Concurring in the Result.
I concur in affirming Chacon’s judgment of conviction, but disagree with the majority’s view that the contract law doctrine of impossibility of performance should be strictly applied in this case.
The analysis in these eases begins with the recognition that plea agreements and other similar types of agreements are generally governed by contract law, but that courts need not blindly follow contract law principles. The majority in this case has relied primarily on section 2 of the confidential informant agreement, which focuses on a specifically targeted dealer and states that the defendant must make all buys as required by the state. The viability of full compliance with this term was in doubt from the beginning due to the high profile of Chacon’s case and that of his brother, who had also recently been convicted on drug charges. Also, members of the Drug Task Force opined early on that they did not believe Chacon would be able to make the buys required under the agreement. In essence, the experts in the field knew the way the agreement’s implementation would play out because they knew that Chacon would be too hot to touch and that 60-180 days was an inadequate amount of time to dispel suspicions of Chacon’s cooperation with law enforcement.
In my view, the significant portion of the confidential informant agreement is found in section 1(a), which unequivocally states that the purpose of the agreement is to expose any known criminal groups and to have the defendant provide information about the groups’ ongoing or planned criminal activities. Under this provision, Chacon was required to provide leads and information upon which law enforcement would be able to take action. Chacon, in this case, did provide some information; however, the information provided was not considered “actionable” by the state. Chacon, therefore, failed to comply with the main purpose of the agreement. It is for this reason that I concur in the result reached by the majority, and not because of a strict application of the doctrine of impossibility. In my view, the question of how to apply the doctrine of impossibility should be addressed on a case by case basis, properly accounting for each case’s unique interplay of facts and constitutional fundamental fairness concerns. See Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427, 432, 433 (1971) (plea bargaining phase of the criminal justice process must have safeguards that ensure the defendant receives that which is “reasonably due in the circumstances”). See also United, States v. Harvey, 791 F.2d 294, 300 (4th *526Cir.1986) (principles of contract law must sometimes be tempered when applied to plea agreements, due to inherent constitutional implications). As for the case at hand, the doctrine of impossibility should be applied with less rigidity than the majority’s application today. That said, I believe the end result for Chacon would be the same even under a less stringent application and I therefore concur in the result.