IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-40478
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANK FLORES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-96-CR-20-1
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July 10, 1997
Before JONES, DeMOSS and PARKER, Circuit Judges.
PER CURIAM:*
Frank Flores appeals the district court’s denial of his
motion to dismiss based on double jeopardy grounds. Flores
contends the district court goaded him into requesting a mistrial
by excusing prior defense counsel, thereby barring reprosecution
by the Government.
We have reviewed the record and the briefs of the parties
and hold that the district court did not err in denying Flores’
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
No. 96-40478
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motion to dismiss based on double jeopardy grounds. District
courts have the authority and the duty to inquire sua sponte into
whether counsel should not serve because of a conflict with
another client. United States v. Coleman, 997 F.2d 1101, 1104
(5th Cir. 1993); Wheat v. United States, 486 U.S. 153, 160
(1988); Fed. R. Crim. P. 44(c). A defendant's right to choice of
counsel is limited not only by the demonstration of an actual
conflict, but also by a showing of a serious potential conflict,
even if a defendant expresses a desire to waive the conflict.
United States v. Sotelo, 97 F.3d 782 (5th Cir.), cert. denied,
117 S. Ct. 620 (1996) and 117 S. Ct. 1002 (1997) and 117 S. Ct.
1324 (1997).
The record substantiates the district court’s concern about
the conflict of interest posed by prior defense counsel’s joint
representation. The record does not suggest that the district
court intended to goad or provoke Flores into requesting a
mistrial when it excused prior defense counsel. United States v.
Botello, 991 F.2d 189 (5th Cir. 1993); Oregon v. Kennedy, 456
U.S. 667 (1982).
AFFIRMED.