U.S. Official Doubted There Was Enough to Even Arrest Him : Miller Case: Own Words Sealed His Fate

The U.S. Justice Department’s top expert on espionage once doubted whether the government would even be able to arrest Richard W. Miller as a Soviet spy, government officials revealed Friday.

They disclosed that Miller, convicted Thursday of passing a secret FBI document to the Soviet Union, almost avoided prosecution completely despite one of the most intensive FBI counterintelligence operations in history.

In the aftermath of Miller’s conviction and the lifting of a gag order by U.S. District Judge David V. Kenyon, sources provided these disclosures:

- A top Justice Department official supervising the Miller investigation gave up on any chance of convicting Miller and flew back to Washington after Miller unexpectedly walked into his boss’ office on Sept. 27, 1984, and announced that he had been trying to infiltrate the Soviet KGB.

“You guys don’t have a prosecutable case,” John Martin, head of the Justice Department’s internal security division, reportedly told FBI agents who had been investigating Miller for almost a month.

- Even after a five-day FBI interrogation of Miller began the following day, some FBI agents thought Miller would not be arrested, but would instead be fired for his sexual involvement with Russian emigre Svetlana Ogorodnikova, later convicted as a Soviet agent.

Only when Miller agreed to take polygraph tests, failed them and then began confessing that he had passed documents to Ogorodnikova did the outlook change.

- The entire investigation was supervised by FBI and Justice Department officials dispatched from Washington. U.S. Atty. Robert C. Bonner and other federal prosecutors in Los Angeles, who prosecuted Miller, Ogorodnikova and her husband, Nikolai, were not notified of the case until the day before the arrests.

- According to Bonner and other officials, Nikolai Ogorodnikov was “very lucky” that he was not shot by the FBI when they arrested him and his wife at their West Hollywood apartment. An agent at the front door of the Ogorodnikovs’ apartment saw him with a gun in his hand, but he dropped it after the arrest team announced that they were with the FBI.

- After Miller confessed to passing documents to Ogorodnikova, Martin reversed his view on the strength of the case and authorized the agent’s arrest. Because of Miller’s admissions, government officials felt that the case against Miller was stronger than the case against the Ogorodnikovs.

The initial prosecution hope was that Miller might plead guilty and testify against the Ogorodnikovs in exchange for a plea-bargain agreement, possibly involving a 25-year prison sentence. Neither Miller nor his lawyers, however, showed any interest in such an arrangement.

- Prosecutors shared the view of defense lawyers that the weakest government case was against Ogorodnikov, who pleaded guilty to espionage conspiracy in June, 1985, but who has subsequently proclaimed his innocence and petitioned for a new trial.

Ogorodnikov, 53, was observed by FBI agents frequently walking around the streets of West Hollywood in deep discussion with his wife, but there was little direct evidence linking him to the passing of documents.

‘Case Was Thin’

“Had it not been for all the walks that Nikolai took, we probably would not have arrested him at all,” said former Assistant U.S. Atty. Bruce G. Merritt, co-prosecutor in the Ogorodnikov trial. “We thought he was at least as deeply involved as Svetlana, but the case against him was thin.”

The presence in Los Angeles of Martin, regarded as the Justice Department’s No. 1 spy prosecutor, during the Miller investigation was never previously disclosed, and was unknown even to defense lawyers in the case.

When Miller made his unexpected statement to P. Bryce Christensen, assistant agent in charge of the FBI’s Los Angeles office, the FBI had no direct proof that he had passed documents. And Miller had suddenly come up with a plausible defense for his actions.

Martin flew back to Washington assuming that Miller would stick to his story and that there would be insufficient evidence to refute it, sources said. He left a top assistant, John Dion, behind to monitor the interrogation.

Martin had no way of guessing that within a five-day period Miller would not only confess to passing documents to Ogorodnikova, but would actually draw a layout of his house for the FBI, pinpointing the exact spot where he handed her the FBI’s secret Positive Intelligence Reporting Guide.

Some Comments Guarded

While Merritt and former Assistant U.S. Atty. Richard B. Kendall, the other prosecutor in the Ogorodnikovs’ trial, openly discussed early government worries and strategies at length, Bonner and Assistant U.S. Atty. Russell Hayman guarded their comments on grounds that Miller’s conviction will be appealed to the U.S. 9th Circuit Court of Appeals.

Hayman, now 28, was the youngest prosecutor in the U.S. attorney’s office in Los Angeles when he was assigned the day before the arrests to help prepare warrants for Miller and the Ogorodnikovs, as well as a search warrant for the Ogorodnikovs’ apartment.

He confirmed that the final approval for the arrests did not come from the Justice Department until the afternoon of Oct. 2, 1984. Hayman obtained arrest warrants about 10 p.m. that night, less than two hours before the suspects were taken into custody.

Bonner, hoping that the Miller trial would be set ahead of the trial of the Ogorodnikovs, originally selected Merritt to co-prosecute the case with him, while Kendall and Hayman played key supporting roles.

“At the indictment stage, the hope was that somebody would plead and that Miller would see the light, plead guilty and then testify against the Ogorodnikovs,” Merritt said. “We talked plea with Miller, but he wouldn’t have it. His lawyers weren’t that interested.”

Offered 25-Year Term

Merritt, who said the government offered Miller a 25-year sentence to plead guilty, said the case against Miller was viewed as the strongest because he had admitted to seven different FBI officials that he had passed documents to Ogorodnikova. He said he personally never doubted Miller’s guilt.

“If he had come in and said ‘I’m a well-known sex maniac and I played along with Svetlana for sexual favors, now she tells me we have to go to Europe,’ that might have been believable,” Merritt said. “He could have said that, and we would have had to think about it more.

“But the defense he made--that he had a double-agent plan--is so far beyond the realm of anything any agent would do that it was always a clear lie,” Merritt added. “The FBI never believed him for a minute.”

Kendall, now in private practice, joined Merritt as co-prosecutor in the Ogorodnikov trial after it was scheduled first by Kenyon, while Bonner picked Hayman to join him in the prosecution of Miller.

Both former prosecutors said the Miller case revealed reasons for being critical of the way the FBI ran its Soviet counterintelligence squad in Los Angeles.

‘Acted Professionally’

“The case shows that the FBI has some faulty parts like any other organization,” Kendall said. “Once they realized they had a serious problem, they acted very professionally. But the case shows the administration of the Los Angeles counterintelligence program left a lot to be desired.”

Merritt said that after Miller’s arrest, the FBI’s follow-up investigation was delegated to the Chinese counterintelligence squad in the Los Angeles office, which he credited for doing a “tremendous” job of following up “literally hundreds” of leads.

“I guess I’m not impressed with how the whole story came about,” Merritt said. “Why was Miller assigned to counterintelligence in the first place? Clearly the situation came about because counterintelligence was a low priority, where you could put a poor agent.”

Bonner, objecting to discussing “any internal Justice Department communications,” refused to talk about the investigation, except to confirm that he was not told about it by Martin until the day before Miller’s arrest.

He said that was typical procedure for the Justice Department in espionage cases.

Disagrees on Assessment

“I disagree that there was not a prosecutable case on Sept. 27, when Miller walked into Bryce Christensen’s office and gave his story,” Bonner said. “I think there was evidence to prosecute on before that time.

“The case is not over with,” he added. “That’s why I’m reluctant to talk.”

Bonner also defended the FBI’s handling of Miller during his 20-year career.

“I don’t think he was that bad of an agent,” Bonner said. “He wasn’t even a bumbler, as the defense claimed. He was a lazy conniver in his last few years. What do you do? Do you fire a man because he is obese? Or someone who’s been around for 15 or 16 years?

“There are some compassionate concerns that come into play,” Bonner said. “It is too damn difficult to fire a government employee. I don’t care if they are FBI or anyplace. It because a very big problem.”

The 18 months of courtroom proceedings that followed Miller’s arrest had their lighter moments--literally, sources revealed Friday after the lifting of the gag order.

Drank Miller Lite

One government source revealed that throughout the Miller trial prosecutors and FBI agents quenched their thirst during regular afternoon meetings by drinking Miller Lite beer while discussing trial strategy.

Another footnote was provided by Kendall, who recalled talking to Miller when he was first assigned to the U.S. attorney’s office several years ago.

“It was a minor case involving interstate transportation of a stolen check,” Kendall said. “I can just remember thinking as a brand new assistant, either I’m not communicating well with this man because I’m new or else he’s a total bozo.

“I just couldn’t understand what he was saying to me,” Kendall said. “I assumed it was me. Later on, I realized he was different than other agents.”