This matter is before the Court on the Commonwealth’s motion for nolle prosequi of the indictment in this case. The charges in this case were certified to the Grand Jury from the General District Court on May 18, 2004. The defendant was indicted by the Grand Jury on June 3, 2004, for conspiracy to commit a felony, Va. Code § 18.2-22, possession of heroin with intent to distribute, Va. Code § 18.2-248, possession of cocaine with intent to distribute, Va. Code § 18.2-248, and possession of a firearm while simultaneously possessing with the intent to distribute narcotics, Va. Code § 18.2-308.4. The Commonwealth’s motion for nolle prosequi of the indictment was made orally on September 16, 2004, when the matter was before the Court for trial. On objection of the defendant to such motion, the Court scheduled a hearing for October 14, 2004, for further argument and the potential presentation of evidence. The parties appeared on October 14, 2004, for argument and presentation of evidence. The matter is now ripe for decision.
A more detailed factual and procedural background of this motion, discussion of the issues, and conclusion are set forth below.
The trial of the case was originally set for July 22, 2004, but was continued to August 16, 2004, on a concurrent motion of the prosecution and the defense. On August 16, 2004, the case was again continued for trial to September 16, 2004. When the case was called for trial on September 16, 2004, the Commonwealth moved for nolle prosequi as to all counts of the indictment, stating that it anticipated an indictment by the United States charging crimes arising out of the same facts underlying this indictment. The defendant objected to the Commonwealth’s motion for nolle prosequi, stating that the Commonwealth had orally agreed to prosecute the defendant in state court, rather than federal court, if she would cooperate with their investigation. This Court has previously ruled that, based upon its review of the Virginia appellate decisions addressing the granting or denial of a nolle prosequi motion, the focus of a court in determining whether there is “good cause” for such motion is a determination of whether there is any bad faith on the part of the Commonwealth. This Court had also previously held that a decision by the Commonwealth to nolle prosequi a case in favor of prosecution by the United States does not constitute bad faith,
The question presented requires the Court to determine whether there was in fact any cooperation agreement, and if so, whether it was breached and what effect that should have on the Commonwealth’s motion for nolle
The facts stated here are based upon statements made at both the September 16, 2004, and October 14, 2004, hearings by counsel for the parties. The facts are also drawn from the statement of facts contained in the “Brief in Support [of] the Commonwealth’s Motion to Nolle Pros the Indictment” filed on October 7,2004, in this matter, pursuant to the statement of the Assistant Commonwealth’s Attorney at the October 14,2004, hearing indicating that he had knowledge of and affirmed those facts.
A. Defense Recollection
Defendant’s counsel, Sterling H. Weaver, Esq., stated that he became involved in this matter while it was pending in the Portsmouth General District Court, having first heard of the case from the news media and the defendant having later retained his representation. Mr. Weaver stated that the case involved allegations that the defendant was found alone at her home when a search warrant was executed; that substantial amounts of alleged cocaine and heroin were present in the home at that time; and that her boyfriend Melvin Crawley was the party responsible for the presence of the suspected cocaine and heroin. Mr. Weaver stated that when he tried to obtain a copy of the certificate of analysis for the suspected narcotics, he discovered it was not in the General District Court file. Therefore, prior to the preliminary hearing, he advised the Assistant Commonwealth’s Attomey/Special Assistant United States Attorney, Andrew M. Robbins, Esq., of the absence of the certificate and indicated he wanted a bond for his client. Mr. Weaver stated that, at that time, Mr. Robbins asked if the defendant would be interested in cooperating against her boyfriend, Melvin Crawley, who was being prosecuted in the U.S. District Court in Norfolk, Virginia. Mr. Weaver stated that he spoke to the defendant, who indicated an interest in cooperating. Mr. Weaver then told Mr. Robbins the defendant was willing to cooperate by testifying against Mr. Crawley and that she would waive her preliminary hearing in exchange for an agreement on reasonable bond (which was agreed to as $20,000.00 with surety) and an agreement that the case would remain in state court. Mr. Robbins agrees that these discussions took place and that Mr. Weaver’s recitation is in substance consistent with Mr. Robbins’ recollection with the notable exception of the term relating to the case remaining in state court. Mr. Robbins stated that he may have made some statement to the effect that he would try to keep the case in state court, but not a promise to that effect.
Mr. Weaver said that he later directed the defendant to call Detective Gavin, but that there was difficulty in making the arrangements. A meeting was finally arranged and Mr. Weaver met with the defendant and Detective Gavin and Detective Gavin stated at the beginning of the interview that the defendant was there pursuant to an agreement to testify and that the information she gave would not be used against her in any prosecution assuming she cooperated. Mr. Weaver stated that the interview was terminated because he did not believe that his client was being completely cooperative. Mr. Weaver said that, subsequently, he received a telephone call from Mr. Robbins and Laura Tayman, Esq., a Supervising Assistant United States Attorney, stating that Detective Gavin had contacted them to say that the defendant had not cooperated and that she would be prosecuted in the United States District Court if she was not fully cooperative. Mr. Weaver stated that there was no discussion of the defendant’s pleading guilty in the Virginia court, contrary to the recollection of Mr. Robbins. Mr. Weaver indicated that, after this conversation, Detective Gavin called him with his number so that the defendant could call Detective Gavin. Ultimately the defendant spoke to Detective Gavin, and Detective Gavin later reported to Mr. Weaver that the defendant had been cooperative during that meeting.
Mr. Weaver stated that, while all of this was going on, he pressed forward with trial preparations, meeting with Mr. Robbins on June 2,2004, to agree on discovery dates and an evidence viewing date. When Mr. Weaver appeared at the police department to view the evidence, he was told the alleged cocaine and heroin were not there but were being housed elsewhere in connection with the United States’ prosecution of Mr. Crawley. Mr. Weaver said that he continued to interview witnesses and prepare his discovery. When the case came up for trial the first time, Mr. Weaver said that it was continued because Mr. Crawley had not yet been tried by the United States. Mr. Weaver
On September 16, 2004, when the case was scheduled for trial, Mr. Weaver stated that he knew Mr. Crawley had already entered a guilty plea in the United States District Court. According to Mr. Weaver, on the morning of September 16, 2004, Mr. Robbins approached him and said that if the defendant would plead guilty to all the other charges, the Commonwealth would drop the gun charge. Mr. Weaver stated that, when he asked Mr. Robbins how the Commonwealth intended to prove the other charges,
B. Commonwealth’s Recollection
The Commonwealth, through representations of Mr. Robbins, stated at the October 14, 2004, hearing and/or in its Brief in Support that, while the cases of co-defendants Myra L. Stewart and Melvin K. Crawley were pending in the Portsmouth General District Court, the facts of this matter were presented to the U.S. Attorney’s office in Norfolk for possible prosecution by the United States. The United States Attorney was considering whether to prosecute both Stewart and Crawley, or just Crawley, whom the United States viewed as the primary actor in the alleged conspiracy.
According to Mr. Robbins, he then discussed the case with Ms. Tayman. After the conversation, Mr. Robbins and Ms. Tayman decided that the defendant’s testimony could be helpful in the United States’ prosecution of Mr. Crawley. Mr. Robbins stated that he and Ms. Tayman then spoke with Mr. Weaver on the telephone. Mr. Robbins stated that he and Ms. Tayman were
Mr. Robbins stated that Mr. Weaver responded that he could not recommend that Ms. Stewart cooperate unless he knew what the sentencing recommendations would be in the Virginia court, and Ms. Taymanthen stated that there would be no agreement as to sentencing recommendations in the Virginia circuit court, though the plea of guilty in the Virginia Circuit Court would likely result in a much lighter sentence than in the United States District Court. According to Mr. Robbins, Mr. Weaver then stated he would respond after speaking with his client.
Mr. Robbins stated that Mr. Weaver spoke to him a few days later and said that Ms. Stewart did wish to cooperate and that he would make her available to investigators at a mutually agreed-upon place and time. According to Mr. Robbins, as a result of that conversation, the United States Attorney presented an indictment to a United States grand jury, charging only Mr. Crawley with the federal offenses, and Ms. Stewart was scheduled for an interview with Portsmouth Police Department Detective K. L. Gavin and Mr. Weaver. Mr. Robbins stated that Detective Gavin later reported to the United States Attorney ’ s office that Ms. Stewart had not been forthcoming during the interview, but that another interview was set up after that. Robbins also stated that Detective Gavin reported after the second interview that Ms. Stewart was more cooperative than she had been during the first interview, but that her statements were not fully forthcoming in his estimation. M. Robbins did not indicate that he took any punitive action based upon this report from Detective Gavin, apparently content to proceed with what he thought to be the defendant’s agreement to plead guilty to the indictment.
Mr. Robbins indicated that, while the case by the United States against Mr. Crawley was pending, this case proceeded, with discovery orders being entered, discovery answers being provided, and a limited evidence review being conducted. The physical evidence was not shown to Mr. Weaver because it was being kept elsewhere for use in the United States’ case,
Mr. Robbins stated that Mr. Crawley pleaded guilty to a federal weapons charge, conspiracy, and drug distribution charges in the United States District Court on September 8, 2004. Mr. Robbins indicated that, before the court appearance on September 16,2004, he indicated to Mr. Weaver that he would nolle prosequi the count of the indictment against Ms. Stewart charging possession of a firearm while possessing with the intent to distribute drugs. Mr. Robbins stated that, in response, Mr. Weaver asked how the Commonwealth planned to prove the charges and Mr. Robbins responded that he was under the impression that the defendant had agreed to plead guilty to the charges in the indictment and that the offer to nolle prosequi the gun count was made out of fairness and in consideration of Mr. Weaver’s efforts to have his client cooperate. According to Mr. Robbins, Mr. Weaver responded that his understanding of the agreement was that Ms. Stewart’s charges would be resolved in the Virginia Circuit Court in consideration of her cooperation against Mr. Crawley, but that there had been no agreement that she would plead guilty to the charges.
Mr. Robbins indicates that the Commonwealth’s Attorney, Mr. Mobley, then contacted Ms. Tayman who reported to him that she was also under the impression from the conversation with Mr. Weaver that Ms. Stewart would plead guilty to all of the charges in the pending Virginia prosecution.
When the case was called on September 16,2004, Mr. Robbins moved to nolle prosequi the indictment and Mr. Weaver objected, as noted above. Mr. Weaver argued that there was an agreement, that Ms. Stewart had complied with the agreement, that the Commonwealth’s motion was a violation of the agreement, and “good cause” for the nolle prosequi was therefore absent. The Commonwealth argued that Ms. Stewart was the one who had breached the agreement and her breach constituted “good cause” for the nolle prosequi.
During the October 14,2004, hearing, the Commonwealth indicated that a United States grand jury indicted Ms. Stewart on September 23,2004, with charges equivalent to those pending under this indictment.
II. Discussion
The Court first addresses the law applicable to the Commonwealth’s motion for nolle prosequi and the implications of the Separation of Powers Doctrine on such law. The Court next addresses the law applicable to the agreement alleged by the parties and reaches conclusions as to which law applies and how the law applicable to a cooperation agreement differs from that applicable to a plea agreement. Following those discussions, the Court reviews the law applicable to the contractual analysis required in evaluating an alleged cooperation agreement and makes findings of fact regarding that analysis.
A. Nolle Prosequi Considerations
Virginia Code § 19.2-265.3, enacted in 1979, provides that “nolle prosequi shall be entered only in the discretion of the Court, upon motion of the Commonwealth with good cause therefore shown.” Such “a nolle prosequi is a discontinuance which discharges the accused from liability on the indictment to which the nolle prosequi is entered.” Miller v. Commonwealth,
Under the common law, a prosecutor had unlimited discretion to enter a nolle prosequi without any court involvement. Ohio v. Mucci, 150 Ohio App.
There is little discussion in the Virginia cases regarding the standard for determining whether “good cause” exists under the statute. In Cantrell v. Commonwealth, 1 Va. App. 269, 277-78,
The Virginia Court of Appeals also addressed the application of the “good cause” standard in Battle v. Commonwealth,
Subsequently, the Virginia Supreme Court addressed the “good cause” required for nolle prosequi in Harris v. Commonwealth,
These Virginia cases make clear that the discretion of the trial court in considering a motion for nolle prosequi is not unbridled. Based upon this Court’s review of the Virginia appellate cases addressing this issue, the terms “bad faith” and “oppressive tactics” used in Harris provide the best summary of situations in which there was no “good cause.” However, in determining whether there is such bad faith or oppressive tactics sufficient to justify denying the Commonwealth’s motion for nolle prosequi, the trial court has broad discretion in making its findings regarding “good cause.”
In striking the proper balance between the prosecution’s discretion to nolle prosequi an indictment and the Court’s power to prevent abuses of executive prerogative, courts have recognized that the prosecution is first and presumptively the best judge of where the public interest lies, and the trial court should not merely substitute its judgment for that of the prosecution. United States v. Hamm,
Striking the proper balance in this area of the law requires consideration of the Separation of Powers Doctrine. At the October 14, 2004, hearing the defendant argued that the Commonwealth’s motion implicates Constitutional due process considerations. Therefore, the potential effect of such a motion upon a defendant’s due process rights suggests that review of the constitutional considerations might be helpful in defining the proper scope of the prosecution’s discretion.
The Executive remains the absolute judge of whether a prosecution should be initiated and first and presumptively the bestjudge of whether a pending prosecution should be terminated. The exercise of its discretion with respect to the termination of pending prosecutions should not be judicially disturbed unless clearly contrary to manifest public interest. In this way, the essential function of each branch is synchronized to achieve a balance that serves both practical and constitutional values.
Id. at 513 (emphasis added).
While the Cowan opinion is not binding on this Court, its sound reasoning and the fact that the United States Supreme Court has cited it with approval suggest that it provides the proper construct for evaluation of the
The Court now turns its attention to the assertions of both parties that there was an agreement and that the other party is in violation of such agreement.
B. Cooperation Agreement
Va. Sup. Ct. R. 3A:8 provides that “[i]f a plea agreement has been reached by the parties, it shall, in every felony case, be reduced to writing, signed by the attorney for the Commonwealth, the defendant, and, in every case, his attorney, if any, and be presented to the court.” The Commonwealth argued at the September 16, 2004, hearing that the conversations described above do not rise to the level of a proposed plea agreement consistent with the definitions in Va. Sup. Ct. R. 3A:8, and the defendant conceded that point at the same hearing.
The Commonwealth contends that the Court should evaluate the alleged agreement in the context of a “cooperation agreement,” and states that the Court has two options before it: (1) grant the motion for nolle prosequi, or (2) deny the motion and dismiss the charges (presumably because the
As the Virginia Court of Appeals recognized in Commonwealth v. Sluss,
As the Sluss court recognized, specific performance of an agreement not to prosecute is appropriate in certain circumstances. In United States v. Johnson,
While several of these factors are conceivably implicated here, the Court need go no further than to address the first. In Calimano,
The Weiss court also addressed this requirement that the government make a firm promise. In Weiss,
In Johnson, the case cited by the Virginia Court of Appeals in Sluss and where the court listed the factors to consider in deciding whether specific performance of a cooperation agreement was warranted, the U.S. Court of Appeals for the Eighth Circuit remanded the case to the trial court to determine whether an agreement existed and how to proceed in light of that determination. Johnson,
After these initial conversations between the prosecutor and the defense counsel in Johnson II, the defense attorney advised defendant that he did not handle cooperation agreements and suggested another attorney whom defendant subsequently retained (attorney # 2). Id. Attorney # 2 conferred with the original defense attorney about the agreement and “understood from [the original defense attorney] that if [defendant] cooperated with the police by meeting with them and answering their questions, then the criminal matter would be referred to state court J Id. The defendant understood from attorney ft 2 that the agreement contained this definite promise. The trial court found “that something was inadvertently lost in translation or interpretation.” Id. Attorney # 2 later contacted the prosecutor regarding defendant’s cooperation and the prosecutor repeated the same terms, that defendant had to initiate contact with the officers, and that, if she testified fully, candidly, and truthfully, he would consider referring prosecution to a state court, stated to the original defense attorney. Attorney # 2 again called the prosecutor at a later date and asked if the opportunity to cooperate remained open and was told any meeting had to take place that day since he was going to the grand jury the following day. The defendant then met alone with the officers (without her attorney) and the officers made no promises to her. After she spoke with them for an hour, the meeting ended. The officers testified that getting information from the defendant during that meeting was like “pulling teeth,” volunteering very little and only providing brief answers to pointed questions. The officers advised the defendant that they did not believe she was cooperating fully. Immediately after the meeting, the defendant returned to attorney # 2’s office and told him what happened, specifically stating that the officer did not say they were going to refer the case to the state court. Attorney ft 2 did not inquire of the officers or prosecutor how the meeting went, and the prosecutor presented an indictment to the federal grand jury the following day based on the perceived lack of candor of the defendant during the interview. Id.
The trial court in Johnson II concluded that there never was a “definite” agreement to refer prosecution to the state court such that defendant was entitled to specific performance. Id. The trial court concluded that the meeting between the original defense attorney and the prosecutor did not result in an agreement, nor did the subsequent discussions between defense attorney ft 2 and the prosecutor. Id.
Similar facts were addressed in a case with connections to Virginia. In United States v. LaTray,
With these general observations in mind from cases similar to the facts here, the Court now turns its attention to the Commonwealth’s contentions regarding the law applicable to these facts. The Commonwealth contends that the Virginia Supreme Court’s decision in Commonwealth v. Sandy,
In Sandy, when the Commonwealth refused to comply with the agreement, due to its belief the defendant had not complied with the terms of the agreement, the defendant moved to enforce the agreement. The Commonwealth contended on appeal that there was no enforceable plea agreement with constitutional significance because the trial court had not approved any plea agreement. The defendant responded that, even though there was no plea agreement, he executed a “cooperation agreement” and fully complied with the “so-called cooperation agreement and, hence, is entitled to specific performance of that agreement.” Id. at 90-91,
While Sandy is informative, it involves a plea agreement, not a pure cooperation agreement. The fact that the Virginia Supreme Court nowhere mentions the Sluss opinion by the Virginia Court of Appeals further bolsters the conclusion that the court was not addressing a cooperation agreement. The proposed agreement at issue in Sandy was clearly in the nature of a proposed plea agreement, since, among other things, it provided for nolle prosequi of some charges and a reduction of other charges coupled with a recommendation as to the appropriate sentence “on each of the no more than seven (7) misdemeanor charges for which he is convicted, and be sentenced to six (6) months in jail on each such charge....” Va. Sup. Ct. R. 3A:8(c)(1)(A) provides, in pertinent part, that the attorney for the Commonwealth and the attorney for the defendant may engage in discussions with a view toward reaching agreement that, upon a plea of guilty, some charges will be nolle prosequi or that a recommendation as to sentence be made. While the plea agreement language quoted in Sandy does not say that the defendant will plead guilty, such a plea is necessary before the Commonwealth can make the recommendation for sentence contained in the agreement. Therefore, while
The agreement alleged by both parties is not in the nature of a plea agreement because it does not provide for any of the three options set out in Va. Sup. Ct. R. 3A:8. Defendant’s statement, that she understood that, in exchange for cooperating, she would be prosecuted (not plead guilty) in a state court and the Commonwealth’s statement that, after the telephone conversation referenced above, it understood that, in exchange for defendant’s cooperating, she would be allowed to plead guilty in the Virginia court (rather than a United States court) without a recommendation from, the Commonwealth are not covered by the descriptions of plea agreements in that rule. Therefore, this agreement, if there was an agreement, must be reviewed as a cooperation agreement, as urged by the Commonwealth.
Unlike the Sluss case, where the cooperation agreement was in writing, the parties in this case do not agree as to the terms of the cooperation agreement. Sluss,
C. Contractual Analysis
The proponent of an oral contract has the burden of proving all the elements of a valid and enforceable contract. See Richardson v. Richardson,
Under the objective theory of contract, which controls in Virginia, an offer has been made if a reasonable person in the offeree ’ s position, in view of the offeror’s acts and words and the surrounding circumstances, would believe that the offeror has invited the offeree’s acceptance. Chang v. First Colonial Savings Bank,
It is also clear that, in order to consummate a binding contract, there must be a meeting of the minds of the parties. Marefield Meadows, Inc. v. Lorenz,
A contract has, strictly speaking, nothing to do with the personal, or individual, intent of the parties. A contract is an obligation attached by the mere force of law to certain acts of the parties, usually words, which ordinarily accompany and represent a known intent. If, however, it were proved by twenty bishops that either party, when he used the words, intended something else than the usual meaning which the law imposes upon them, he would still be held, unless there were some mutual mistake, or something else of the sort....
Yet the question always remains for the court to interpret the reasonable meaning to the acts of the parties, by word or deed, and no characterization of its effects by either party thereafter, however truthful, is material.
Hotchkiss v. National City Bank of New York,
The defendant contends that she understood the offer differently than did the Commonwealth. While the parties clearly had differing understandings of the agreement, the question is whether a reasonable person would have objectively believed a firm offer was made during the discussions prior to the preliminary hearing in the General District Court, as defendant contends. The evidence here shows stark disagreement as to what was said and done in this
The Court will also address implied-in-fact contracts because there has been some suggestion by the defendant that the course of conduct confirmed, or liberally construed, supplied the terms of the cooperation agreement. It has been said that an implied-in-fact contract is an agreement “founded upon a meeting of the minds, which, although not embodied in an express contract, is inferred, as a fact, from conduct of the parties showing, in the light of the surrounding circumstances, their tacit understanding.” Bailey v. United States,
As noted above, the proponent of an oral contract has the burden of proving all the elements of a valid and enforceable contract. See Richardson v. Richardson,
This Court, like the court in Calimano, is “essentially faced with two conflicting interpretations of discussions held between opposing counsel.” Calimano,
This Court also finds that, even if there had been agreement as to the terms asserted by the defendant or the Commonwealth, such terms simply do not contain the terms essential to such an agreement since the agreement suggested by both sides contained no discussion of “what level of cooperation would be required of [Stewart] in order for her to satisfy the purported cooperation agreement nor who would determine whether [Stewart] had fulfilled her part of the cooperation agreement.” United States v. Lua,
Even if the Court were to find that there was a cooperation agreement as a result of the discussions that took place immediately before the preliminary hearing on May 18, 2004, the defendant’s own evidence in this case through Mr. Weaver is that she failed to comply with the cooperation requirement, prompting termination of the interview with Detective Gavin and the telephone call described above and leading the Commonwealth and the United States, through the same representative, to conclude there was an agreement to plead guilty in the Virginia court in exchange for cooperation. This purported agreement arising out of the second conversation, as described by Mr.
Accordingly, finding that the evidence in this proceeding is in a state of equipoise and that the defendant therefore failed to meet her burden of showing a meeting of the minds on a cooperation agreement and further finding that the respective cooperation agreements asserted by each party failed to contain essential terms to a cooperation agreement, thereby preventing a meeting of the minds as to material terms, there was no cooperation agreement. Therefore, the Court cannot say that the Commonwealth’s decision to seek the nolledemonstrates bad faith, is clearly wrong, or rises to the level of oppressive tactics. Finding that the Commonwealth’s decision to seek the nolle prosequi is not clearly contraiy to
III. Conclusion
Having considered the arguments of counsel and the evidence presented to the Court, the Commonwealth’s motion for nolle prosequi is granted and the defendant is released from the custody of this indictment. The Commonwealth’s brief in support of its motion is ordered filed-. The parties having made extensive oral argument on the record to preserve their objections, the Court dispenses with the Rule 1:13 counsel endorsement requirement. It is so ordered.
Notes
Va Code § 19.2-294 provides that “if the same act be a violation of both a state and a federal statute, a prosecution under the federal statute shall be a bar to a prosecution under the state statute.” That statute also provides that “[f]or purposes of this section, a prosecution under a federal statute shall be deemed to be commenced once jeopardy has attached.” This latter section of the statute was amended in 2003, substituting “commenced once jeopardy has attached” for “commenced with the return of an indictment by a grand jury or the filing of an information by a United States attorney.” Therefore, the policy of the Commonwealth as expressed in this statute is consistent with this Court’s holding that a decision by the Commonwealth to nolle prosequi a case in favor of prosecution by the United States does not constitute bad faith.
Neither of the parties obtained the presence of Detective Gavin at the October 14, 2004, hearing, nor was any evidence presented other than the recitations by counsel.
Mr. Weaver indicated at the September 16, 2004, hearing that the certificate of analysis for the narcotics was not in the circuit court file. He also stated at the October 14, 2004, hearing that the narcotics were never produced to him for inspection pursuant to the discovery orders entered by the court on June 21,2004.
Mr. Weaver stated at the October 14,2004, hearing that, while he objected to the Commonwealth’s motion for nolle prosequi, he never indicated that the defendant was not ready to proceed. Mr. Robbins responded that, if he had waited for the defendant to plead not guilty, as Mr. Weaver indicated she would, then jeopardy would have attached and he could not have moved for the nolle prosequi. In view of the conclusion reached here, it is not necessary for this Court to address this contention.
U.S. Const., amend. XIV, § 1, provides that no state shall “deprive any person of life, liberty, or property, without due process of law....”
In Rinaldi v. United States,
Va. Sup. Ct. R. 3 A:8 describes the types of plea agreements that are contemplated. Specifically, it provides that upon entry of a plea of guilty or a plea of nolo contendere, the parties may agree to (1) move for nolle prosequi or dismissal of other charges, (2) make a recommendation, or agree not to oppose the defendant’s request for a particular sentence, with the understanding that such recommendation or request shall not be binding on the court, or (3) agree that a specific sentence is the appropriate disposition of the case. Clearly, the parties have properly agreed that the alleged agreement at issue here is not covered by this rule.
In United States v. Cowan,
The Court observes, as have other courts, the difficulty of the present decision because of the fact that there is no written agreement. In United States v. LaTray,
This Court agrees that a finding that there was no firm promise or commitment is the same as finding there was no agreement because there was no meeting of the minds.
If this Court were to agree with the Commonwealth’s assertion that Sandy applies, it would mean that the Court accepted the proposition that Sandy overruled Sluss and Sluss was never mentioned by the Court in Sandy. Such an understanding seems inescapable since Sluss provided that agreed covenants in a cooperation agreement are binding unless the defendant breached the covenant, while, in Sandy, the Court did not hold that proposed plea agreements are binding unless the defendant breached the agreement. The Sandy Court held that a proposed plea agreement is not binding absent judicial approval or prejudice to the defendant. The rationale for the distinction between cooperation agreements and plea agreements is not addressed, but this Court observes that the plea agreements defined by Va. Sup. Ct. R. 3A:8 reach the conclusion of a case and more clearly implicate the judge’s role and the defendant’s ultimate treatment. Arguably, the effect of enforcing a breach of a cooperation agreement, which remedy is in the discretion of the court according to Sluss, is less threatening to the public interest than enforcing the breach of a plea agreement that reached the ultimate outcome of the case and justifies a standard that protects the public interest. Furthermore, cooperation agreements are, arguably, investigative tools; hence, there is less justification for involving the court in approval and enforcement of cooperation agreements.
This is not in any way to suggest that the burden of proof in the criminal case shifts to the defendant. The prosecution’s burden is to prove all essential elements of the charged offense beyond a reasonable doubt, and this burden cannot be shifted to the defendant. Walker v. Commonwealth,
In Sluss,
Even where parties have manifested an intention to make an agreement, if the content of their agreement is unduly uncertain and indefinite, no contract is formed. Restatement, Contracts (2d) § 32(1); 1 Corbin § 37 (1963); see Parks v. Atlanta News Agency, Inc.,
The defendant argued that, even if there was no cooperation agreement, she was still prejudiced because there was a breach by the Commonwealth of a cooperation covenant of the attempted cooperation agreement. The Court also finds that the evidence presented to this Court is in a state of equipoise as to the covenant breach asserted by defendant. The Court does note, however, that the discussion as to waiver of the preliminary hearing was met with an agreement to a reasonable bond. Beyond that possible individual covenant, which could have just as easily been construed as good faith gestares while moving down the path toward an agreement, this Court finds insufficient evidence of any possible cooperation covenants because the evidence is in a state of equipoise. Sluss,