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Judge to Rule on Key Spy Case Question

Times Staff Writer

A Los Angeles federal judge was urged Wednesday to make a crucial decision in the trial of accused Soviet spies Svetlana and Nikolai Ogorodnikov--whether to permit prosecutors to ask former FBI Agent Richard W. Miller if he ever passed secret FBI documents to the Russian emigre couple.

Miller, who faces his own spy trial later this summer as the first FBI agent ever charged with espionage, is expected to testify against the Ogorodnikovs as a government witness next week.

Documents obtained Wednesday revealed a heated legal dispute between defense lawyers and government prosecutors on whether the government should be permitted to ask Miller if he ever actually gave Ogorodnikova any secret documents during their four-month romance and alleged espionage conspiracy last year.

Changed His Story

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Miller, 48, allegedly told FBI agents before his arrest last Oct. 2 that he had given secret documents to Ogorodnikova. Since then, however, he has denied that he ever gave her any secret information, saying that he was involved with the Ogorodnikovs only because he was trying to infiltrate an active Soviet spy network.

After lawyers discussed the need in court for U.S. District Judge David V. Kenyon to decide the issue before Miller begins his testimony, it was revealed that Miller’s lawyers notified all sides in the trial April 9 that the former agent will deny ever passing any secret documents to either of the Ogorodnikovs if he is asked about it.

Brad D. Brian and Gregory P. Stone, lawyers for Ogorodnikova, said in court papers that the government plan is to question Miller at length about his pre-arrest statements to the FBI if he denies passing secret documents. They denounced the tactic as a “subterfuge” to expose jurors to otherwise inadmissible statements about the Ogorodnikovs.

The Heart of the Matter

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“The substance of Miller’s previous statements goes to the very heart of the government’s case against Mrs. Ogorodnikova,” her lawyers said. “Admission of those hearsay statements under the guise of impeachment would do grievous harm to her right to be tried solely on the basis of evidence that is admissible for its truth.”

Arguing for the right to ask Miller if he passed secret documents, Assistant U.S. Atty. Bruce G. Merritt described the ex-agent as “possibly the most critical witness” in the government’s case against the Ogorodnikovs. He said the effort to prevent questioning was an attempt to “tie the government’s hands” in its questioning of Miller.

Merritt said Miller is “expected to be a hostile witness in every sense of the word,” and noted that Miller’s testimony will have to be required by court order. He also said that earlier testimony by the ex-agent at pretrial hearings had revealed a “tendency to give gratuitous and self-serving” testimony.

‘Substantial Gaps’

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Despite that, Merritt said, the government needs Miller’s testimony to fill in “substantial gaps in the chronology of his relationship” with Ogorodnikova after their first contacts in May, 1984. He said a trip by Miller and Ogorodnikova to the Soviet Consulate in San Francisco last August was one of several areas where Miller alone can provide valuable information.

“There is no doubt that the government would be able to impeach Miller with these statements if he testified in a joint trial,” Merritt said. “Why should the government have less ability to challenge testimony which it believes to be false because the case has been severed for trial?”

Kenyon indicated he might rule on the question as early as Friday, but could delay a decision until Miller’s expected testimony next week.


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