A federal appeals court, pondering whether the government must prove that Jerry Whitworth knowingly spied for the Soviets, has been told that he could be tried again on espionage charges if acquitted in his trial here. The possibility of a second trial was broached Tuesday before the Ninth US Circuit Court of Appeals, which halted the trial last week, on the eve of final arguments, to consider jury instructions that could determine the outcome.
Assistant US Attorney Sanford Svetcov acknowledged that no federal appeals court has ever ordered a change in jury instructions in an ongoing trial. But he said the precedent was justified in a case involving a breach of security that challenges the survival of America.
Defense lawyer James Larson later accused Mr. Svetcov of trying to inject politics into the case. The defense has repeatedly accused the prosecution of exaggerating the seriousness of the case.
The appeals court panel heard arguments but did not rule immediately.
Mr. Whitworth, a former Navy radioman, is charged with selling secrets on Navy code and communications systems for $332,000 to the Soviet-controlled spy ring run by his old friend, confessed spy John Walker Jr. Whitworth faces eight espionage-related charges, of which seven carry potential life sentences, and five tax evasion charges.
The appeals court halted the trial at the prosecution's request to hear an appeal of US District Judge John Vukasin's ruling on jury instructions.
Judge Vukasin said the prosecution must prove, as charged in the grand jury indictment, that Whitworth intended or had reason to believe that his disclosures would aid the Soviets or harm the US.
The prosecution contends it should be allowed to convict Whitworth under the less demanding language of the espionage laws, which require only an intent or reason to believe the disclosures would help any other country or harm the US.
Mr. Walker, who pleaded guilty and testified for the prosecution, said he never told Whitworth the secrets were being sold to the Soviets, instead suggesting they might be going to Israel or a private intelligence organization.
But both Svetcov and Larson agreed that if Whitworth is acquitted of knowingly spying for the Soviets, he could be tried for spying for any foreign country.