4th Circ. Flynn Partner Ruling Misses How Jurors Really Think 


The U.S. Court of Appeals for the Fourth Circuit's recent decision in U.S. v. Rafiekian,[1] issued on March 18, overturned a judgment of acquittal in a case that has garnered significant attention given its focus on the Foreign Agents Registration Act.

In doing so, it raises again a long-standing question about the reliability of limiting instructions to jurors.

In Rafiekian, a jury in the U.S. District Court for the Eastern District of Virginia before U.S.District Judge Anthony Trenga found the defendant, Bijan Rafiekian, guilty of acting as anunregistered foreign agent for the government of Turkey and conspiring to do the same.

The district court, though, granted the defendant's post-verdict motion for judgment ofacquittal and set aside the jury's verdict. It also conditionally granted Rafiekian's motion for a new trial in the event that trial court's judgment of acquittal might be overturned.

Hearsay[2] was a key battleground in Rafiekian. The government sought to introduce out-of-court statements of alleged conspirators. The trial court ruled there was insufficient proof to establish a conspiracy and, therefore, that the out-of-court statements did not qualify for the co- conspirator exception to the hearsay rule.

Judge Trenga, however, allowed the out-of-court statements to be presented to the jury in alimited fashion, permitting their introduction "as evidence of what information [Rafiekian]was provided concerning Turkish involvement in the project," but not as evidence for the truth of the matter asserted.[3] In essence, the judge allowed the statements in for their effect on Rafiekian.

After the trial, the trial court concluded that its limiting instructions to the jury regarding the out-of-court statements of a key government witness, Kamil Ekim Alptekin, were insufficient. The court reasoned:

Given the volume of admitted hearsay statements by Alptekin, and the substance of those statements,the jury was not adequately instructed as to the limited purpose of those statements and, more specifically, that those statements were not competent evidence upon which to find any involvement of the Turkish government or that Alptekin had any particular relationship or role relative to the Turkishgovernment.[4]

The trial court worried that the government's argument as to Alptekin's hearsay statements was "an invitation to consider the truth of those statements."[5] It therefore decided that Rafekian was entitled to a new trial.

The Fourth Circuit reversed. In rejecting this conclusion, the appellate court found that the government's closingargument had only relied on Alptekin's messages to show their effect

on Rafiekian, not their truth, and that there was other evidence from which a jury could infer the nature of Rafiekian's connections to Turkey.[6]

While the Fourth Circuit acknowledged that hearsay can be a challenging concept, it found that the jury hadbeen properly instructed and that there was no evidence to overcome the "crucial assumption that jurorscarefully follow instructions."[7] The court found no specific reason to doubt the jury.[8]

The Fourth Circuit in Rafiekian joined a long list of federal and state courts that have invoked the well-established presumption that jurors follow instructions.[9] Beyond relying on this principle, however, the courtdid not provide much analysis. Because the principle is so entrenched, its soundness is rarely examined.

Retired U.S. Circuit Judges Alex Kozinski and Richard Posner have both expressed concern about whether jurors follow instructions. Judge Kozinski, formerly of the U.S. Court of Appeals for the Ninth Circuit, wrote in Georgetown Law's Annual Review of Criminal Procedure:

This is a presumption — actually more of a guess — that we've elevated to a rule of law. It is, of course, necessary that we do so because it links the jury's fact-finding process to the law. In fact, however, we know very little about what juries actually do when they decide cases. Do they consider the instructionsat all? Do they consider all of the instructions or focus on only some? Do they understand the instructions or are they confused? We don't really know.[10]

Judge Posner of the U.S. Court of Appeals for the Seventh Circuit also has been critical of limiting instructions:

Also, judges generally adhere to the traditions of the judicial profession even when those traditions areunsound. An example is the "limiting" instruction: telling the jury to give no weight to an inadmissible bit of evidence that has snuck into the trial, yet without explaining to the jury why it should give no weight to what is likely to strike the jurors as especially significant evidence. The ineffectuality oflimiting instructions is well known. Yet still they're given, and rationalized with judicial falsehoods, such as that "our theory of trial relies upon the ability of a jury to follow instructions."[11]

Judges Kozinski and Posner echo concerns that have been expressed in the judiciary for decades. U.S. Supreme Court Justice Robert Jackson, in his concurrence in the 1949 Krulewitch v. U.S. decision, noted, "The naïveassumption that prejudicial effects can be overcome by instructions to the jury ... all practicing lawyers know to be unmitigated fiction."[12]

In Judge Posner's view, whether jurors follow instructions is not a yes or no question but instead a question of when and under what circumstances they can be expected to be reliable.[13] Jurors are better able to abide by instructions and evaluate cases that are closer to their personal experiences.

In Rafekian, which dealt with the fairly esoteric question of whether someone was operating as an agent for a foreign government, jurors may have had trouble parsing the information in the way the trial court intended. This likely was compounded by the fact that hearsay is itself a confusing concept.

In addressing whether further instructions were needed, the Fourth Circuit in Rafiekian acknowledged that hearsay is complicated. Indeed, it is. Lawyers devote countless hours in law school studying hearsay. The articles and treatises dedicated to it are legion. It takes years of practice to develop an ear for identifying hearsay, often a nuanced, fact-specific determination.

The parties' own hearsay-related disputes in Rafiekian illustrate the challenges that experienced attorneys often have in reaching consensus on what constitutes hearsay, let alone its limitations. These disagreements,moreover, occur with some degree of frequency. Given this, what are the odds that jurors have a reliable understanding of limiting instructions?

It is hard to know whether jurors abide by limiting instructions because it is difficult to know much, if anything, about what jurors think. As Judge Kozinski noted:

[W]e have no convincing reason to believe that jury instructions in fact constrain jury behavior in all or even most cases. And, because the information we get from inside the jury room is so limited and sporadic, experience does little to improve our knowledge. Looking at 100 black boxes is no more informative than looking at one.[14]

Average jurors do not normally encounter scenarios in which they consider statements for one purpose but not another. Limiting instructions cut sharply against intuition. Psychologists have found limiting instructions to be ineffective in controlled studies.[15]

There is some evidence that, for jurors less inclined to parse through the deluge of information presented at trial, a limiting instruction can actually do more harm than good.[16] Few people would argue that jurorsintentionally disregard limiting instructions. Jurors have different education levels, vocabularies and understandings of the judicial process. All those factors pose challenges to obtaining some consistent adherence to limiting instructions.

This is all the more reason why a trial court ought to be given deference on this question. Trial judges observe the witnesses and testimony in a trial firsthand. They observe the jurors, their facial expressions and bodylanguage. Because they have personal knowledge of the trial proceedings, appellate courts usually defer to the many judgment calls a trial court must make.

Deference is especially appropriate with respect to hearsay determinations, given their fact- specific and circumstantial nature. The abuse of discretion standard recognizes that deference is especially important for situations like these. The Rafiekian decision upends that. While the information a trial court gleans about a jury is limited, it is more than what is available on a record on appeal, which is next to nothing.

In Rafiekian, the trial court determined that the "sheer volume of hearsay statements" was problematic and "raised a substantial danger that absent adequate instructions, the jury would rely on those statements for an improper purpose,"[17] specifically that the jury would rely on those statements "as substantive proof of Turkey's involvement, Alptekin's relationship and role relative to the Turkish government, and the events and communications referenced in those statements."[18]

Judge Trenga determined that he should have given "a more detailed instruction with more specific restrictions on [the use of hearsay]" at the close of the case.[19]

The trial court heard the "sheer volume" of out-of-court statements introduced at trial, in real time. Itobserved the jurors' facial expressions and demeanor in response to them. The trial court found that the out-of-court statements were too much and that further instructions were needed.

One could argue that this ought to be a sufficiently specific reason, under the Fourth Circuit's rubric, to doubtthe jury's ability to consider this voluminous evidence for one purpose but not another.

It goes without saying that juries are fundamental to our system of justice. To draw too thin a standard for when a jury verdict may be set aside on the basis of hearsay-related concerns would inappropriately undercut them.

On the other hand, there is good reason to believe that juries have trouble with the application of complicatedinstructions, and there is no definitive evidence otherwise.

Because it appears that juries struggle with instructions in complex cases more frequently than the law presumes, the delicate judgment as to the effectiveness of a particular instruction is best rendered by the trial court.

Rafiekian is another data point in the long discussion of when courts should presume that jurors follow limiting instructions.

A trial court's determinations as to whether a jury's verdict can properly be upheld in the face of substantial hearsay concerns certainly must be subject to appellate review, but in evaluating a trial court's decision, it would be helpful for appellate courts to move beyond doctrinal arguments and provide a more pragmaticanalysis. In such cases, the trial court's decision deserves more deference than Rafiekian suggests.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Khorri Atkinson, 4th Cir. Revives Guilty Verdict Against Ex-Flynn Partner, Law360 (Mar. 18, 2021), https://www.law360.com/articles/1366424/4th-circ-revives-guilty-verdict-against-ex-flynn-partner; United States v. Rafiekian, No. 19-4803, 2021 WL 1036021, (4th Cir. Mar. 18, 2021).

[2] This article refers to hearsay and out-of-court statements interchangeably, although out-of-court statements not offered for their truth are technically not hearsay under Federal Rule of Evidence 801(c).

[3] Mem. Op. and Order at 32, United States v. Rafiekian, No. 1:18-cr-00457-AJT (E.D. Va. July 9, 2019), ECF No. 292.

[4] Mem. Op. at 36, United States v. Rafiekian, No. 1:18-cr-00457-AJT (E.D. Va. Sept. 24, 2019), ECF No. 372. 

[5] Id.

[6] Rafiekian, 2021 WL 1036021, at *15.

[7] Id. (citing Francis v. Franklin, 471 U.S. 307, 324–25 n.9 (1985)).

[8] Id. (citing United States v. Runyon, 707 F.3d 475, 497 (4th Cir. 2013)).

[9] See, e.g., Richardson v. Marsh, 481 U.S. 200, 206 (1987).

[10] J. Alex Kozinski, Criminal Law 2.0, 44 Geo. L.J. Ann. Rev. Crim. Proc. iii (2015) (citations omitted).

[11] Richard A. Posner, Reflections on Judging 305–306 (Harvard University Press 2013) (citing Opper v. United States, 348 U.S. 84, 95 (1954)).

[12] Krulewitch v. United States, 336 U.S. 440, 453 (1949)

[13] Richard A. Posner, Reflections on Judging at 304 (2013).

[14] J. Alex Kozinski, Criminal Law 2.0, viii (2015).

[15] See Joel D. Lieberman & Jamie Arndt, Understanding the limits of limiting instructions: Social psychological explanations for the failures of instructions to disregard pretrial publicity and other inadmissible evidence, Psychology, Public Policy, and Law, 6(3), 677–711 (2000),https://doi.org/10.1037/1076-8971.6.3.677; https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6818406/#cit0038.

[16] Matsuo K, Itoh Y. The Effects of Limiting Instructions about Emotional Evidence Depend on Need for Cognition, Psychiatr. Psychol. Law. 2017;24(4):516-529. Published 2017 Jan 16. doi:10.1080/13218719.2016.1254588.

[17] Mem. Op. at 36, United States v. Rafiekian, No. 1:18-cr-00457-AJT (E.D. Va. Sept. 24, 2019), ECF No. 372.

[18] Id.

[19] Id. 

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