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UNITED STATES v. SWINEHART

Nos. 79-1463 and 79-1515.

614 F.2d 853 (1980)

UNITED STATES of America, Appellee, v. Robert SWINEHART, Appellant, No. 79-1515, and Appeal of Robert PERRY, No. 79-1463.

United States Court of Appeals, Third Circuit.

Decided January 17, 1980.

Attorney(s) appearing for the Case

Francis X. Nolan (argued), Donsky, Katz, Levin & Dashevsky, Philadelphia, Pa., for appellant Swinehart.

Thomas Colas Carroll (argued), Carroll, Creamer, Carroll & Duffy, Philadelphia, Pa., for appellant Perry.

Peter F. Vaira, U. S. Atty., Walter S. Batty, Jr., Asst. U. S. Atty., Chief, Appellate Section, Elizabeth K. Ainslie, Gary S. Glazer, Alfred A. Gollatz (argued), Asst. U. S. Attys., Philadelphia, Pa., for appellee.

Before ADAMS, ROSENN and SLOVITER, Circuit Judges.

OPINION OF THE COURT

ROSENN, Circuit Judge.

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...

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