McLEAN, Va. (AP) — A federal judge has tossed out on a technicality two of four counts of conviction against a former CIA officer found guilty of spying for China.
The counts were dismissed in a written ruling Thursday by U.S. Senior Judge T.S. Ellis III after he ruled prosecutors failed to prove the accused man, Kevin Mallory, actually transmitted any sensitive information while inside the Eastern District of Virginia.
Without such proof, Ellis said prosecutors lacked venue to charge him in Alexandria.
Two other counts imposed by a jury last month, including a count of conspiracy to commit espionage, remain intact. Mallory still faces a potential life term when sentenced in September, though it’s unclear how the dismissals will affect his sentencing guidelines.
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Mallory’s attorney, public defender Geremy Kamens, declined to comment.
Prosecutors had argued that the late hour at which Mallory sent the documents from a mobile phone made it likely he did so from his Leesburg, Virginia home.
Ellis, though, said drawing such an inference is not permissible under precedent issued by the 4th U.S. Circuit Court of Appeals.
“Of course, many people are home at midnight, but many are not,” Ellis wrote in a 20-page ruling.
He also said the government failed to introduce any cell tower or surveillance evidence showing where Mallory was on or around midnight of May 1-2, 2017, when the transmission took place.
At trial, prosecutors presented evidence that Mallory, 61, gave top-secret information to Chinese handlers in exchange for $25,000.
Mallory argued that he is a loyal American who was merely stringing the Chinese along to try to get them to expose details of their own intelligence operation.
Ellis, in his 20-page ruling, said the evidence that Mallory conspired with his Chinese handlers to transmit U.S. government secrets was “overwhelming.”
Evidence at trial included text messages between Mallory and a Chinese agent in which Mallory wrote, “your object is to gain information, and my object is to be paid.”
Prosecutors say Mallory’s scheme unraveled when he was selected for secondary screening at O’Hare Airport in April 2017 on a flight back from Shanghai with his son. There customs agents found $16,500 in unreported cash, and they questioned Mallory about the nature of his trip.