ALEXANDRIA, Va. (CN) – Kevin Patrick Mallory, a former CIA contractor convicted of selling defense secrets to a Chinese spy last month, will be acquitted on two counts, a federal judge has decided.
Mallory, a Leesburg, Virginia resident, was arrested in June 2017. He was charged with transmitting secret documents to Chinese intelligence operatives posing as consultants for the Shanghai Academy of Social Sciences.
After a weeklong trial in June in the U.S. District Court for the Eastern District of Virginia, Mallory was found guilty by jurors who reviewed extensive evidence like multiple text and email exchanges on a covert cell phone between Mallory and his Chinese contact plus recorded video of Mallory being interviewed – voluntarily – by the FBI between trips to Shanghai.
Jurors found Mallory guilty of conspiracy to deliver classified defense material, attempt to deliver the material, actually delivering the documents and making false statements to law enforcement.
Mallory sought to have certain of the charges against him tossed, claiming prosecutors failed to provide evidence supporting the conspiracy charge, wrongfully denied his request for a ‘buyer-seller instruction’ in connection with that charge and that government’s evidence was “insufficient to support a finding of venue” related to the actual and attempted delivery of classified material.
On Thursday, Judge Ellis agreed with Mallory – in part.
The transmission of the defense documents occurred around midnight between May 1 and May 2, 2017. But the question of where Mallory was when the transmission occurred is unresolved, Ellis explains.
“The only evidence adduced at trial related to [Mallory’s] location … was the testimony of Special Agent [Stephen] Green, the case agent, who testified that the defendant was ‘in the United States’ on May 3, 2017,” Ellis wrote.
At trial, prosecutors argued Mallory was in the Eastern District of Virginia as evidenced by Mallory’s trip to a local FedEx store days before the transmission and his voluntary interview with the CIA at headquarters in Langley, Virginia.
“But these pieces of evidence do not establish [Mallory’s] location at the time of the transmission…and without evidence establishing defendant’s location at the time of the essential offense conduct, the government has failed to establish venue,” Ellis wrote.
Based on this, inference that he was in Virginia during the transmission doesn’t succeed and the Fourth Circuit has rejected such arguments before, he explained.
“The government also points to the late hour of the transmission in support of venue, arguing that because transmission took place late at night it is likely the defendant transmitted the documents from his home,” Ellis wrote.
But that isn’t direct evidence either, he said.
Even if the jury could infer Mallory was home in Virginia late at night, prosecutors never provided cell tower or surveillance evidence from his house or his tendency to be at home at a particular time.
“Many people are home at midnight but many are not,” Ellis wrote.
On the attempt to deliver defense information count, Ellis drew another distinction. Venue is proper anywhere a defendant commits a “substantial step” toward communicating, delivering or transmitting classified documents.
A “substantial step” is a ‘direct act in course of conduct planned to culminate in commission of a crime that is strongly corroborative of the defendant’s criminal purpose,” Ellis wrote.
While the failed send sequences for the documents, as recorded on Mallory’s devices, are a “substantial step,” prosecutors still didn’t show evidence at trial as to where Mallory was during transmission.
Mallory will be sentenced on the remaining charges in September.