United States of America v. Kevin Patrick Mallory

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-4385
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEVIN PATRICK MALLORY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. T. S. Ellis, III, Senior District Judge. (1:17-cr-00154-TSE-1)
Argued: March 8, 2022 Decided: July 11, 2022
Before WILKINSON, NIEMEYER, and QUATTLEBAUM, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge
Wilkinson and Judge Quattlebaum joined.
ARGUED: Geremy C. Kamens, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant. Jennifer Kennedy Gellie, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Frances H.
Pratt, Assistant Federal Public Defender, Todd M. Richman, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for
Appellant. G. Zachary Terwilliger, United States Attorney, John T. Gibbs, Assistant
United States Attorney, Daniel T. Young, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

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NIEMEYER, Circuit Judge:
A jury convicted Kevin Patrick Mallory of conspiring to transmit national defense
information to Chinese agents, in violation of 18 U.S.C. § 794(c), and making materially
false statements to FBI agents, in violation of 18 U.S.C. § 1001(a)(2).
On appeal, Mallory challenges the district court’s application during trial of the
“silent witness rule” — under which sensitive evidence is disclosed to the jury and the
trial’s other participants but not to the public — contending that it violated his right to a
public trial, in violation of the Sixth Amendment, and his right to present a complete
defense, in violation of the Fifth and Sixth Amendments. He also mounts two distinct
challenges to the district court’s instruction of the jury.
We reject his challenges, as explained herein, and affirm.
I
A
Kevin Mallory spent 20 years working in the U.S. intelligence community, during
which time he served as, among other positions, a case officer and a contractor for the
Central Intelligence Agency (“CIA”) and as an intelligence officer with the Defense
Intelligence Agency (“DIA”). In connection with these positions, Mallory received a top-
secret security clearance and also had access to sensitive compartmented information.
While an employee of the DIA, Mallory’s responsibilities included serving as the handling
case officer for a pair of covert human assets, referred to for the purposes of this case by

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the pseudonym “the Johnsons.” Mallory left the intelligence community in 2012 and
became self-employed, operating a consulting business from his home.
Several years later, in February 2017, Mallory was contacted on LinkedIn, a
professional networking site, by someone who presented himself as a Chinese business
recruiter and who told Mallory that he had leads about possible consulting work in China.
Mallory — who was experiencing serious financial difficulties at the time, having missed
at least two mortgage payments — expressed an interest in this work. The recruiter
arranged for Mallory to contact a man identified as Michael Yang, who purportedly worked
for a Chinese think tank, and on February 21, Mallory had a video call with Yang.
Mallory’s handwritten notes from that call indicate that Yang expressed an interest in,
among other things, the United States’ THAAD defense system, an antiballistic missile
defense system.
On March 10, 2017, Mallory traveled to China to meet Yang. In advance of the trip,
Mallory requested that Yang provide him with a cell phone when he arrived, specifying
that Yang should “put it in an envelope, initial around the seals, tape over [the] initials, and
put that envelope in another envelope” to “make sure that it has not been tampered with.”
And on the day before Mallory left for China, he went to a FedEx store in Washington,
D.C., where he purchased an SD memory card and scanned nine pages of documents onto
it. Shortly after arriving in Shanghai, Mallory sent Yang an email, attaching three
documents that totaled nine pages, which he stated were “examples.” While the documents
were unclassified, they included a list of “military intelligence related acronyms” and a
document bearing the CIA’s seal that described “[a]nalytic [t]radecraft [s]tandards.”

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According to the DIA’s former Director of Operations, Mallory’s act of emailing these
documents to Yang was consistent with a potential asset demonstrating to a suspected
intelligence officer that he had access to information with intelligence value.
Mallory later told federal investigators that during his March 2017 trip to Shanghai,
he met for several hours with Yang and a man who was introduced as Yang’s supervisor,
“Mr. Ding.” Mallory further stated that he came to understand during these meetings that
Yang and Ding were Chinese intelligence officers who were looking for U.S. government
secrets.
Mallory returned to China in the middle of April 2017 and again met with Yang.
On this trip, Yang provided Mallory with a Samsung Galaxy Note 4 smartphone that had
been customized so that Mallory could send encrypted communications to a corresponding
phone kept by Yang. Mallory later referred to the phone as a “covert communications”
device (a “covcom” device) and acknowledged that Yang had trained him on how to use
it.
On his return from this second trip to China on April 21, 2017, Mallory was
inspected in Chicago by Customs and Border Protection agents, who found $16,500 in cash
in his carry-on luggage, even though he had stated on his customs declaration that he was
not carrying more than $10,000 in cash. Mallory also told the agents falsely that the
covcom device was a new phone that he had purchased for his wife as a gift, and the only
person with whom he reported meeting in China was a church acquaintance regarding an
anti-bullying program. The agents later testified that Mallory appeared aggravated during

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the inspection but that his demeanor changed completely when he was told that the only
consequence was that he had to pay a duty on the items he had purchased in China.
A few days after his return, Mallory visited a FedEx store again — this time one
that was close to his home in Leesburg, Virginia — and paid to have a FedEx clerk scan
nine documents totaling 47 pages onto an SD memory card and then shred the documents.
During a later search of Mallory’s house pursuant to a warrant, law enforcement agents
recovered two SD memory cards, each of which had nine documents totaling 47 pages.
Evidence from the FedEx store’s surveillance footage helped confirm that the documents
on the cards were the ones that Mallory had scanned at the FedEx store.
Government witnesses testified later that each of the nine documents that Mallory
scanned contained classified information. Some of the information was classified because
it “discusse[d] specific intelligence sources and methods,” including “specific mechanisms
[that U.S. intelligence] would use to gather the information . . . from foreign nationals” and
“specific methods and targets that [U.S. intelligence was] interested in in this other
country.” At least two of the documents contained markings indicating that material within
them was classified at the “top secret” level, reflecting the determination that the
unauthorized disclosure of the information “reasonably could be expected to cause
exceptionally grave damage to the national security” interest of the United States. And a
government expert witness testified to her determination that these documents had been
“properly classified at the top secret level.”
Starting on May 1, 2017, Mallory used the covcom device to transmit to Yang two
of the nine documents that he had scanned at the FedEx store. The first transmitted

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document was a handwritten page entitled “Table of Contents” that listed the titles and
page counts for the eight other documents, listing the first as “S&T [Science &
Technology] Target[]ing Opportunity.” The second transmitted document corresponded
to that descriptor and consisted of a handwritten cover page with the title “S&T Target[]ing
in China,” a typed page entitled “White Paper” that contained classified information, and
two pages of handwritten notes from a yellow legal pad. Text messages between Mallory
and Yang indicated that Yang received the two documents, and Yang then pressed Mallory
to send additional documents. Mallory indicated that he would do so once Yang confirmed
he had received authorization to make an additional payment to Mallory.
Evidence later showed that the transmitted “White Paper” discussed a proposed DIA
operation that would have involved the Johnsons and included information about that
intelligence relationship. It was derived from and summarized a PowerPoint that Mallory
had used during a presentation to DIA supervisors when he was a DIA employee, in which
he had proposed an operation “to do something unique and sensitive” targeting China.
Mallory had scanned the first 13 pages of the PowerPoint presentation at the FedEx Store,
and it was the second item listed in the transmitted “Table of Contents.” The first five of
those pages were later recovered from the covcom device, along with evidence indicating
that, on May 5, 2017, Mallory had completed the steps necessary to send that document,
as well as the third document listed on the “Table of Contents,” which was a CIA document
also containing classified information. In addition, data recovered from the covcom device
indicated that Mallory had at least tested the covcom device with two of the other
documents listed in the “Table of Contents,” both of which pertained to the intelligence

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service capabilities of a foreign country and contained information classified at the top-
secret level.
Around the same time period that he was scanning documents containing classified
information onto an SD card at his local FedEx store and using the covcom device provided
to him by Yang, Mallory also asked an acquaintance who worked at the CIA to put him in
touch with CIA security, indicating to the acquaintance that he had been approached by
Chinese intelligence agents on a recent business trip and wanted to “get [it] on the record.”
On May 12, 2017, Mallory met with a CIA investigator and on May 24, with FBI agents.
In these interviews, Mallory described some of his contacts with Yang, and he showed the
covcom device to the FBI agents, describing how it worked. He denied ever using the
covcom device to send classified documents to Yang, stating that he had only sent a test
message. But when Mallory was demonstrating the device, he appeared “very visibly
surprised” when certain secure chat messages he had exchanged with Yang appeared on
the phone’s screen, including one that referenced a foreign country’s intelligence service.
According to one of the FBI agents who was present, “it was a fairly significant moment”
as “we realized there was something very different going on here than we first thought.”
On July 27, 2017, a grand jury returned a four-count indictment charging Mallory
with conspiracy to transmit national defense information to a foreign nation, in violation
of 18 U.S.C. § 794(c); delivering such information, in violation of § 794(a); attempting to
do so, also in violation of § 794(a); and making materially false statements to government
agents, in violation of § 1001(a)(2).

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B
In advance of trial, the district court received briefing and held several sealed pretrial
hearings under the Classified Information Procedures Act (“CIPA”), 18 U.S.C. app. 3
§§ 1–16, which addresses the handling of classified information in criminal cases. During
the course of these proceedings, the government requested that the court admit into
evidence the nine classified documents that were found on the SD memory cards in
Mallory’s home, as well as the classified information contained in the chat messages that
Mallory and Yang exchanged, using the “silent witness rule.” The silent witness rule is a
technique by which the parties present classified information to each other, to the jury, and
to the court but not to the public. See United States v. Zettl, 835 F.2d 1059, 1063 (4th Cir.
1987).
Mallory objected to the use of the silent witness rule, at least with respect to the one-
page “White Paper” that he admittedly transmitted to Yang, because the rule would, he
argued, “unfairly prejudice[] [his] ability to present a defense.” He noted his intent at trial
to “cross-examine government witnesses, and perhaps elicit testimony from his own
witnesses, that information of the sort discussed in that document is so openly known that
it could not be considered closely held” and argued that the use of the silent witness rule
would limit his ability to “effectively elicit this testimony.”
In a sealed order dated April 27, 2018, the district court approved the government’s
request to use the silent witness rule at trial, finding that “there [was] an overriding and
indeed compelling reason for closing portions of the trial related to the classified
information [Mallory] allegedly passed or attempted to pass to the Chinese”; that “[t]he

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government’s use of the [silent witness rule] [was] also narrowly tailored to meet this
interest”; and that “there [was] no reasonable alternative to use of the [rule].” The court
concluded that use of the rule “in this context” would not only “allow the government to
safeguard its compelling interest in avoiding disclosure of national security secrets [but
would also] preserv[e] [Mallory’s] public trial rights and allow[] [him] to present
substantially the same defense.” The court noted that Mallory would be able to “cross-
examine witnesses using items in the public record to show that the information contained
in the documents is widely known and not a closely-held government secret,” although it
also advised counsel in advance of trial that the government could object “if the cross-
examination . . . beg[an] to make clear what the protected information was.”
During trial, immediately prior to Mallory’s cross-examination of the government’s
penultimate witness, the government made such an objection. Specifically, the government
noted that Mallory’s counsel had presented it with “a binder of open source material” that
he intended to use during the cross-examination of one of the government’s classification
experts, and the government expressed concern that “if portions are read in open court
combined with what [the witness had already] testified to[,] [it] [would] create classified
facts.” Mallory’s counsel confirmed that he wanted to ask the witness “some general
questions about a couple of classified documents” and then wanted to “ask him to read into
the record things from public domain documents, things that are indisputably public
domain off the internet [and] declassified.” The government argued, however, that,
“[e]specially with the media spectators’ presence [in the courtroom] . . . , even if [defense
counsel] does not ask a direct question, . . . based on [the expert’s] testimony and the

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specifics that they have heard, they will be able to link up that the reasons he’s now reading
this into the public record is to drop parallels between those open source documents and
the words he could not say out loud in court.” The government noted that “[c]urrently, as
they sit in that binder, [the publicly available documents] are unclassified,” but it argued
that “[t]he minute you start lining them up with the jury, . . . those become classified facts
because,” by doing so, “any member of the public . . . would be able to figure out what [the
classified] documents [were] talking about.” The government proffered that “[t]he solution
. . . would be to use the silent witness rule with the open source documents as we have with
the classified documents.” (Emphasis added). The court agreed with the government and
required Mallory’s counsel to use the silent witness rule when using the designated publicly
available documents to cross-examine the government’s expert.
To implement this ruling, each juror was provided with a binder containing several
public documents that were admitted into evidence. The jurors were then able to examine
the documents while Mallory’s counsel asked the witness questions about them without
publicly revealing what the documents were or their particular contents. Mallory’s counsel
later repeated the same basic procedure when examining Mallory’s expert witness on
classification and national defense information.
The lengthy transcript from the 9-day trial includes approximately 25 pages
(probably covering about one-half hour’s time) in which Mallory’s counsel was required
to use the silent witness rule with respect to 17 publicly available documents that were
admitted into evidence.

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At the conclusion of the trial, the court conducted a hearing with respect to the
instructions it intended to give the jury, with much of the hearing focusing on the mens rea
required for a conviction under § 794(a), which makes it a crime to transmit to any foreign
government or agent thereof any “information relating to the national defense” “with intent
or reason to believe that it is to be used to the injury of the United States or to the advantage
of a foreign nation.” (Emphasis added). The debate centered around the instruction to be
given the jury on the meaning of the italicized words, with the court ultimately adopting
an instruction closer to that proposed by the government than that proposed by Mallory.
In addition, Mallory requested that the court instruct the jury that “[p]roof of a simple
buyer-seller relationship is insufficient to prove a conspiracy to communicate, deliver, or
transmit information relating to the national defense.” The court denied that request.
The jury found Mallory guilty of all four counts, but the court granted Mallory’s
motion for judgment of acquittal on Counts Two and Three, which charged actual
transmission and attempted transmission of national defense information, respectively,
finding insufficient evidence of venue.
The district court sentenced Mallory on the remaining two counts to a total of 240
months’ imprisonment, consisting of 240 months for the § 794(c) conspiracy offense and
a concurrent 60 months for making materially false statements to government agents.
From the judgment dated May 17, 2019, Mallory filed this appeal, contending that
his convictions should be vacated and the case remanded for a new trial on the grounds
(1) that his constitutional rights to a public trial and to present a complete defense were
violated by the district court’s ruling requiring the use of the silent witness rule with respect

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to certain publicly available documents; (2) that the court’s instructions impermissibly
“reduced the significant mens rea element required to establish a violation of § 794”; and
(3) that the court erred by refusing “to instruct the jury on the buyer-seller theory of
defense.”
II
Mallory contends first that by applying the “silent witness rule” to publicly available
documents during trial, the district court denied him the right to a public trial, in violation
of the Sixth Amendment, and the right to present a complete defense, in violation of the
Fifth and Sixth Amendments. He notes that his trial appears to be the first time that the
silent witness rule had been applied to publicly available documents, and he argues that the
district court failed to make the findings necessary to justify keeping those documents from
the public.
Because Mallory was charged with conspiracy to transmit to Chinese agents
documents “relating to the national defense,” in violation of 18 U.S.C. § 794(c), the trial
proceedings implicated CIPA, which “was designed to establish procedures to harmonize
a defendant’s right to obtain and present exculpatory material . . . [with] the government’s
right to protect classified material” in the interest of national security. United States v.
Pappas, 94 F.3d 795, 799 (2d Cir. 1996) (citation omitted). To this end, the statute includes
a provision authorizing the trial court to order the “substitution for . . . classified
information” if the substitution would “provide the defendant with substantially the same
ability to make his defense,” 18 U.S.C app. 3 § 6(c), as well as a provision authorizing the

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court to admit into evidence “only part” of a document containing classified information
or “the whole” of the document with redactions of some or all of the classified information,
“unless the whole ought in fairness be considered,” id. § 8(b).
As a supplement to CIPA, courts have fashioned what has been called the “silent
witness rule,” by which classified documents may, without redaction, be disclosed to both
the defendant and the jury but not to the public. As we have explained more completely:
Under such a rule, the witness would not disclose the information from the
classified document in open court. Instead, the witness would have a copy
of the classified document before him. The court, counsel and the jury would
also have copies of the classified document. The witness would refer to
specific places in the document in response to questioning. The jury would
then refer to the particular part of the document as the witness answered. By
this method, the classified information would not be made public at trial but
the defense would be able to present that classified information to the jury.
Zettl, 835 F.2d at 1063.
Mallory does not contend that the district court erred in applying the silent witness
rule in this case with respect to the classified documents. Rather, his claim is that the court
erred by not limiting application of the rule to the classified documents and instead
extending it to the publicly available documents. He states, “[A]pparently for the first time
in any trial[,] the district court prohibited the defense from adducing evidence and
questioning witnesses in open court as to . . . unclassified documents and information”
(first emphasis added), and he maintains that the court did so “[w]ithout making specific
findings as to the need to prevent public access to the documents themselves.” He argues
primarily that the court’s application of the silent witness rule to unclassified documents

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violated his Sixth Amendment right to a public trial and thus amounted to a structural error
that entitles him to a new trial without any inquiry into prejudice.
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused
shall enjoy the right to a . . . public trial.” U.S. Const. amend. VI. As the Supreme Court
has long recognized, this guarantee serves “as a safeguard against any attempt to employ
our courts as instruments of persecution,” In re Oliver, 333 U.S. 257, 270 (1948), reflecting
the belief “that judges, lawyers, witnesses, and jurors will perform their respective
functions more responsibly in an open court than in secret proceedings,” Waller v. Georgia,
467 U.S. 39, 46 n.4 (1984) (quoting Estes v. Texas, 381 U.S. 532, 588 (1965) (Harlan, J.,
concurring)). Thus, while “the press and public have a qualified First Amendment right to
attend a criminal trial,” the Sixth Amendment public-trial right “is for the benefit of the
accused,” ensuring “that the public may see he is fairly dealt with and not unjustly
condemned . . . [and] keep[ing] his triers keenly alive to a sense of their responsibility.”
Id. at 44–46 (citation omitted). Indeed, history is marked by regimes using secret tribunals
as a key tool of oppression, from “the notorious use of [the] practice by the Spanish
Inquisition, to the excesses of the English Court of Star Chamber, and to the French
monarchy’s abuse of the lettre de cachet,” to say nothing of current tyrannical systems
where trials are conducted in secret. Estes, 381 U.S. at 539 (quoting In re Oliver, 333 U.S.
at 268–69). In light of the foundational nature of this right, the Supreme Court has made
clear both that there is a “presumption” in favor of open trials, Waller, 467 U.S. at 45
(citation omitted), and that “a violation of the right to a public trial is a structural error,”

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“i.e., an error entitling the defendant to automatic reversal without any inquiry into
prejudice,” Weaver v. Massachusetts, 137 S. Ct. 1899, 1905, 1908 (2017).
But the defendant’s right to a public trial is not absolute. There are some
circumstances in which closing the courtroom to the public is justified and does not amount
to a violation of the right. See Waller, 467 U.S. at 45; see also Weaver, 137 S. Ct. at 1909;
Bell v. Jarvis, 236 F.3d 149, 165 (4th Cir. 2000) (en banc). Thus, “the right to an open trial
may give way in certain cases to other rights or interests, such as the defendant’s right to a
fair trial or the government’s interest in inhibiting disclosure of sensitive information.”
Waller, 467 U.S. at 45 (emphasis added). “Such circumstances will be rare, however.” Id.
And before a trial court closes the courtroom to the public, it must make findings that
“[1] the party seeking to close the hearing [has] advance[d] an overriding interest that is
likely to be prejudiced [and] [2] the closure [would] be no broader than necessary to protect
that interest,” and it must “[3] consider reasonable alternatives to closing the proceeding.”
Id. at 48; see also Bell, 236 F.3d at 166.
In this case, the government contends that the Sixth Amendment right to a public
trial was not even implicated by the district court’s application of the silent witness rule.
Indeed, it argues that the application of the rule actually “preserved, rather than abrogated,
[Mallory’s] public-trial rights” because it allowed the public to remain present in the
courtroom when exhibits revealing — or that in context would reveal — classified
information were presented to the jury. It notes that the public was “able to observe the
entirety of the proceedings and testimony” and that “[t]he only aspect of trial the public
was excluded from was the ability to see” and learn details about the limited number of

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exhibits to which the rule was applied. Thus, according to the government, the application
of the rule was a “trial management decision[]” regarding how to handle sensitive national
security information and was “not tantamount to [a] courtroom closure[].” And it argues
further, “Even if the district court’s use of the silent witness rule [were] deemed to have
caused a partial courtroom closure,” the court “appropriately applied Waller in balancing
the overriding government interest with [Mallory’s] trial rights.”
In response, Mallory argues that because the admission of evidence via the silent
witness rule “prevent[ed] the public from seeing” the same evidence as the jury, the
application of the rule constituted “a total closure with respect to that evidence.”
(Emphasis added). Moreover, while the district court made the findings required by Waller
to justify application of the silent witness rule to classified documents, Mallory argues that
the court “never made such findings with respect to its wholesale exclusion of the public-
source documents at issue.”
To begin, we question, as does the government, whether the application of the silent
witness rule in this case even implicated the Sixth Amendment right to a public trial. No
member of the public was actually excluded from the courtroom at any point during the
trial, and thus there was no literal closure of the courtroom. This fact sets this case
markedly apart from every decision finding a violation of the constitutional right to a public
trial that Mallory has identified or that we have found. See, e.g., Weaver, 137 S. Ct. at
1905 (all members of the public excluded from the courtroom during jury selection);
Presley v. Georgia, 558 U.S. 209, 210 (2010) (per curiam) (same); Waller, 467 U.S. at 42
(suppression hearing lasting 7 days closed to the public); cf. Bell, 236 F.3d at 155–56 (claim

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that public-trial right was violated by the temporary closure of the courtroom during
testimony of sexual assault victim).
But focusing more on Mallory’s argument that there was a total closure with respect
to those documents handled under the silent witness rule — because the public was not
able to see those documents — we conclude that any such closure was in fact far from
complete. The trial transcript reveals, for example, that when Mallory’s counsel used the
public-source documents governed by the silent witness rule during the direct examination
of his expert witness, members of the public were able to hear, repeatedly, that the exhibits
were public government documents that “refer[red] to the method of collection at issue in
the White Paper” and that they helped form the basis for the defense expert’s opinion that
the White Paper did not contain national defense information. Thus, while members of the
public, unlike members of the jury, did not learn about the specific contents of these
defense exhibits, the ability of interested members of the public to remain in the courtroom
during the approximately 30 minutes of trial proceedings at issue still helped to ensure
“that the public [could] see” that Mallory was being “fairly dealt with and not unjustly
condemned” in a secret proceeding — the core purpose of the Sixth Amendment public-
trial right. Waller, 467 U.S. at 46 (citation omitted). Such an arrangement, we conclude,
was far from effecting a complete closure of the proceedings to the public. Cf. United
States v. Osborne, 68 F.3d 94, 98–99 (5th Cir. 1995) (explaining that the partial closure of
a trial during minor’s testimony, where “all but one of the existing spectators [were
allowed] to remain” but new spectators were not allowed to enter, did “not implicate the

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same fairness and secrecy concerns as total closures” “because an audience remain[ed] to
ensure the fairness of the proceedings”).
We do not suggest that the use of the silent witness rule could never implicate a
defendant’s Sixth Amendment right to a public trial, as reliance on the silent witness rule
has the potential to interfere meaningfully with the public’s ability to understand what is
happening in the proceedings, despite their physical presence in the courtroom. But we
doubt that the limited use of the silent witness rule as it was applied in this case amounted
to a sanctionable closure of the courtroom.
Moreover, even were we to accept that some degree of closure occurred, it was
certainly much more analogous to a partial closure, rather than a full one, suggesting that
“a less demanding test” than the one announced in Waller for total courtroom closures
should apply. Osborne, 68 F.3d at 98–99 (noting that it was joining the Second, Eighth,
Ninth, Tenth, and Eleventh Circuits in finding “that Waller’s stringent standard does not
apply to partial closures” and adopting in its place “a less demanding test requiring the
party seeking the partial closure to show only a ‘substantial reason’ for the closure,” rather
than a compelling reason); see also United States v. Simmons, 797 F.3d 409, 413–14 (6th
Cir. 2015); United States v. DeLuca, 137 F.3d 24, 34 (1st Cir. 1998) (concluding that a
“spectator-screening procedure resulted at most in a ‘partial’ closure” and that therefore
“the government was not required to establish that it furthered a ‘compelling’ interest but
simply a ‘substantial’ one”). But here, the district court did apply the more stringent Waller
test before utilizing the silent witness rule.

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Mallory contends, however, that the district court failed to make the requisite
findings prior to applying the silent witness rule to his public-source documents and that a
closure as to those documents was therefore unjustified. In this regard, Mallory does not
challenge the adequacy of the district court’s pretrial findings to support its application of
the silent witness rule to the government’s classified exhibits. Instead, he focuses on the
court’s ruling, made during the course of trial, that expanded the use of the silent witness
rule to include certain public-domain documents that Mallory was introducing to show that
the two allegedly classified documents that he admittedly transmitted to the Chinese agent
did not, in fact, contain “information relating to the national defense.”
But the district court fully explained the need for this expansion of the rule at trial.
It stated that, given the testimony that had already been elicited, publishing Mallory’s
public-source documents “in open court . . . would allow people to connect the dots” and
would thus be likely to “disclose [the] classified information” that the court had previously
determined had to be protected with use of the silent witness rule. Thus, it recognized a
compromising relationship between the public-source documents and the classified
documents that would tend to reveal the substance of the classified documents, which were
the subject of its previous ruling.
We conclude that in the circumstances of this case, the district court’s pretrial
findings regarding the need to limit the public’s access to the classified exhibits were
adequate to support the extension of the silent witness rule to the defense’s open-source
exhibits and that any limited impingement of Mallory’s public-trial right was justified by
the government’s compelling interest in preventing the disclosure of the classified

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information at issue. Accordingly, we conclude that Mallory’s Sixth Amendment right to
a public trial was not violated by the use of the silent witness rule.
In addition to his public-trial argument, Mallory also contends that the application
of the silent witness rule deprived him of his constitutional right to “a meaningful
opportunity to present a complete defense.” (Quoting Holmes v. South Carolina, 547 U.S.
319, 324 (2006)).
First, he maintains that his effort to show that the documents he transmitted to the
Chinese agent did not contain national defense information was impaired by the rule. As
he argues more particularly, “the district court’s application of the [rule] . . . impeded [his]
ability to present his defense through cross-examination of the government’s experts and
direct examination of [his] expert.”
But a review of the record reveals that the silent witness rule denied the jury none
of the information on which Mallory based his defense. While it is true that the application
of the rule limited him from eliciting verbal testimony on the contents of the publicly
available documents, the documents themselves were provided to the jury while the
witnesses in question were testifying, enabling jurors to follow along while the witnesses
were asked questions to establish, for example, that the government had previously
referenced in publicly available documents the same method of intelligence collection that
was discussed in the “White Paper.”
Mallory argues further that his defense was unconstitutionally impeded because the
use of the rule “unmistakably communicated to the jury that the information in the
[t]ransmitted documents was so significant that even referring in open court to the same

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words . . . was forbidden.” But this argument is undercut by the fact that the jury was told
again and again that the defense exhibits at issue, which contained the terms in question,
were indeed public documents.
At bottom, our review of the record leaves us firmly convinced that the limited use
of the silent witness rule did not meaningfully impair Mallory’s ability to present evidence
and argue to the jury that the two documents he transmitted to Chinese agents did not
actually contain national defense information.
III
Mallory also challenges the district court’s instruction of the jury in two respects.
First, he contends that with respect to Count One — charging him under § 794(c) with
conspiracy to transmit national defense information to a Chinese agent in violation of
§ 794(a) — the district court “watered down” the mens rea element to allow him to be
convicted under a negligence standard. Second, he contends that the district court erred in
denying his request to instruct the jury that “[p]roof of a simple buyer-seller relationship is
insufficient to prove a conspiracy.” We address each argument in order.
A
As to the argument that the district court “watered down” the mens rea requirement
for the conspiracy offense, Mallory maintains that under the instructions, the jury “could
find [him] guilty based upon an objective, rather than subjective, determination as to
whether information would be used to harm the United States or aid another country.” He
focuses in particular on the sentence in the instructions that informed the jury that “[i]n

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determining whether a defendant has reason to believe, the question [is] whether a
reasonable person in defendant’s position would have” concluded that the information
related to the national defense was to be used to the injury of the United States or to the
advantage of a foreign nation. (Emphasis added). This portion of the instruction, he
argues, impermissibly allowed him to be convicted under a negligence standard.
We find Mallory’s reasoning unpersuasive, as he focuses too narrowly on one small
segment of the instructions without context. The instructions that the court actually gave
were more fulsome.
In Count One, Mallory was charged with conspiracy to violate § 794(a), which
provides:
Whoever, with intent or reason to believe that it is to be used to the injury of
the United States or to the advantage of a foreign nation, . . . transmits . . . to
any foreign government . . . or to any representative, officer, [or] agent . . .
thereof, . . . information relating to the national defense, shall be punished
. . . .
18 U.S.C. § 794(a) (emphasis added). In instructing the jury on the § 794(a) offense, the
district court told the jury that proof of the crime requires (1) that the defendant have
transmitted information to a foreign government or agent thereof; (2) that the information
have related to the national defense; (3) that the defendant have had “intent or reason to
believe” that the information was to be used to injure the United States or benefit a foreign
nation; and (4) that he have transmitted the information “willfully.” It also instructed that
to establish the conspiracy offense under § 794(c), the government had to prove that
Mallory “acted with the same intent.” With respect to the “reason to believe” aspect of the
third element, the court instructed the jury as follows:

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Now, a defendant has reason to believe, as I’ve use[d] that phrase, a
defendant has reason to believe if the defendant knows facts from which he
concluded or reasonably should have concluded that the information related
to the national defense was to be used for prohibited purposes. It does not
mean that the defendant acted negligently.
In determining whether a defendant has reason to believe, the question [is]
whether a reasonable person in defendant’s position would have reached the
same conclusion.
This instruction on the “reason to believe” aspect accurately parroted the instruction that
we approved in United States v. Truong Dinh Hung, 629 F.2d 908, 918–19 (4th Cir. 1980),
over the defendants’ argument that the instructions had “diluted the important scienter
requirement.” Moreover, the district court here cautioned the jury in its instruction that the
standard “does not mean that the defendant acted negligently,” just as the court in Truong
Dinh Hung told the jury. See id. at 919.
In addition, the court went further in describing the mens rea for a violation of the
substantive crime, instructing the jury that the defendant must also have acted “willfully in
communicating, delivering, or transmitting information related to the national defense.”
And in defining “willfully” for the jury, it stated:
An act is done willfully if it is done voluntarily and intentionally with the
specific intent to do something that the law forbids, that is to say with a bad
purpose either to disobey or to disregard the law with respect to the offenses
that are charged in the indictment.
* * *
To establish specific intent, the government must prove that the defendant
knowingly did an act which the law forbids.
(Emphasis added). This addition also echoed the instruction we approved in Truong Dinh
Hung, 629 F.2d at 919, and finds support from the Supreme Court’s statement in Gorin v.
United States, 312 U.S. 19, 28 (1941), that the statute “requires those prosecuted to have

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acted in bad faith.” These additional instructions are fatal to Mallory’s argument that the
court’s instructions allowed him to be convicted based on an improperly low scienter
requirement.
B
Finally, as to Mallory’s contention that the district court erred in declining to give
an instruction that a simple buyer-seller relationship cannot amount to a conspiracy,
Mallory argues that “[s]ignificant evidence adduced at trial supported [his] theory of
defense” “that his contacts with a foreign agent were entirely at arms-length, and merely
between a seller (Mr. Mallory) seeking money and counterintelligence, and a wary buyer
(a Chinese agent), rather than as partners in a conspiracy.” Based on this type of evidence,
he maintains, “the court should have instructed the jury that evidence of an agreement to
buy or sell contraband, alone, is insufficient to establish the existence of a criminal
conspiracy absent a showing that the alleged conspirators share a mutual stake in a common
criminal objective apart from the transmission of contraband itself.”
Of course, it is well established that a court should instruct the jury on the
defendant’s theory of the defense when such instructions “have an evidentiary foundation
and are accurate statements of the law.” United States v. Dornhofer, 859 F.2d 1195, 1199
(4th Cir. 1988). But those requirements, we conclude, were not satisfied in this case.
“Conspiracy is an inchoate offense, the essence of which is an agreement to commit
an unlawful act.” United States v. Shabani, 513 U.S. 10, 16 (1994) (citation omitted).
Accordingly, the crime of conspiracy “may exist and be punished whether or not the

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substantive crime ensues.” United States v. Jimenez Recio, 537 U.S. 270, 274 (2003)
(citation omitted). Thus, to ensure that “‘distribution’ [of a controlled substance] under
[21 U.S.C.] § 841 and ‘conspiracy’ [to distribute a controlled substance] under § 846
[remain] distinct crimes,” we have recognized that “a conspiracy to commit the distribution
offense must involve an agreement separate from the immediate distribution conduct that
is the object of the conspiracy.” United States v. Edmonds, 679 F.3d 169, 174 (4th Cir.),
vacated on other grounds, 568 U.S. 803 (2012). But “any agreement made in addition to
or beyond the bare buy-sell transaction may be taken to infer a joint enterprise between the
parties beyond the simple distribution transaction and thereby support a finding of
conspiracy.” Id. “In short, the mere evidence of a simple buy-sell transaction is sufficient
to prove a distribution violation under § 841, but not conspiracy under § 846, because the
buy-sell agreement, while illegal in itself, is not an agreement to commit an offense; it is
the offense of distribution itself.” Id. Thus, a conspiracy to commit a crime is distinct
from the commission of the crime.
In this case, Mallory was charged with and convicted of conspiracy in violation of
§ 794(c), which provides that “[i]f two or more persons conspire to violate this section, and
one or more of such persons do any act to effect the object of the conspiracy, each of the
parties to such conspiracy shall be subject to the punishment provided for the offense which
is the object of such conspiracy.” 18 U.S.C. § 794(c). And the charge alleged that the
object of the conspiracy was the distinct crime set forth in § 794(a) (prohibiting the actual
transmission of national defense information). Thus, to find Mallory guilty, the jury had

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to find both an agreement satisfying § 794(c) and an overt act in furtherance the distinct
crime stated in § 794(a).
The overwhelming evidence at trial showed that Mallory was not engaged in a mere
buyer-seller relationship with the Chinese agent but instead operated with that agent in a
joint enterprise to transmit national defense information to the Chinese government or
other agents within the Chinese intelligence service. To instruct the jury that a buyer-seller
arrangement is not a conspiracy would suggest to the jury — confusingly — that Mallory
simply sold classified information to the Chinese agent for that agent’s own consumption
and pleasure. But that, of course, is far from what the evidence in the case showed. We
agree with the district court when it concluded that “even interpreting the evidence . . . in
the light most favorable to [Mallory], there was no evidence in this record to support a
theory that [Mallory] and Michael Yang’s relationship was limited to a buyer-seller
transaction.” “Rather,” as the district court explained, “the evidence showed
overwhelmingly that [Mallory] and Michael Yang agreed to work together to transmit
[national defense information] to Chinese nationals, including Michael Yang’s boss, via a
covcom device and repeated trips to [China].” (Emphasis added). A reasonable juror was
thus precluded from concluding that “Michael Yang’s and [Mallory’s] relationship was
that of a mere buyer and seller.”
At bottom, we conclude that the district court properly rejected Mallory’s request
for a buyer-seller instruction.
* * *
The judgment of the district court is

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AFFIRMED.

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