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Judge Urged Not to Void Spy Case

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Times Staff Writer

Stung by charges of professional misconduct, the U.S. attorney’s office called on a federal judge Friday to rescind her order dismissing the criminal case against accused Chinese double-agent Katrina Leung.

A motion for reconsideration filed with the court insisted that “there was no prosecutorial misconduct and there has been no prejudice to Leung’s ability to obtain a fair trial.”

In unusually blunt language, the prosecutor’s office also told U.S. District Judge Florence-Marie Cooper that her personal criticism of the prosecutor in charge of the case was unfair and unwarranted.

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The motion was signed by U.S. Atty. Debra Yang and her two top assistants.

Cooper threw out the 2-year-old indictment against Leung last month, finding that the Chinese American businesswoman had suffered irreparable prejudice because of the prosecution’s “willful and deliberate misconduct.”

Leung’s attorneys had accused the government of illegally and unethically obtaining a commitment from her co-defendant, retired FBI Agent James J. Smith, that effectively barred him from talking to the defense.

Under long-established rules, prosecutors can not obstruct a defendant’s access to witnesses.

Smith was expected to be the key witness in Leung’s upcoming trial. He served as her handler for nearly 20 years while she worked as a paid informant for the FBI’s counterintelligence squad, ingratiating herself with high-ranking Chinese government officials. The two also had a longtime extramarital affair.

According to prosecutors, Smith learned in 1990 that Leung was also working for the Chinese, covered up his discovery and continued to vouch for her reliability.

Smith pleaded guilty last year to failing to report his affair with Leung. In a plea agreement, he promised to engage in “no further sharing of information relating to this case with Leung, counsel for Leung or the employees of counsel for Leung.”

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At a hearing before Cooper in December, Assistant U.S. Atty. Michael Emmick disavowed any intent to prevent Smith from speaking to Leung’s defense lawyers. Emmick, who did not draft the plea agreement, said it contained “inartful” language that gave rise to confusion.

In Friday’s papers, the U.S. attorney’s office said it did not intend to impose a blanket gag on Smith, but rather sought to prevent him from revealing any classified information.

In her ruling, Cooper said that Emmick’s explanation was contradicted by a Nov. 18 e-mail to him from Robert Wallace, senior trial counsel in the Justice Department’s counterintelligence section in Washington. Wallace was quoted as saying that the plea agreement was aimed at “preventing Smith from being interviewed by Leung’s counsel.”

The government motion said Wallace was referring to another section of the plea agreement prohibiting Smith from disclosing classified information.

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