United States v. Levaur

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4309
HERMAN SCOTT LEVAUR,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Falcon B. Hawkins, Senior District Judge.
(CR-97-453)
Submitted: December 8, 1998
Decided: January 21, 1999
Before WIDENER and MICHAEL, Circuit Judges, and PHILLIPS,
Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Andrew J. Savage, David L. Savage, SAVAGE & SAVAGE,
Charleston, South Carolina, for Appellant. J. Rene Josey, United
States Attorney, Miller W. Shealy, Jr., Assistant United States Attor-
ney, Charleston, South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Herman Levaur appeals his conviction for conspiracy to possess
with intent to distribute and distribution of methamphetamine in vio-
lation of 21 U.S.C. §§ 841(a)(1), 846 (1994). His sole contention on
appeal is that the district court erred in not compelling the govern-
ment to move for a departure from the United States Sentencing
Guidelines. We affirm.
On May 28, 1997, two weeks after Levaur was indicted for con-
spiracy to distribute and the distribution of methamphetamine, he
signed a proffer letter agreeing to aid the government in its investiga-
tion of criminal activity. On October 10, 1997, Levaur and the gov-
ernment executed a plea agreement and Levaur pled guilty to Count
One of his pending indictment. Under the agreement, Levaur agreed
to be fully truthful and forthright with the government. The agreement
further provided:
The Defendant . . . agrees to submit to such polygraph
examinations as may be requested by the Attorneys for the
Government . . . and further agrees that his/her failure to
pass any such polygraph examination to the Government's
satisfaction will result, at the Government's sole discretion,
in the obligations of the Attorneys for the Government
within this Agreement becoming null and void.
(JA 16-17). In exchange for Levaur's cooperation the government
agreed to move the district court to depart from the sentencing guide-
lines under U. S. Sentencing Guidelines Manual § 5K1.1 (1997).
After signing the plea agreement Levaur was thoroughly debriefed
by Drug Enforcement Agency ("DEA") agents. He provided the
agents with truthful information on numerous individuals involved in
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drug trafficking in the Charleston, South Carolina, area. He also vol-
untarily testified before the Grand Jury. However, in a February 24,
1998, polygraph examination he lied to agents about discussing confi-
dential DEA information with unauthorized persons. At sentencing
Levaur admitted that as late as August, 1997, he told as many as four
persons that their "name[s] had come up by DEA." (JA 115).
The government found that Levaur's statements and his failed
polygraph examination breached his obligations under the plea agree-
ment, and informed him that it would not move the district court for
a substantial assistance departure. Levaur then moved to compel spe-
cific performance of the plea agreement. The district court denied
Levaur's motion, finding that the government had the right to con-
sider the plea agreement breached based on the failed polygraph
examination. This appeal followed.
When a plea agreement obligates the government to move for a
departure if the defendant provides substantial assistance, the resolu-
tion of the dispute is governed by principles of contract law, United
States v. Conner, 930 F.2d 1073, 1076 (4th Cir. 1991), with an eye
toward the unique Constitutional and supervisory requirements of
criminal law. United States v. Harvey, 791 F.2d 294, 300-01 (4th Cir.
1986). If the district court determines, as a factual matter, that a
breach has occurred, it may require specific performance or permit
the plea to be withdrawn. Conner, 930 F.2d at 1076. In reviewing the
denial of a motion to compel specific performance of a plea agree-
ment, this court reviews the district court's underlying factual deter-
minations for clear error, while reviewing principles of contract
interpretation de novo. See United States v. Martin, 25 F.3d 211, 217
(4th Cir. 1996).
Levaur contends that his extensive cooperation with government
agents satisfied his obligations under the plea agreement, and that his
comments to certain persons that they were under investigation and
his subsequent failure of the polygraph examination was not a mate-
rial breach of that agreement. Levaur, however, gave deceptive
answers during his polygraph examination. Consequently, the govern-
ment was not satisfied with his polygraph performance--it believed
that the actions underlying his deceptive answers seriously hindered
their investigation and ability to successfully prosecute other sus-
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pected drug dealers. Levaur failed to fulfill his obligation under the
plea agreement to pass a polygraph to the government's satisfaction.
Therefore, we find no error in the district court's determination that
the government's dissatisfaction with Levaur's failed polygraph
examination provided a sufficient basis on which to consider the plea
agreement breached, thereby relieving the government of its obliga-
tion under the agreement to move for a downward departure.
Levaur also alleges that the government acted in bad faith in exer-
cising its discretion not to move for a downward departure. He bases
this argument on statements that the government made at sentencing
suggesting that Levaur's cooperation would not have been sufficient
to qualify as "substantial assistance." Plea agreements contain a duty
of good faith and fair dealing. See United States v. Rexach, 896 F.2d
710, 714 (2d Cir. 1990). Therefore, where a plea agreement leaves
discretion to the prosecutor, the district court may entertain claims
that the prosecutor failed to act in good faith in exercising that discre-
tion. See United States v. Vargas, 925 F.2d 1260, 1266 (10th Cir.
1991). Here, Levaur's failed polygraph examination provided a legiti-
mate objective basis for finding that he breached his plea agreement.
Moreover, at sentencing the government articulated concerns that
Levaur's lack of discretion about the pending DEA investigation hin-
dered that investigation and undermined the benefit of other assis-
tance he provided. Accordingly, Levaur has not met his burden of
demonstrating that the government violated its obligation to act in
good faith in the execution of the plea agreement. See Conner, 930
F.2d at 1076 (noting party alleging breach has burden of proving
breach by a preponderance of the evidence).
We therefore affirm Levaur's conviction and sentence. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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