Appeal from the United States District Court for the Western District of Wisconsin. No. 88 CR 50--Barbara B. Crabb, Judge.
Cudahy, Flaum, and Ripple, Circuit Judges.
This case comes before the court on Defendant-Appellant Armin Ziegenhagen's pro se "Motion for Change of Counsel, Setting Aside Brief, Extension of Time to Proceed In Forma Pauperis, and for Transcript.*fn1 Also before the court are the briefs, including a reply brief, from the parties in this direct criminal appeal. For the reasons below, we remand to the district court for an evidentiary hearing to consider whether the conflict of interest in this case denied Ziegenhagen the right to fair representation or if Ziegenhagen waived the conflict.
On November 8, 1988, a jury convicted Armin Ziegenhagen of possessing a firearm, a.308 Savage rifle, in violation of 18 U.S.C. § 922(g).*fn2 Prior to trial, the government had provided Ziegenhagen, and his attorney, Martin Hanson, with notice of its intention to seek an enhanced sentence under 18 U.S.C. § 924(e)(1)*fn3 since Ziegenhagen was a three-time convicted felon.*fn4 Unbeknownst to anyone, Hanson had appeared twenty years earlier at the sentencing hearing on behalf of the Racine County District Attorney's office to recommend the length of sentence to be imposed against Ziegenhagen on two of the convictions that the government relied on to enhance the present sentence. Again, without being aware of his role in Ziegenhagen's prior convictions, Hanson, on January 24, 1989, filed a motion to bar application of the sentence-enhancing statute on the ground that one of the earlier convictions, a 20-year old burglary conviction in Wisconsin, did not qualify as a predicate offense under § 924(e)(1). Prior to the sentencing hearing, Hanson discovered his involvement in Ziegenhagen's earlier convictions and sentences. He discussed the possible conflict with the prosecutor in this case, Daniel P. Bach, Assistant U.S. Attorney, and informed his client, Ziegenhagen. The prosecutor felt there was no conflict and according to Hanson, Ziegenhagen did not say anything after the disclosure; no one informed the district court judge of these facts.
The district court, relying on this court's decision in United States v. Dickerson, 857 F.2d 414 (7th Cir. 1988), cert. denied, 490 U.S. 1023, 109 S. Ct. 1753, 104 L. Ed. 2d 189 (1989),*fn5 felt constrained to apply the sentence-enhancing statute and sentenced Ziegenhagen on January 26, 1989, to fifteen years imprisonment without opportunity for parole, the statutory minimum under § 924(e)(1).
Hanson continues to represent Ziegenhagen on appeal. In the appeal, Hanson argues that Ziegenhagen was improperly sentenced under § 924(e)(1), that it only includes burglaries as defined by common law and not as defined under Wisconsin Law, see Wis.Stat. § 943.10(1)(a) (1965), because § 924(e)(1), as amended, does not include a definition of burglary. Hanson makes this contention based on the legislative history of § 924, statistics and the "rule of lenity."*fn6 After all briefing was completed and subsequent to this court's notice to the parties of Fed.R.App.Proc. 34(f), Ziegenhagen filed his pro se motion.
Ziegenhagen's motion first requests a change of counsel from Martin I. Hanson to Melvin P. Deutsch because of the alleged conflict of interest stemming from Hanson's appearance against Ziegenhagen at the sentencing hearing twenty years ago. Hanson is retained counsel and has represented Ziegenhagen and his brother over the course of the last several years. Ziegenhagen claims he was not aware that Hanson had appeared for the prosecution at the sentencing in the earlier cases until Hanson informed him of that fact prior to sentencing in this case, and claims that this "conflict of interest" requires the court's substitution of Mr. Deutsch for Mr. Hanson.*fn7
The Sixth Amendment guarantees defendants effective, albeit not perfect, representation by counsel. Strickland v. Washington, 466 U.S. 668, 691-96, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). This guarantee includes representation that is free of any actual conflict of interest with counsel. Cuyler v. Sullivan, 446 U.S. 335, 350, 64 L. Ed. 2d 333, 100 S. Ct. 1708 (1980); United States v. Bradshaw, 719 F.2d 907, 911 (7th Cir. 1983). See generally Glasser v. United States, 315 U.S. 60, 86 L. Ed. 680, 62 S. Ct. 457 (1942). An "actual" conflict of interest means "that the defense attorney was required to make a choice advancing his own interests to the detriment of his client's interests," United States v. Horton, 845 F.2d 1414, 1419 (7th Cir. 1988) (citing United States v. Marrera, 768 F.2d 201, 207 (7th Cir. 1985), cert. denied, 475 U.S. 1020, 89 L. Ed. 2d 321, 106 S. Ct. 1209 (1986)), and "which, by its nature, is so threatening [as] to justify a presumption that the adequacy of representation was affected." United States v. Cancilla, 725 F.2d 867, 870 (2d Cir. 1984).
Although "actual" conflicts of interest have been found in joint or multiple representation contexts, see, e.g., United States ex rel. Duncan v. O'Leary, 806 F.2d 1307, 1315 (7th Cir. 1986), cert. denied, 481 U.S. 1041, 95 L. Ed. 2d 822, 107 S. Ct. 1982 (1987); United States v. Alvarez, 580 F.2d 1251, 1260 (5th Cir. 1978), and in cases where the defense attorney and the trial court judge are at odds, Walberg v. Israel, 766 F.2d 1071, 1075-76 (7th Cir.), cert. denied, 474 U.S. 1013, 88 L. Ed. 2d 475, 106 S. Ct. 546 (1985), such potential conflicts of interest are not per se violative of the constitutional right to effective representation. See Foxworth v. Wainwright, 516 F.2d 1072 (5th Cir. 1975); United ...