United States v. Flores

                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.


                        - - - - - - - - - -
           Appeal from the United States District Court
                for the Southern District of Texas
                       USDC No. C-96-CR-20-1
                        - - - - - - - - - -
                           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that this opinion should not be published and is not precedent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
                                - 2 -

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.