed essentially that from the beginning, it disagreed with the jury, even though the jury had more than ample evidence from which to find the defendant guilty. Granting the new trial now is, I believe, an abuse of discretion. Accordingly, I would reverse, remand and direct that the district court reenter the jury’s verdict convicting Rafiekian.

United States v. Rafiekian, Case No. 22-4252, May 18, 2023. 4th Cir. (Wynn), from EDVA at Alexandria (Trenga). Aidan Taft Grano-Mickelsen for Appellant. James Edward Tysse for Appellee. VLW 023-2-132. 33 pp.

VLW 023-2-132

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