United States v. Turner, 09-1595 (7th Cir. Feb. 2, 2010).

The district court disqualified Roosevelt Turner's retained counsel from representing him in this cocaine-conspiracy case because the attorney was also representing an alleged coconspirator in sentencing 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 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 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 States v. Gonzalez-Lopez, 548 U.S.
140, 150 (2006), Turner is entitled to a new trial.

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. Const. 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 select counsel of one's choice, by contrast, . . . has been regarded as the root meaning of the
constitutional guarantee," 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.

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 representation is not a per se
violation of the right to effective counsel. 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.

Where, as here, defendants charged jointly are represented 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 Representation. The
court must promptly inquire about the propriety of joint representation and must personally 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 defendant's right to counsel.

In joint-representation cases, the district court has "substantial 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.

Although the disqualification decision is "left primarily to the informed judgment of the trial court," Wheat, 486 U.S. at 164, the force of the core constitutional command requires that the court start
from a default position that gives effect to the defendant's Sixth Amendment 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 presumption can be overcome only by an actual or serious potential for conflict. Id.

"Under Wheat, the risk of nonpersuasion 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.

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 no conflict of interest, then
the defendant's choice of counsel must be respected unless there is some institutional concern requiring disqualification.

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 qualifies, 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 assistance 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 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 disqualification 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).

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. 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.

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.The district court essentially applied a rule that joint representation 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, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978). 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 MODEL RULES OF PROF'L CONDUCT R. 1.7; accord HN17ILL. RULES OF PROF'L CONDUCT R. 1.7(b).

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 premised on a mistake regarding the applicable legal standards, which is necessarily an abuse of discretion. See Christian Legal Soc'y v. Walker, 453 F.3d 853, 867 (7th Cir. 2006).

Accordingly, we hold that the district court's disqualification 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 VACATE his conviction and sentence and REMAND the case for retrial.

For the full opinions visit the 7th Circuit Court of Appeals Web Site

For more about Chicago Criminal Defense Attorney Michael J. Petro, visit www.mjpetro.com.

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