Miller’s Attorneys Move for Dismissal : Espionage: They contend that prosecutors suppressed evidence that could have cleared the former FBI agent.

Attorneys for Richard W. Miller claimed in court documents Thursday that espionage charges pending against the former FBI agent should be dismissed because of prosecutorial misconduct.

In a motion filed in U.S. District Court in Los Angeles, Miller’s lawyers contended that his constitutional rights were violated because the government had systematically suppressed evidence that could have exonerated Miller.

The defense also contended that FBI Director William S. Sessions failed to pursue allegations raised last summer by former FBI Agent John E. Hunt--a key witness at Miller’s two trials--that there may have been FBI misconduct in the case.

And Miller’s attorneys said the prosecution failed to disclose to the defense that an FBI agent involved in the case was under investigation by his superiors for undisclosed reasons, a factor that might bear on his credibility as a witness.

One of the issues the FBI was investigating was whether this unnamed agent had had an affair with Soviet spy Svetlana Ogorodnikova, the same woman with whom Miller admitted having an affair. She later pleaded guilty to espionage charges and is serving time in a Northern California prison.

Miller’s lawyers said that “the government took it upon itself to withhold favorable evidence that may have affected a judge or jury.”

The FBI declined to comment on any of the allegations raised Thursday.

Assistant U.S. Atty. Russell Hayman, lead prosecutor in the case, also declined comment, saying he had not been served with the papers.

The new defense motion is based primarily on documents Miller’s lawyers obtained after subpoenaing former FBI Agent Hunt, who headed the agency’s counterintelligence squad in Los Angeles in the mid-1980s and testified at both of Miller’s trials.

Miller, 52, was tried on espionage charges twice, with the first trial ending in a hung jury in 1985. The following year, a federal court jury in Los Angeles convicted him of trading a secret FBI manual to the Soviet Union for money, sex and gold. It was the first time an FBI agent had been convicted of espionage.

He acknowledged having an adulterous affair with Ogorodnikova in 1984 but claimed that he was not a spy but was attempting to revive his flagging FBI career through a foolish attempt to infiltrate the KGB.

Miller’s conviction, however, was overturned by the U.S. 9th Circuit Court of Appeals last April and he was released from a federal prison on $337,000 bail on Oct 30. Miller is currently scheduled to go on trial before U.S. District Judge Robert M. Takasugi on May 15.

Thursday’s motion marked the latest unusual twist in a Byzantine case that has lasted more than five years and caused considerable embarrassment to the FBI.

Defense attorney Stanley Greenberg said he and co-counsel Joel Levine subpoenaed Hunt, now living in Washington state, “because he had documented in correspondence to the government some concerns bearing on Miller’s innocence,” and the attorneys had gotten wind of Hunt’s concerns.

Last July, Hunt’s attorney, Lynn L. Sarko of Seattle, wrote a 10-page letter to Sessions expressing a variety of concerns about the case.

“Mr. Hunt believes that the FBI may have engaged in a cover-up of this affair by concealing certain information and by failing to follow up leads in the espionage case against Miller and Ogorodnikova and by knowingly falsifying the results of its own investigations,” the letter to Sessions states.

Specifically, the letter claimed that the FBI omitted from Hunt’s investigative reports on the case information that “tended to show that he (Miller) was following acceptable FBI procedure in using Ogorodnikova as a double agent (albeit in his usual rogue, unsupervised way) in a bold effort to salvage his failed FBI career.”

The letter goes on to state that Hunt felt an investigation was warranted and that Hunt offered to meet with Sessions about the case.

Hunt has testified that he met Ogorodnikova almost two years before Miller did and also attempted to cultivate her as a double agent but was unsuccessful.

Ogorodnikova testified that she had an affair with Hunt, but he consistently denied having been romantically involved with her.

FBI Deputy Director Floyd I. Clarke, in a letter to Hunt’s lawyer dated last Aug. 30, said the bureau had declined to consider Hunt’s request because of “pending litigation.”

“Frankly, we cannot comprehend the FBI’s response,” Miller’s attorneys wrote in their motion. “Given Mr. Hunt’s allegations of a ‘cover-up,’ and his offer to provide evidence in support of these allegations, we would think that the government would be interested in knowing the truth of such an allegation at any time, pending litigation or not. Indeed the government has a positive duty to investigate and disclose such allegations.”

The motion also alleges that the U.S. attorney’s office in Los Angeles acted improperly in its handling of the case.

“The United States attorney, while obviously aware of these allegations, apparently took no interest whatsoever in even hearing from Mr. Hunt the evidence he says he possesses in support of these allegations,” the lawyers wrote. “Instead, the government sought to keep this information from the defense by trying to quash the subpoena” of Hunt.

Prosecutors contended that the defense was not entitled to correspondence between a witness (Hunt) and the FBI. The U.S. attorney’s office said it was willing to turn over portions of Sarko’s letter to the FBI, but not all of it.

Some of the material that Miller’s attorneys obtained is heavily excised with black marker pen, but one FBI internal report indicates the agency was investigating Hunt and the other unnamed FBI agent, who allegedly had an affair with Ogorodnikova.

Miller’s attorneys say that while U.S. District Judge Robert Bonner served as top federal prosecutor in Los Angeles, he asked the Justice Department’s Office of Professional Responsibility to call off an internal investigation of one of Miller’s supervisors, Gary Auer.

It is not clear why the internal investigation was launched by the Justice Department, because much of the document is heavily excised. However, Bonner said he wanted the investigation suspended because “Auer must be totally candid, and not sure he can be with OPR (Office of Professional Responsibility).”

The internal investigation was called off and Auer, like a number of FBI officials, testified at Miller’s trial. Bonner could not be reached for comment Thursday.

The letter Hunt’s lawyer sent to the FBI raises questions about Miller’s character as well as the FBI’s handling of the case.

One passage states: “Miller was a textbook case for recruitment by a foreign intelligence organization.”

He also wrote that the FBI’s “incompetence” in using Miller and Ogorodnikova “had disastrous consequences which should have been foreseeable.” He added that “the FBI engaged in a cover-up to conceal the depth of its responsibility for this serious breach of national security.”