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Judge throws out two convictions against ex-spy who conspired to sell secrets to Chinese

In this video recorded by law enforcement, Kevin Mallory speaks to CIA security officer Mike Dorsey about his interactions with Chinese intelligence. (Video: U.S. Attorney's Office for the Eastern District of Virginia)
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A federal judge in Alexandria on Thursday threw out two convictions against a former CIA officer who conspired to sell secrets to Chinese spies, saying prosecutors failed to establish that the crimes happened in the Eastern District of Virginia.

Kevin Mallory, a longtime intelligence agent who went to trial last month, remains guilty of conspiracy to commit espionage and making false statements. But he is no longer guilty of actually sharing or trying to share national defense information, or NDI, with the Chinese.

Mallory, 61, will be sentenced on the remaining counts Sept. 21. He still faces a term of up to life in prison.

Mallory traveled twice to China to meet with a Chinese spy calling himself Michael Yang, as well as with others. On the second trip, Yang gave him a customized Samsung phone so they could communicate covertly, which Mallory later handed over to the FBI. Agents found several documents containing classified information as well as conversations indicating Mallory had sent some of the papers to Yang and tried to send others.

At trial, Mallory argued unsuccessfully that his true intent was to lure the Chinese spies into a trap and hand them over to U.S. law enforcement.

Judge T.S. Ellis III called the evidence “overwhelming” that Mallory and Yang “agreed to work together to transmit NDI to Chinese nationals.” But Ellis said the government never established where Mallory was when he sent those messages, which FBI experts said happened in the middle of the night between May 1 and May 2, 2017.

“The only evidence adduced at trial related to defendant’s location on those dates was the testimony of Special Agent [Stephen] Green, the case agent, who testified that the defendant was ‘in the United States’ on May 3, 2017,” Ellis wrote in his Thursday ruling.

“These pieces of evidence do not establish defendant’s location at the time of the transmission of NDI, and without evidence establishing defendant’s location at the time of the essential offense conduct, the government has failed to establish venue.”

Mallory lives in Leesburg, Va., within the Eastern District of Virginia, but Ellis said a jury cannot assume he was home when he sent the documents.

“Of course, many people are home at midnight, but many are not,” the judge wrote. “And the government presented no cell tower or surveillance evidence showing defendant’s location at the time of transmission, nor did the government present evidence about defendant’s ­tendency to be at his residence at any particular time.”

A spokesman for the U.S. ­Attorney’s Office for the Eastern District of Virginia did not immediately return a request for comment.