                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 11-5077


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

JUSTIN FOWLER,

                 Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.   Terry L. Wooten, District Judge.
(4:08-cr-00963-TLW-2)


Submitted:   July 26, 2012                 Decided:   August 7, 2012


Before MOTZ, KING, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Russell Warren Mace, III, THE MACE FIRM, Myrtle Beach, South
Carolina, for Appellant.     William N. Nettles, United States
Attorney, Columbia, South Carolina; A. Bradley Parham, Assistant
United States Attorney, Florence, South Carolina; Lanny A.
Breuer, Assistant Attorney General, John D. Buretta Acting
Deputy Assistant Attorney General, Thomas E. Booth, DEPARTMENT
OF JUSTICE, Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Justin Fowler appeals his conviction and sixty-month

sentence following his plea of guilty to attempting to possess

with intent to distribute 500 grams or more of cocaine, and

marijuana, in violation of 21 U.S.C. § 846 (2006).                       On appeal,

Fowler claims that the magistrate judge’s disqualification of

his retained counsel due to counsel’s previous and continuing

professional association with counsel for Fowler’s codefendant,

his father, violated his Sixth Amendment right to counsel of his

choosing.     Finding no error, we affirm.

              “[T]he    Sixth     Amendment      secures      the   right    to    the

assistance of counsel, by appointment if necessary, in a trial

for any serious crime.”              Wheat v. United States, 486 U.S. 153,

158 (1988).         Although this right to counsel includes the right

to counsel of one’s choosing, it does not necessarily include

the   right    to    choose     counsel    who    may    be   operating     under    a

conflict of interest.           Id. at 159-60; see also Hoffman v. Leeke,

903 F.2d 280, 285 (4th Cir. 1990).

              Accordingly, although a court may allow waiver of the

right to conflict-free counsel, not all such conflicts may be

waived   by     a    defendant       because     “[f]ederal     courts      have    an

independent      interest       in    ensuring    that     criminal    trials      are

conducted within the ethical standards of the profession and

that legal proceedings appear fair to all who observe them.”

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Wheat, 486 U.S. at 160.              Instead, the presumption in favor of a

counsel of one’s choice may be overcome by a showing of an

actual   conflict       of    interest         or    the   serious        potential   for    a

conflict of interest.               United States v. Basham, 561 F.3d 302,

323 (4th Cir. 2009).

           Further, the court has a duty to anticipate problems

with representation and to promptly act to remedy an actual or

potential conflict.           Id.      Once a conflict or potential conflict

is   identified,    the       court      is    obligated      and    has    discretion      to

independently determine whether the continued representation by

counsel impedes the integrity of the proceedings and whether the

attorney should therefore be disqualified.                           Wheat, 486 U.S. at

161-64; United States v. Williams, 81 F.3d 1321, 1324-25 (4th

Cir. 1996).      For this purpose, the court has “sufficiently broad

discretion to rule without fear that it is setting itself up for

reversal   on    appeal       either      on    right-to-counsel            grounds   if    it

disqualifies the defendant’s chosen lawyer, or on ineffective-

assistance       grounds            if         it      permits         conflict-infected

representation of the defendant.”                      Williams, 81 F.3d at 1324.

(citing Wheat, 486 U.S. at 161-64).

           Fowler’s          initial      contention         is    that    the   magistrate

judge    erred     in        proceeding         on     the        assumption     that      the

professional association of his and his father’s attorneys was

sufficiently close as to warrant the imputation of conflicts of

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interest between them.           Having carefully reviewed the record, we

conclude that Fowler invited the error of which he complains and

has waived review of the issue.

             Generally, we will not consider alleged errors that

were   invited       by    the   complaining       party.      United       States   v.

Hickman, 626 F.3d 756, 772 (4th Cir. 2010).                    “It has long been

recognized that a court can not be asked by counsel to take a

step in a case and later be convicted of error, because it has

complied with such request.”            United States v. Herrera, 23 F.3d

74, 75 (4th Cir. 1994) (internal quotation marks omitted).

             Here,    Fowler’s     disqualified       counsel       clearly      invited

the magistrate judge to assume that any conflict of interest

arising   from   the       representation     of    Fowler    and    his    father    as

codefendants could be imputed between himself and counsel for

Fowler’s father.           Fowler may not now challenge the propriety of

such an assumption simply because the magistrate judge’s ensuing

finding   that       the    potential   for    an     unwaivable       conflict      of

interest existed was not as he had hoped.                    Accordingly, we find

no error in the court regarding counsel below as “associated in

law practice.”       Fed. R. Crim. P. 44(c)(1).

             Fowler also claims that the court erred in concluding

that   the    joint        representation     of     himself    and        his    father

presented numerous potential conflicts of interest.                         Given our



                                         4
highly    deferential        standard        of    review,   we    find    no    abuse    of

discretion.

            First, the magistrate judge noted the potential for

conflicts of interest normally raised by any situation of joint

representation,        and      that     such       representation        is     generally

disfavored.      The court also recognized that the allegations and

charges against Fowler and his father were not identical, and

that their familial relationship likely amplified the potential

for conflicting interests and the need for independent counsel.

            Further, Fowler’s other attorney below openly admitted

that Fowler’s best interests were not necessarily aligned with

his father’s, thus undercutting Fowler’s claim on appeal that

the magistrate judge erred by finding a potential for conflict

based solely on the Government’s representations.                          Also contrary

to    Fowler’s   contentions,          the    court    was   not    required      to    more

fully apprise itself of the facts and circumstances surrounding

the Fowlers’ charges or their respective defenses before making

a finding regarding the potential for conflict.                          See Wheat, 486

U.S. at 162.       Nor was the magistrate judge required to accept

the    assurance     of      disqualified          counsel   that        the    two    men’s

defenses     would        not     become          acrimonious.           Id.     at     163.

Accordingly,     the      court    properly         exercised      its    discretion      in

identifying the potential for conflicts of interest.                                  Id. at

164; Basham, 561 F.3d at 324.

                                              5
            Last, Justin contends that the district court, having

identified the potential for a conflict of interest, failed to

comply    with   Fed.   R.   Crim.    P.       44(c)(2)   when   determining   that

counsel should be disqualified.

            Rule 44(c)(2) provides the manner in which a court

must     inquire     into    the     joint       representation      of   multiple

defendants.        Pursuant to the rule, a trial court must alert a

defendant to the risks of joint representation, ensure that he

is aware of such risks and has discussed them with counsel, and

inform him of his right to the effective assistance of separate

counsel.    See United States v. Swartz, 975 F.2d 1042, 1049 (4th

Cir. 1992).        Once a defendant is properly apprised, the court

may take appropriate measures to protect his right to counsel.

Fed. R. Crim. P. 44(c)(2).                 The court must ensure that any

subsequent waiver of an actual or potential conflict is knowing,

intelligent, and voluntary.          See Swartz, 975 F.2d at 1048-49.

            Justin first claims that the court erred by failing to

fully advise him of the facts underlying the potential conflicts

of interest it identified.            As we have previously expressed, a

defendant facing the disqualification of counsel is entitled “to

be told in generic terms the basis for any alleged conflict in

the representation of his selected counsel and the potential

consequences of such conflict.”                See United States v. Duklewski,



                                           6
567   F.2d    255,    257   (4th    Cir.     1977)      (internal        quotation    marks

omitted).

              Here,     the     magistrate           judge,       addressing          Fowler

personally, clearly explained the nature of its concern, and

Fowler,      having   discussed       it    with     counsel,       indicated      that    he

understood the “situation.”                 Accordingly, we find that Fowler

was appropriately informed.

              Next,    Fowler       claims       that      the    court      should     have

explicitly offered him the opportunity to personally address the

court, express his views regarding any potential conflict, and

waive any such conflict.               Generally, the colloquy required by

Fed. R. Crim. P. 44(c)(2) should allow a defendant to ask any

questions he may have regarding the nature and consequences of

joint     representation        and        address      the      court      regarding     an

identified     potential      for     conflict.         See      Swartz,     975   F.2d    at

1048-49; Duklewski, 567 F.2d at 257.

              Here, although the magistrate judge did not expressly

offer Fowler the chance to ask questions or comment regarding

the   disqualification        of    counsel,         the    court    addressed        Fowler

personally      and   confirmed       that    he     understood       why    counsel      was

being disqualified, and Fowler did not express any desire to

discuss the matter further.                We find no reversible error in the

court’s conduct.        Fed. R. Crim. P. 52(a).



                                             7
             Further, the court, having been repeatedly apprised by

Fowler’s counsel of Fowler’s willingness to waive any potential

conflict of interest, did not violate Fed. R. Crim. P. 44(c)(2)

or otherwise commit reversible error by failing to elicit from

Fowler himself a reiteration of the same willingness, especially

in   light    of   the   court’s    determination    that     the   potential

conflicts it identified were unwaivable.            See Basham, 561 F.3d

at 323.

             Accordingly,      we   affirm    Fowler’s      conviction    and

sentence.     We dispense with oral argument because the facts and

legal   conclusions      are   adequately    presented   in   the   materials

before the court and argument would not aid in the decisional

process.



                                                                     AFFIRMED




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