Introduction

In United States of America v. Bijan Rafiekian, 991 F.3d 529 (4th Cir. 2021), the United States Court of Appeals for the Fourth Circuit addressed significant issues concerning the interpretation of the Foreign Agents Registration Act (FARA), specifically under 18 U.S.C. §951. The case involved Bijan Rafiekian, who was initially convicted by a jury for acting as an unregistered foreign agent and conspiring to do the same. However, the district court later acquitted him of all charges and conditionally granted a new trial. The Government appealed this decision, leading to a comprehensive analysis by the appellate court.

Summary of the Judgment

The Fourth Circuit reversed the district court’s judgment of acquittal and vacated its conditional grant of a new trial. The appellate court held that Rafiekian did act as an agent of a foreign government without proper registration, thereby violating 18 U.S.C. §951. A pivotal aspect of the decision was the court’s interpretation of the "legal commercial transaction" exception within §951(d), determining it to be an affirmative defense rather than an element of the offense. This distinction has profound implications for future prosecutions under FARA.

Analysis

Precedents Cited

The judgment extensively reviewed prior cases to interpret §951. Notable among these was United States v. Hung, the only published Fourth Circuit case directly addressing §951 prior to Rafiekian. Additionally, the court referenced United States v. Royal, which dealt with the interpretation of statutory exceptions as affirmative defenses, and UNITED STATES v. COOK, which outlined principles for statutory construction regarding exceptions.

Legal Reasoning

The court’s legal reasoning centered on two primary questions:

1. Does §951’s definition of "agent" align with the common-law understanding, and to what extent does foreign direction or control influence this definition?
2. Does the "legal commercial transaction" exception in §951(d) constitute an element of the crime or serve as an affirmative defense?

The appellate court agreed with the district court that §951’s definition of an "agent" resonates with common-law agency, requiring a mutual agreement to operate under foreign direction or control. However, it diverged on the breadth of "direction or control," rejecting the Government's broader interpretation which suggested that mere willingness to act at the foreign principal’s request sufficed.

On the second question, the Fourth Circuit concluded that the "legal commercial transaction" exception is an affirmative defense. This means that defendants must proactively invoke this exception rather than the Government having to disprove it. The court emphasized that treating it as an element would unduly burden the prosecution, making prosecutions under §951 impractically difficult.

Impact

This judgment sets a significant precedent by clarifying the nature of exceptions within §951. Recognizing the "legal commercial transaction" exception as an affirmative defense rather than an element lowers the bar for defendants to challenge prosecutions under FARA. It also reinforces the necessity for clear mutual intent and control in agency relationships involving foreign governments. Future cases will likely reference this decision to determine the applicability of defenses and the interpretation of statutory language regarding foreign agents.

Complex Concepts Simplified

Foreign Agents Registration Act (FARA): A U.S. law requiring individuals and entities acting as agents of foreign principals to disclose their relationship and activities.

18 U.S.C. §951: A statute under FARA that penalizes acting as an agent of a foreign government without proper registration.

Legal Commercial Transaction Exception: A provision within §951(d) that excludes certain legal business activities from being considered as acting on behalf of a foreign government.

Affirmative Defense: A defense used in court where the defendant introduces evidence that, if true, will negate criminal liability, even if the prosecution's claims are true.

Element of the Offense: A component that the prosecution must prove to establish that a crime has been committed.

Conclusion

The Fourth Circuit’s decision in United States v. Rafiekian provides a crucial interpretation of 18 U.S.C. §951, particularly clarifying the role of the "legal commercial transaction" exception as an affirmative defense. This distinction not only streamlines the prosecutorial process under FARA but also ensures that individuals acting in legitimate commercial capacities are not unduly penalized for interactions that fall within legal business activities. The judgment underscores the importance of mutual agreement and control in defining agency relationships with foreign governments, setting a clear standard for future cases and contributing to the evolving landscape of foreign agent regulation in the United States.