ALEXANDRIA, Va. (CN) – Had FBI agents overlooked a crumpled ball of tinfoil tossed haphazardly in former CIA contractor Kevin Mallory’s junk drawer during a raid of his home last June, he may never have faced espionage charges in federal court.
“We overlooked it twice,” FBI agent Melinda Capitano told jurors as Mallory’s week-long trial which concluded Thursday.
“What made you think to open it?” prosecutor Colleen Garcia asked.
The ball of foil, no bigger than a gum wrapper, was nestled among other domestic ephemera like Tylenol packets and old notes.
“Usually in my training, small bits of foil like this contain drugs,” Capitano said.
It wasn’t drugs agents found after raiding Mallory’s home; it was a micro SIM card, small enough to disguise within the folds of the foil near seamlessly.
On it were eight documents comprising dozens of pages of classified, and sometimes top secret defense information on diverse subjects like U.S. deployment numbers, defense technology assets, information on human assets active in the field and counter intelligence operational methods which, if exposed, according to U.S. assistant attorney John Gibbs, could harm national security.
“What this case is about, if you believe the defense … and the reason we’re all here today, is because a well meaning former intelligence officer wanted to help by providing one simple white paper to the Chinese and then telling the U.S. government about it,” Gibbs said.
But Gibbs said the premise put forward by defense attorneys Geremy Kamens and Todd Richmond was “totally and completely absurd.”
“The facts can prove it,” he said.
Last February, Mallory, a former CIA and Defense Intelligence Agency employee was contacted on LinkedIn by a man he first believed to be a headhunter named Richard Yang.
Yang passed Mallory to a cohort, Michael Yang. Mallory eventually – and voluntarily – told the FBI and CIA he believed Yang was a Chinese spy embedded at the Shanghai Academy of Social Sciences, a think tank many in the intelligence community believe is a hotbed for covert Chinese operatives.
Gibbs described Mallory as unemployed with children in college, $30,000 in credit card debt and with the weight of a foreclosure bearing down on him.
“He wanted to make as much money as possible. [The Chinese] might’ve pushed him for more information and if they did, the payments would go up,” he said. “If he truly did what the defense is suggesting, the money would dry up.”
Prosecutors say that between February and May 2017, Mallory traveled twice to Shanghai, and that during those trips he developed what former undersecretary for the Defense Intelligence Agency Hugh Michael Higgins described as a “give-and-take relationship” with Yang.
The trust Mallory established before his first trip, Gibbs argued, was so considerable, Yang agreed to give him a custom cell phone with advanced capabilities. FBI agents told jurors even they had never seen a phone like it before.
Mallory and Yang texted through an encrypted messaging app, negotiating payments, making arrangements to meet, discussing information Mallory could provide and at times, growing tense with one another over the risk each faced if exposed.
Mallory was returning from his second trip to Shanghai when he was searched by customs agents at Chicago O’Hare International Airport. Mallory declared $10,000, but the agents found $16,500 stuffed in a large envelope plus a cell phone allegedly given to him by Yang.
Mallory told the agents his trip was a father-son vacation, that he had miscounted his money and that the phone was a gift for his wife.
Prosecutors said Yang texted Mallory right after the run-in with customs and suggested they stop communicating.
Mallory told Yang his money was seized. It hadn’t been.
Then he asked for reimbursement, telling Yang: “All the risk is on me.”
“He lies. He lies a lot,” Gibbs said. “He even lied to Yang.”
Kamens suggested that if his client's independent covert operation had been successful, he would have been able to leverage that success into a new job at the CIA. But Gibbs said if that was Mallory intent, he missed the opportunities to do so over roughly seven hours of interviews with the CIA and FBI.
“Maybe he did want a job. There’s an easy way to do that. He could have held up the phone [at his second interview with agents] and said ‘I know there may be repercussions, but you take over. You impersonate me. Set up the best double cross in the history of espionage,” Gibbs said. “But he didn’t.”
To sow reasonable doubt, Kamens emphasized the frequent appearance of open source – or publically available – information in the documents.
Some of it was outdated, some available to anyone who could search online and much of the docs – almost all redacted during trial – were “stripped of real intelligence,” by Mallory, he said.
The $25,000 the Chinese paid Mallory for the information was “pocket change” relative to the risk of conviction, Kamens argued. The conspiracy charge didn’t fit either, Kamens said.
“If the documents are fake, that’s not conspiracy. That’s counterintelligence,” he said.
Mallory’s correspondence with Yang was a ruse by someone “playing a role.”
“He leaned a little too far forward, but his heart was in the right place,” Kamens said.
If convicted, Mallory faces up to life in prison.
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