U.S. v. Miller

Decision Date25 April 1989
Docket NumberNo. 86-5200,86-5200
Citation874 F.2d 1255
Parties28 Fed. R. Evid. Serv. 23 UNITED STATES of America, Plaintiff-Appellee, v. Richard W. MILLER, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Stanley I. Greenberg and Joel Levine, Los Angeles, Cal., for defendant-appellant, Richard W. Miller.

Russell Hayman, Asst. U.S. Atty., Deputy Chief, Major Narcotics Section, Los Angeles, Cal., for plaintiff-appellee, the U.S.

Appeal from the United States District Court for the Central District of California.

Before NELSON, REINHARDT and O'SCANNLAIN, Circuit Judges.

NELSON, Circuit Judge:

Richard W. Miller was convicted of bribery, conspiracy to commit espionage, copying national defense information and delivering it to a foreign government, and communicating confidential information to a foreign government with the intent to harm the United States or aid a foreign government in violation of 18 U.S.C. Secs. 201(c), 371, 793(b), 794(a) & (c); and 50 U.S.C. Sec. 783(b) (1982). The district court

exercised jurisdiction pursuant to 18 U.S.C. Sec. 3231 and we have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We reverse Miller's conviction and remand for a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

The government charged Miller, an FBI agent assigned to the Soviet Foreign Counter-Intelligence ("FCI") Unit in Los Angeles, with various offenses relating to the alleged delivery of documents to representatives of the Soviet Union. At trial, Miller contended that he never intended to harm the United States and that all his actions were taken to benefit the FBI.

Miller met codefendant Svetlana Ogorodnikova ("Svetlana") in 1984. Svetlana had emigrated from the Soviet Union in 1973 with her husband Nikolay, another codefendant. She entertained Soviet officials in Los Angeles and performed errands for them. Miller contends, as Svetlana testified, that she received Soviet cultural films which she rented for profit to the Russian-American community in exchange for these tasks. The government presented testimony that Svetlana and Nikolay performed such tasks to earn a "right to return" to the Soviet Union, and that the tasks included showing propaganda films.

In 1982, the FBI tried to recruit Svetlana as an informant. Her recruiter, agent John E. Hunt, testified that he and she were building rapport during an "evaluation period" which included approximately 55 meetings. He said that she provided some intelligence information and was used in one FBI operation. However, the FBI eventually decided not to use her as an informant. Svetlana testified that she and Hunt were lovers. Hunt testified that in 1982, he attempted a double agent scheme by approaching the Soviets through Svetlana. He testified that the Soviets were aware of his meetings with Svetlana and he was testing whether the Soviets would attempt to recruit him. Hunt and Svetlana stayed in occasional contact during the period she associated with Miller.

Svetlana contacted the FBI in May of 1984, claiming to have valuable information. Miller was given authority to meet with her. After that meeting, he continued to see her without always reporting their meetings to his supervisors. They became lovers. The government contends that she asked him to provide information to help her locate three defectors in June 1984, and that he asked an FBI superior if the CIA could provide the information. Svetlana departed to visit the Soviet Union in June. When she returned to Los Angeles in August, she and Miller resumed meeting. She gave gifts to Miller and offered him money on numerous occasions. In early August, Svetlana asked Miller to work for the Soviet Union by providing her with classified documents. He in turn asked her for $15,000 in cash and $50,000 in gold.

Miller contends that he solicited the money only to "play along." He claims that although he wanted to convince the Soviets that he intended to provide classified information, he never actually intended to complete an exchange of documents for money. Miller had had a checkered career with the FBI and presented testimony that he wanted to leave the FBI in a "blaze of glory." He had not told his supervisors about the scheme but said he planned to do so when the scheme was at a more advanced stage. Svetlana testified in support of the defense theory. She said Miller told her that he would promise the Soviets everything, but that he could do no harm without the approval of his boss. While Miller had not reported his plan to the FBI, he had told Larry Grayson, a private investigator who sometimes worked as an FBI informant, about the scheme and asked for Grayson's assistance. However, when Grayson later asked Miller about the scheme, Miller told him to forget about it.

Svetlana and Miller traveled to San Francisco in late August 1984. She entered the Soviet consulate there while Miller waited a few blocks away. The government contends, based on Miller's statements to FBI agents during his interrogation, that she delivered Miller's FBI credentials and a classified document, the Positive Intelligence Reporting Guide ("PIRG"), to the Soviets. The PIRG is an annual document In late September 1984, Svetlana and Miller made arrangements for a trip to Vienna to meet with Soviet officials. He prepared for the trip by readying his passport and shopping with Svetlana. He maintains that he never planned to go to Vienna and that he was surprised to learn that she had actually reserved the tickets for herself and "R. Miller." He says he then decided that the plans with the Soviets were sufficiently advanced that he could inform the FBI. On September 27, 1984, he approached his supervisor, Agent Bryce P. Christiansen, and reported his claimed double agent scheme.

that sets forth the intelligence needs of the United States worldwide.

The FBI, however, already had begun surveillance of Miller and Svetlana in early September 1984. They placed wiretaps in Miller's home, car, and office, as well as in the Ogorodnikovas' home and cars. The FBI also used physical surveillance. The government contends that Miller was aware of the surveillance by September 27 and then approached Christiansen with a "cover" story. They note that his story contradicted some of his later admissions during interrogation.

After his statement to Christiansen, Miller underwent five days of interrogation. Miller talked to the FBI voluntarily and waived his Miranda rights in writing. However, he contests the reliability of his admissions during this period. Miller eventually admitted giving Svetlana at least one document, the PIRG. He consented to searches of his two residences and his office, which yielded many FBI documents, some of them classified.

The Ogorodnikovas' trial was severed from that of Miller. After six weeks of trial, Svetlana and Nikolay pleaded guilty to conspiracy to commit espionage. Miller's first trial lasted three months and resulted in a mistrial when the jury was deadlocked after three weeks of deliberations. After a four-month trial, a jury convicted Miller on six counts on June 19, 1986. On July 14, 1986, Miller was sentenced to two concurrent life terms plus an additional concurrent term of 50 years and fined $60,000. He is currently in custody. His appeal is timely.

DISCUSSION
1. The Admission of Polygraph Information.

We review the district court's decision to admit the polygraph evidence for abuse of discretion. See United States v. Polizzi, 801 F.2d 1543, 1555 (9th Cir.1986).

Miller insisted during his interrogation period and at trial that he had acted only to benefit the FBI. He consented to take several polygraph tests during his interrogation. An FBI polygraph examiner, James Murphy, told Miller that he had failed the polygraph tests. Miller did not trust Murphy and asked for a new examiner on September 29. The FBI's Chief Polygrapher, Paul K. Minor, met with Miller the next day to conduct prepolygraph interviews, although Minor ultimately never administered a polygraph exam to Miller. During the interviews with Minor, Miller stated that he thought that Svetlana had taken his FBI credentials into the Soviet Consulate in San Francisco. Miller expressed concern to Minor over his prior polygraph results. On October 1, 1984, Minor suggested that the polygraph results would be more accurate if Miller would give definite, unequivocal answers to the questions. Miller then first admitted that he had given Svetlana the PIRG, a classified document.

Before trial, Miller moved to have any evidence concerning his polygraph examinations excluded on the ground that its prejudicial effect outweighed its probative value. The government argued that, if the defendant intended to contest the voluntariness of his admissions before the jury, then the polygraph evidence should be admitted solely for the purpose of explaining the sequence of events that led to Miller's admissions. Miller responded that he would not challenge the voluntariness of his admissions at trial, but that he would attack their reliability. The trial court ruled that if Miller chose to challenge the admissions at trial, then it was only fair to permit the On appeal, Miller challenges the trial court's admission of this testimony, arguing that the court was incorrect in its determination that the prejudicial effect did not outweigh the probative value. We review such a ruling only for abuse of discretion.

government, in response, to "set the scene" which it believed precipitated the admissions. At trial, the defendant did challenge the reliability of his admissions, through both cross-examination and other evidence. Accordingly, the trial court permitted the government to introduce evidence concerning Miller's polygraph examinations. An FBI interrogator (Torrence), as well as Murphy, testified that Miller had been told that he had failed the exams. Indeed, the government went further and questioned each...

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