Credibility of Ex-Agent Tested in Trial Ordeal

The wife of the first FBI agent ever charged with espionage thought her husband was in an upbeat mood Oct. 1 when he telephoned her after four days of FBI interrogation about his involvement with accused Soviet spy Svetlana Ogorodnikova.

As she encouraged him to “hang in there,” Richard W. Miller made a particularly damaging admission that was recorded by FBI wiretaps and played back last week in a Los Angeles federal courtroom.

“I’m so used to lying, one more isn’t going to make any difference,” Miller told his wife, Paula.

Miller was fired from the FBI the next day and immediately arrested on charges of passing secret FBI documents to Ogorodnikova and her husband, Nikolai Ogorodnikov.

There was no reason to believe that Miller’s mood was upbeat Friday as he listened to that tape recording and finished his second humiliating week as the government’s key witness in the spy trial of the Ogorodnikovs.

Portrayed as both a liar and a fool by government and defense lawyers, Miller has undergone some of the toughest, most embarrassing questioning of any witness in a major federal trial in years.

The former agent, forced to admit that he was a thief, an adulterer and a general bumbler during his 20-year career with the FBI, contributed to his difficulties on the witness stand by admitting past lies and continuing to change his story even as he testified.

Referring to the five days of FBI questioning that preceded his arrest Oct. 2, Miller confessed that he had first denied giving his FBI credentials or any secret documents to Ogorodnikova, but later admitted that he had.

“I changed my story on just about every facet of the thing,” he admitted in testimony. “I recalled it differently each time. I was willing to say anything. I did say things that were not true.”

Miller also conceded that he had given two different versions on different days of testimony as to whether he had told FBI officials about one of his early meetings with Ogorodnikova.

‘Might Have Faked It’

Claiming that he had reported the meeting after first testifying that he had not reported it, Miller explained: “It gets pretty tiring sitting up here answering questions as the day drags on. I think I might have faked it.”

While some courtroom spectators said that Miller’s credibility as a witness had been destroyed by his performance on the witness stand, the former agent remained outwardly cheerful as he was led to the courtroom in handcuffs Friday to begin his eighth day of questioning.

“How are you doing, Richard?” asked Al Sayres, a private investigator working with Miller’s attorneys.

“Not too bad for an old man, Al,” Miller, 48, replied.

Paula Miller, however, said the long period on the witness stand has been an ordeal for her husband. Banned from the courtroom because she too may be called to testify, Paula Miller said she has talked with her husband by phone almost every day during the last two weeks.

Concern Over Treatment

“He hates it,” she said. “It hurts. People are treating him rotten.”

Paula, who has supported her husband since his arrest despite disclosures that he had affairs with four other women in recent years, said the last two weeks have been particularly difficult because of other family troubles which coincided with Miller’s testimony.

Last Sunday, on Father’s Day, as Miller’s wife and six of the family’s eight children were preparing to visit Miller at the federal prison on Terminal Island, they discovered that Ginger, the family’s pet Welsh pony, had died during the night.

The Millers’ 12-year-old daughter, Angelena, had been particularly fond of Ginger and rode the pony daily in the hills around the family home in Valley Center in northern San Diego County.

“It was a real blow,” Paula Miller said last week. “I feel so bad for Angelena. Her eyes were all puffy and swollen from crying when we went to the prison. Richard tried to console her, but it was a very sad day for her.”

Ruling on Testimony

For Miller’s attorneys, Joel Levine and Stanley Greenberg, the primary consolation last week was that Miller’s testimony in the trial of the Ogorodnikovs cannot be used against him in his own spy trial, scheduled to start later this summer.

Miller initially took the 5th Amendment to avoid incriminating himself when he was called as a government witness, but then agreed to testify under a court order issued by U.S. District Judge David V. Kenyon which prohibits the government from later introducing his statements against him.

As Miller prepared for the start of his third week on the witness stand, there was a debate among some sources close to the case as to whether Miller’s testimony might work to the advantage of the Ogorodnikovs.

The theory advanced by some was that Miller’s credibility was so damaged that jurors might not believe anything he said about the Ogorodnikovs, including his claims that Ogorodnikova told him Aug. 7 that she was a major in the Soviet KGB and that the Soviet Union would pay him large sums of money for secret documents.

The Ogorodnikovs are charged with conspiring to obtain secret documents from Miller on behalf of the Soviet Union, but are not charged with actually receiving any classified documents.

Claims of Defense

Ogorodnikova’s attorneys say she believed she was helping the FBI by doing Miller’s bidding. Her husband’s attorneys claim he had no involvement in the alleged conspiracy.

Ogorodnikova, a Russian emigre living in Hollywood, had close ties with officials of the Soviet consulate in San Francisco and had come to the FBI’s attention in 1982 because of various tasks she performed for the consulate, functioning for a brief period as an FBI informant.

Brad D. Brian, one of Ogorodnikova’s defense lawyers, appeared to be generating some sympathy for Ogorodnikova as he cross-examined Miller for three days last week. He suggested that she had approached Miller in good faith in May, 1984, thinking that he could protect her from the manipulations of the Soviet intelligence service. Instead, Brian argued, Miller used her sexually and set her up for his own espionage scheme.

In his questioning of Miller, Brian established that Ogorodnikova told the former FBI counterintelligence agent at their first meeting that she was planning a trip to Moscow with her 13-year-old son the following month and that she was afraid she would be interrogated by officials of the Soviet GRU, the military branch of Soviet intelligence. Brian said his client feared that they might keep her son in the Soviet Union if she did not follow their instructions.

His Primary Interest

Brian said Miller never followed up this important piece of intelligence information after Ogorodnikova and her son returned from Moscow, arguing that Miller was interested in her primarily for sex.

Brian, however, disputed Miller’s claims that he had sex with Ogorodnikova in his car on their second meeting in late May, and that it was something that “just happened” as they sat together in the parking lot of a Little League ballpark in Westwood.

Brian questioned whether the 240-pound Miller, who had frequently been disciplined by the FBI for his weight problem, could have actually made love to Ogorodnikova as he claimed in one of the front bucket seats of his Japanese-import car. He argued that the first time the two accused spies had sex was actually at the Lynwood home of Miller’s father, where Miller resided during the week when he was not staying with his wife and children.

“Isn’t it a fact you not only initiated sex, you forced yourself upon her?” Brian demanded, as Ogorodnikova sat near him, her lips trembling and tears rolling down her face.

“No,” Miller answered, one of the rare responses by the former agent that was not accompanied with an explanation that he could not recall for sure what really had taken place.

Effect of Rules

With Miller’s lawyers prevented by court rules from objecting to most questions, the interrogation of the former agent was a virtual field day for both the prosecution and the other defense lawyers representing both of the Ogorodnikovs.

Randy Sue Pollock, a federal public defender representing Ogorodnikov, focused on an Aug. 8 meeting at the Ogorodnikov apartment between Miller and her client that was allegedly set up by Ogorodnikova after she and Miller had gone to a Hollywood motel to have sex. Miller had testified earlier that Ogorodnikova identified Ogorodnikov as Nikolai Wolfson, “an important money man” in Soviet intelligence.

The thrust of Pollock’s cross-examination was that Ogorodnikov, awakened by his intoxicated wife at 1 a.m. and told to talk to Miller, really had no idea of why the FBI agent was there or what he was saying.

Miller told Pollock that he at first thought he had a “live one” when he met Ogorodnikov, whom he knew as Wolfson, but then was disappointed when he realized that Wolfson was only Ogorodnikova’s husband.

“You thought you had a live one when you saw a middle-aged man in a bathrobe walk down the stairs at 1 in the morning?” Pollock asked incredulously.

Not Like a Thriller

“It was a false impression,” Miller conceded. “It certainly didn’t correlate to any spy thriller I’d ever read.”

Miller said he then concluded that “the whole thing was a joke.”

Pollock, who contends that Ogorodnikov had no involvement in the alleged conspiracy between Ogorodnikova and Miller, asked Miller if he was embarrassed at having to meet Ogorodnikova’s husband after having had sex with her an hour earlier in a Hollywood motel.

“It was only a minor embarrassment,” Miller said. “You’re talking about a man who has committed 1,001 embarrassments.”

As the defense lawyers finished their cross-examination of Miller, Assistant U.S. Atty. Bruce G. Merritt quickly attempted to minimize some of the damage done to the government’s case by reminding the jury that Ogorodnikov had consulted with his wife on a planned trip to Vienna during which Miller was to meet with Soviet intelligence agents and that he had long discussions with Ogorodnikova after almost every meeting between her and Miller.

Merritt also asked Miller about the contents of an envelope he was holding Sept. 12 when he was videotaped by FBI surveillance agents while waiting at the Little League park in Westwood for Ogorodnikova.

Question Over Contents

Miller said at one point that the envelope contained “follow-up material” for a loan application to Santa Barbara Savings & Loan, but later said, “I don’t recall specifically what was in the envelope.”

The government claims the envelope contained secret documents which were given to Ogorodnikova.

While the government had earlier planned to confront Miller directly with the question of whether he passed secret documents to the Ogorodnikovs, prosecutors backed away from doing so last week. Defense lawyers say any FBI testimony showing that Miller previously admitted passing documents would be “overwhelmingly prejudicial” to the Ogorodnikovs, who are not charged with actually receiving any documents but merely conspiring to receive them.

The legal question of whether to press the issue, which the government is still considering, represents the most important strategic decision prosecutors must make. If Merritt and Assistant U.S. Atty. Richard B. Kendall decide they need to show that Miller passed documents to convict the Ogorodnikovs, they risk the uncertain outcome of an expected appeal to the U.S. 9th Circuit Court of Appeals.