Kevin Patrick Mallory worked in U.S. intelligence for 20 years, where he held top-secret security clearance. After leaving government work to start his own consulting business, he sent several documents via an encrypted phone to Chinese-nationals seeking U.S. intelligence secrets. He was convicted by a jury of conspiring to transmit national defense information and making false statements about it to government agents. At trial, Mallory acknowledged that his disclosure had included classified material, but argued that the information disclosed therein was so widely known that it didn’t constitute “information relating to the national defense” to warrant a conviction.
Prior to trial, the district court approved the government’s request to use the silent witness rule to prevent testimony in open court regarding classified information. Pursuant to the silent witness rule, the public was given unfettered access to the entire trial, but certain evidence was only provided to the Court, jurors, parties, and testifying witnesses. On appeal, Mallory argued, among other things, that the district court violated his Sixth Amendment right to a public trial when it improperly prohibited him from introducing other publicly available material that would have allowed the public to draw parallels and make conclusions about the confidential information at issue.
The Fourth Circuit treated this application of the silent witness rule as a matter of first impression and affirmed. The Court agreed with Mallory that he had standing to assert the violation, that the implementation of the silent witness rule could conceivably conflict with the Sixth Amendment in certain cases, and that such a violation, where found, would constitute structural error warranting reversal without a showing of prejudice. However, after reviewing prior case law finding a right-to-public-trial violation, the Fourth Circuit held that the district court’s conduct here, even if it amounted to a “partial closure,” was justified by a substantial reason.
Appeal from Eastern District of Virginia
Opinion by Niemeyer, joined by Wilkinson and Quattlebaum
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