That's why USB Kill programs [1] important.
The article is referring to a USB cable that has been modified to phone home using either RF or some other covert channel. I'd think that USB Kill would be completely unaware of any such compromise given that it's only looking for a disrupted connection.
(Unfortunately, AFAIK, most USB hubs don't report power draw for devices that are "just" drawing power and don't use the data pins, so you don't get that.)
It is likely that you could be. But as with all criminal proceedings they'd need to prove it beyond a reasonable doubt. If the KillUSB software itself was unrecoverable it might prove difficult.