RICHMOND, Va. — An appellate court denied an attempt from a former CIA officer to have a new trial take place after he was convicted of selling information to Chinese agents.
Kevin Mallory, 64, is serving a 20-year prison sentence after being found guilty of conspiring to deliver classified government information to a foreign country.
Mallory appealed his conviction to the Fourth Circuit Court of Appeals after his conviction. On Monday, the court denied his appeal.
According to court records, Mallory formerly worked for the CIA from the late 1980s to 2012. Mallory worked as a case officer and had access to "sensitive compartmented information," according to court records.
Following his employment with the agency, Mallory was self-employed as the operator of a consulting business.
By February 2017, however, Mallory was struggling financially and had missed multiple mortgage payments, according to court documents.
It was at this time, documents say, Mallory received a message on LinkedIn from a Chinese man posing as a business recruiter stating he had possible work for Mallory.
The two planned to meet in Shanghai with the Chinese man, Michael Yang, to discuss ideas. Yang expressed interest in speaking about the "United States’ THAAD defense system, an antiballistic missile defense system," according to documents.
Mallory had Yang provide him with a cell phone so that they could send encrypted messages to each other. Mallory scanned several documents at a FedEx store and placed them on an SD card before heading to China.
The documents were then given to Yang, identified by the FBI as a Chinese intelligence officer.
Mallory began contacting former CIA coworkers to gain further information.
When Mallory returned from his second trip to China, he was questioned after it was discovered he had $16,500 in his luggage after reporting he had no more than $10,000. He also told investigators the phone was a gift for his wife and that he had traveled to China for an anti-bullying program.
Following this interaction, Mallory returned home and sent more documents to Yang.
Mallory then scheduled a meeting with a CIA security investigator to tell them about how he was approached by a Chinese intelligence officer. He told the investigator he did not use any devices to transport classified documents but a quick search of the phone provided to him by Yang proved his guilt to the agents.
Following this meeting, Mallory was charged with conspiracy to transmit national defense information to a foreign nation, delivering that information, attempting to deliver the information, and making false statements to government agents in July 2017.
Mallory was convicted of two of these charges in June 2018 and sentenced to 20 years in prison.
He appealed the decision on the grounds the court violated his right to a public trial by the "silent witness" rule during his trial and that the court erred by refusing to tell the defense's argument that Mallory was simply making a business deal in China rather than a breach of government information.
However, the court ruled that the "silent witness" rule was implemented in this case because the documents involved contained classified information blocked from public view. Furthermore, the court stated that the public was at no time prevented from viewing the trial.
In regards to his defense not being properly presented, the court states that Mallory's defense had no basis in factual law. Mallory's defense argued his dealings with Yang were merely for business purposes and not aimed to be a conspiracy to undermine the United States. The court found, though, that Mallory's actions were evidence of someone involved in a conspiracy.
With the lower court's decision affirmed, Mallory can appeal to a higher court if he wishes to keep fighting his conviction.