the relevant parties should permit speedy resolution of the issue.
Petitioner's second claim alleging a conflict based on the business relationship between Muslin and Pollans, Vasil Struminikovski's attorney, is groundless. Petitioner has failed to allege facts under the Cuyler standard which, if true, demonstrate an actual conflict.
The subject matter of the hearing is limited to evidence related to the compensation of attorneys, instructions to and advice from attorneys, Amanda Roland's communications with the U.S. attorneys and the participation, if any, of Spyridon Manasses in the defense of the charges.
The evidentiary hearing will not focus on the July 25, 1988 memorandum. The government asserts that it was under no obligation to notify the court that petitioner's attorney may have a conflict because the evidence was vague and unsubstantiated. The court agrees.
Petitioner's recitation of the facts -- payment by a third party, refusal of the lawyer to work for an informer, discouraging a plea bargain -- is strikingly similar to the facts described in Quintero v. United States, 33 F.3d 1133, 1136-37 (9th Cir. 1994). There, the Ninth Circuit required the district court to hold an evidentiary hearing, noting that the described fact pattern raised the possibility that "Quintero did not in fact have the undivided loyalty of counsel which is 'perhaps the most basic of counsel's duties.'" Strickland v. Washington, 466 U.S. 668, 692, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984)." 33 F.3d at 1137.
The facts as related by petitioner raise a similar concern, and therefore petitioner's request for an evidentiary hearing with respect to his conflict of interest claim is granted.
18 U.S.C. § 924
The government concedes that Bailey v. United States, supra, should retroactively apply to convictions under § 924 where there is no evidence of active employment of a firearm. According to the government, the Department of Justice has instructed federal prosecutors to take the position that Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989), does not apply to cases in which the facts underlying a conviction fall squarely within the holding of Bailey. See Ianniello v. United States, 10 F.3d 59, 63 (2nd Cir. 1993). The Seventh Circuit, without commenting on the question of retroactivity, recently reversed a § 924(c) conviction on the grounds that there was insufficient evidence to show active use. See United States v. Monroe, 73 F.3d 129 (7th Cir. 1995). See also United States v. Booker, 73 F.3d 706 (7th Cir. 1996). There is no dispute that petitioner's conviction was based on evidence which did not show actual use. Consequently, petitioner's conviction under 18 U.S.C. § 924(c) will be vacated.
IT IS THEREFORE ORDERED that:
(1) Petitioner's motion to vacate, set aside, or correct sentence  is granted in part and continued in part.
(2) That portion of petitioner's judgment and conviction under 18 U.S.C. § 924(c) is hereby vacated.
(3) A status hearing will be held on May 16, 1996 at 9:30 a.m. with respect to further proceedings.
William T. Hart
UNITED STATES DISTRICT JUDGE
DATED: APRIL 25, 1996