of the case to different prosecutors. 788 F. Supp. at 744.
As the Court held in Wallach, to call a prosecutor as a witness, "a defendant must demonstrate a compelling and legitimate need to do so." 788 F. Supp. at 743. Where witnesses other than the prosecutor can testify to the same matters in question, no compelling need exists. Wallach, 788 F. Supp. at 744 (citing United States v. Roberson, 897 F.2d 1092, 1098 (11th Cir. 1990)). See also United States v. Torres, 503 F.2d 1120, 1126 (2d Cir. 1974) (reversing a conviction where prosecutor testified to impeach the testimony of Government witness, and there was no showing that other witnesses were unavailable to testify).
Here, Regan has failed to demonstrate a "compelling and legitimate need" to call Assistant United States Attorney Landis as a witness and he has failed to show good reason for disqualifying her. First, the Government will stipulate to the fact Ms. Landis refused to inform Regan of the subject matter of the Grand Jury's inquiry prior to his appearance. Second, the Government's thought processes in deciding what questions to ask, how to ask them, and whether or not to refresh defendant's recollection are not relevant. Third, Assistant United States Attorney Gardephe is not participating in the trial of this case and he is available to testify even if his testimony were to be relevant. Fourth, Regan's argument that Ms. Landis will become an "unsworn witness" is unconvincing, for every lawyer in every trial is to some extent an "unsworn witness." In many criminal cases, defense counsel seek to make an issue out of the prosecutor's conduct, e.g., by cross-examining witnesses on whether prosecutors sought to influence their testimony or offered inducements for favorable testimony, and disqualification cannot be ordered every time this happens. Fourth, unlike in many situations where prosecutors become potential witnesses because of their personal involvement, here there was a court reporter present in the Grand Jury transcribing every question and answer. Finally, the Government would be prejudiced were I to disqualify Ms. Landis now, for she has spent an extensive amount of time on this case; it would be unfair at this late date to require the Government to bring in a new prosecutor with trial to commence in some two weeks.
The request to disqualify Ms. Landis is denied. The request to disqualify Mr. Gardephe is moot, as the Government has represented that he will not be participating in the trial of this case.
For the reasons set forth above, defendant Regan's motions are denied in all respects.
One final issue needs to be addressed. The Supreme Court's decision in United States v. Gaudin, 132 L. Ed. 2d 444, 63 U.S.L.W. 4611 (U.S. June 19, 1995), makes it clear that "materiality," as an element of the crime of perjury, is an issue to be decided by the jury. Regan's "perjury trap" defense, however, which is premised on his allegations that the Government abused the Grand Jury process and thereby violated his due process rights (Def. Mem. on Materiality at 5-8), is an issue not for the jury but rather for the Court. See United States v. Cuervelo, 949 F.2d 559, 567 (2d Cir. 1991) (motion alleging "outrageous governmental conduct" is a matter of law for trial court to decide); United States v. Nunez-Rios, 622 F.2d 1093, 1098 (2d Cir. 1980) (claim that Government misconduct violated defendant's due process rights was "not for the jury to consider, but must be decided by the trial court"). Since I have now rejected the "perjury trap" defense, evidence in support of it will not be permitted at trial.
Dated: New York, New York
July 28, 1995
United States District Judge