Dismissal of Spy Case Is Reaffirmed

A federal judge in Los Angeles has refused a request by prosecutors that she rescind her order dismissing charges that longtime FBI informant Katrina Leung served as a Chinese double-agent.

The ruling by U.S. District Judge Florence-Marie Cooper, made public Wednesday, sets the stage for federal prosecutors to ask the U.S. 9th Circuit Court of Appeals to reinstate the charges against Leung. In January, Cooper dismissed the 2-year-old indictment against Leung, accusing the government of “willful and deliberate misconduct” for denying Leung access to her former co-defendant, retired FBI Agent James J. Smith.

The veteran counterintelligence agent, originally charged with gross negligence in handling classified documents, pleaded guilty last year to failing to report his 20-year sexual affair with Leung. As part of his plea agreement, Smith agreed not to talk to Leung or her attorneys.

But Leung’s attorneys argued, and the judge agreed, that the prohibition violated long-established rules that give defendants access to witnesses.

In refusing to rescind her order, Cooper rejected the contention of federal prosecutors that she had failed to consider some material facts that would refute Leung’s contention that she was denied access to Smith as a witness. To the contrary, Cooper said, she considered the arguments of prosectors but simply did not agree with them.

Cooper also took issue with the assertion by prosecutors that the original plea agreement could not have been improper because it was originally approved by the judge. “When taking a plea, a judge (certainly this judge) focuses on the consequences of the plea to the defendant who enters it, not the collateral consequences to a third party,” Cooper wrote.

While refusing to reconsider her earlier ruling about Leung, Cooper agreed to a prosecution request that she not single out Assistant U.S. Atty. Michael Emmick in her written opinion about prosecutorial misconduct. Such judicial criticisms automatically trigger an internal inquiry at the Justice Department.

Cooper said she had agreed to amend that portion of her earlier ruling because new declarations in the case made it clear that a number of federal attorneys played a part in the misconduct blamed earlier on Emmick.

Thomas Mrozek, spokesman for the U.S. attorney’s office in Los Angeles, said Cooper’s ruling would be reviewed to assess the office’s options, including filing an appeal.

“We are pleased that Judge Cooper has omitted references to the assistant U.S. attorney,” Mrozek said. “However, we continue to deeply believe that no member of the U.S. attorney’s office or the Department of Justice engaged in any prosecutorial misconduct.”

Leung’s attorneys, meanwhile, praised the ruling.

“Katrina Leung is pleased that today the court reaffirmed its decision dismissing the case against her because the government improperly gagged the main witness, denying her access to the most important aspect of any trial: truth,” attorneys John D. Vandevelde and Janet I. Levine said in a written statement.

“Katrina knows that if she could present all of the witnesses and all of the evidence, she would readily be proven a loyal U.S. citizen innocent of any charges,” the attorneys said. “She continues to trust in the courts to protect her rights and those of all Americans to a fair trial.”

Times staff writer Henry Weinstein contributed to this report.