United States v. Roosevelt Turner ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2350
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
R OOSEVELT T URNER,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:05-cr-30015—David R. Herndon, Chief Judge.
A RGUED JANUARY 20, 2009—D ECIDED F EBRUARY 2, 2010
Before E ASTERBROOK, Chief Judge, S YKES, Circuit Judge,
and K ENDALL, District Judge.Œ
S YKES, Circuit Judge. The district court disqualified
Roosevelt Turner’s retained counsel from representing
him in this cocaine-conspiracy case because the attorney
Œ
The Honorable Virginia M. Kendall, District Judge for the
United States District Court, Northern District of Illinois,
sitting by designation.
2 No. 08-2350
was also representing an alleged coconspirator in sen-
tencing proceedings. The question for us is whether
this violated Turner’s Sixth Amendment right to counsel
of his choice.
In February 2005 the government indicted Turner and
eight others for conspiring to distribute cocaine in Alton,
Illinois. But Turner was not arrested until June 2006, and
by that time many of the alleged coconspirators had
pleaded guilty and cooperated with the government. One
exception was Anthony Womack. His first trial ended in
a hung jury. On retrial Womack was convicted, and he
was awaiting sentencing when the authorities finally
caught up with Turner. In the meantime, Womack hired
a new attorney—Irl Baris—to represent him at sentencing.
Once in custody, Turner was initially represented by
appointed counsel, but his family soon hired Baris as his
attorney. The government questioned whether this
joint representation was permissible and asked the
court for a hearing on the matter.
The government suggested that Baris’s representation
of both defendants presented an insurmountable conflict
of interest because one might decide to cooperate with
the government against the other. Baris countered that
there was no actual conflict—nor any serious potential for
conflict—because neither client wanted to assist the
government and prosecutors had not shown the
slightest interest in securing either defendant’s testimony
against the other. Moreover, both defendants waived
any conflict of interest. The district judge focused on the
possibility that one defendant might provide information
No. 08-2350 3
or testimony against the other and held that this was
sufficient to create an “absolute” conflict of interest. On
this basis the judge disqualified Baris as Turner’s counsel.
A jury convicted Turner of conspiracy, and he appealed,
challenging the judge’s disqualification of his chosen
counsel.
We reverse. The Sixth Amendment gives a defendant
who does not require appointed counsel the right to
choose who will represent him. See Wheat v. United States,
486 U.S. 153, 159, 164 (1988). The Supreme Court
recognizes a presumption in favor of the defendant’s
choice, although this presumption may be overridden if
there is an actual conflict of interest or a “serious
potential for conflict.” Id. at 164. Where there is an actual
or serious potential conflict, two aspects of the Sixth
Amendment right to counsel are in tension: the accused’s
right to counsel of his choice and his right to the effective
assistance of counsel. Id. at 159-61. Joint representation
is not, however, a per se violation of the right to the
effective assistance of counsel. Id. at 160-61.
Here, the district court disqualified Baris based on the
possibility that Womack might cooperate against Turner
or vice versa. But this possibility for conflict is present in
nearly every case of joint representation. The district
court’s analysis disregarded the presumption in favor of
the defendant’s chosen counsel and imposed what
amounts to a per se rule against joint representation. As
such, the court’s disqualification order was premised on
a mistake of law and violated Turner’s right to counsel
of his choice. Because this violation is structural, United
4 No. 08-2350
States v. Gonzalez-Lopez, 548 U.S. 140, 150 (2006), Turner is
entitled to a new trial.
I. Background
In February 2005 a grand jury indicted Turner, Womack,
and seven others on charges of conspiring to distrib-
ute cocaine in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A)(ii), and 846. (A superseding indictment
filed in October 2005 added three more defendants as
coconspirators.) The government alleged that from
January 2003 to January 2005, Turner and the others
conspired to distribute large quantities of cocaine in and
around Alton, Illinois. Most of the alleged conspirators
were quickly rounded up. Turner, however, remained
at large until June 2006.
Nearly all of the coconspirators pleaded guilty and
cooperated with the government, but Womack elected to
go to trial. The government’s first attempt to convict
Womack ended in a mistrial because the jury could not
reach a verdict. On retrial in April 2006, the jury found
Womack guilty. The case against him relied largely on
the kind of evidence customarily introduced in drug-
conspiracy trials: tapes of telephone intercepts capturing
conversations among those associated with the charged
conspiracy and the testimony of several of the cooperating
coconspirators.
During both of his trials, Womack was represented by
Attorney John Abell. After his conviction, however,
Womack hired Attorney Irl Baris to represent him for
No. 08-2350 5
sentencing and appellate purposes. Baris is an experienced
criminal-defense attorney in practice since 1948 and an
adjunct professor of criminal trial practice and procedure
at Washington University School of Law for the last
25 years. He has tried a variety of federal cases
involving white-collar crimes, drug conspiracies, and
racketeering offenses, and has argued numerous appeals
in five or six federal circuits. He entered his appearance
on behalf of Womack on June 1, 2006.
As Womack awaited sentencing, police finally arrested
Turner on June 14, 2006. Court-appointed attorneys
represented Turner for the next six weeks. Turner’s family
then hired Baris to represent him, and on August 1, 2006,
Baris entered his appearance as Turner’s counsel. The
government immediately asked the district court to
conduct a hearing under Rule 44(c) of the Federal Rules
of Criminal Procedure to evaluate the effect of any poten-
tial conflict of interest on each defendant’s right to the
effective assistance of counsel. See F ED. R. C RIM. P. 44(c)
(outlining the court’s duty of inquiry in a case of joint
representation). The government’s motion intimated
that Womack might be called to testify at Turner’s trial
or might pursue sentencing or appellate strategies
adverse to Turner’s interests, or alternatively, Turner
might be asked to provide information or testimony to
assist the government at Womack’s sentencing.
At the Rule 44(c) hearing, the government argued as
a general matter that the defendants’ interests might
become adverse in the event that either opted to cooperate
with the government. But the prosecutor was not more
6 No. 08-2350
specific. He did not say, for example, that the govern-
ment intended or was likely to seek Womack’s coopera-
tion and testimony against Turner or vice versa. The
prosecutor did say that “[a]s a side note, an attorney
in my office has requested permission to talk to whoever
[Womack’s] attorney is to see if Mr. Womack is interested
in cooperating with the Government with regard to a
somewhat unrelated matter, certainly with regard to his
narcotics distribution.” The judge sought clarification:
“[Y]ou said your line assistant has asked for permission
to approach Womack with the possibility of giving testi-
mony against Mr. Turner?” The prosecutor responded
in the negative:
That is not accurate, Your Honor. That would not be
accurate. The line attorney who has asked me about
Mr. Womack is seeking information with regard
to individuals who purchased cocaine directly from
Mr. Womack, not necessarily information with regard
to Mr. Turner. Of course, the issue becomes one of,
once an individual begins to cooperate, there can’t
be limitations on that.
The government did not explicitly ask the court to dis-
qualify Baris. The gist of its argument, however, was
that Baris’s joint representation of Turner and Womack
created an impermissible conflict of interest requiring
his disqualification from Turner’s case.
Baris argued that Turner was entitled under the Sixth
Amendment to retain counsel of his choice. He explained
that each client’s family had separately retained him and
that both Turner and Womack had consented after con-
No. 08-2350 7
sultation to the joint representation. He also said neither
Turner nor Womack had any interest in assisting the
government and noted that the government had not
expressed any interest in seeking either defendant’s
cooperation against the other. Baris said both defendants
were prepared to waive any conflict of interest. Baris
invited the court to make a personal inquiry of the defen-
dants to confirm their consent to the joint representation.
The judge did not respond to this invitation. Instead,
the judge expressed his general concern that Baris could
not effectively advise one of his clients about the advan-
tages of cooperating with the government without
hurting the interests of his other client. The judge had
presided over Womack’s trial and knew that the evidence
there had suggested that Turner was Womack’s sole
cocaine supplier. “[B]ecause there was testimony in the
Womack trial relative to Turner,” the judge said, “Mr.
Womack is a person with potential relevant knowledge
who could be subpoenaed to testify in the Turner case.
And how do you go about cross-examining your own
client with any sort of vigor that properly represents
your other client?” Baris reminded the court that the
government could not compel Womack to testify. The
judge countered: “And so then what does the record
show, that the attorney for Turner advised the witness
to take the Fifth Amendment?” Baris responded: “No. The
attorney for Womack may advise him [to take the Fifth
Amendment].”
On the flip side of the conflict question, the judge
said that Turner might need advice from Baris if the
8 No. 08-2350
government sought his cooperation in Womack’s sen-
tencing, and “Mr. Baris is not going to be in a position
to do that faithfully, fully, exercising his full professional
responsibilities to his client because, of course, if he were
representing Mr. Womack, he wouldn’t want Mr. Turner
to testify against Womack in a sentencing.” Baris
suggested that the court’s concerns were based entirely
on speculation. The attorney noted that under the
Supreme Court’s decisions in Wheat and Gonzalez-Lopez,
it was the government’s burden to establish an actual
conflict of interest or at least a serious potential for
conflict, and noted again that the prosecutor had not
specifically said he intended to seek either defendant’s
cooperation against the other. The judge responded:
“How much more specific does it have to get other than
there will be an approach for a proffer, and he is clearly
a—if not absolutely going to be a witness, he’s clearly
a person with extraordinarily relevant knowledge that
likely will be a witness.”
Perhaps sensing which way the wind was blowing,
Baris suggested that the court accept Turner’s conflict
waiver now and revisit the matter later if the prosecution
decided to approach either defendant about cooperating.
“[L]et’s suppose that they do [approach one of the defen-
dants],” Baris said. “At that time the issues can be
crystalized and perhaps the facts can be revealed as to
what the conflict is. Here, we don’t know.” The judge
rejected this alternative, concluding instead that the
conflicts are “absolute” and “specific,” “they’re clear,
they are not speculative,” and “[t]here’s no way that any
waiver can overcome these conflicts.” The court entered
an order disqualifying Baris from representing Turner.
No. 08-2350 9
The government never sought either defendant’s assis-
tance against the other. Womack was sentenced to
151 months’ imprisonment. With new counsel, Turner
proceeded to a jury trial. He was convicted of conspiracy
to distribute in excess of 5 kilograms of cocaine and
sentenced to 360 months’ imprisonment. He appealed,
challenging the district court’s disqualification of Baris
as a violation of his Sixth Amendment right to retain
counsel of his choice.
II. Discussion
The Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have
the Assistance of Counsel for his defence.” U.S. C ONST.
amend. VI. Two aspects of this Sixth Amendment right
are pertinent here: the right of an accused who does not
require appointed counsel to choose the attorney who
will represent him, see Gonzalez-Lopez, 548 U.S. at 144-48;
Wheat, 486 U.S. at 159, and the right to effective
assistance of counsel, see Strickland v. Washington, 466 U.S.
668, 687 (1984).
Each of these rights protects something different—the
former secures “the right to a particular lawyer
regardless of comparative effectiveness,” and the latter
prescribes “a baseline requirement of competence on
whatever lawyer is chosen or appointed.” Gonzalez-Lopez,
548 U.S. at 148. The rights are different in another respect:
The Sixth Amendment’s protection against ineffective
representation “derive[s] from the . . . Amendment’s
purpose of ensuring a fair trial,” id. at 147; “[t]he right to
10 No. 08-2350
select counsel of one’s choice, by contrast, . . . has been
regarded as the root meaning of the constitutional guaran-
tee,” id. at 147-48. Stated differently, the Sixth Amendment
right to counsel of choice “commands[] not that a trial be
fair, but that a particular guarantee of fairness be
provided—to wit, that the accused be defended by the
counsel he believes to be best.” Id. at 146.
These two elements of the Sixth Amendment right to
counsel will occasionally be in tension with each other—
prototypically, when a defendant hires an attorney who
has a conflict of interest. When this occurs, the defendant’s
right to counsel of his choice may have to give way. A
court confronted with a case of joint representation
“must take adequate steps to ascertain whether the con-
flicts warrant separate counsel.” Wheat, 486 U.S. at 160.
Joint representation may present a conflict so concrete
and serious that it intolerably undermines the right to
effective assistance of counsel and justifies overriding
the defendant’s choice of counsel. Id. at 161-62.
Not all cases of joint representation, however, give rise
to a conflict of interest warranting disqualification of
counsel; the Supreme Court has held that joint representa-
tion is not a per se violation of the right to effective coun-
sel. Id. at 159-60. Instead, joint representation requires
careful judicial scrutiny for the presence and effect of
conflicts; the court “ha[s] an independent duty to
ensure that criminal defendants receive a trial that is
fair and does not contravene the Sixth Amendment.” Id.
at 161; see also United States v. Combs, 222 F.3d 353, 361
(7th Cir. 2000) (“[A] court has an independent duty to
No. 08-2350 11
balance the right to counsel of choice with the broader
interests of judicial integrity.”).
Where, as here, defendants charged jointly are repre-
sented by the same counsel, Rule 44(c)(2) of the Federal
Rules of Criminal Procedure instructs the court to
conduct a prompt inquiry into the likelihood and effect
of any conflict of interest:
(2) Court’s Responsibilities in Cases of Joint Repre-
sentation. The court must promptly inquire about
the propriety of joint representation and must person-
ally advise each defendant of the right to the
effective assistance of counsel, including separate
representation. Unless there is good cause to believe
that no conflict of interest is likely to arise, the court
must take appropriate measures to protect each de-
fendant’s right to counsel.
In joint-representation cases, the district court has “sub-
stantial latitude” to refuse a defendant’s conflict waiver.
Wheat, 486 U.S. at 163. The court’s decision, therefore, is
reviewed for abuse of discretion; we recognize, moreover,
that the decision “must be made ex ante; if disqualification
was proper on the basis of all information known or
knowable at the time the judge acted, then later develop-
ments . . . would not spoil the decision.” Rodriguez v.
Chandler, 382 F.3d 670, 672 (7th Cir. 2004).
Although the disqualification decision is “left pri-
marily to the informed judgment of the trial court,” Wheat,
486 U.S. at 164, the force of the core constitutional com-
mand requires that the court start from a default posi-
12 No. 08-2350
tion that gives effect to the defendant’s Sixth Amend-
ment right to choose his own counsel. The Supreme
Court has therefore recognized a presumption in favor
of the defendant’s choice of counsel, and this presump-
tion can be overcome only by an actual or serious
potential for conflict. Id. “Under Wheat, the risk of non-
persuasion rests with the prosecution rather than the
defendant.” Rodriguez, 382 F.3d at 672. The court’s role
is to determine “whether the attorney has an actual
conflict, a potential conflict, or no conflict at all,” United
States v. Perez, 325 F.3d 115, 125 (2d Cir. 2003), and to
evaluate any conflict for its effect on the defendant’s right
to effective assistance of counsel. In addition, before
accepting a waiver of conflict-free counsel, Rule 44(c)
requires the court to advise each defendant of his right
to effective assistance of counsel.1
This framework requires the court to first determine the
specific nature of any actual or potential conflict of
interest arising from the joint representation. If there is
1
The district court is not required to “follow some pre-or-
dained, detailed script” or “conduct a long-winded dialogue
with counsel and defendants” before accepting a defendant’s
waiver of his right to conflict-free counsel. United States v.
Flores, 5 F.3d 1070, 1078 (7th Cir. 1993). Instead, for a
defendant’s waiver to be valid, the judge need only “inform
each defendant of the nature and importance of the right to
conflict-free counsel and ensure that the defendant under-
stands something of the consequences of a conflict.” Id.; accord
United States v. Castillo, 965 F.2d 238, 241-42 (7th Cir. 1992);
United States v. Roth, 860 F.2d 1382, 1388-89 (7th Cir. 1988).
No. 08-2350 13
no conflict of interest, then the defendant’s choice of
counsel must be respected unless there is some institu-
tional concern requiring disqualification. See Gonzalez-
Lopez, 548 U.S. at 152 (“The court has . . . an ‘independent
interest in ensuring that criminal trials are conducted
within the ethical standards of the profession and that
legal proceedings appear fair to all who observe them.’ ”
(quoting Wheat, 486 U.S. at 160)). If, on the other hand, the
court finds an actual conflict of interest that seriously
undermines counsel’s effectiveness, “there can be no
doubt that [the court] may decline a proffer of waiver,
and insist that defendants be separately represented.”
Wheat, 486 U.S. at 162. A conflict that amounts to a
breach of the code of professional ethics obviously quali-
fies, see id., as does a concrete conflict of interest which
though not a violation of professional ethics, nonetheless
impedes the attorney’s ability to provide effective assis-
tance of counsel within the meaning of Strickland.
The disqualification decision becomes more difficult,
however, if the joint representation presents only a
potential for conflict. Because “a possible conflict inheres
in almost every instance of multiple representation,”
Cuyler v. Sullivan, 446 U.S. 335, 348 (1980), the Supreme
Court has said that only a serious potential conflict will
justify overriding the defendant’s choice of counsel,
Wheat, 486 U.S. at 164. This requires an inquiry into the
likelihood that the potential conflict will mature into an
actual conflict and the degree to which it threatens the
right to effective assistance of counsel. Accordingly,
before disqualifying counsel based on a potential conflict,
the district court should evaluate (1) the likelihood that
14 No. 08-2350
the conflict will actually occur; (2) the severity of the
threat to counsel’s effectiveness; and (3) whether there
are alternative measures available other than disqual-
ification that would protect the defendant’s right to
effective counsel while respecting his choice of counsel.
The first inquiry is the most important; a conflict that
would seriously undermine counsel’s effectiveness is not
a basis for disqualification if it has little likelihood of
occurring.
For example, in United States v. Algee, we affirmed the
disqualification of the defendant’s chosen attorney in a
conspiracy case because the attorney had previously
represented two coconspirators whom the government
intended to call to testify as principal witnesses against
the defendant. 309 F.3d 1011, 1014 (7th Cir. 2002). At the
other end of the spectrum is our decision in Rodriguez,
which though not a joint-representation case nonetheless
provides an example of a potential for conflict that was
not sufficient to justify disqualification of counsel. In
Rodriguez prosecutors told the trial court that a detective
who had participated in the investigation of a
codefendant was an “integral part of the case” and a
potential witness against the defendant Rodriguez. 382
F.3d at 671-72. One of Rodriguez’s attorneys, however,
had represented the detective in an unrelated real-estate
transaction. Id.The trial court disqualified the attorney, and on habeas
review we held this decision was unreasonable. Id. at 672-
73. The prosecution had not explained—either at the time
the disqualification decision was made or at any time
afterward—what admissible evidence the detective
No. 08-2350 15
would have offered, and the prosecution never did call
the detective to testify. Id. at 672. We concluded in Rodri-
guez that disqualification was not warranted because the
possibility that the conflict of interest would eventually
occur was simply too remote. Id.Rodriguez also explains how the availability of protec-
tive measures other than disqualification may make
disqualification unreasonable. Rodriguez had two attor-
neys, one of whom had no prior relationship with
the detective who was a potential witness. We noted
that the cocounsel without the conflict could have cross-
examined the detective if he had testified and this “would
have eliminated all risks.” Id. at 673. This “easy solution,”
we said, made it unreasonable to deprive Rodriguez of
his counsel of choice. Id. We have also noted in another
case that to avoid a conflict of interest, the district court
may limit examination of a witness and may “on rare
occasions” exclude evidence. United States v. Messino, 181
F.3d 826, 830 (7th Cir. 1999); cf. United States v. Diozzi, 807
F.2d 10, 13-14 (1st Cir. 1986) (suggesting that it is appro-
priate to exclude testimony if the same evidence is avail-
able from other sources).
The conflict the district court identified in this case was
the mere possibility that either Womack or Turner
would decide to cooperate with the government against
the other. This does not amount to an actual conflict. Nor
is it, in the circumstances of this case, a serious potential
conflict justifying the disqualification of Turner’s counsel
of choice. Recall that the government bears the risk of
nonpersuasion here. Rodriguez, 382 F.3d at 672; see also
Perez, 325 F.3d at 125 (“Where the right to counsel of
16 No. 08-2350
choice conflicts with the right to an attorney of undivided
loyalty, the choice as to which right is to take precedence
must generally be left to the defendant and not dictated
by the government.”). At the Rule 44(c) hearing, the
prosecutor never said the government intended to seek
either defendant’s cooperation or testimony against the
other. To the contrary, a line assistant in the prosecutor’s
office wanted to talk to Womack about an “unrelated
matter,” not about cooperating with the government
against Turner. If the government needed or wanted
assistance from either Womack or Turner, it certainly
didn’t act like it. Womack had been in custody for a year
and a half, and he was awaiting sentencing when Turner
was arrested. Turner had been in custody for six weeks
at the time of the Rule 44(c) hearing. Not once during
that time did the government express the slightest
interest in obtaining the cooperation of one defendant
against the other. Moreover, the government already
had the assistance of multiple cooperating coconspirators.
For their part, neither Turner nor Womack wanted to
help the government. Baris’s proffer of a conflict waiver
confirmed their lack of interest in providing assistance
to prosecutors. In short, there is nothing in this record to
suggest that the potential conflict of interest identified by
the district court had a serious likelihood of maturing
into an actual conflict. Nor is there anything to support a
conclusion that the conflict was sufficiently severe that
Turner’s right to effective counsel would be jeopardized.
The potential for a conflict of interest in this case was
hardly “clear” and “absolute,” as the district judge
thought; instead, it was entirely speculative.
No. 08-2350 17
At bottom, the judge disqualified Baris because one
or the other of his clients might change his mind about
cooperating with the government, but that possibility
for conflict of interest “inheres in almost every instance
of multiple representation.” Cuyler, 446 U.S. at 348. The
district court essentially applied a rule that joint represen-
tation necessarily violates the defendant’s right to
effective counsel; this directly contradicts Wheat. See 486
U.S. at 159-60.
Our legal system generally presumes that one attorney
may effectively represent multiple codefendants. This
presumption is reflected in Rule 44(c) and Supreme
Court precedent. See Holloway v. Arkansas, 435 U.S. 475,
482 (1978) (“Requiring or permitting a single attorney to
represent codefendants, often referred to as joint repre-
sentation, is not per se violative of constitutional guaran-
tees of effective assistance of counsel.”). The presumption
is also reflected in professional ethical standards. For
example, the Model Rules of Professional Conduct assume
as a general matter that an attorney may represent
multiple clients notwithstanding a conflict of interest, if
the client gives informed consent. See M ODEL R ULES
OF P ROF’ L C ONDUCT R. 1.7; accord ILL. R ULES OF P ROF’ L
C ONDUCT R. 1.7(b) (permitting joint representation
despite a conflict of interest provided each client gives
informed consent and “the lawyer reasonably believes
the representation will not be adversely affected” despite
a conflict of interest); S.D. ILL. L OC. R. 83.4(d)(2) (adopting
Illinois Rules of Professional Conduct). The critical inquiries,
according to the Model Rules, are whether “the likelihood
that a difference in interests will eventuate and, if it does,
whether it will materially interfere with the lawyer’s
18 No. 08-2350
independent professional judgment in considering alter-
natives or foreclose courses of action that reasonably
should be pursued on behalf of the client.” M ODEL R ULES
OF P ROF’ L C ONDUCT R. 1.7 cmt. 8. The Model Rules (and
the Illinois standards, which the Southern District of
Illinois follows) also permit a lawyer to represent
multiple clients making an aggregate guilty or no-contest
plea. See M ODEL R ULES OF P ROF’L C ONDUCT R. 1.8(g); see
also ILL. R ULES OF P ROF’L C ONDUCT R. 1.8(e).
In light of the minimal risk that joint representation
would have undermined either Turner’s or Womack’s
right to the effective assistance of counsel, the district
court had other options available that would have re-
spected Turner’s right to his chosen counsel and protected
his right to effective counsel. We note that although Rule
44(c)(2) requires the court to “personally advise each
defendant of the right to effective assistance of counsel,
including separate representation,” here, the judge
never got that far. Baris invited the court to question his
client, but the judge entered the disqualification order
without making any personal inquiry of Turner. This
inhibited the court’s ability to fully assess the risk that a
conflict would actually arise and evaluate whether
other protective measures short of disqualification were
available. Baris also suggested that the court accept
Turner’s conflict waiver and revisit the matter later if
circumstances were to develop that would raise a
conflict question. The court rejected this option as well.
Finally, Turner’s court-appointed attorney was present
at the Rule 44(c) hearing. The court could have asked
him to confer with Turner to assess the risk that a conflict
of interest would arise and ensure that Turner fully
No. 08-2350 19
understood the particular ramifications of joint repre-
sentation in the context of the case. These measures
might not have “eliminated all risks,” Rodriguez, 382 F.3d
at 673, but the risk that the potential conflict would ripen
into an actual conflict was never very great in the first
place.
The district court’s decision to disqualify Baris was
based on the mere possibility that either Womack or
Turner might have a change of heart and decide to
assist the government against the other. This possibility
exists in nearly all cases of joint representation. As such,
the court applied what amounts to a per se rule
against joint representation, which is contrary to Wheat.
486 U.S. at 159-60. The court’s order was therefore pre-
mised on a mistake regarding the applicable legal stan-
dards, which is necessarily an abuse of discretion. See
Christian Legal Soc’y v. Walker, 453 F.3d 853, 867 (7th
Cir. 2006) (citing Koon v. United States, 518 U.S. 81, 100
(1996)).
Accordingly, we hold that the district court’s disqual-
ification order violated Turner’s Sixth Amendment right
to choose his own counsel. Under Gonzalez-Lopez, this
constitutional violation is a structural error not subject
to review for harmlessness. 548 U.S. at 148-51. Turner
is entitled to a new trial. We therefore V ACATE his con-
viction and sentence and R EMAND the case for retrial.
2-2-10