ON APPEAL FROM THE UNITED STATES DISTRICT COURT DISTRICT OF THE VIRGIN ISLANDS (D.C. Crim. No. 78-00219-02)
Before Gibbons, Weis and Garth, Circuit Judges.
St. Clair Springette appeals his conviction on two counts of burglary, V.I.Code Ann. tit. 14 § 444(1) (Supp.1978), and two counts of grand larceny, V.I.Code Ann. tit. 14 § 1083(1) (1964). He contends that the conviction was the result of constitutional error in that the district court refused to enforce the government's initial plea proposal to which the defendant had agreed to plead guilty. We find no constitutional error and affirm the judgment.
On November 3, 1978, the appellant, St. Clair Springette, was charged by information with two counts of burglary and two counts of grand larceny.*fn1 The information also named co-defendant Scotland in all four counts. This four count information was docketed as criminal case No. 78-219. There were also two other pending cases against Springette: the charges of grand larceny and buying and receiving stolen property were pending under docket No. 78-147, and the charge of third-degree burglary was pending under docket No. 78-200. At arraignment on case No. 78-219, Springette entered a plea of not guilty to the charges and a discovery conference followed on November 11, 1978.
At the conference, the Assistant United States Attorney Halpern offered Springette the following plea bargain in order to dispose of all charges pending against him. Springette would plead guilty to one count of third-degree burglary in No. 78-219 or in the other case against him of that charge (No. 78-200) and to a misdemeanor in the third case pending against him (No. 78-147). There were no other requirements put forth by the government with regard to the plea bargain itself. However, with respect to sentence recommendation (assuming the defendant accepted the plea proposal), the Assistant United States Attorney added that the government's position would depend upon Springette's willingness to testify against Scotland, his co-defendant in No. 78-219.
Defense counsel in case No. 78-219 communicated the plea to Springette on November 29, 1978, at which time appellant had been brought to court for his change of plea in case No. 78-147. Appellant agreed that he would be willing to plead guilty in No. 78-200 and 78-147, if No. 78-219 was dismissed, but stated that he would not testify for the government in No. 78-219. However, Halpern upon learning of the acceptance added another condition to the government's proposal. She stated that the government would no longer agree to the plea bargain unless Springette also would agree to make a sworn statement that his earlier statement to the police, implicating Scotland in No. 78-219, was true.*fn2
Springette moved the district court to order specific performance of the initial plea arrangement, and contended that the government impermissibly had added a new element to the proposed plea.*fn3 Following the trial, the district court filed a written order and opinion and denied the motion for specific performance, stating that although the government had engaged in "bad conduct" the plea was never consummated (officially entered), and therefore there was no remedy available; the defendant had had a trial. Case No. 78-200 has subsequently been dismissed by the government.
II. THE GOVERNMENT'S WITHDRAWAL OF THE PLEA PROPOSAL
We are presented with the question of whether a defendant's agreement to plead guilty in accordance with the government's initial plea offer gives the defendant a right to specific performance of the terms of that offer. The Fourth Circuit recently has answered this question in the affirmative in Cooper v. United States, 594 F.2d 12 (4th Cir. 1979). We decline to follow the Cooper rationale.
In Cooper the court held that the defendant, in circumstances similar to this case, had a right to compel specific performance of an unconsummated plea bargain as a matter of fundamental fairness within substantive due process guarantees of the fifth amendment and under the sixth amendment right to effective assistance of counsel. Since the plea bargain here was, in fact, accepted prior to the government's withdrawal, there is perhaps a stronger basis for ordering specific performance than existed in Cooper.*fn4 For the reasons outlined below, however, we still find no basis for binding the government to its bargain.
The court in Cooper concluded that there were seven factual elements crucial to its finding that defendant's constitutional rights to substantive due process had been violated. These factors were as follows:
(1) The proposal was specific and unambiguous in form, and was made without any reservation related to a superior's approval or otherwise; (2) its content was reasonable in context; (3) it was made by a prosecutor with apparent (and probably actual) authority at that time; (4) it was communicated promptly to the defendant so that no question of staleness was involved; (5) the defendant assented promptly and unequivocally to its terms, indicated his assent to his counsel, and was entitled so far as the record shows to assume that its communication to the government would consummate the plea agreement, (6) defense counsel did in fact within a matter of a few hours communicate defendant's acceptance to the government by sheer fortuity being told of the government's "withdrawal' before he could vocalize his client's "acceptance'; ...