The Honorable Virginia M. Kendall, District Judge for the 

United States District Court, Northern District of Illinois,

sitting by designation.

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-2350

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ROOSEVELT TURNER,

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.

ARGUED JANUARY 20, 2009—DECIDED FEBRUARY 2, 2010

Before EASTERBROOK, Chief Judge, SYKES, Circuit Judge,

and KENDALL, District Judge.



SYKES, Circuit Judge. The district court disqualified

Roosevelt Turner’s retained counsel from representing

him in this cocaine-conspiracy case because the attorney
2 No. 08-2350

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—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 distribute 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 drugconspiracy 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 potential conflict of interest on each defendant’s right to the

effective assistance of counsel. See FED. R. CRIM. 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 government intended or was likely to seek Womack’s cooperation 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 testimony 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 disqualify 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 defendants 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 advantages 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 sentencing, 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 defendants],” 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 assistance 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. 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
10 No. 08-2350

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. A

court confronted with a case of joint representation

“must take adequate steps to ascertain whether the conflicts 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 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; 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 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; 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 developments . . . would not spoil the decision.” Rodriguez v.

Chandler, 382 F.3d 670, 672 (7th Cir. 2004).

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 posi-
12 No. 08-2350

The district court is not required to “follow some pre-or- 1

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 understands 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).

tion 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.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
No. 08-2350 13

no conflict of interest, then the defendant’s choice of

counsel must be respected unless there is some institutional concern requiring disqualification. See GonzalezLopez, 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 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
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 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). 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 Rodriguez 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 protective measures other than disqualification may make

disqualification unreasonable. Rodriguez had two attorneys, 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 crossexamined 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 appropriate to exclude testimony if the same evidence is available 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 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 (1978) (“Requiring or permitting a single attorney to

represent codefendants, often referred to as joint representation, is not per se violative of constitutional guarantees 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 MODEL RULES

OF PROF’L CONDUCT R. 1.7; accord ILL. RULES OF PROF’L

CONDUCT 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. LOC. 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 alternatives or foreclose courses of action that reasonably

should be pursued on behalf of the client.” MODEL RULES

OF PROF’L CONDUCT 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 MODEL RULES OF PROF’L CONDUCT R. 1.8(g); see

also ILL. RULES OF PROF’L CONDUCT 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 respected 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 representation 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 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) (citing Koon v. United States, 518 U.S. 81, 100

(1996)).

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.

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