UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v.

MICHAEL KELLER,

Defendant.

 /

Case No. 2:09-cr-20303

HONORABLE STEPHEN J. MURPHY, III

OPINION AND ORDER DENYING DEFENDANT'S MOTION TO 

DISQUALIFY ASSISTANT UNITED STATES ATTORNEY (docket no. 26)

Michael Keller is charged in a twenty-six count indictment with murder for hire, felon

in possession of a firearm and explosive, unlawful dealing in firearms and explosives,

violent felon in possession of body armor, possession of a firearm with an obliterated serial

number, and various drug possession charges. 

Keller moves to disqualify the Assistant United States Attorney assigned to the case,

Leonid Feller. He argues that his defense to the murder or hire charge will require him to

call Feller to testify at the trial. Keller argues that without the ability to call him, Keller will

be denied his constitutional right to present a defense. Feller's testimony is apparently

necessary for Keller's defense that he was induced by law enforcement to commit murder

for hire. Feller's role in the entrapment is he designed the sting to entrap Keller. Because

of his role as "Architect" of the sting, Keller argues, Feller will be an essential witness for

the defense. Additionally, Keller argues, Feller's questions, comments, and arguments at

trial as government counsel will be tainted by his personal knowledge, or at least the

perception that he has personal knowledge about the issues in this case, thereby unduly

prejudicing the jury and depriving Keller of a fair trial.

2:09-cr-20303-SJM-MKM Doc # 50 Filed 12/09/09 Pg 1 of 7 Pg ID 467
2

The parties have extensively briefed the issue and Keller has presented an offer of

proof as to the testimony it seeks to elicit from Feller at trial. The government has

submitted a surreply to the offer of proof. A hearing was held on the motion at which the

government was represented by Louis Gabel, Assistant United States Attorney, co-counsel

assigned to the case. The Court has considered the arguments of both parties presented

in the briefs at orally at the hearing, and the Court is ready to rule on the matter. The Court

will deny Keller's motion to disqualify Feller from representing the government. 

DISCUSSION

 It is a bedrock principle of legal professional conduct that a lawyer shall not act as

advocate at trial in which the lawyer is likely to be a necessary witness. See Mich. R. of

Prof'l Conduct 3.7(a), made applicable to Assistant United States Attorneys in Michigan by

28 U.S.C. § 530B. The purpose of the prohibition is to prevent problems arising from a

lawyer's having to argue credibility and the effect of his or her own testimony, to prevent

prejudice to the opposing party that might arise therefrom, and to prevent prejudice to the

client if the lawyer is called as an adverse witness, but not to permit the opposing party to

seek disqualification as a tactical device to gain an advantage. See People v. Tesen, 276

Mich. App. 134, 143 (2007). Attorneys are not necessary witnesses if the substance of

their testimony can be elicited from other witnesses. Id. at 144.

Constitutional issues arise in criminal cases in which the Defendant has a

constitutional right to present a defense. The Supreme Court stated in Pennsylvania v.

Ritchie, "Our cases establish, at a minimum, that criminal defendants have the right to the

government's assistance in compelling the attendance of favorable witnesses at trial and

the right to put before a jury evidence that might influence the determination of guilt. 480

U.S. 39, 56 (1987); cf. Washington v. Texas, 388 U.S. 14, 19 (1967) ("Just as the accused

2:09-cr-20303-SJM-MKM Doc # 50 Filed 12/09/09 Pg 2 of 7 Pg ID 468
3

has the right to confront the prosecution's witnesses for the purpose of challenging their

testimony, he has the right to present his own witnesses to establish a defense. This right

is a fundamental element of due process of law."); see also Chambers v. Mississippi, 410

U.S. 248, 294 (1973). 

The right of the defendant to call witnesses in his defense is not absolute, however,

especially when the party seeks to call an attorney prosecuting the case. Cf. United States

v. Burge, 990 F.2d 244, 248-49 (1992). The party seeking disqualification bears the burden

of showing the attorney is a necessary witness. Tesen, 276 Mich. App. at 143. This is a

high burden. Indeed, the disqualification of government counsel is a drastic measure, Cope

v. United States, 272 Fed. Appx. 445, 449 (6th Cir. 2008) (unpublished) (citing United

States v. Bolden 353 F.3d 870, 875 (10th Cir. 2003), and should be imposed only when

necessary, such as when government counsel is the only person from whom relevant and

necessary testimony related to the defendant's defense can be elicited. Id.; United States

v. Watson, 952 F.2d 982, 986 (8th Cir. 1991) ("The party seeking such testimony must

demonstrate that the evidence is vital to his case, and that his inability to present the same

or similar facts from another source creates a compelling need for the testimony.")

The Court finds that Keller has not met his burden to show that Feller's testimony is

necessary to Keller's defense. Keller has not demonstrated that Feller's testimony is

necessary to his defense. Keller's argument for the necessity of Fuller's testimony is that

it will bolster Keller's defenses of entrapment and/or manufactured jurisdiction, i.e., Feller's

testimony will be necessary to call into question the government's motivation for creating

the murder for hire crime. Def. Mot. to Disqualify, ¶ 7. 

Assuming Keller will be entitled to an instruction on entrapment or that the Court will

rule on his defense of manufactured jurisdiction, both of which the government dispute,

2:09-cr-20303-SJM-MKM Doc # 50 Filed 12/09/09 Pg 3 of 7 Pg ID 469
4

Feller's singular testimony would not be necessary for these defenses. This is because any

evidence Keller could possibly wish to elicit from any witness that would be vital to his

defense can be elicited from Agent Nether. Agent Nether, the undercover ATF agent who

developed a relationship with Keller lasting at least two years, would have participated in

every relevant conversation with Feller regarding the sting operation, and was ultimately

responsible for executing the specifics of the sting. Nether has personal knowledge of, and

will be able to testify about, Keller's predisposition to commit the murder for hire, and the

government's alleged inducement of him to do so, both of which are the only relevant

issues for a claim of entrapment. See Mathews v. United States, 485 U.S. 58, 63 (1988)

(setting forth elements of entrapment). Additionally, Agent Nether will be able to testify

about all relevant facts related to Keller's manufactured jurisdiction defense. 

The motivations or opinions of Feller in preparing and prosecuting the case are

irrelevant to the actual facts of the investigation. Thus, anything about which Feller could

testify, and which Agent Nether could not, such as Feller's personal motivations in indicting

and prosecuting Keller, are irrelevant. "In the ordinary case, so long as the prosecutor has

probable cause to believe that the accused committed an offense defined by statute, the

decision whether or not to prosecute, and what charge to file or bring before a grand jury,

generally rests entirely in his discretion." United States v. Armstrong, 517 U.S. 456, 464

(1996) (internal quotation omitted). There was certainly probable cause that Keller agreed

to commit a murder-for hire in this case. The grand jury found as much when it returned

its indictment on the charge. 

Keller disagrees and argues Feller's motivations are acutely necessary in this case.

Keller submits that the evidence will show that Keller was not inclined or predisposed to do

commit the murder for hire, and his ability to demonstrate the absence of intent and

2:09-cr-20303-SJM-MKM Doc # 50 Filed 12/09/09 Pg 4 of 7 Pg ID 470
5

predisposition depends on his ability to demonstrate that the undercover agent did not take

seriously his prior statements about committing murder for hire. To do that, Keller must

show why the government "cooked up" the murder for hire sting, and Feller is the only one

who can testify to that. The Court disagrees. Whether Keller was predisposed or not will

depend only on Keller's own statements and actions, about which Nether will be able to

competently testify, and the factual development of any alleged government inducement,

about which Agent Nether will also be able to testify competently. Indeed Agent Nether is

the only person who can testify about whether he took Keller's statements seriously. Feller

can shed no light on whether Agent Nether took Keller's statements seriously.

Keller relies on dicta in United States v. Barge, 990 F.2d 244 (6th Cir. 1992), for the

proposition that motivations of Feller will be necessary in this case. Though the court in

Barge upheld the trial court's decision not to admit certain evidence about motivations of

the government agents, it said, "[i]nsofar as evidence of the government's motives may

cast doubt on the credibility of evidence or testimony presented by the government, it is

certainly relevant to the defendant's case." Id. at 249. As stated at the hearing in this

matter, the Court does not see how testimony about Feller's personal motivations in

charging Keller could cast any doubt on the credibility of evidence presented by the

government. Evidence presented by the government regarding the murder for hire charge,

and especially Keller's intent to commit the offense, will likely be in the form of Keller's own

prior statements and actions, all of which can be presented by Agent Nether and backed

up by audio and visual recordings. Any possible testimony by Feller which would cast

doubt on these objectively verifiable statements and actions is difficult to imagine and will

certainly not warrant disqualification.

2:09-cr-20303-SJM-MKM Doc # 50 Filed 12/09/09 Pg 5 of 7 Pg ID 471
6

Keller's second argument is that Feller's continued prosecution of this case would be

inappropriate because due to his unique personal knowledge about the facts of this case,

he will be unable to give an opening statement, question witnesses, or make a final

argument without assuming the role of a witness, and thereby improperly buttressing the

Government's position. Def. Br. at 5. The Court does not agree. A prosecutor gains

personal knowledge of the proofs in any case he is handling be it through investigative

updates, witness preparation, or plea negotiations. If such knowledge required

disqualification, no prosecutor could properly bring any case, particularly a case where the

prosecuting attorney was involved in proactive investigations. This would be an absurd

result. Rather, the prosecutor has a duty not to inject himself into the proceedings and if

he or she does, the impropriety may be remedied by the trial court, or if not remedial by the

trial court, then by a mistrial or by appeal. The Court will not ex ante disqualify Feller for

mistakes at trial which Keller thinks Feller might make. If Feller unduly injects himself at

trial by referring to personal knowledge, the Court will take the appropriate remedial action

at that time. 

WHEREFORE, it is hereby ORDERED that Defendant Keller's Motion to Disqualify

Assistant United States Attorney Leonid Feller (docket no. 26) is DENIED. 

SO ORDERED.

s/Stephen J. Murphy, III 

STEPHEN J. MURPHY, III

United States District Judge

Dated: December 9, 2009

2:09-cr-20303-SJM-MKM Doc # 50 Filed 12/09/09 Pg 6 of 7 Pg ID 472
7

I hereby certify that a copy of the foregoing document was served upon the parties and/or

counsel of record on December 9, 2009, by electronic and/or ordinary mail.

s/Alissa Greer 

Case Manager

2:09-cr-20303-SJM-MKM Doc # 50 Filed 12/09/09 Pg 7 of 7 Pg ID 473