ALEXANDRIA, Va. (CN) – A federal judge held a lengthy hearing behind closed doors Thursday before opting to delay the sentencing of a former CIA officer on conspiracy charges.
Rescheduling proceedings in the Kevin Mallory case to April 26, U.S. District Judge T.S. Ellis said this afternoon that disputes in the presentencing report require further review.
Based in Alexandria, Virginia, Ellis is the same judge who remarked at Paul Manafort’s “otherwise blameless life” when he sentenced the former lobbyist on financial crimes last month.
Mallory, 61, faces the possibility of life in prison after a federal jury convicted him last year of attempting to sell defense secrets to the Chinese.
A U.S. Army veteran who also worked for the Defense Intelligence Agency and the State Department, Mallory was arrested after he traveled to China twice in 2017 to meet a spy for the Shanghai Academy of Social Sciences, a think tank well known for its ties to Chinese intelligence officials.
During his second visit, Mallory received a custom cellphone from Michael Yang to enable covert communications.
Prosecutors describe Yang as a spy, but Mallory argued at trial that he thought Yang was a headhunter.
It was not until Yang began asking about prospective U.S. policies for China, and whether Mallory could land a job inside the Trump administration, that Mallory said he grew suspicious of Yang’s intent.
Upon returning to the United States, Mallory approached the CIA himself, saying the Chinese attempted to recruit him.
Rejecting the idea that Mallory was acting as a double agent, however, prosecutors John Gibbs and Jennifer Gellie noted that Mallory lied about money he took from Yang once he turned over the classified records.
Mallory turned over the encrypted cellphone as well, but FBI agents discovered a chat log showing that Mallory offered to send Yang more documents and was willing to use steganography, or the process of concealing a document inside of an image.
Another message revealed that Mallory was already planning to meet Yang again in Shanghai for a third trip.
At the time, agents warned Mallory that if he left the U.S. to conduct any sort of “counter-intelligence” activities, the U.S. would not sanction them and that Mallory would be left holding the bag for whatever happened next.
Facing mounting bills, $30,000 in credit card debt and imminent foreclosure of his home, Mallory decided to take the risk.
“He told me he appreciated it, but he wasn’t looking for input from us,” FBI special agent Stephen Green said at trial. “He said, ‘I’m doing what’s best for my family.’”
Authorities arrested Mallory, however, before he could embark on the third trip.
During a search of Mallory’s home in Ashburn, Virginia, FBI agents turned up two SIM cardswhere Mallory stored the documents he would eventually be accused of sending to Yang.
FBI Agent Melinda Capitano said at trial that locating one of the SIM cards was a “near miss.”
Agents combed through Mallory’s home multiple times looking for evidence but it wasn’t until an agent searched a junk drawer for the third time that they found what they were after.
Carefully prying open a crumpled, haphazardly strewn ball of aluminum foil, Agent Capitano found the SIM card gingerly placed inside.
While the conspiracy charges of which Mallory was convicted carry a possible life sentence, Judge Ellis has overturned Mallory’s convictions for sharing and attempting to share national defense secrets.
Those charges stemmed from text messages that Mallory sent to Chinese spies in the middle of the night between May 1 and May 2, 2017, to offer classified information.
While prosecutors showed video footage at trial of Mallory at a FedEx store days before the transmission in question, Ellis said this was not enough to show his whereabouts
“Of course, many people are home at midnight, but many are not,” Ellis wrote. “The government presented no cell tower or surveillance evidence showing the defendant’s location at the time of the transmission, nor did the government present evidence about the defendant’s tendency to be at his residence at any particular time.”