A federal appeals court yesterday agreed to delay closing arguments in the trial of accused spy Jerry Alfred Whitworth in order to review a lower court ruling that prosecutors said would "irreparably harm" their case against the retired Navy communications expert.
In an unusual move, the 9th Circuit U.S. Court of Appeals in San Francisco granted the government's request to postpone the trial until July 7. The appeals court agreed to consider a lower court judge's decision that the government must prove that Whitworth intended to aid the Soviet Union or to harm the United States when he allegedly passed highly secret Navy coding information to confessed spy John Anthony Walker Jr.
Prosecutors contend that they need prove only that Whitworth intended or had reason to believe he would aid a foreign power, not necessarily the Soviet Union.
The issue could be critical, because Walker testified that he never told Whitworth that his "buyer" was the Soviet Union and there is no direct evidence that Whitworth knew the material was going to the Soviets.
In an emergency petition, prosecutors sought to overturn U.S. District Judge John P. Vukasin Jr.'s ruling on the Soviet issue, which they termed "clearly in error as a matter of law."
Under Vukasin's planned jury instructions, Whitworth may also be convicted if the jury concludes he intended or had reason to believe his actions would harm the U.S.
Vukasin ruled against the government Wednesday in a major victory for Whitworth's lawyers, who have hinged their defense on the hope that the jury will believe Whitworth did not know the material was going to the Soviet Union.
Assistant U.S. Attorney William S. Farmer told Vukasin the ruling created a "significantly greater chance of acquittal."
Walker, the star witness against his former Navy colleague, testified that he never told Whitworth that he was passing the material to the Soviets but suggested to him instead that his buyers were a private organization or an allied country, such as Israel.
In addition to eight counts of espionage, Whitworth, 46, is charged with tax fraud and failing to pay income tax on $332,000 he allegedly received from Walker for his role in the spy ring.