concurring.
I concur for the most part in the majority’s opinion. However, I disagree with the majority’s intimations that the prosecutor’s behavior here was in any way improper.
I.
Lavelle Moore was indicted by a grand jury on September 5, 2001, and was arrested shortly thereafter. Prior to the indictment on September 4, 2001, Moore had appeared at the local jail, unrepresented, and had given a statement under Miranda waiver. On September 6, 2001, the court appointed Attorney McGowan to represent Moore. McGowan appeared with Moore at the initial hearing, held on September 6, 2001. A detention hearing was set for September 10, 2001. On that date, McGowan again appeared with Moore and indicated that Moore waived his detention hearing at that time.
On September 20, 2001, Moore appeared for a detention hearing and arraignment. He was represented at these proceedings by Attorney Grites, who had been retained by Moore’s family. At the arraignment, McGowan orally requested permission to withdraw as appointed counsel and departed. He filed a formal motion on September 25, 2001, which was granted by the Magistrate Judge. Also on September 20, 2001, Moore gave a proffer. By the terms of the agreement, made in conjunction with the proffer, *897Moore waived his protection under the Rules of Evidence for statements made in the course of plea discussions. In addition, although the Government was not allowed to use Moore’s direct words, the agreement allowed the Government to make derivative use of the information provided by the defendant.
The Government obtained a sixteen-count superseding indictment against Moore on October 10, 2001. Moore entered a plea of not guilty on October 19, 2001. On November 2, 2001, the prosecutor forwarded to Grites information that included the fact that McGowan, Moore’s former counsel, represented Kirk Campbell, a potential witness. The case went to trial on November 5, 2001. On the third day of trial, Grites raised issues of breach of attorney/ client privilege, ineffective assistance of counsel, and prosecutorial misconduct on the basis of McGowan’s former representation of Moore and current representation of Campbell in the proceeding. Grites sought a dismissal of the superseding indictment, or in the alternative the exclusion of Campbell’s testimony.
The court held an evidentiary hearing to determine whether there was a conflict or prosecutorial misconduct due to McGowan’s prior representation of Moore. Moore, Campbell, and McGowan all testified at the hearing. Although the prosecutor was put on notice that he might also have to testify, he was not, ultimately, required to testify at the hearing. Moore testified first. He stated that he had consulted with McGowan concerning the charges of the instant action on two occasions for approximately fifteen to twenty minutes each. Moore also testified that he had imparted substantial information regarding his drug suppliers to McGowan, including information concerning Campbell. In addition, Moore testified that he told McGowan that he and Campbell were not very friendly. On cross examination Moore admitted that he did not tell McGowan anything that he did not independently tell the Government in his Mirandized statement or his proffer. He further admitted that he had no proof that McGowan had leaked any information to Campbell.
McGowan testified after Moore. He stated that, at the time of his appointment to represent Moore, he was unaware of a conflict of interest due to his representation of Campbell. McGowan testified that his representation of Moore was limited to two meetings. He testified that he did not have any detailed discussions with Moore about the quantity of drugs involved. He further stated that Campbell’s name was never mentioned in any of his discussions with Moore. According to McGowan, he first learned that Campbell, who he represented in a state action, was involved in Moore’s case approximately one week after his representation of Moore terminated. McGowan testified that he was informed of the potential conflict when the prosecutor called to inform him of Campbell’s involvement in Moore’s case. He indicated that the prosecutor did not question him about his representation of Moore. McGowan stated that he considered withdrawing as Campbell’s counsel, but after carefully considering the issue, he did not see how there would be a conflict. He further testified that he did not provide Campbell with any information he received from Moore and that his prior representation of Moore did not affect his representation of Campbell in anyway.
Campbell testified as well. He stated that he was not influenced in any way by the fact that McGowan had previously represented Moore. He further stated that all of the information contained in his proffer was from personal knowledge and was not obtained from McGowan.
*898In response to questions from the court, the prosecutor stated that it was his understanding that McGowan did not gain any confidences from Moore. He also stated that he had asked McGowan whether he thought there was any conflict, and McGowan did not.
Following the evidentiary hearing, the court ruled that, although it might have been an ethical violation for McGowan to continue his representation of Campbell in the Moore case, Moore could not show any prejudice because he did not allege any fact that he had told McGowan that he had not independently relayed to the government in his confession or proffer. More importantly, the court found that there was no evidence that McGowan failed to preserve the confidences of Moore. Furthermore, the court found, based on testimony, that both McGowan and Campbell would not have acted any differently if McGowan had not briefly represented Moore. Therefore, the court denied Moore’s motion because Moore could not show an adverse effect on the outcome of his case.
Although couched in terms of prosecutorial misconduct, at best Moore has raised a conflict of interest question with regard to McGowan. While it may have been the wiser course for Campbell to retain new representation in this case, the evidence does not show an actual conflict. Further, although Moore intimates that there was prosecutorial misconduct, he is unable to supply any proof of improper conduct. There is absolutely no evidence that the prosecutor was influenced by his knowledge of a potential conflict. In fact, it was only after the prosecutor had determined a course of action and decided to obtain Campbell’s proffer that he discovered the potential conflict, while researching Campbell’s state proceedings. There is no evidence that once he discovered the potential conflict, the prosecutor coerced the proffer or influenced McGowan’s advice to Campbell. On the contrary, McGowan testified that he considered the issue and determined that there was no conflict. The prosecutor relied on McGowan’s judgment. Since McGowan was the only party in possession of the facts relating to the substance of his representation, this reliance was reasonable.
Finally, neither Moore nor the majority have provided any case law or authority that would impose a duty upon the prosecutor to have acted differently in this case. On the question of prosecutorial misconduct both Moore and the majority focus solely on the issue of prejudice to Moore from any potential misconduct. Before there can be prejudice, however, there must be misconduct. Although the majority opinion leaves doubt, there is not even a hint of untoward behavior on the part of the prosecutor in bringing this case.