Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Mallory

United States District Court, E.D. Virginia, Alexandria Division

July 26, 2018

UNITED STATES OF AMERICA,
v.
KEVIN PATRICK MALLORY, Defendant.

          MEMORANDUM OPINION

          T. S. Ellis, III United Slates District Judge.

         After a four day trial, a jury convicted defendant of four counts:

         Count 1: conspiracy to gather or deliver defense information to aid a foreign government in violation of 18 U.S.C. § 794(c);

         Count 2: delivery of defense information to aid a foreign government in violation of 18 U.S.C. § 794(a);

         Count 3: attempted delivery of defense information to aid a foreign government in violation of 18 U.S.C. § 794(a); and

         Count 4: making material false statements in violation of 18 U.S.C. § 1001(a)(2).

         Defendant now moves for judgment of acquittal on the grounds (i) that the government's evidence at trial was insufficient to support the conspiracy charge alleged in Count 1, (ii) that it was an error to deny defendant's request for a buyer-seller instruction in connection with the conspiracy charge alleged in Count 1, and (iii) that the government's evidence at trial was insufficient to support a finding of venue on the offenses charged in Counts 2 and 3.

         Defendant's motion for judgment of acquittal has been fully briefed, and is now ripe for disposition.

         I.

         The facts recited here are derived from the trial record, which includes extensive recorded interviews of defendant by Central Intelligence Agency (CIA) and Federal Bureau of Investigation (FBI) agents, [1] certain records from the cellphone provided to defendant by suspected intelligence officers of the People's Republic of China (PRC), and expert testimony.

         Defendant is a former CIA and Defense Intelligence Agency (DIA) operative and contractor. Between 1981 and 2012, defendant worked for various U.S. Government agencies and cleared defense contractors. He also served some time on active duty in the U.S. Army. After leaving his last position as a contractor, defendant, at the times relevant here, was self-employed, operating his own largely unsuccessful consulting business.

         The majority of the trial evidence focused on defendant's contacts and relationship with Michael Yang, a citizen of the PRC who defendant believed was an intelligence officer for the PRC intelligence service (PRCIS). In February 2017, a Chinese business recruiter named Richard Yang contacted defendant through LinkedIn, a social media website used for job networking. Richard Yang told defendant that he had leads about possible consulting work in the PRC. After defendant expressed an interest in this possible consulting work, Richard Yang arranged for defendant to contact an individual named Michael Yang. Defendant, who was in the United States, then engaged in a Skype call with Michael Yang, who was located in the PRC. The purpose of the call was to determine the nature of the information Michael Yang was seeking. In this Skype call, Michael Yang apparently described to defendant the nature of the information he, Michael Yang, was seeking. Defendant took notes on the topics in which Michael Yang had expressed an interest. The notes defendant made of the call reflect that Michael Yang was interested in the following: the United States' THAAD[2] missile defense system, the South China Sea, currency manipulation by the PRC, and public-private partnerships, a subject that a government expert at trial testified could involve classified information/national defense information (NDI).[3]

         Following his initial Skype call with Michael Yang, defendant, in late February, contacted Ralph Stephenson (Stephenson), a person defendant knew from defendant's church and who defendant also knew worked at the CIA. Defendant asked Stephenson to help him contact someone at the CIA working on China issues. Stephenson testified at trial that defendant's contact made him uncomfortable and accordingly Stephenson reported defendant's contacts with Stephenson to CIA security agents.

         In early March 2017, defendant and Michael Yang arranged for defendant to travel to the PRC to meet with Michael Yang and Mr. Ding, putatively Michael Yang's boss. In advance of the trip, defendant asked Michael Yang to provide defendant with an Apple iPhone for defendant to use to communicate with Michael Yang while defendant was in the PRC. Defendant asked Michael Yang to have WeChat, a communication application popular in the PRC, installed on the iPhone. Defendant requested that Michael Yang have the iPhone left in a sealed envelope in defendant's hotel so that in defendant's words defendant could be sure the iPhone “[had] not been tampered with.” Gov't Trial Ex. 3-15.

         The day following defendant's email exchange with Michael Yang concerning defendant's request for an iPhone, defendant went to a FedEx store in Washington D.C. where defendant had nine pages of documents scanned onto an S.D. card. These documents were unclassified and related to CIA analysis standards, military intelligence acronyms, and other topics. On March 13, 2017, after defendant arrived in Shanghai, China, defendant sent an email to Michael Yang attaching the nine pages of scanned documents from the S.D. card. As defendant put it, these attached nine pages were attached as “examples.” Gov't Trial Ex. 3-18.

         During this visit of defendant to the PRC, defendant met for several hours with Michael Yang and Mr. Ding. Defendant in his later interviews with CIA and FBI agents acknowledged that in the course of this visit to the PRC defendant understood that Michael Yang and Mr. Ding were in fact PRC intelligence officials seeking U.S. Government secrets.

         In April 2017, defendant again traveled to the PRC. On this trip Michael Yang provided defendant with a Samsung Galaxy Note 4 smartphone, which defendant described as a covert communications (covcom) device. This covcom device included a custom application that allowed defendant to send encrypted communications to Michael Yang through WeChat, a program that was loaded on the covcom device. While defendant was in the PRC, Michael Yang trained defendant on how to use the covcom device to communicate securely with Michael Yang via encrypted messages.

         Defendant then returned to the United States, landing first in Chicago. There, Customs and Border Protection (CBP) officers found $16, 500 in cash in defendant's luggage, despite the fact that defendant had falsely declared in his customs declaration that he did not possess on his person or in his luggage more than $10, 000 in cash. When asked about the covcom device, defendant falsely told CBP officers that the covcom device was a gift for his wife. The CBP ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.