Thread by @BBuchman_CNS

And for those of you looking for updates on the sentencing of Kevin Patrick Mallory, the ex-CIA contractor who was charged with selling defense materials to the Chinese - his sentencing hearing was delayed. My breakdown of the delay here.
THREAD:
1/13

Leesburg, VA resident Kevin Patrick Mallory was convicted on multiple charges after a weeklong trial in June. Jurors found him guilty of conspiracy to deliver defense information to aid a foreign government, delivery of that information, attempt to deliver the information
2/13

and making material false statements to law enforcement.
In July, Mallory’s attorneys claimed federal prosecutors failed to present sufficient evidence to support the conspiracy charge.
3/13

They also claimed prosecutors failed to support a “finding of venue” with respect to the actual and attempted delivery of classified materials.
4/13

U.S. District Judge T.S. Ellis III agreed in part, acquitting Mallory on two of the charges: delivery and attempted delivery of defense information to a foreign government.
5/13

In September, prosecutors challenged Ellis’ ruling, asking for a reconsideration of venue but the judge denied the request. The government filed an appeal in late October as Mallory awaited his sentencing.
6/13

But Mallory pushed back again, arguing the government’s appeal for lack of venue “deprived the court of jurisdiction to sentence” him on both the conspiracy and the false statement charge. Federal prosecutors disagreed but Judge Ellis sided with Mallory nonetheless.
7/13

“[SCOTUS] has made it clear that the filing of a notice of appeal is an event of jurisdictional significance. It confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal,” Ellis wrote
8/13

In Mallory’s case, though the government filed a notice of appeal dismissing counts two and three on venue grounds, those two counts allege conduct already included in the conspiracy charge which Mallory still faces, Ellis explained.
9/13

Though neither Mallory nor the prosecutors pointed to a precedent in the Fourth Circuit, Ellis wrote Thursday that he opted to delay the sentencing in light of a 2006 Tenth Circuit opinion, United States v. Todd.
10/13

In that opinion, the court held the that the government’s appeal of a lower court’s dismissal of firearm possession charge meant the district court lacked jurisdiction to hold a sentencing hearing on two additional drug possession charges that remained in the matter.
11/13

A similar matter in the Ninth Circuit also turned out this way, Ellis wrote, noting that an appeal on convictions served in United States v. Powell did not strip the court’s jurisdiction over remaining counts.
12/13

Until the Fourth Circuit issues a mandate regarding the government’s appeal of earlier rulings dismissing two of the counts against Mallory, no sentencing hearing can be held, Ellis wrote.
13/13

Order here: documentcloud.org/documents/5027…