ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Criminal No. 78-00217-01)
Before Adams, Rosenn and Sloviter, Circuit Judges.
The single question presented on this appeal is whether the Government's "sole discretion" to determine the defendants' cooperation under a plea bargaining agreement could be based exclusively on their failure of polygraph examinations. We conclude that the present record is unclear as to what extent the Government could, and did, rely on the polygraph tests and therefore vacate the judgment of the district court and remand.
On June 28, 1976, Robert Swinehart and Robert Perry were indicted on 21 counts of embezzlement and bankruptcy fraud arising from their activities as part owners of Hourly Messengers, Inc. The planned trial was preceded by a two-week suppression hearing concerning whether the Government's proposed evidence was derived from sources independent of immunized testimony. The trial court denied the motions to suppress.
Plea negotiations followed, leading to substantially identical plea agreements for each defendant. They agreed to plead guilty to certain counts of the indictment in exchange for the dismissal of other counts. In the plea agreements, the Government agreed to seek a specific sentence for each defendant in the event it obtained his cooperation as determined by the Government in its "sole discretion." Among the obligations in the agreement, each defendant agreed to "take" a polygraph examination. If the defendants cooperated, the Government agreed that the appropriate sentence for Swinehart would be one year and six months and one year and one day for Perry. Both also would be placed on probation for five years and make restitution of $13,470. The crux of the agreements containing the various promises is:
Defendant . . . has further offered and hereby agrees to fully cooperate with Government attorneys and investigators on all matters of interest to the Government. By the term "fully cooperate", defendant agrees that he will provide full and truthful responses to all questions asked and he will voluntarily disclose complete knowledge and information regarding all matters which are of interest to the Government. In addition, he will provide truthful testimony pursuant to a subpoena in any proceeding including Grand Jury and whatever trials the Government deems his testimony desirable.
Under this agreement to fully cooperate with the Government, defendant agrees that he is obligating himself to provide truthful testimony and unreserved disclosure regarding any and all of the above matters of which he has knowledge and information. . . . Furthermore, defendant agrees to take any such polygraph examinations as the Government shall, from time to time, reasonably require. Any false statement made by defendant to any Grand Jury or at any court hearing or trial can and will be prosecuted under appropriate perjury statutes.
If defendant does fully cooperate with Government attorneys and investigators on all matters of interest to the Government, the Government will state to the Court at time of sentencing that it has obtained such cooperation. The Government has the sole discretion to determine whether or not the defendant's disclosures and testimony amount to full cooperation, within the terms of this agreement.
Both defendants entered guilty pleas before the trial court in accordance with the agreements. Sentencing was delayed to allow Perry and Swinehart to provide the tendered cooperation. Government agents proceeded to interview each of the defendants on several occasions and they answered questions dealing with matters of governmental interest.
In accordance with the agreement, Swinehart submitted to an FBI polygraph examination. The examination, administered by Special Agent Frank Cryan, showed that Swinehart failed several questions. Swinehart thereupon decided to take a private polygraph test and consulted J. R. Pearce, a retired head of an FBI polygraph unit, who was one of Cyran's teachers. Swinehart passed the Pearce polygraph test.
Perry then took his polygraph examination with Cryan. Cryan concluded that Perry failed certain questions, all of which dealt with Swinehart's ability to pass his second polygraph examination. Perry then went to Pearce, who concluded that Perry passed some relevant questions and failed others.
The Government informed Perry and Swinehart that it deemed them not to have cooperated fully under the terms of the agreement. Both Perry and Swinehart filed motions to withdraw their guilty pleas or, alternatively, for specific enforcement of the plea agreements. The defendants argued that the agreements required them to "take" polygraph examinations, not "pass" them, and that the Government relied exclusively on the examination failures in concluding that the defendants had not fully cooperated within the terms of the plea agreements.*fn1 Perry and Swinehart both alleged that earlier drafts of the plea agreements had required them to "pass" the ...