ALEXANDRIA, Va. (CN) – In a recorded phone call from prison following his arrest for the alleged sale of defense secrets to China, former CIA agent Kevin Patrick Mallory played a risky guessing game with his son.
Mallory, who was arrested on charges of espionage and making false statements to authorities last June, wanted information from his son but would not say directly what he was after.
So in an excerpt played in a Virginia federal court Friday, jurors heard Mallory giving his son a series of indirect clues, probing him for a list of what FBI agents seized when they raided his home a day earlier.
Agents turned Mallory’s bedroom closet inside out until finally an officer found a ball of tin foil concealing a Toshiba 32GB SIM card.
According to prosecutors, the card held nine documents, all of which contained classified or top secret information about U.S. defense programs and operations, including information about how U.S. intelligence agencies communicate or demarcate sensitive Foreign Intelligence Surveillance Act documents.
“Remember when you had your phone fixed?” Mallory asked his son on the call from jail. “It will be just like that. Look on the sheet and see.”
Prosecutors argued Mallory was attempting to indirectly speak about the SIM card without confirming whether it existed. The sheet Mallory referred to was a carbon copy inventory list authorities left with his family following the raid.
Amidst the sounds of Mallory’s son rummaging in the background, Mallory spoke to his wife at times in English and then Mandarin, a language he mastered years ago.
“Tell Jeremiah not to speak out loud,” Mallory told his wife in English.
His son came back on, appearing unable to find what his father was after.
Asking him to look at the list, Mallory said, “What’s the first letter? Only say the first letter.”
As his son scanned the list, he told him there was a number attached to the item and that it was listed in “an important section” of the list.
Assistant U.S. Attorney John Gibbs clarified the exchange for jurors as screens throughout the courtroom displayed a copy of the FBI’s property seizure list. The SIM card, a Toshiba 32GB, appeared under the “Top Secret” column – the most important section of the list, Gibbs noted.
Jurors listened to the recorded call as the third day of Mallory’s trial unfolded. The day before, prosecutors had painstakingly detailed the series of events that led to Mallory’s arrest.
To establish guilt, the jurors would need to understand that the onetime CIA officer had communicated his plans to exchange information with his contacts in China using an encrypted messaging app known as WeChat.
Showing dozens of exhibits documenting text messages between Mallory and his contact, a man known as Michael Yang, prosecutors unfurled the covert communications.
“Also, may need to go again step by step in getting the doc to become part of the image. Then sending it to you,” Mallory wrote in one of the encrypted messages to Yang.
Prosecutors allege Mallory and Yang used steganography, the practice of hiding a message inside of a photo that can only be unlocked by someone who knows how to decrypt it, to pass messages to each other.
Mallory, represented by public defender Geremy Kamens, claims the weeks of back-and-forth texts both before and after two trips to Shanghai were merely an attempt to dupe the Chinese contact and string him along before finally exposing him to U.S. authorities.
In the messages, Mallory asked for money in exchange for the information he promised to provide. He also asked for a secure cellphone to be provided once he arrived in China. At another point, he told his contact, “I will have interesting information for our discussions.”
But some of Mallory’s claims don’t match up with what he told the FBI and CIA during voluntary interviews, Gibbs said.
Playing back a recorded interview between Mallory and investigator Mike Dorsey – who also testified Thursday – Mallory’s promises of “interesting information” were suddenly paper thin.
“They know I don’t have access to contacts or insider information,” Mallory told investigators.
Mallory also told investigators he never handed off any documents to Yang when he was in Shanghai last year, and he never mentioned the SIM card FBI agents would eventually find. Over two interviews, stretching seven hours, he also failed to mention a second SIM card that was eventually found in his kitchen, containing identical documents to those on the Toshiba.
Finding the cards represented the most “significant moments in the investigation so far,” Stephen Green, the lead FBI agent on Mallory’s investigation, told jurors Friday.
Green testified for more than five hours, unpacking the voluntary interviews he had with Mallory and the contradictions between Mallory’s statements and the text messages and emails he exchanged with Yang.
At their last interview in May 2017, Green said he warned Mallory not to meet with the Chinese a third time because the U.S. couldn’t authorize his so-called counter-intelligence activities.
“I don’t have the authority to tell a U.S citizen what they can and can’t do,” he said. “I told him he was free to do what he wished.”
Mallory, facing the threat of foreclosure on his home and crippled by $30,000 in credit card debt, responded to Green simply, the agent recalled.
“He told me he appreciated it, but wasn’t looking for input from us. He said, ‘I’m doing what’s best for my family,'” Green said.
If convicted of making false statements and selling government secrets, Mallory could face life in prison. His trial will resume Monday, and it is unclear if he will testify.