ORDER

FREDERICK J. KAPALA, District Judge.

Defendant's amended motion to compel appearance of AUSA Love as a witness [380] is denied. The parties are directed to contact the courtroom deputy to schedule the next date for continued hearing on defendant's motion to withdraw his plea of guilty.

STATEMENT

On September 11, 2008, the government filed a two-count information charging defendant, Christopher A. Jansen, with wire fraud, 18 U.S.C. § 1343, and income tax evasion, 26 U.S.C. § 260. On October 17, 2008, while represented by attorney Jeffrey B. Steinback, defendant waived his right to a grand jury indictment and pleaded guilty to both counts. The evidentiary hearing on defendant's motion to withdraw his guilty plea on grounds of prosecutorial misconduct, breach of plea agreement, and ineffective assistance of counsel is on-going. Defendant bears a heavy burden of proof on his motion to withdraw his plea of guilty. United States v. Mays, 593 F.3d 603, 607 (7th Cir. 2010).

Defendant has filed an amended motion seeking to call Assistant United States Attorney Michael Love, the attorney for the government assigned to prosecute this case, as a witness. Defendant has advanced multiple reasons why he believes he should be allowed to call Love as a witness. The government has filed a response contending that defendant has failed to meet his burden with respect to any of the areas of testimony he seeks to compel, and defendant has filed a reply. For the reasons that follow, defendant's amended motion to compel appearance of Love as a witness is denied.

It is improper for an Assistant United States Attorney to appear as a witness in a case he or she is prosecuting absent extraordinary circumstances. United States v. Trapnell, 638 F.2d 1016, 1025 (7th Cir. 1980). The Seventh Circuit, as well as other circuits, have universally recognized that a defendant who wishes to call a prosecutor as a witness must demonstrate a compelling and legitimate need for the testimony. See, e.g., Riddle v. Cockrell, 288 F.3d 713, 721 (5th Cir. 2002); United States v. Regan, 103 F.3d 1072, 1083 (2d Cir. 1997); United States v. Watson, 952 F.2d 982, 986 (8th Cir. 1991); United States v. Roberson, 897 F.2d 1092, 1098 (11th Cir. 1990); United States v. Troutman, 814 F.2d 1428, 1439 (10th Cir. 1987); United States v. Tamura, 694 F.2d 591, 601 (9th Cir. 1982); United States v. Johnston, 690 F.2d 638, 642 n.10, 644 (7th Cir. 1982) (en banc); United States v. Birdman, 602 F.2d 547, 553 (3d Cir. 1979). The same standard applies whether the defendant attempts to call the prosecutor at trial or at a motion hearing. See Johnston, 690 F.2d at 644 (applying compelling and legitimate need standard in context of pre-trial motions to suppress); United States v. Dempsey, 740 F.Supp. 1295, 1297 (N.D. Ill. 1990) (same).

The Seventh Circuit shed light on the meaning of "compelling and legitimate need" in United States v. Dack where the Court summarily rejected the argument that the district court erred in quashing a subpoena compelling the prosecutor's testimony because the defendant failed to establish that the testimony was material to an issue in the case and not easily available from other sources. 747 F.2d 1172, 1176 n.5 (7th Cir. 1984); see also Watson, 952 F.2d at 986 (stating that, as a general rule, where the evidence can be obtained through another witness, courts have refused to allow the defendant to call the prosecutor); Roberson, 897 F.2d at 1098 (concluding that there was no compelling need to call the prosecuting attorney where other witnesses were available to testify about plea negotiations); Dempsey, 740 F. Supp. at 1297. Thus, in order to show a compelling and legitimate need for Love's testimony, defendant must show both that (1) it is relevant (i.e. material and probative, see Fed. R. Evid. 401), and (2) there are no other witnesses or alternative sources of evidence available to establish the point defendant seeks to prove with Love's testimony.

Defendant advances 21 reasons — labeled a. through u. — followed by three unlabeled reasons in support of his contention that "[t]he testimony of Mr. Love is now essential and necessary due to the revelations of other witnesses in this matter, and the available evidence showing his participation in and approval of improper investigatory techniques relating to this matter."

Defendant claims that he requires Love's testimony to impeach Dalide's testimony that during a plea negotiating meeting with defendant, Steinback, Special Agent Daley, and Love, he did not remember saying, and would not have said, that he did not want defendant's cooperation in more than one matter so that the case could be finished more quickly. Defendant has not shown how this statement — whether Dalide said it or not — is material to the issues raised in his motion to withdraw his plea of guilty. Defendant contends generically that he pleaded guilty without being fully informed as to the plea or with sufficient advice from counsel. Even if Dalide did make the statement that defendant claims he did, then defendant knew that Dalide wanted his cooperation to be limited to one case and to conclude quickly and defendant entered the plea with that knowledge. Defendant does not claim he would not have pleaded guilty had Dalide not made the statement. Consequently, defendant has failed to show the relevance of Love's testimony concerning Dalide's purported statement. Moreover, defendant admits that others were present at this meeting who could have been called and asked about what Dalide said at this meeting. See Dempsey, 740 F. Supp. at 1297. Therefore, defendant has not satisfied either prong of the compelling and legitimate need test with respect to his reason a. for Love's testimony.

Reason b. fails the materiality prong of the legitimate and compelling need test. Agent Daley testified that she and another agent prepared the calculations and delivered them to Love and, therefore, defendant has not shown that Love could explain the tax calculations if called upon to do so. More importantly, as pointed out by the government, the amount of tax loss is an issue for sentencing. In any event, defendant has not explained how the presentation of the tax loss at this meeting affected his decision to plead guilty, rendered his guilty plea unknowing or involuntary, or could otherwise provide a fair and just reason to withdraw his guilty plea. After all, defendant knew what these tax calculations were at the time he decided to plead guilty, and in his plea agreement he specifically agreed that the loss was more than $200,000 but not more than $400,000, while acknowledging that this sentencing guideline component would ultimately be determined by the court at sentencing. Therefore, defendant has not satisfied the compelling and legitimate need test as to his reason b. for Love's testimony.

Steinback has testified at length regarding his plea negotiations with Love including an explanation of the reasons for his recommendation to defendant that he waive the statute of limitations potentially applicable to Count I. Accordingly, defendant has not established that he lacks an alternate source for this evidence. See Roberson, 897 F.2d at 1098. Moreover, this court has previously held that Steinback can provide testimony as to his negotiations with Love and, therefore, there is no need to require Love to testify on this issue. (See Dkt. No. 228.) Therefore, defendant has not satisfied the compelling and legitimate need test as to reason c. for Love's testimony.

According to defendant, Steinback's "perjurious remarks are related to Mr. Steinback's statements that he spent a great deal of time negotiating the new plea" when in fact it was essentially the same plea that defendant had already rejected. Defendant does not direct the court to the page in the transcript where this purported perjury occurred. Nevertheless, Steinback testified that he spent much effort convincing the government to re-engage in plea negotiations after defendant and his former counsel had soured those prospects. Moreover, it is unclear how the amount of time Steinback actually spent negotiating the plea is material to the issue of his effectiveness in recommending that defendant enter the plea agreement where defendant has claimed that Steinback was deficient in not obtaining discovery and in advising defendant to waive the statute of limitations as to Count I. Consequently, defendant has not satisfied the compelling and legitimate need test as to reason d. for Love's testimony.

Defendant has indicated in his reply that he is referring to defendant's exhibit 7 which is a January 11, 2008, email from Bourgeois1 to defendant. Defendant claims that in the email Bourgeois indicates "that Mr. Love advised him that he has no intention to indict . . . and he does not know of any other criminal acts by the Defendant." Defendant maintains that Love's statement, as reported by Bourgeois, is inconsistent with Steinback's testimony that Love had informed him that he had other charges he would bring against defendant if he did not agree to enter the plea agreement.

Bourgeois' email to defendant actually reads, in pertinent part, as follows:

(Def's Ex. No. 7.) One reasonable interpretation of this email is that the words "no additional criminal acts" refer to conduct apart from the "other alleged wrongdoing" that Love agreed not to bring up at sentencing as relevant conduct which, of course, could include other criminal activity, see U.S.S.G. § 1B1.3. However, the email read differently relates a bald statement by Love that he knows of no criminal acts apart from the wire fraud and income tax evasion charges that were ultimately brought against defendant in this case. Such a reading is, of course, inconsistent with Steinback's testimony that "I believed the government counsel when he told me that there were other potential criminal matters that could be brought and that would not be brought in view of a guilty plea, and that was important in my judgment back then." The court recognizes the possibility that an on-going investigation of defendant's conduct may have revealed other criminal activity on defendant's part to Love after the Bourgeois email but before interacting with Steinback. Consequently, the court deems it too premature to assess defendant's need to call Love for this purpose. The government has not yet presented its evidence on defendant's motion to withdraw his guilty plea. When it does so, this issue may be cleared up — either through testimony of case agents or Love may decide to testify himself on this issue. After the government presents its evidence, defendant will be free to again request to call Love in rebuttal for this reason e., if at that time he believes he can show a compelling and legitimate need.

Based on the rationale stated above as to defendant's reason e. for calling Love, the court also finds it too premature to decide if reason f. meets the compelling and legitimate need test. The government's case may reveal the information the government had regarding frauds defendant may have committed in connection with selling other businesses. After the government presents its evidence, defendant will be free to again request to call Love in rebuttal for this reason f., if at that time he believes he can show a compelling and legitimate need.

Again, the government has not taken issue with this part of Steinback's testimony except to indicate that Steinback testified that he did review some documents. As such, there is no need to corroborate this testimony. The government notes that its duty to provide discovery under Local Criminal Rule 16.1 never arose because that Rule requires that "[w]ithin 7 days after the arraignment the United States attorney and the defendant's attorney shall confer and attempt to agree on a timetable and procedures for [making various discovery disclosures]," L. Crim. R. 16.1, and in this case defendant pleaded guilty at his arraignment. Love has represented to the court since the plea that he has provided more discovery in this case than the law requires. Therefore, defendant has not satisfied the compelling and legitimate need test with respect to his reason g. for Love's testimony.

While under certain circumstances some forms of prosecutorial misconduct could be grounds to withdraw a guilty plea, see e.g. United States v. Hughes, 325 F.2d 789, 791 n.2 (1st Cir. 1964), in this case defendant has not directed the court to any evidence of improper investigatory tactics — only unsupported conclusory statements. Defendant refers to the "Omaha witness," but did not call him as a witness or provide any evidence to establish that this person was coerced into providing information. Even assuming that such misconduct occurred, defendant has not explained how the misconduct is relevant to his motion to withdraw his plea of guilty because he has not explained how it caused him to enter an unknowing or involuntary plea of guilty or otherwise constitutes a fair and just reason for withdrawing his plea. This is especially true since, as defendant emphasizes, the purported improper investigatory techniques did not produce any evidence in support of the charges to which defendant pleaded guilty. Defendant has not cited a case — nor has the court on its own located a case — where "improper investigatory techniques" that did not yield any evidence against the defendant constituted a fair and just reason for allowing a defendant to withdraw his plea. Therefore, defendant has not satisfied the compelling and legitimate need test with respect to his reason h. for Love's testimony.

Defendant has not established that such testimony is relevant to the pending motion. Moreover, defendant has not explained how Love, as opposed to the investigators, could provide this testimony. As such, defendant has not shown the unavailability of an alternate source for this testimony. Therefore, defendant has not satisfied the compelling and legitimate need test with respect to his reason i. for Love's testimony.

Defendant's reason j. for calling Love is not meaningfully distinguishable from his reason g. and fails on the same basis his reason g. failed. In his reply, defendant suggests that he should be permitted to ask Love if he believes he should have "nudged" Steinback to ask for the discovery because it was in the interest of fairness and justice. This purpose assumes that a defendant cannot enter a knowing and voluntary guilty plea without his attorney reviewing the discovery. That is not the law. See United States v. Underwood, 174 F.3d 850, 854 (7th Cir. 1999) ("[A] a guilty plea entered by a defendant who does not see the prosecution's hand in advance will still be voluntary if, as was true in this case, the plea follows disclosure of an adequate factual basis."); see also United States v. Johns, 74 F. App'x 633, 634 (7th Cir. 2003); United States v. Driver, 65 F. App'x 93, 94 (7th Cir. 2003). Therefore, defendant has not satisfied the compelling and legitimate need test with respect to his reason j. for Love's testimony.

The defendant points to his exhibit 13, a letter he wrote to Love on January 22, 2008, in which he takes issue with his proposed waiver of the statute of limitations. However, defendant provides neither theory nor authority for his assumption that Love's knowledge of defendant's previous position about waiving the statute of limitations is relevant to his motion to withdraw his guilty plea. In other words, there is no apparent relevance to evidence showing that in January 2008 defendant was hesitant to waive the statute of limitations as to Count I, if he ultimately decided to do so when he entered his guilty plea in October 2008. Further, Love does not need to verify that he was aware that defendant was at one time concerned about waiving the statute of limitations. Defendant's exhibit 13 itself serves as an alternate source for this evidence. Having failed to establish any relevance or no alternative source, defendant has not satisfied the compelling and legitimate need test with respect to his reason k. for Love's testimony.

Defendant has not provided any evidence of such conduct by Love. In his reply, he claims that he was informed by "Zaugs Vending in Wisconsin" that they were contacted by Love, or investigators acting at Love's behest, and were told that defendant was being investigated, causing him to lose clients and income. This claim, however, is not supported by evidence from defendant, someone at Zaugs Vending, or any other evidentiary means. Moreover, to the extent that defendant is referring to Love's post-plea conduct, he has not explained how it could have any bearing on his decision to plead guilty on October 17, 2008. Consequently, defendant has not shown how this alleged conduct is relevant to the claims in his motion to withdraw his plea of guilty. Therefore, defendant has not satisfied the compelling and legitimate need test with respect to his reason l. for Love's testimony.

Defendant has not identified the testimony of Close that he desires to impeach with Love's testimony. As a result, the court cannot determine if he has met the compelling and legitimate need test. Nor has defendant established the relevance of Love's testimony concerning his subpoenaing Close before the grand jury testimony. Therefore, defendant has not satisfied the compelling and legitimate need test with respect to his reason m. for Love's testimony.

Defendant has neither provided or even identified any evidence concerning his being improperly called as a witness before the grand jury. Even if there were such evidence, defendant has not explained how this occurrence caused him to later plead guilty unknowingly or involuntarily or otherwise creates a fair and just reason to allow him to withdraw his guilty plea. Therefore, defendant has not satisfied the compelling and legitimate need test with respect to his reason n. for Love's testimony.

Love has represented to this court, both orally and in writing, that he has provided defendant, and his former counsel, with even more discovery in this case than is required by law. (See Dkt Nos. 72 & 83.) Therefore, defendant has not satisfied the compelling and legitimate need test with respect to his reason o. for Love's testimony.

Defendant does not identify the testimony of Steinback that he purportedly needs to verify or impeach with Love's testimony. Moreover, defendant does not need to call Love to verify any of Steinback's testimony that is not disputed by the government. Therefore, defendant has not satisfied the compelling and legitimate need test with respect to his reason p. for Love's testimony.

Defendant offers nothing but speculation to support his claim that Love was one of the Department of Justice attorneys identified by the Project on Government Oversight as having committed ethical violations. Even if Love were, as defendant speculates, one of the attorneys identified, defendant fails to articulate how the testimony he seeks is relevant to the ineffective assistance of counsel, breach of plea agreement, or prosecutorial misconduct issues he has raised in his motion to withdraw his plea of guilty. Therefore, defendant has not satisfied the compelling and legitimate need test with respect to his reason q. for Love's testimony.

Defendant has failed to show how this testimony is relevant to his breach of plea agreement contention, the first contention he advances in support of his motion to withdraw his guilty plea, in light of the following term within that agreement: "Defendant understands that it is solely within the government's discretion whether to move for a reduction in his sentence, and he agrees not to challenge the government's decision if it determines in its discretion that such a motion is not appropriate." (Dkt. No. 8, ¶13) A defendant "must make a substantial threshold showing that the government improperly withheld a substantial assistance motion before he can receive a remedy or even discovery or an evidentiary hearing on this issue." United States v. Billings, 546 F.3d 472, 475 (7th Cir. 2008) (quotation marks omitted). Defendant cannot advance his claim that the substantial assistance motion is being withheld improperly without a substantial threshold showing "`that the refusal was based on an unconstitutional motive,' or `was not rationally related to any legitimate Government end.'" Id. (quoting Wade v. United States, 504 U.S. 181, 185-86 (1992)); see also United States v. Obeid, 707 F.3d 898, 901 (7th Cir. 2013) (applying same standard in the context of a Rule 35(b) substantial assistance motion). Defendant has made no such showing in this case. Defendant's exhibit 46, a January 2011 email exchange between defendant and Steinback concerning efforts to provide cooperation to the government, is not sufficient. There is no dispute that defendant attempted to cooperate with the government after his plea. However, the government, apparently, did not find his attempt to be satisfactory. Therefore, defendant has not satisfied the compelling and legitimate need test with respect to his reason r. for Love's testimony.

Defendant has not shown that Love is the only witness who can testify about the information gathered during the investigation. Defendant has all that information in the form of the discovery he was provided and could have, or did, ask the various case agents what information they gathered. As for authority to conduct the investigation, defendant has not provided a legal or factual basis for his conclusion that the investigation was conducted without authorization. Even if the investigation had been conducted without authority in violation of some unidentified Department of Justice regulation or directive, defendant has not explained how that circumstance is relevant and would support his effort to withdraw his guilty plea. Therefore, defendant has not satisfied the compelling and legitimate need test with respect to his reason s. for Love's testimony.

Defendant has not demonstrated a violation of Rule 611(b), let alone a need to examine Love about such an occurrence. Compliance with the Federal Rules of Evidence is a matter entrusted to this court's sound discretion and any claimed evidentiary error during this hearing may ultimately be raised on appeal. Consequently, Love's testimony as to his opinion on whether those Rules were violated is irrelevant. As such, defendant has not established that a violation of Rule 611(b) is relevant to his motion to withdraw his plea of guilty.

In any event, at least with respect to the first day of Love's cross-examination, as noted in earlier orders, defendant made no contemporaneous "beyond the scope of direct" objections during the government's cross-examination of Steinback and thereby waived the issue. Had such an objection been made, however, it would have been subject to the court's discretion to "allow inquiry into additional matters as if on direct examination." See Fed. R. Evid. 611(b) ("The court may). Therefore, defendant has not satisfied the compelling and legitimate need test with respect to his reason t. for Love's testimony.

Based on the rationale stated above as to defendant's reason e. for calling Love, the court also finds it too premature to decide if reason u. meets the compelling and legitimate need test. After the government presents its evidence, defendant will be free to again request to call Love in rebuttal for this reason u. if at that time he believes he can show a compelling and legitimate need.

Defendant also makes three additional unlabeled arguments:

This reason is not meaningfully distinguishable from defendant's reason h. for calling Love. Again, however, defendant fails to identify any evidence of impropriety during the investigation or, assuming impropriety, to explain how it would provide a basis for him to withdraw his guilty plea. Therefore, this testimony is not relevant and defendant has not satisfied the compelling and legitimate need test with respect to this testimony.

Defendant argues further that:

Defendant has failed to present anything other than conclusory statements to support his contention that Love violated various ABA Standards during the investigation of his case. Moreover, defendant fails to establish how such violations, if they occurred, are relevant to the issues he raises in his motion. In his reply, defendant argues that an attorney's violation of an ethical rule can result in discipline and even suspension. While that is true, it does nothing to establish the relevance of an ethical violation to the issues raised in defendant's motion to withdraw his guilty plea. Therefore, defendant has not satisfied the compelling and legitimate need test with respect to this testimony.

Defendant argues even further:

This is not so. Steinback can and has testified on this subject such that defendant has failed to establish that he lacks an alternative source for this testimony. Moreover, as noted above, there is no need to call Love to testify on this subject because there is no dispute that Steinback did not seek and the government did not provide complete discovery prior to defendant's October 17, 2008 guilty plea. Therefore, defendant has not satisfied the compelling and legitimate need test with respect to this testimony.

Finally, defendant argues that Love cannot claim any immunity from being called as a witness. The government makes no claim of immunity.

For the above reasons, the court concludes that defendant has not carried his burden and, therefore, his amended motion to compel the appearance of Love as a witness is denied.