UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 95-5271

DAVID BELL,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Spartanburg.
G. Ross Anderson, Jr., District Judge.
(CR-93-370)

Submitted: March 29, 1996

Decided: May 21, 1996

Before WILKINS, NIEMEYER, and LUTTIG, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Benjamin T. Stepp, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. J. Preston Strom, Jr., United States
Attorney, David C. Stephens, Assistant United States Attorney,
Greenville, South Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

David Bell appeals from his criminal sentence, and we affirm.

Bell alleges that the Government breached its plea agreement by
failing to move for a reduction following Bell's submission to
debriefing and subjection to a polygraph test. In response to the Gov-
ernment's claim that its duty never arose because Bell failed two
polygraph tests, Bell argues that the terms of the plea agreement were
ambiguous and that he believed that he need only take the polygraph
examination, not pass it. This belief is based on Bell's assertion that
prior to the plea hearing the prosecutor's out-of-court statements
spoke only to Bell taking the examination and made no mention as
to whether he had to pass it. The prosecutor's in-court statements,
however, quite clearly stated that passage of the test was necessary.
When questioned by the judge, Bell revealed that the terms of the plea
agreement as read by the prosecutor constituted his full and complete
understanding of the agreement.

Bell now, however, claims that his understanding of the agreement
was influenced by the prior out-of-court statements. He therefore
argues that the agreement was ambiguous and seeks either specific
performance or in the alternative an evidentiary hearing to determine
whether the polygraph examination was conducted properly.* In addi-
tion to an initial brief filed by his attorney, Bell moves this Court to
allow him to file a supplemental pro se brief. This brief contains let-
ters and affidavits from others privy to the prosecutor's out-of-court
statements which confirm Bell's allegation that prior to the hearing no
mention was made regarding whether Bell must pass the examination.

Our review of the record reveals that the district court's finding of
no ambiguity was not erroneous. See United States v. Martin, 25 F.3d
211, 217 (4th Cir. 1994). The plea agreement, although not written,
was recited in open court and clearly stated that Bell must pass the
examination. Because Bell did not pass either of the two polygraph
_________________________________________________________________
*Bell specifically does not contend that his plea agreement was invol-
untary and does not seek to withdraw his plea.

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examinations he took, we find that he failed to satisfy the condition
precedent to the Government's duty to perform. Thus, we find that the
Government's duty never arose and that Bell is therefore not entitled
to specific performance of the plea agreement.

We also find that because Bell did not challenge the administration
of the examination at the time of his sentencing he has waived review
of that issue absent a showing of plain error. See United States v.
Olano, 507 U.S. 725 (1993). Our review of the record reveals no plain
error in the court's "failure" to investigate the manner in which the
examination was conducted. As the defendant alleging breach of a
plea agreement by the government it was Bell's responsibility to
prove the Government's breach. United States v. Conner, 930 F.2d
1073, 1076 (4th Cir.), cert. denied, 502 U.S. 958 (1991). The satisfac-
tion of a condition precedent giving rise to the Government's duty is
necessarily part of that burden. Thus, it was incumbent upon Bell to
call the reliability of the examination into question. Although pro-
vided with an opportunity to question the polygraph operator, Bell
specifically declined to do so. We therefore find the court's failure to
conduct its own inquiry into the administration of the examination
after Bell's explicit decision not to pursue this point was not plain
error. Accordingly, we grant Bell's motion to file a supplemental pro
se brief and affirm his sentence. 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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