Application of “Silent Witness Rule” Did Not Deprive Defendant of Fair Trial

US v. Mallory: Mallory once worked for, and with, the CIA, for which he received top-secret security clearance. Several years after he left that employment, he was contacted on social media by “someone who presented himself as a Chinese business recruiter” who said “he had leads about possible consulting work in China.” This led to Mallory making multiple trips to China and, eventually, passing on classified information. He was eventually charged with conspiracy, attempt, and delivery related to transmitting national defense information to a foreign nation as well as making false statements. At trial, the Government invoked the “silent witness rule,” which restricts the dissemination of certain classified material to the public during trial, but allows its disclosure to the parties and the jury. In this case, the district court applied the rule to publicly available documents whose contents implicated classified material. Mallory was found guilty on all counts and sentence to 240 months in prison.

On appeal, the Fourth Circuit affirmed Mallory’s convictions. Mallory primarily argued that the district court’s application of the silent witness rule deprived him of his right to a public trial under the Sixth Amendment and right to present a complete defense under the Fifth and Sixth Amendments. In particular, he argued that the district court did not make sufficient findings to apply the rule to the documents at issue, which were publicly available. Noting that cases involving the violation of a right to a public trial typically involve complete closure of the courtroom, the court concluded that here “members of the public were able to hear, repeatedly, that the exhibits were public documents” and how they shaped the opinion of the expert witness who was testifying. During this approximately half-hour period the public could still see that Mallory was being treated fairly and was not subject to a “secret proceeding.” That the documents were public did not matter, as the district court made findings that “a compromising relationship between the public-source documents and the classified documents would tend to reveal the substance of the classified documents.” Nor did the application of the rule impede Mallory’s defense, as the actual documents at issue were given to the jury as part of the evidence in the case.