UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 96-4820

JAMES ELDRIDGE, a/k/a Milton E.

Morris,

Defendant-Appellant.

Appeal from the United States District Court

for the District of South Carolina, at Florence.

Cameron McGowan Currie, District Judge.

(CR-96-38)

Submitted: October 31, 1997

Decided: November 21, 1997

Before MURNAGHAN, ERVIN, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Louis H. Lang, CALLISON, TIGHE, ROBINSON & HAWKINS,

L.L.P., Columbia, South Carolina, for Appellant. J. Rene Josey,

United States Attorney, William E. Day, II, Assistant United States

Attorney, Florence, South Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

James Eldridge pled guilty to conspiracy to defraud by using unauthorized access devices affecting interstate commerce, in violation of

18 U.S.C. § 1029(a)(2) (1994). Following sentencing, Eldridge

moved to enforce his plea agreement, alleging that the Government

breached its agreement to recommend non-prosecution for similar,

previously-committed offenses. The district court denied Eldridge's

motion. We affirm.

The plea agreement between Eldridge and the Government bound

Eldridge to be fully truthful and forthright with investigators pursuing

credit card cases and to submit to a polygraph examination. In return,

the Government agreed to recommend to other federal, state, and

local authorities that Eldridge not be prosecuted for credit card

offenses committed before his arrest on the charges to which he pled

guilty. The agreement specifically provided that if Eldridge failed to

comply with any term of the agreement, the obligations of the Government attorneys under the agreement would be null and void.

The Government scheduled polygraph examinations after

Eldridge's sentencing, but Eldridge refused to submit to the examinations. Consequently, the Government has not, to this date, recommended non-prosecution to other authorities. During the district

court's hearing on Eldridge's motion, the Government stated that it

was ready to abide by its agreement to recommend non-prosecution

upon Eldridge's taking, and passing, a polygraph examination.

This appeal is governed by this court's opinion in United States v.

Martin, 25 F.3d 211, 216-17 (4th Cir. 1994): Judicial interpretations

of plea agreements are guided by the law of contracts. Breaches of

agreements must be proven by a preponderance of the evidence. A

party alleging a breach must establish that he provided the degree of

assistance bargained for in the agreement. Our review is de novo.

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We find that Eldridge has not fulfilled a material condition precedent to the Government's recommending non-prosecution: he has not

submitted to, and passed, a polygraph examination. Eldridge contends

that the Government should have asked him to take a polygraph

examination prior to sentencing, and that the Government's failure to

perform this portion of the plea agreement before sentencing should

excuse his failure to submit to an examination. However, the plea

agreement places no time limits on the Government's scheduling

polygraph examinations. Eldridge may yet obtain the benefit of his

bargain, but he must first take and pass the examination. The Government has not breached the agreement. Accordingly, we affirm. We

deny as moot Eldridge's motion for an expedited appeal. We dispense

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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