United States v. Nolan-Cooper

Opinions of the United
1998 Decisions States Court of Appeals
for the Third Circuit
9-2-1998
United States v. Nolan-Cooper
Precedential or Non-Precedential:
Docket 97-1171,97-1298
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Filed September 2, 1998
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NOS. 97-1171 and 97-1298
UNITED STATES OF AMERICA
v.
ANGELA NOLAN-COOPER
Appellant
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Crim. No. 95-cr-00435)
Argued: March 19, 1998
Before: BECKER, Chief Judge, RENDELL and
HEANEY,* Circuit Judges.
(Filed September 2, 1998)
DAVID M. HOWARD, ESQUIRE
(ARGUED)
JEFFREY S. EDWARDS, ESQUIRE
Dechert, Price & Rhoads
1717 Arch Street
4000 Bell Atlantic Tower
Philadelphia, PA 19103
Attorneys for Appellant
_________________________________________________________________
*Gerald W. Heaney, United States Circuit Judge for the Eighth Circuit,
sitting by designation.
MICHAEL R. STILES, ESQUIRE
United States Attorney
WALTER S. BATTY, JR.
Assistant United States Attorney
Chief of Appeals
TERRI A. MARINARI, ESQUIRE
(ARGUED)
Assistant United States Attorney
Office of the United States Attorney
One Independence Hall
615 Chestnut Street
Philadelphia, PA 19106-4476
Attorneys for Appellee
OPINION OF THE COURT
BECKER, Chief Judge.
In United States v. Twigg, 588 F.2d 373 (3d Cir. 1978),
we sustained a defendant's claim that the government's
investigatory misconduct was so egregious that the due
process clause demanded dismissal of the indictment
against him. This holding was predicated on a pair of
Supreme Court cases that appeared to recognize such a
defense, United States v. Russell, 411 U.S. 423 (1973), and
Hampton v. United States, 425 U.S. 484 (1976). In contrast
to some other circuits which have never recognized the
defense or no longer do so, see United States v. Tucker, 28
F.3d 1420, 1426-27 (6th Cir. 1994); United States v. Boyd,
55 F.3d 239, 241 (7th Cir. 1995), it has remained viable in
this circuit, though in the twenty years since Twigg we have
not found another set of facts that satisfy its rigorous
requirements. See United States v. Voigt, 89 F.3d 1050 (3d
Cir.), cert. denied 117 S. Ct. 623 (1996). In the present
appeal, defendant Angela Nolan-Cooper contends that the
government's misconduct in its investigation of her was
sufficiently egregious enough to warrant this extraordinary
relief.
Ms. Nolan-Cooper, a Philadelphia lawyer, became the
target of an Internal Revenue Service ("IRS") investigation
2
when the government received information that she was
involved in the laundering of illicit drug proceeds. The IRS
set up a sting operation as part of its investigation, and
Nolan-Cooper readily accepted the opportunity to launder
funds for an undercover government agent who was posing
as a wealthy drug dealer from Louisiana. During the course
of the thirteen-month investigation, however, the
government agent insinuated himself into a close social
relationship with Nolan-Cooper, which culminated, on one
occasion, in sexual intercourse. It is this relationship which
Nolan-Cooper argues crossed the bounds of permissible
investigatory activity.
Nolan-Cooper moved to dismiss the indictment. The
district court disagreed with her characterization of the
government's conduct as "outrageous," and denied the
motion. Had the sexual misconduct been present
throughout the investigation (with the actual or
constructive knowledge of supervisory personnel), a
different situation would be presented. However, it did not
occur until the investigation was nearing its close.
Moreover, after an extensive evidentiary hearing, the district
court found that the agent's sexual exploits served no
investigatory purpose, and that there was no evidence of
discussions among the investigating agents and their
superiors concerning the use of sex to induce Nolan-
Cooper's continued participation in the illicit scheme. In
light of these non-clearly erroneous findings, and despite
the fact that some criminal activity took place after the
sexual misconduct, we cannot agree that the government's
conduct here offends due process. We will therefore affirm
the district court's denial of Nolan-Cooper's motion to
dismiss.
Nolan-Cooper preserved for appeal the district court's
ruling on her motion by a conditional guilty plea to thirteen
counts of conspiracy and money laundering, for which she
was sentenced to seventy-two (72) months in prison plus a
fine and forfeiture of certain assets. In return for her plea,
the government agreed that it would recommend a term of
incarceration within the stipulated range of 41 to 51
months. The government also agreed that it would not
oppose Nolan-Cooper's position on the applicability of
3
certain Sentencing Guideline provisions to her guideline
range calculation. Nolan-Cooper contends that the
government breached the plea agreement by failing to follow
through on these promises. We agree. Because our
jurisprudence establishes that when a plea bargain is
breached, resentencing must be before a different district
judge, our mandate will require that the case be re-
assigned to another judge of the district court for
resentencing.
Nolan-Cooper also argued at sentencing that the
government's misconduct during the undercover
investigation, even if it did not rise to the level of a due
process violation, warranted a downward departure from
the applicable sentencing range. The court rejected her
contention and declined to grant the departure, apparently
because the court believed that it was precluded from
departing because the government's misconduct was
neither related to Nolan-Cooper's guilt nor rose to the level
of a due process violation. Since we must remand for
resentencing because of the breached plea agreement, we
need not rule on Nolan-Cooper's claim that the court was
not so precluded. However, since we presume that Nolan-
Cooper will move for a departure on the same grounds at
her resentencing, for the guidance of the district court we
will discuss the merits of her claim. Under the approach set
forth by the Supreme Court in Koon v. United States, 518
U.S. 81 (1996), we believe that the district court is not
categorically precluded from departing based upon
government investigatory misconduct, and therefore the
court may consider on remand whether the facts presented
here take this case outside of the Guidelines' "heartland"
and thereby warrant a downward departure.
I. Facts and Procedural History
The district court held an evidentiary hearing and made
extensive findings of fact. Neither party has challenged
these findings and we therefore accept the facts as the
district court has found them.
A. The Money Laundering Scheme
This case arises out of an IRS investigation into the
money laundering activity of Nolan-Cooper, who became a
4
target when that agency received information from
confidential informants that she was assisting others to
launder funds derived from illegal activities, including the
sale of drugs. At some point, the IRS apparently determined
that it would attempt to inculpate Nolan-Cooper by setting
up a sting operation. In order to effectuate the sting, the
IRS arranged to have Special Agent Louis Oubre pose
undercover as "Louis Richard," a wealthy drug dealer from
New Orleans. On February 7, 1994, a meeting between
Nolan-Cooper and Oubre at a hotel near the Philadelphia
International Airport was arranged by one Oswald McBride,
an acquaintance of Nolan-Cooper's who had, unbeknownst
to her, become a confidential government informant. Nolan-
Cooper attended the meeting on the understanding that
"Mr. Richard" had some business to discuss with her.
During the meeting, Oubre informed Nolan-Cooper that he
was a drug dealer and that he had significant drug
proceeds that he wanted to make look legitimate.
At this meeting, Nolan-Cooper told Oubre that she could
assist him in a number of ways. Specifically, she informed
him that she could accomplish his goals by (1) setting up
a sham business; and (2) hiding his money in Bahamian
bank accounts. She further assured Oubre that she was
experienced in the art of laundering money, asserting that
"the way I do it, I'm . . . not gonna make any mistakes,"
and claiming that she had had "plenty of clients" who were
in similar situations. When the agent asked her, "how soon
. . . can we start," Nolan-Cooper replied, "right away."
Indeed, Nolan-Cooper began assisting Oubre right away.
Two days after the initial meeting, on February 9, Nolan-
Cooper and Oubre met again, at which time they discussed
a plan to set up a sham corporation.1 On March 11, 1994,
Oubre met Nolan-Cooper for a third time, and gave her
$12,000 to open a sham corporate bank account. At this
meeting Nolan-Cooper explained to Oubre how the sham
corporation would work, so as to avoid detection by the
government. Additional details of the money laundering
_________________________________________________________________
1. The details of the sham corporation are not relevant to the present
appeal. In brief, Oubre and Nolan-Cooper set up "LAR Productions, Inc.,"
a purported music production, promotion, and recording company.
5
scheme were arranged in meetings in May through
December 1994. Importantly, on May 10, Oubre gave
Nolan-Cooper $42,000 in cash to launder through the
sham corporation. She informed Oubre at that time that
she could not launder the entire amount all at once, and
that she would need to do it gradually, in smaller
increments.
Nolan-Cooper continued to launder funds for Oubre
through March of 1995. On December 19, 1994, for
example, Oubre gave Nolan-Cooper $85,000 to transfer into
a Cayman Islands bank account, explaining that he needed
the money deposited there in order to consummate a drug
transaction. Oubre paid Nolan-Cooper $8,490 to perform
this transfer. All told, the total amount of laundered funds
involved in the scheme to which Nolan-Cooper has pled
guilty was $192,772. The district court concluded that:
The evidence is overwhelming that Ms. Nolan-Cooper's
criminal conduct in this case was pervasive and
entirely voluntary. From the first meeting with Agent
Oubre, Ms. Nolan-Cooper planned the scheme to
launder the proceeds of drug activities, recruited
coconspirators, counseled Agent Oubre as to how to
execute the scheme, and then personally undertook to
effectuate the objectives of the conspiracy.
Attachment to Appellant's Brief ("Att.") at 46 (Memorandum
dated Mar. 11, 1997, on Defendant's Motions for Downward
Departure and Other Sentencing Issues, at 11).
B. Agent Oubre's Romantic Overtures
During the approximately thirteen-month undercover
investigation, Agent Oubre made several trips to the
Philadelphia area to meet with Nolan-Cooper. In order to
maintain his cover as a wealthy drug dealer, Oubre stayed
in expensive rooms at the city's best hotels, rented fancy
cars, ate expensive dinners, and consumed a considerable
amount of alcohol. Moreover, during these visits Oubre
initiated many social get-togethers with Nolan-Cooper,
typically involving dinner at pricey restaurants, drinks, and
partying late into the evening at area nightclubs. They were
paid for by Oubre (with funds supplied by the government)
and often cost upwards of several hundred dollars per
6
night. These social events sometimes included other
individuals (some of whom were suspected co-conspirators),
and sometimes involved only Oubre and Nolan-Cooper, who
apparently accepted Oubre's invitations without much
resistance.
Although not involving formal business discussions,
Oubre used these social meetings to develop and cement a
relationship with Nolan-Cooper. There is also testimony in
the record (though the district court did not make reference
to these facts in its opinion) that Oubre often bought Nolan-
Cooper small gifts, that he addressed her with affectionate
pet names, and that, on two occasions, he was seen being
physically affectionate with her. In addition, Oubre was also
introduced to other targets of the investigation and other
suspected co-conspirators as a result of these efforts.
The present appeal revolves primarily around the events
of February 17, 1995. On that day, Oubre had arranged
one of the social occasions just described. An evening of
dinner and nightclubbing was planned, with the scheduled
attendees to include Oubre, Nolan-Cooper, Special Agent
Henry Jolly (posing as Oubre's bodyguard, "Tony Jones"),
and Donita Nero, a friend of Nolan-Cooper's. Oubre had
also invited Michael Taylor, another target of the
investigation. When Taylor subsequently declined to attend,
Daniel Rose, the group manager of the IRS investigation,
decided that the evening's events should be canceled
entirely. Oubre, however, suggested to Rose that such a
sudden cancellation might anger Nolan-Cooper. Rose
eventually decided that the agents would be allowed to
attend the scheduled dinner, but instructed them to return
to their hotel for debriefing immediately thereafter. Oubre
then called Nolan-Cooper and informed her that he and
Agent Jolly had "business" later that evening, and that they
consequently would have to excuse themselves after dinner.
Nolan-Cooper and Nero arrived at the hotel suite shared
by agents Oubre and Jolly at approximately 8:30 p.m. After
drinks from the suite's mini-bar, the foursome left for
dinner at an expensive Philadelphia area restaurant. They
returned to the suite at 11:30 p.m., at which point Nolan-
Cooper and Nero retrieved their car and departed.
According to Nolan-Cooper and Nero, Oubre and Jolly had
7
made plans to reunite with them at Quincy's, a
Philadelphia nightclub, following completion of their
"business." Oubre denied this. He testified that the two
women had informed him where they were going to be later
in the evening, and that he replied that he might try to call
them if he and Agent Jolly finished their "business" early
enough.
IRS agents debriefed Oubre and Jolly until about 1:00
a.m. According to Oubre, he and Jolly wanted to "unwind"
after the debriefing, and so they proceeded to a nightclub
known as Club Illusions to do so. Oubre further testified
that he did not like the crowd there that night, and so he
and Jolly decided to move to Quincy's instead. Whether the
meeting was planned or by chance, Oubre and Jolly
happened upon Nolan-Cooper and Nero at Quincy's just as
it was about to close for the evening. Shortly thereafter, all
four proceeded back to the agents' hotel suite -- at,
according to Nolan-Cooper, the agents' request.
What occurred once they arrived at the suite is disputed.
According to Nolan-Cooper (whose account of the facts the
district court essentially accepted), she, Nero and the
agents initially sat in the living room of the suite, which
was adjacent to the two separate bedrooms. Bottles of wine
were ordered to be brought up to the suite. At some point
thereafter, Oubre and Nolan-Cooper excused themselves
from Jolly and Nero and went into one of the bedrooms,
where they stayed for some period of time (between forty-
five minutes and two hours, according to the testimony).
During that time Oubre and Nolan-Cooper engaged in
sexual intercourse.
Nero testified that while Oubre and Nolan-Cooper were in
the bedroom, she and Agent Jolly talked and kissed.
Sometime between 5:00 a.m. and 6:00 a.m., after Oubre
and Nolan-Cooper emerged from the bedroom, the agents
drove her and Ms. Nero back to Quincy's, where their car
was still parked, and they departed. Nero testified that her
phone was ringing when she eventually arrived at her
home, and that the caller was Jolly, entreating her to
return to the hotel suite. Nero responded by inviting Jolly
to her home instead.
8
Jolly arrived at Nero's home later that morning, and they
proceeded to engage in sexual intercourse. According to
Nero, she drove Jolly back to the hotel suite at
approximately 12:30 p.m. During this ride, Jolly was paged
by Oubre, and cellular phone records indicate that Jolly
returned that page by calling the hotel shortly thereafter.
The district court found that this series of calls suggests
that the agents attempted to develop a "cover story" which
they would use to explain to their superiors their conduct
from the night before. The court reached this conclusion
partly in light of the fact that the agents failed to contact
their supervisors at any time during the period of the
evening that they spent with Nolan-Cooper and Nero.
The district court found that the sexual activity between
Oubre and Nolan-Cooper was not "part and parcel of a
government scheme to use sex as a tool in the
investigation." To the contrary, the court determined that
the conduct of Agents Oubre and Jolly on the night in
question appeared to be directed at "shaking loose" from
the oversight of their supervisors, who apparently would
have disapproved of their plans. The court found no
evidence, at any stage of the investigation, of discussions
concerning the use of sex as an inducement, reward or lure
to obtain Nolan-Cooper's cooperation in the illegal activity.
Indeed, the court found no evidence whatsoever that there
was "any nexus or connection between the alleged sex and
the investigation."2
C. Procedural History
The IRS investigation of Nolan-Cooper ended with her
arrest on March 24, 1995, and her subsequent indictment.
She moved to dismiss the indictment based on the alleged
sexual misconduct by the undercover agents assigned to
her case. After a six-day evidentiary hearing, the district
court denied the motion. Att. at 3. Although the district
court found that Oubre had engaged in sexual intercourse
_________________________________________________________________
2. Nolan-Cooper also claimed that she and Agent Oubre engaged in
sexual intercourse on two other occasions -- August 12-13, 1994, and
December 16-17, 1994. The court did not find these allegations to be
supported by the facts, and Nolan-Cooper has not challenged the
findings as clearly erroneous.
9
with Nolan-Cooper, and had attempted to cover-up the
events of the night in question, it rejected the claim that
Oubre's conduct was sufficiently outrageous to violate
Nolan-Cooper's due process rights and warrant a dismissal.
Att. at 27-28.
Following the district court's rejection of her motion to
dismiss, Nolan-Cooper entered a guilty plea to thirteen
counts of the superseding indictment, including conspiracy
and substantive money laundering charges.3 After a
hearing, the district court imposed a sentence of 72 months
incarceration, plus a fine of $10,000 and forfeiture of
$41,955.38. Alleging that the government had breached the
plea agreement at the sentencing hearing, Nolan-Cooper
filed a motion for resentencing, which was denied. See
United States v. Nolan-Cooper, 957 F. Supp. 647 (E.D. Pa.
1997). This appeal, of both the sentence and the order
denying the motion to dismiss, followed. We have appellate
jurisdiction pursuant to 28 U.S.C. S 1291.
II. The Motion to Dismiss for Outrageous Government
Conduct
Nolan-Cooper's first contention on appeal is that the
district court erred in rejecting her motion to dismiss the
indictment. That motion was premised on the claim that
the government's conduct in investigating this matter was
outrageous and constituted a violation of her due process
rights. According to Nolan-Cooper, Agent Oubre's
cultivation of a romantic and ultimately sexual relationship
_________________________________________________________________
3. Nolan-Cooper pled guilty to:
1) One count of conspiracy to commit money laundering, in
violation of 18 U.S.C. S 1956(h) and 18 U.S.C. S 1956(a)(3)(B);
2) Ten counts of money laundering and aiding and abetting, in
violation of 18 U.S.C. S 1956(a)(3)(B) and 18 U.S.C. S 2;
3) One count of conspiracy to structure or assist in structuring
any
transaction with one or more domestic financial institutions, in
violation of 18 U.S.C. S 371 and 31 U.S.C.S 5324(a)(3); and
4) One count of criminal forfeiture pursuant to 18 U.S.C.
S 982(a)(1).
10
with her was part of his investigative strategy and, as such,
was an unjustifiable intrusion into the most personal
aspects of her life in violation of her fundamental (due
process and privacy) rights. The district court saw it
differently. While the court found that Agent Oubre's
conduct was "reprehensible," see Nolan-Cooper, 957 F.
Supp. at 664 n.30, it concluded that:
The court does not find that in the totality of the
circumstances a single incident by the undercover
agent which was not approved or planned by the
Government agents in charge of the investigation who
had exercised due diligence and control over the
activities of the undercover agents rises to the level of
outrageous governmental conduct.
Att. at 27. While we reach the result by a slightly different
route, we believe that the district court's rejection of Nolan-
Cooper's motion to dismiss the indictment was not in error.
Our standard of review is mixed. We exercise plenary review
over the district court's legal conclusions, and review any
challenges to the court's factual findings for clear error. See
United States v. Voigt, 89 F.3d 1050, 1064 (3d Cir. 1996).
A. The Outrageous Government Conduct Doctrine
It is the law of this circuit that a criminal defendant may
raise a due process challenge to an indictment against her
based on a claim that the government employed outrageous
law enforcement investigative techniques. See Voigt, 89
F.3d at 1064. The notion that misconduct by the
government in investigating crime could give rise to a due
process violation traces its modern roots to Rochin v.
California, 342 U.S. 165 (1952), in which the Court vacated
the conviction of a suspected drug pusher whose stomach
had been forcibly pumped so that the police could attempt
to obtain incriminating evidence likely found therein.
Twenty years later, in the now-famous dictum which
spawned the so-called "outrageous conduct" defense, the
Court affirmed that Rochin, while rare, was not a unique
case:
[W]e may some day be presented with a situation in
which the conduct of law enforcement agents is so
outrageous that due process principles would
11
absolutely bar the government from invoking judicial
processes to obtain a conviction.
United States v. Russell, 411 U.S. 423, 431-32 (1973)
(citing Rochin).
The Court revisited this dictum in Hampton v. United
States, 425 U.S. 484 (1976), in which the defendant, relying
on Russell, argued for the application of a due process
based outrageous misconduct defense. Although the Court
rejected his claim, the legal viability of the defense was
maintained by a narrow margin.4 Yet, shortly thereafter,
signs appeared that that narrow margin was beginning to
shift. In United States v. Payner, 447 U.S. 727 (1980), the
government employed a confederate to distract a bank
official while agents rifled through his briefcase and found
documents that were eventually used in the prosecution of
some of the bank's customers. The customers could not
challenge the search under the Fourth Amendment because
they did not have a cognizable privacy interest in the
briefcase, and the Court held that its supervisory power
similarly did not authorize a federal court to suppress the
evidence. See 447 U.S. at 735. Justice Powell, author of the
Hampton concurrence, wrote for the Court:
But even if we assume that the unlawful briefcase
search was so outrageous as to offend fundamental
"canons of decency and fairness," . . . the fact remains
that "[t]he limitations of the Due Process Clause . . .
come into play only when the Government activity in
question violates some protected right of the
defendant."
Id. at 737 n.9 (citing Hampton, 425 U.S. at 490 (plurality
opinion) (internal citations omitted).
_________________________________________________________________
4. Only eight justices participated in the consideration and decision of
Hampton. A three-justice plurality and a two-justice concurrence voted to
deny Hampton relief. Although the plurality favored a per se rule that, in
cases of police overinvolvement in the suspect's criminal activity, there
can be no due process violation when the defendant's predisposition to
commit the crime can be shown, the concurring justices joined with a
two-justice dissent to validate the outrageous conduct defense. See
Hampton, 495 U.S. at 491-95 (Powell, J., concurring).
12
While one could read the Payner dictum narrowly to say
merely that a defendant may raise the outrageousness
defense only when it is his or her rights that have been
violated (and not, for example, the privacy rights of others),
some have read Justice Powell's adoption of the Hampton
plurality's language in Payner as a sign that a majority of
the Court no longer believed in the viability of the defense.
See United States v. Miller, 891 F.2d 1265, 1272 (7th Cir.
1989) (Easterbrook, J., concurring).5 While Judge
Easterbrook's viewpoint may ultimately prevail, and while it
appears that the viability of the doctrine is hanging by a
thread, see, e.g., Tucker, 28 F.3d at 1426-27, and Boyd, 55
F.3d at 241, we have, since Payner, concluded that "we
have no reason to doubt that the Court continues to
recognize a due process claim premised upon outrageous
law enforcement investigative techniques." Voigt, 89 F.3d at
1064. Many of the other circuits have done the same. See
United States v. Mosley, 965 F.2d 906, 909 (10th Cir. 1992)
(collecting cases recognizing the viability of the defense
from the D.C., First, Fifth, Eighth, Ninth, Tenth, and
Eleventh Circuits).
While continuing to recognize, in theory, the
outrageousness defense, we have nonetheless observed
that, because of the extraordinary nature of the doctrine,
the judiciary has been "extremely hesitant" to uphold
claims that law enforcement conduct violates the Due
Process clause. See Voigt, 89 F.3d at 1065; United States v.
Jannotti, 673 F.2d 578, 608 (3d Cir. 1982) (in banc). The
First Circuit similarly has declared the outrageous
government misconduct doctrine "moribund" in light of the
fact that, in practice, "courts have rejected its application
with almost monotonous regularity." United States v.
Santana, 6 F.3d 1, 4 (1st Cir. 1993) ("The banner of
_________________________________________________________________
5. This conclusion is based on the fact that Justice Powell, who
ostensibly cast the necessary vote to uphold the outrageousness defense
in Hampton (in spite of the wishes of the plurality), made explicit
reference to that plurality's reasoning in his opinion rejecting the due
process claim in Payner. According to Judge Easterbrook, this adoption
of the Hampton plurality's language signals that Payner was adopting the
"core" of the Hampton plurality's assessment of the issue. See Miller, 891
F.2d at 1272.
13
outrageous misconduct is often raised but seldom
saluted."). Indeed, since Hampton, the only opinion
upholding the application of the defense is the opinion for
a divided panel of this court in United States v. Twigg, 588
F.2d 373 (3d Cir. 1978).6 Twigg, however, involved a quite
egregious case of government overinvolvement in which the
government's undercover operative essentially concocted
and conducted the entire illicit scheme. Although Twigg
rightly suggested that "no justifying social objective" is
served when law enforcement creates new crimes for the
sake of bringing charges against a suspect that the
government itself has persuaded into participating in
wrongdoing, see id. at 379 (citing United States v. West,
511 F.2d 1083, 1085 (3d Cir. 1975)), it distinguished its
facts from the situation where an undercover agent
becomes involved in the operation after the criminal
scheme has been created. See Twigg, 588 F.2d at 380.
Thus, Twigg itself is of little help to Nolan-Cooper.7
While we reaffirmed the cognizability of a due process
claim premised on outrageous government conduct in Voigt,
supra, that case does not shed much light on how we
should analyze such claims because it deals specifically
with deliberate intrusions by the government into the
attorney-client relationship. See Voigt, 89 F.3d at 1067.
Voigt observes that the showing required to make out an
outrageous conduct claim, "is by no means pellucid." Voigt,
89 F.3d at 1064. And, other courts have experienced
considerable difficulty in translating "outrageous
misconduct" into a defined set of behavioral norms. See
Santana, 6 F.3d at 3-4. One parsing of the Russell dictum
which spawned the defense suggests that that some variant
of the fundamental fairness standard should be applied as
_________________________________________________________________
6. The Eighth Circuit has also suggested that the doctrine could apply
when "[t]he government agents' overzealous efforts to instigate crime also
involved rather extreme and questionable measures--including the
smoking of marijuana--to gain [the defendant's] confidence and lure him
into committing a crime he was not otherwise ready and willing to
commit." United States v. Lard, 734 F.2d 1290, 1297 (8th Cir. 1984).
7. Indeed, three judges of the in banc court in Jannotti, supra, expressed
the view that Twigg should be overruled. See 673 F.2d at 610 n.17.
14
the "sounding line" for outrageousness. Id. at 4. And a
survey of the case law reports that:
Although the requirement of outrageousness has been
stated in several different ways by various courts, the
thrust of each of these formulations is that the
challenged conduct must be shocking, outrageous, and
clearly intolerable. . . . The cases make it clear that
this is an extraordinary defense reserved for only the
most egregious circumstances. It is not to be invoked
each time the government acts deceptively or
participates in a crime that it is investigating. Nor is it
intended merely as a device to circumvent the
predisposition test in the entrapment defense.
Mosley, 965 F.2d at 910. Though lacking in"mathematical
precision," the "shocking, outrageous, and clearly
intolerable" standard provides sufficient guidance to courts
attempting to assess whether particular government
conduct is fundamentally unfair and thereby offends due
process. See Santana, 6 F.3d at 4. It also underscores how
rare application of the Due Process clause is in these
circumstances.
B. Due Process Challenges Premised on Sexual
Misconduct
Other courts have considered due process challenges
specifically premised on alleged sexual misconduct by
government operatives in the course of their investigations.
Two such cases are particularly instructive on the thorny
issue of how we should evaluate the use of sexual or
emotional intimacy in undercover operations. Thefirst is
United States v. Simpson, 813 F.2d 1462 (9th Cir. 1987), in
which the FBI employed a known prostitute and heroin
user as an informant in an undercover investigation of a
suspected heroin dealer. After befriending the defendant,
the informant, acting on her own initiative, became sexually
intimate with him. The informant subsequently introduced
the defendant to other undercover agents posing as
potential heroin purchasers, and he was ultimately arrested
after an arranged deal with one of the agents was
consummated. See id. at 1464. Although the FBI did not
encourage the informant to use sex in carrying out her
15
assignment, at some point the agency became aware of her
sexual involvement with the defendant and decided not to
terminate her participation in the investigation. See id. at
1467-68.
The defendant argued that the informant's use of sex as
a means of gaining his trust through intimacy, and the
government's continued employment of the informant after
learning of her sexual involvement with the defendant,
constituted outrageous misconduct and an invasion of his
privacy and autonomy rights. The Ninth Circuit disagreed,
reasoning that:
the deceptive creation and/or exploitation of an
intimate relationship does not exceed the boundary of
permissible law enforcement tactics. . . . The betrayed
suspect might feel foolish or insulted but a suspect
cannot complain of government impropriety based on
the use of deception alone. And, Simpson does not
claim that he was physically or psychologically coerced
into developing a close relationship with [the
informant]. . . . The due process clause does not
protect Simpson from voluntarily reposing his trust in
one who turns out to be unworthy of it.
Id. at 1466; see also Miller, 891 F.2d at 1268 (rejecting
outrageousness claim when government used informant
who previously had had a sexual relationship with
defendant). Importantly, however, the Simpson court stated
that it "need not decide at this time whether the use of sex
as a law enforcement tool would ``shock the conscience'
under circumstances where the government is clearly
responsible, as would be the case if [the informant] had
been a law enforcement officer rather than a paid
informant." Id. at 1468 n.4 (emphasis added).
Despite this distinction, the Simpson court made a
number of general observations about the difficulties in
finding the government's use or condonation of sex by
undercover operatives sufficiently outrageous so as to rise
to the level of a due process violation. The court observed:
To win a suspect's confidence, an informant must
make overtures of friendship and trust and must enjoy
a great deal of freedom in deciding how best to
16
establish a rapport with the suspect. In a particular
case the informant might perceive a need to establish
a physical as well as emotional bond with the suspect.
We see no principled way to identify a fixed point along
the continuum from causal physical contact to intense
physical bonding beyond which the relationship
becomes "shocking" when entertained by an informant.
Rather, any attempt to distinguish between holding
hands, hugging, kissing, engaging in sexual foreplay,
and having sexual intercourse on a regular basis in
order to decide when an informant has "gone too far"
would require us to draw upon our peculiarly personal
notions of human sexuality and social mores. The
Supreme Court has rightly indicated that the
outrageous conduct doctrine ought not to be applied in
so subjective a manner. . . .
[W]e refuse to draw fine lines based on the level of
emotional intimacy inhering in a particular informant-
suspect relationship. . . . Exploiting an emotionally
intimate relationship between lovers seems no more
egregious than exploiting an emotionally intimate
relationship between family members. Second, courts
are not well equipped to assess the degree of intimacy
perceived by particular suspects . . . such that
individual judicial determinations that sexual
relationships were sufficiently intimate to bar
prosecution would lack the "universality" of
condemnation required by the due process clause.
Id. at 1466-67.
While Simpson dealt only with the government's use of
civilian informants (in contrast to undercover government
agents), we believe that many of the same considerations
that troubled the Ninth Circuit also arise here. We agree
that trying to fit a subjective notion such as intimacy into
the framework of the Due Process clause is an immensely
difficult task. Yet, our view of this problem may differ from
Simpson in at least one significant respect. Although we
agree that undercover agents cannot be deprived of the
ability to develop strong bonds with their targets in order
for investigations to proceed, and that it is exceedingly
difficult to identify the point at which physical contact and
17
emotional intimacy between an undercover agent and his or
her target suspect becomes outrageous as a matter of
constitutional law, we believe that such a point does exist.
Therefore we must endeavor to determine whether it has
been reached on the facts of this case.
The only federal appellate decision that deals specifically
with a sexual relationship between a suspect and an
undercover government agent is United States v. Cuervelo,
949 F.2d 559 (2d Cir. 1991). In that case, the defendant
was the subject of a government operation designed to
ferret out a drug conspiracy. The undercover DEA agent
conducting the investigation testified that he tried to
establish a "love interest" between himself and the
defendant, and, according to the defendant, they had
sexual relations on at least fifteen occasions. 949 F.2d at
561, 563. In addition, the agent allegedly gave the
defendant gifts of money, clothes, and jewelry, and wrote
her a number of love letters. Id. at 563. The defendant
moved to dismiss the indictment, which the district court
denied without holding an evidentiary hearing. The Second
Circuit remanded, holding that a hearing was required. Id.
at 569.
Based on its review of such cases as Simpson, the court
stated that in order to make out a successful
outrageousness claim in these circumstances, at a
minimum, the defendant must show the following:
(1) That the government consciously set out to use
sex as a weapon in its investigatory arsenal, or
acquiesced in such conduct for its own purposes
upon learning that such a relationship existed;
(2) That the government agent initiated a sexual
relationship, or allowed it to continue to exist, to
achieve governmental ends; and
(3) That the sexual relationship took place during or
close to the period covered by the indictment and
was entwined with the events charged therein.
949 F.2d at 567. It is important to note that Cuervelo only
held that an evidentiary hearing is warranted if the
defendant raises allegations meeting these criteria. See id.
18
Yet, there is little doubt that Cuervelo envisioned these
criteria as the standard to be applied on the merits since
the court noted that, at the merits stage, the district court
would have to consider the following questions (which
essentially address the same issues):
(a) To what extent is the undercover agent's conduct
attributable to the government (i.e. did the
government actively or passively acknowledge or
encourage the sexual relationship)?
(b) What purpose(s) did the agent's sexual conduct
serve, if any?
(c) Did the agent act on his own initiative or under the
direction (or with the approval) of his agency?
(d) Who initiated the relationship?
(e) When did the alleged sexual relations end?
Cuervelo, 949 F.2d at 568.
We believe that Cuervelo's minimum criteria standard
effectively captures the core issues underlying an
outrageous government conduct claim premised on sexual
misconduct. Accordingly, we will adopt the
Cuervelo standard as the law of this circuit, with one
modification. Cuervelo appears to require the defendant to
introduce evidence demonstrating that the government
knew that its undercover agent had engaged or was
engaging in a sexual relationship with him or her. We
believe that this requirement may be too stringent, and
could encourage supervisory agents to turn a blind eye to
the conduct of their operatives. Hence, we believe that the
defendant need only show that the government consciously
set out to use sex as a weapon in its investigatory arsenal,
or acquiesced in such conduct for its own purposes once it
knew or should have known that such a relationship
existed. In addition, we emphasize that the Cuervelo
criteria, while useful, should not be applied rigidly; the
ultimate determination to be made on the merits is whether
the government's conduct was so "shocking, outrageous,
and clearly intolerable" that Due Process is offended. In
most cases involving sexual misconduct by government
19
agents, however, our version of the Cuervelo factors should
provide an appropriate framework for this analysis.
C. Application
We begin with the final Cuervelo factor, the timing of the
alleged misconduct with respect to the period covered by
the indictment. To the extent that the sexual relationship
between Nolan-Cooper and Agent Oubre arose out of their
ostensible money laundering business relationship, it
cannot be disputed that the two were intertwined. Although
Nolan-Cooper pled guilty to only one count of the
superseding indictment (Count 18) that was premised on
conduct which occurred after February 18, 1995, the
overarching conspiracy count on which she was convicted
(Count 3) alleges that the conspiracy existed until March
24, 1995 and encompasses seven alleged overt acts which
occurred after February 18.
At the same time, we find it significant that the only
incident of sexual intercourse found by the district court
occurred within a month before the investigation was
completed, and apparently well after Oubre had gathered
the necessary evidence against Nolan-Cooper. This would
suggest that while the sexual relationship arose out of the
context of the investigation, it was not necessarily
intertwined with Nolan-Cooper's offense conduct. Nolan-
Cooper rejoins that we should not limit our focus to the one
incident of sexual intercourse; instead, she argues that we
should assess the pervasive pattern of "romancing" which
she alleges Oubre undertook from virtually the outset of the
undercover investigation. Since we have substantial doubts,
see discussion infra, whether the alleged romancing
significantly impacts our analysis, it appears that the
timing of the sexual misconduct favors the government's
position. Although the conduct underlying Count 18 and
comprising some of the overt acts alleged in Count 5
occurred after the sexual misconduct, in the larger factual
context of this case we do not believe this alters the balance
or the timing question, especially since Nolan-Cooper does
not seriously argue about the role of the post February 18,
1995 criminal conduct.
The remaining Cuervelo factors all relate to whether the
government and/or the undercover agent used or
20
acquiesced in the use of the sexual relationship to serve an
investigatory or other governmental end. We must inquire
whether the government intentionally set out to use sex as
an investigatory tool, or acquiesced in its use once it knew
or should have known of the relationship. We also must
determine whether the agent initiated a sexual relationship
or allowed such a relationship to exist to further
governmental ends. See Cuervelo, 949 F.2d at 567. As part
of this inquiry we also assess whether the agent or the
defendant initiated the sexual relationship. While it is
ultimately a question of law for us to decide whether the
agent's misconduct gives rise to a due process violation, it
should be apparent that this stage of the inquiry also
involves significant questions of fact. As noted previously,
we review such findings for clear error.
The district court found that the sexual intercourse that
occurred on February 18, 1995, was not designed to further
any investigatory end. Furthermore, the district court found
no evidence of any discussions among the investigating
agents and their superiors concerning the use of sex as an
inducement, reward or lure to obtain Nolan-Cooper's
participation in the conspiracy. In sum, the district court
found that there was no evidence of any "nexus or
connection" between the alleged sex and the investigation.
While Nolan-Cooper makes a veiled attack on these
conclusions in her brief -- contending that the district
court "completely ignored" that Agent Oubre's relationship
with Nolan-Cooper was an integral part of the total picture
-- under the applicable clear error standard of review such
a challenge falls short. It is true, as Nolan-Cooper asserts,
that Agent Oubre initiated the dinners, nightclubbing, and
other socializing that occurred during the course of the
investigation. However, the district court expressly found
that Nolan-Cooper presented insufficient evidence "that the
Government agents initiated or allowed a sexual
relationship to blossom." Att. at 25.
Accepting, as we must, the district court's finding that
the sexual intercourse between Agent Oubre and Nolan-
Cooper was not designed to serve any investigatory ends,
we conclude that this one instance of sexual misconduct
alone does not give rise to a due process violation within
21
the extremely narrow confines of the outrageous
government conduct doctrine. We simply do not believe that
a one-time sexual encounter that served no investigatory
purpose occurring near the end of an investigation can
satisfy the difficult burden described supra . Even if it were
to be concluded that Oubre's supervisors should have
known that a sexual relationship existed after February 18,
1995, the record reflects that by that point the case against
Nolan-Cooper had already been made and there is no
proffer that any acquiescence at that point would have
served any investigatory purposes. The Cuervelo framework
contemplates conduct that is designed to achieve
investigatory or other governmental ends; failing this, that
case cannot support Nolan-Cooper's claim.8
This conclusion leaves us with Nolan-Cooper's contention
that Agent Oubre's development of a "romantic"
relationship in the months preceding the one incident of
sexual intercourse changes the calculus. While this activity
(by which we mean the dinners, nightclubbing, partying,
etc.) does appear to be directed at establishing and
maintaining a close relationship between agent and
suspect, we are not persuaded that this particular conduct
-- either alone or in tandem with the one instance of
intercourse -- is egregious enough to make out a due
process violation. As Simpson suggests, the mere fact that
an undercover operative establishes a level of intimacy with
his or her target does not alone necessarily give rise to a
constitutional claim.
Like the defendant in Simpson, Nolan-Cooper was
apparently quite willing to develop a close bond with Agent
Oubre.9 The mere fact that Oubre acted upon this
_________________________________________________________________
8. Moreover, this case is distinguishable in at least one important
respect
from Twigg. The government here did not create the money laundering
scheme; by all accounts (including her own), Nolan-Cooper had been
engaged in money laundering activities well before Agent Oubre
requested her services. Thus, this is not a case where law enforcement
created new crimes solely for the sake of bringing charges against a
suspect who was lawfully minding her own affairs. See Twigg, 588 F.2d
at 379-81.
9. We have been presented with no evidence demonstrating any physical
or unusual psychological coercion applied by Agent Oubre. While this is
not a necessary element of a successful outrageous government conduct
claim, such evidence would certainly be strongly suggestive of
outrageousness. See generally Mosley, 965 F.2d at 911-12.
22
willingness cannot in itself be outrageous conduct, as the
"due process clause does not protect [a defendant] from
voluntarily reposing [her] trust in one who turns out to be
unworthy of it." Simpson, 813 F.2d at 1466. Moreover, we
observe that much of the "romantic" conduct alleged here,
on its face, is not that different from conduct by undercover
operatives which we regularly find acceptable in cases
where there is no apparent romantic undercurrent. It is not
at all uncommon to find a heterosexual male undercover
agent providing lavish entertainment to a heterosexual male
suspect as a means of establishing rapport. Cf. Simpson,
813 F.2d at 1466 (noting that informants must "enjoy a
great deal of freedom" in deciding how to establish rapport
with suspects). We cannot agree that the emotional
intimacy that may inure in the bond that an undercover
agent develops with a suspect, without more, can satisfy
the narrow confines of the outrageous government conduct
doctrine.
In sum, that "something more" is not present on the facts
as found by the district court. Since Nolan-Cooper cannot
satisfy our version of the Cuervelo analysis, we will affirm
the order of the district court denying Nolan-Cooper's
motion to dismiss the indictment.10
_________________________________________________________________
10. The government asserts that Hampton and Payner also require
Nolan-Cooper to demonstrate that the government interfered with a
specific constitutionally protected interest in order to make out her due
process claim. In addition, the government contends that, under Voigt,
an outrageous government conduct claim can only be successful if the
defendant can show that she has been prejudiced by the government's
acts. It is the government's position that Nolan-Cooper has failed to
make either showing here. Since we affirm the district court's order on
other grounds, we need not reach these issues.
We also note that Nolan-Cooper's main brief makes reference to a
"privacy" interest:
The court gave no weight in its opinion to the government's gross
and unprecedented violation of Nolan-Cooper's rights to privacy.
However, it goes on to explain the claim as sounding in due process
terms.
Consideration of the totality of the government's misconduct
shows that it constituted a serious invasion into Nolan-Cooper's
23
III. Breach of the Plea Agreement
Nolan-Cooper contends that the government breached
several provisions of the plea bargain to which she agreed
following the district court's denial of her motion to
dismiss. In her submission, the government failed to
uphold its end of the deal when it recommended to the
district court a sentence greater than it had promised to
recommend, and when it took adverse positions on
Sentencing Guideline adjustment provisions when it had
agreed not to do so. Pursuant to the approach laid out in
United States v. Moscahlaidis, 868 F.2d 1357, 1360 (3d Cir.
1989), our analysis will proceed in three steps. First, we
will identify the terms of the agreement and the alleged
improper conduct of the government. Second, we will
determine whether the government violated its obligations
under the plea agreement. Third, we will fashion an
appropriate remedy for any violations that occurred. Nolan-
Cooper has pointed to, and we will address, three separate
breaches.
Before we assess the present claims, however, we will set
forth the applicable legal precepts, which are well-
established. The basic statement of the law comes from
Santobello v. New York, 404 U.S. 257, 262-63 (1971):
This phase of the process of criminal justice, and the
adjudicative element inherent in accepting a plea of
guilty, must be attended by safeguards to insure the
defendant what is reasonably due in the
circumstances. Those circumstances will vary, but a
constant factor is that when a plea rests in any
significant degree on a promise or agreement of the
prosecutor, so that it can be said to be part of the
_________________________________________________________________
fundamental constitutional rights of privacy, and therefore, a due
process violation.
In her reply brief, in contrast to the main brief, the "Privacy" argument
has a heading: "The government's conduct violated Nolan-Cooper's right
to privacy." However, the discussion that follows lies within the same
framework as the main brief -- the outrageous conduct issue which is
cast in due process terms. Since we have disposed of that issue at some
length supra, we need not address it further.
24
inducement or consideration, such promise must be
fulfilled.
Because the defendant, by entering into the plea,
surrenders a number of her constitutional rights, "courts
are compelled to scrutinize closely the promise made by the
government in order to determine whether it has been
performed." United States v. Hayes, 946 F.2d 230, 233 (3d
Cir. 1991). Moreover, "the doctrine that the government
must adhere to its bargain in the plea agreement is so
fundamental that even though the government's breach is
inadvertent and the breach probably did not influence the
judge in the sentence imposed, due process and equity
require that the sentence be vacated." Id. (internal
quotations omitted).
Plea agreements, although arising in a criminal context,
are analyzed under contract law standards. See
Moscahlaidis, 868 F.2d at 1361. In determining whether the
plea agreement has been breached, courts must determine
"whether the government's conduct is inconsistent with
what was reasonably understood by the defendant when
entering the plea of guilty." United States v. Badaracco, 954
F.2d 928, 939 (3d Cir. 1992) (citing United States v. Nelson,
837 F.2d 1519, 1521-22 (11th Cir. 1988)). Accordingly, we
will not permit the government to rely upon a "rigidly
literal" approach to the construction of the terms of the
plea agreement. See Moscahlaidis, 868 F.2d at 1361. For
example, we have recently held that even when the
government is given wide discretion whether to file a
U.S.S.G. S 5K1.1 (substantial assistance) motion pursuant
to a plea agreement, the district court is empowered to
examine for "good faith" the government's refusal to file
such a motion. See United States v. Isaac, 141 F.3d 477,
483-84 (3d Cir. 1998).
A. The Government's Position on Guideline Adjustments
1. Use of a Special Skill [The Attorney's Escrow
Account Issue].
The government stipulated in the plea agreement that it
would "not oppose" Nolan-Cooper's position at sentencing
that certain guideline adjustments should not apply.
25
Included in this list was the "use of a special skill"
enhancement contained in U.S.S.G. S 3B1.3 (1996), which
calls for a two-point offense level increase if the defendant
"used a special skill, in a manner that significantly
facilitated the commission or concealment of the offense."
S 3B1.3. Although the written plea agreement did not
specifically mention this guideline provision, the
government conceded in its sentencing memorandum that
the special skill provision would be covered by the terms of
the written agreement. At the sentencing hearing, however,
the following colloquy occurred:
The Government: [I]n accordance with the plea
agreement, the Government is not going to comment
on the applicability of either the abuse of special skill
or with respect to the obstruction in this case.
However, I will comment briefly as to the facts in
accordance with the plea agreement and with respect
to the abuse of special skill I would point out to the
Court that on several occasions the defendant in this
case specifically mentioned her escrow account as a
resource and as a way that she could specially help
hide the defendant or the agent's money. . . .
The Court: [L]et me ask you something before you go
any further here. What is your agreement with the
defendant? It may be better that you just let this go
rather than to skirt around the edges to what you can
do and not do. If you're going to simply point
something that it already on the record, we don't really
need that.
The Government: Pardon, your honor.
The Court: As to -- as to those and I'm not going to
consider your comments on those two issues.
App. at 405-06. Nolan-Cooper contends that the
government's statement here violates the plea agreement.
The government responds that these comments do not
breach the special skill provision of the plea agreement
because the agreement also contains a clause reserving to
the government the right "to comment on the evidence and
circumstances of the case and bring to the Court's
26
attention all facts relevant to sentencing." App. at 262. The
government submits that its comments were made
pursuant to and within the scope of this clause. Nolan-
Cooper rejoins that the government's position is untenable
under Badaracco, supra. We agree.
In Badaracco, the government stipulated that the
defendant's conduct "did not involve more than minimal
planning" and thus would not warrant an enhancement
under U.S.S.G. S 2F1.1(b)(2). That section provides for a
two-level enhancement when "significant affirmative steps
were taken to conceal the offense." U.S.S.G. SS 1B1.1 app.
note 1(f); 2F1.1(b)(2). At the sentencing hearing, the
government stated that Badaracco had taken "an
affirmative step . . . indicating that he was concealing
something." Badaracco, 954 F.2d at 939. We found that
this comment provided the district court with a basis upon
which to ignore or reject the parties' stipulation and apply
the enhancement. See id. at 940. Accordingly, we held that
the government had "violated the spirit, if not the letter of
the plea agreement." Id. Despite the government's
contention that it was merely exercising its reserved right
under the plea agreement to inform the court of the"nature
and extent" of Badaracco's activities, we held that there had
been a breach. Id.
The present case falls squarely under Badaracco. The
government's statement about Nolan-Cooper's use of the
escrow account plainly could have given the court a basis
upon which to reject the defendant's argument that the
special skill adjustment should not apply. Indeed, the
statement that Nolan-Cooper's escrow account was "a way
that she could specially help hide . . . the agent's money,"
arguably tracks the guideline requirement that a special
skill must "significantly facilitate[ ] the commission or
concealment of the offense. . . ." See S 3B1.3. Furthermore,
the government's proffered justification -- that it was only
commenting on the facts pursuant to the reserved right-to-
comment clause -- is almost identical to the justification
that we rejected in Badaracco.
Moreover, we have held previously that a promise to take
no position on an issue (which, to a defendant, is the
functional equivalent of a promise not to oppose) is a
27
promise not to attempt to influence the defendant's
sentence on that particular issue. See Moscahlaidis, 868
F.2d at 1362; see also United States v. Brye, ___ F.3d ___,
1998 WL 318563 (10th Cir. 1998) (finding breach of plea
agreement based on statements by government which
implicitly argued against downward departure when
government had promised to take no position). The
government cannot, consistent with Moscahlaidis, rely on a
general provision of the plea agreement permitting it to
comment on the facts of the case to defeat the purpose of
a specific provision requiring it not to oppose the
defendant's position on the applicability of a particular
adjustment.
The government also argues that its comments were
necessary because they were made in response to "a
number of averments and factual representations" by
defense counsel with regard to Nolan-Cooper's non-use of a
special skill. While the plea agreement permits the
government to "rebut any statement made by or on behalf
of the defendant at sentencing," the government's
concession not to oppose Nolan-Cooper's position on the
applicability of the special skill enhancement would be
meaningless if we permitted the government to respond to
the facts as presented by the defendant on this issue with
remarks that clearly "meant to serve as a possible basis for
the district court to ignore the stipulation in the plea
agreement." Badaracco, 954 F.2d at 941. As the Tenth
Circuit recently noted in Brye:
[T]he government breaches an agreement "not to
oppose" a motion when it makes statements that do
more than merely state facts or simply validate facts
found in the Presentence Report and provide a legal
characterization of those facts or argue the effect of
those facts to the sentencing judge.
Brye, ___ F.3d ___, 1998 WL 318563 at *3 (citing United
States v. Hawley, 93 F.3d 682, 693 (10th Cir. 1996)
(internal quotation marks omitted).
This may mean that the government must exercise the
option of silence even if it disagrees with the defendant's
characterization of the facts.11 "As is the case with any
contract, the government is not free to breach its agreement
_________________________________________________________________
11. This is especially so when those facts are either in the factual
record
or are discussed in the presentence report prepared by the probation
office, and are thereby known to the court.
28
with a defendant because it decides after the fact that it
has made a bad bargain." Badaracco, 954 F.2d at 941. On
this basis we find that the government breached the special
skill clause of the plea agreement.
2. Acceptance of Responsibility.
For essentially the same reasons, we also agree with
Nolan-Cooper that the government breached its promise not
to oppose her request for a three-level downward
adjustment for acceptance of responsibility. See U.S.S.G.
S 3E1.1(b). The government stated at the sentencing
hearing:
Your Honor, with respect to the acceptance of
responsibility I feel compelled to comment to the Court
that with reference to the proffers that defendant gave,
the several proffers, the Government does not believe
that the defendant gave complete information. And that
has been made known to the defense on more than one
occasion. . . . There are no other facts to support a
third point that I am aware of, your Honor. . . . I would
not have commented on this other than the fact that
the defense, both in their sentencing memorandum as
well as today, commented on the fact that the
defendant provided complete information and with
referencing [sic] the proffers.
App. at 404-05. As above, we find that the government's
comments provided the court with a basis upon which to
reject Nolan-Cooper's claim that she should receive the full
acceptance of responsibility adjustment. This violates
Badaracco.
The government suggests that this analysis should be
altered because, at at least one point during the relevant
portion of the sentencing hearing, the government's
comments were made in response to a question by the
court. We disagree. While such questions may place the
government in an uncomfortable situation, it still must
inform the court that it cannot answer the question without
breaching its plea agreement. Sometimes "the better part of
valor is discretion." William Shakespeare, King Henry the
Fourth, Part I, act V, scene iv, line 12.
29
B. Guideline Range Stipulation
Nolan-Cooper additionally contends that the government
breached the plea agreement by recommending to the court
a sentence outside the stipulated Guideline range. In the
plea agreement, the government expressly represented that
it would "make whatever sentencing recommendation it
deems appropriate within the stipulated Sentencing
Guideline range of 41 to 51 months imprisonment." App. at
262. The district court, however, determined at the
sentencing hearing that the applicable guideline range was
actually 63 to 78 months, and denied Nolan-Cooper's
motion for a downward departure from this range. App.
418-51. After this finding was explained to the parties,
additional witnesses were called, and the government was
subsequently given the opportunity to present its
arguments on Nolan-Cooper's sentencing to the court. The
government made the following statement:
[These were] crimes committed by an individual who
knew better, who was not forced either by economics or
otherwise, any form of duress, to commit these crimes,
she chose to commit these crimes knowingly and
deliberately.
[I]t is difficult even now as I stand before this Court for
anyone, I believe, not to be shocked by the defendant's
callous and calculating attempts to subvert the law.
That would be the case whether or not she was a
lawyer, but the fact that she is a lawyer, someone who
swore to uphold the law, makes this case -- the
actions of this defendant particular [sic] egregious, that
she in fact flaunted the fact that she had special tools,
the escrow account, which she could use as a resource
to break the law.
App. at 477-78. At the conclusion of its comments, the
government stated that "the Judge should sentence the
defendant to the higher end of the guidelines based on her
conduct." App. at 479 (emphasis added).
Defendant's counsel immediately objected, claiming that
the government had breached the plea agreement. The
following colloquy ensued:
30
The Government: Your honor, I stand corrected on
that. When I said the higher end of the guideline range,
I meant within the plea agreement and I misspoke on
that, so that will stand corrected.
The Court: Well, it can (sic) be within the plea
agreement, can't it? Doesn't it have to be at least 63
months?
The Government: Yes, your Honor, but I think for
purposes of argument today, I think I can stand before
the Court and argue the higher end of the guideline as
stipulated to.
The Court: Okay, I will disregard the Government's
recommendation since, frankly, it seems to be a little
schizophrenic here as to who is recommending what to
whom when. So, we will give no weight to the
Government's recommendation in this case and I will
take into account [defense counsel] Mr. Howard's
recommendation to that.
App. at 479-80. Nolan-Cooper contends that the
government violated the plea agreement in two ways. First,
she contends that the government's lengthy statement
preceding its sentence recommendation -- in which the
government characterized her in a highly negative way and
implicitly advocated a severe sentence -- itself constitutes
a breach. Second, Nolan-Cooper asserts that, despite the
subsequent correction, the government's original
recommendation of a sentence at "the higher end of the
guidelines" was also a breach. We take up these arguments
in turn.
As we said in Badaracco, we must examine what the
defendant reasonably understood she would be receiving
from the government in return for her plea of guilty. See
Badaracco, 954 F.2d at 939. We believe, as a basic matter,
that it was entirely reasonable for Nolan-Cooper to
understand that the government's promise to recommend a
sentence between 41 and 51 months included a promise
not to advocate the imposition of a sentence longer than 51
months. See United States v. Taylor, 77 F.3d 368, 370
(11th Cir. 1996). Advocacy "of a position requiring a greater
sentence is flatly inconsistent with recommendation of a
31
lesser sentence." Id. To resolve Nolan-Cooper's claim that
the government's comments preceding its recommendation
violated the plea agreement, we must determine whether
those comments constitute impermissible "advocacy."
The First Circuit faced an almost identical situation in
United States v. Canada, 960 F.2d 263 (1st Cir. 1992). In
that case, the government agreed to recommend a sentence
36 months in duration. At the sentencing hearing, however,
the district court determined that the applicable guideline
range was 46 to 57 months. After this determination was
made, the government stated, inter alia:
[T]he plea agreement . . . indicates that the government
would recommend a period of incarceration of 36
months, which under the calculations, that at that
time under the information that was known to the
government . . . was the upper end of the guideline
range. That is in the plea agreement.
The government feels a substantial period of
incarceration in this case [sic], for the reason the Court
has already indicated: this is a massive fraud
perpetrated on a large number of individuals over a
long period of time. . . .
It is important, the government feels, that a very strong
message be sent by the Court. This is one of the
largest, if not the largest advance fee scheme, which
the Office of the United States Attorney has been
involved in in the last several years.
960 F.2d at 269. After making a few more comments
regarding restitution, the government remarked "I begged
the question as to the specific amount of the period of
incarceration here--" at which point the district court
interjected "I think you are stuck with the plea agreement."
Id. The government replied, "I believe I am, your Honor." Id.
The First Circuit noted that, while the government
informed the district court of the agreed-upon 36 month
sentence, it never affirmatively recommended such a
sentence and that its comments "seemed to undercut such
a recommendation." Id. at 268. The court concluded that
the government's comments, though not explicitly
32
repudiating the plea agreement, violated Santobello. Id. at
269. In reaching this conclusion, the court held that the
government's "overall conduct must be reasonably
consistent with making such a recommendation, rather
than the reverse." Id. We agree.
We considered a similar situation in Hayes, supra. In
that case, the government agreed to "make no
recommendation as to the specific sentence that the Court
should impose," yet in its sentencing memorandum
advocated "a sentence within the standard range of the
guidelines as to Count One . . . and a lengthy period of
incarceration on the nonguideline counts." Hayes, 946 F.2d
at 232. While we recognized that a promise to make no
recommendation "is a lesser commitment [than a promise
to take no position at all] and permits some latitude in the
prosecutor to influence the sentence without actually
commenting on the sentence itself," we concluded that the
specific comments here clearly clashed with the plain
language of the agreement, and we held for the defendant.
Id. at 234-35.
We believe that the same principles apply here. Once the
district court had determined that the lower end of the
applicable sentencing guideline range was higher than the
high end of Nolan-Cooper's stipulated range, the
government essentially had received more than it had
bargained for when it entered into the plea agreement.
Since the government was prohibited by the agreement
from recommending a sentence longer than 51 months,
once the district court determined that the low end of the
applicable range was 68 months, the government should
have said nothing further. As in Canada, the government's
subsequent comments can only be interpreted as an
attempt to influence the court to impose a longer sentence
than stipulated to in the agreement, and is therefore a
breach.
To illustrate the limits of our holding, we identify a
possible exception to this rule. If the government otherwise
adheres to the terms of the plea agreement, and the court
independently determines that the applicable range is
higher than that stipulated to, it would not appear to be a
breach if the government states only that in light of the
33
changed circumstances, the court should impose the lowest
end of the applicable range. But that was not the case here.
There is no way that the government's comments could
possibly be construed as advocating for the lower half of the
range, let alone the lowest possible term of imprisonment.
To the contrary, the government's professed "shock" at
Nolan-Cooper's "callous and calculating attempts to subvert
the law" can only be reasonably read as advocating a severe
sentence.
We emphasize that our conclusion is not based on a
belief that the government acted in any bad faith, but
rather on an objective interpretation of the import of the
government's remarks within the context of the district
court's previous determination regarding the applicable
guideline range. In these circumstances, the most prudent
course would be for the government, if given an opportunity
to comment, to inform the court that it is bound by the plea
agreement and therefore will not make any further
remarks. Of course, if the plea agreement permits the
government to correct any misstatement of facts made by
the defendant during her colloquy, the government would
be within its power to do so -- so long as any statement it
makes does not undermine its agreed-upon position. See
Canada, 960 F.2d at 270. The government should exercise
its power to comment in these circumstances with extreme
discretion, e.g. to correct blatant misstatements by the
defendant. Of course, if sentencing issues other than the
amount of incarceration to be imposed are still
undetermined, the government would be permitted to make
any statements relevant to those issues, so long as those
statements do not otherwise undermine other provisions of
the plea agreement.
Nolan-Cooper's second argument (i.e. that the
government's initial misstatement of its sentencing
recommendation also constitutes a breach) presents a
number of difficult questions. While we are convinced that
the government's initial misstatement was just that -- a
misstatement -- it is similarly true that, under our case
law, even inadvertent breaches can require vacatur of the
sentence. See Hayes, 946 F.2d at 233. While we have
stressed that the government must choose its words at a
34
plea hearing very carefully, we also recognize that the
dynamics of an extemporaneous courtroom colloquy can
lead to missteps, and we are reluctant to adopt a strict rule
that would characterize an immediately corrected good-faith
misstatement as a breach. But see United States v.
Kurkculer, 918 F.2d 295 (1st Cir. 1990) (finding breach of
plea agreement when government recommended sentence
in violation of agreement although government withdrew its
recommendation and then recommended agreed-upon
sentence after continuance). It is uncertain whether our
reluctance is precluded by our holding in Hayes that even
inadvertent breaches having no effect on the court still
require vacatur of the sentence. See Hayes, 946 F.2d at
233. However, since we find that the government's
commentary preceding its misstated recommendation itself
constitutes a breach, we need not reach this issue.
C. Remedy
When the government breaches a plea agreement, the
general rule is to remand the case to the district court for
a determination whether to grant specific performance or to
allow withdrawal of the plea. See Badaracco, 954 F.2d at
941 (citing Moscahlaidis, 868 F.2d at 1363). Nolan-Cooper
has represented in her brief and at oral argument that she
does not wish to withdraw her plea, and we do not believe
that the district court should be able to impose such a
remedy on the defendant over her objections on remand. As
the First Circuit stated in Kurkculer:
Specific performance is feasible and is a lesser burden
on the government and defendant. Further, permitting
a judge to vacate a plea over defendant's objection on
breach by the prosecution allows the government to
back out of its agreement at will and obtain a trial.
Given nothing more than the prosecutor's breach, the
circumstances do not "require" a new trial.
918 F.2d at 302.
It is also the rule in this circuit that if specific
performance is the applicable remedy, the defendant must
be resentenced by a different district judge than the one
who presided over the now-vacated original sentence. See
Hayes, 946 F.2d at 236. This result obtains irrespective of
35
the fact that the need for resentencing was caused by the
government and is not attributable to any error by the
sentencing judge. See id. (citing United States v. Corsentino,
685 F.2d 48, 52 (2d Cir. 1982)). The only remaining
question is whether the case should be remanded for a full
resentencing, or whether the remand should be limited to
the provisions affected by the government's breach. The
parties agreed that if we found a breach of the plea bargain,
the case should be remanded for a full resentencing, and
we believe that this is the correct result. Thus, we will
vacate the sentence imposed and remand the case to the
district court for resentencing before a different judge,
pursuant to the plea agreement.
IV. Downward Departure Based on
Government Misconduct
Nolan-Cooper argued to the district court at sentencing
that a downward departure was warranted in this case
because the government's misconduct (i.e. Agent Oubre's
cultivation and consummation of a sexual relationship)
during the investigation was sufficiently unusual to take
this case outside the "heartland" of the applicable
guidelines. The district court rejected this argument and
denied her motion for a departure, stating:
The Court has already concluded that Ms. Nolan-
Cooper was not induced to commit or enlarge the crime
as a result of Agent Oubre's engaging in sexual
relations with her. In fact, all counts against Ms.
Nolan-Cooper that stemmed from actions taken by her
after the incident are to be dismissed by the
government at sentencing, pursuant to the plea
agreement. To base a downward departure on the
defendant's reasoning would result in a sentencing
windfall to the defendant for no logical or policy
rationale.
Therefore, the Court concludes that Ms. Nolan-Cooper
should be sentenced in accordance with the crime to
which she has pled guilty. None of the purposes of the
current sentencing scheme would be served by this
departure. Absent a due process violation or a showing
36
that the government misconduct enlarged the scope or
scale of a crime, and resulted in an increased sentence,
a departure is not warranted.
Att. at 80. According to Nolan-Cooper, this denial was
premised on the court's conclusion that the government's
misconduct provided a legally insufficient basis for a
downward departure. The government contends that the
court did not rule on legal grounds, but instead properly
considered Nolan-Cooper's departure argument, and, based
on the facts, ruled in its discretion that a departure was
not warranted.
The first paragraph of the district court's statement,
rescribed above, lends credence to the government's
argument that the court made a discretionary decision
based on facts found after extensive hearings, while the
second paragraph strongly supports Nolan-Cooper's
position. We lack jurisdiction to review a district court's
refusal to depart downward when, aware that it has the
authority to depart, it nonetheless determines that a
departure is not warranted, see United States v. Sally, 116
F.3d 76, 78 (3d Cir. 1997) (citing United States v.
McQuilkin, 97 F.3d 723, 729 (3d Cir. 1996), cert. denied
117 S. Ct. 2413 (1997)), and thus if the government is
correct we would have no jurisdiction to consider Nolan-
Cooper's departure arguments on appeal. It appears to us,
however, more plausible that the district court believed that
it was legally precluded from departing in the present
circumstances.
Since we have concluded that the government's violation
of the plea agreement requires vacatur of Nolan-Cooper's
entire sentence and a remand for resentencing before a
different judge of the district court, we need not definitively
decide this issue. However, if the court did hold-- and it
appears that it did -- that it was precluded from departing,
we believe that such a holding would be in error. Since we
presume that Nolan-Cooper will move for a departure on
the same grounds at her resentencing, we think it
appropriate for us to discuss the merits of Nolan-Cooper's
departure claim for the guidance of the district court on
remand.
37
The question on the merits can be easily restated. The
district court held that a departure would not be warranted
absent "a due process violation or a showing that the
government misconduct enlarged the scope or scale of the
crime." In effect, we understand the latter clause to mean
that a departure would not be warranted unless the
government's misconduct was related to the guilt of the
defendant. This formulation presents the legal question
whether potential departures based on improper
investigative techniques that are unrelated (or only
tangentially related) to the defendant's guilt should be
categorically excluded under the applicable Supreme Court
standards.
The now-familiar framework for analyzing the legal
propriety of downward departure decisions was established
by the Supreme Court in Koon v. United States, 518 U.S. 81
(1996). In Koon, the Court identified the three basic
categories of departure factors set forth in the Guidelines:
those that are encouraged, those that are discouraged, and
those that are forbidden. See id. at 95-96. If a particular
factor is not mentioned in the Guidelines, however, that
does not mean that a departure based on that factor is
precluded. To the contrary, Koon states that "a federal
court's examination of whether a factor can ever be an
appropriate basis for departure is limited to determining
whether the Commission has proscribed, as a categorical
matter, consideration of the factor." 518 U.S. at 109.
As the Second Circuit has held, absent express
prohibition by the Commission, a sentencing court"is free
to consider, in an unusual case, whether or not the factors
that make it unusual . . . are present in sufficient kind or
degree to warrant a departure." United States v. Core, 125
F.3d 74, 77 (2d Cir. 1997) (citing United States v. Rivera,
994 F.2d 942, 949 (1st Cir. 1993), cert. denied sub nom.
Reyes v. United States, ___ U.S. ___, 118 S. Ct. 735 (1998).
This would appear to prohibit courts from categorically
excluding any departure factor not expressly prohibited by
the Guidelines. See United States v. Mendoza, 121 F.3d
510, 513 (9th Cir. 1997) ("We are not at liberty, after Koon,
to create additional categories of factors that we deem
inappropriate as grounds for departure in every
38
circumstance."); Core, 125 F.3d at 76-77; United States v.
Brock, 108 F.3d 31, 34 (4th Cir. 1997).
The factors categorically excluded by the Guidelines are
few. They include: race, sex, national origin, creed, religion
and socio-economic status, see U.S.S.G.S 5H1.10; lack of
guidance as a youth, see S 5H1.12; drug or alcohol
dependency, see S 5H1.4; and economic hardship, see
S 5K2.12. Notably, this list does not include government
investigatory misconduct. Thus, applying the Koon-based
analysis employed by the Mendoza and Core courts, we
would reach the conclusion that departures based on
investigative misconduct unrelated (or only tangentially
related) to the guilt of the defendant are not expressly
precluded from consideration for departure by the
Guidelines, and should not be categorically proscribed.12
_________________________________________________________________
12. We recognize that our decision in United States v. Haut, 107 F.3d
213 (3d Cir.), cert. denied 118 S. Ct. 130 (1997), arguably militates
against this Koon-driven result. In Haut, we held that the district court
erred in departing downward based on its belief that the government's
witnesses were of dubious credibility and therefore that the jury's
verdict
was therefore equally dubious. See 107 F.3d at 219. But the departure
in that case ran contrary to a basic tenet of our jury system that the
district court cannot substitute its judgment of the facts and credibility
of the witnesses for that of the jury. See id. at 220. For that reason,
the
Haut panel viewed such a departure factor as "categorically
inappropriate" and stated that:
We are mindful that Koon explains that "with few exceptions,
departure factors should not be ruled out on a categorical basis."
Nonetheless, the instant case involves one of those few exceptions.
Id. at 219-20 (citations omitted). This passage appears to suggest that,
consistent with Koon, courts can still categorically exclude departure
factors.
Not surprisingly, this statement, made shortly after Koon, has caused
some difficulty and confusion, see, e.g., United States v. Sutton, 973 F.
Supp. 488, 493 n.4 (D.N.J. 1997), aff'd, ___ F.3d ___ (3d Cir. May 21,
1998), and has not been cited elsewhere, apparently because the plain
language of Koon, see 518 U.S. at 109, holds that the courts are not
permitted to categorically exclude departure factors not specifically
excluded by the Guidelines themselves. Because the precise departure
factor in Haut was so fundamentally at odds with a foundational
principle of our jury trial system -- the allocation of competency
39
Therefore, the district court's apparent holding that it was
precluded from departing here would be in error.13
_________________________________________________________________
determinations -- Haut must be seen as a unique decision where a basic
principle of our legal system rendered that departure factor to be an
abuse of discretion under any circumstances. Such a bedrock principle
is not at issue in the overwhelming majority of departure cases, and is
not at issue here. In that regard, we read Haut as limited to its facts,
and therefore not abrogating Koon's mandate that we are not permitted
to look beyond the Guidelines to determine whether a categorical
exclusion is appropriate here.
We note that in a recent D.C. Circuit case, Judge Silberman, writing
in dissent, suggests that certain factors may be categorically excluded
from the consideration of sentencing courts despite Koon because those
factors are precluded by more fundamental principles of law. See United
States v. Rhodes, ___ F.3d ___, 1998 WL 321541, *10 (D.C. Cir. 1998)
(Silberman, J., dissenting). In Rhodes, Judge Silberman argued that a
district court may not consider a prisoner's post-conviction conduct
when it resentences that prisoner following an appeal because the very
passage of the Sentencing Reform Act of 1984 itself implicitly precluded
such consideration. Id. We observe that it is possible to read Haut as
having been decided on a similar basis.
13. We note that this result is consistent with our pre-Koon precedents,
most notably United States v. Lieberman, 971 F.2d 989 (3d Cir. 1992),
and United States v. Monaco, 23 F.3d 793 (3d Cir. 1994). In Lieberman,
we considered whether the Guidelines preclude a departure when the
government's manipulation of the indictment, though not done in bad
faith, would result in a particular defendant being sentenced
disproportionately to other similarly situated defendants. Lieberman, 971
F.2d at 996-98. In that case, the government manipulated the
indictment in such a fashion as to make impossible the grouping of the
defendant's two related offenses under the Guidelines. We held that the
district court was permitted to downwardly depart in such
circumstances. Id. at 998.
In Monaco, the defendant, the president of a company which had been
awarded a Department of Defense contract, pleaded guilty to conspiracy
in connection with a fraudulent billing scheme. To accomplish this
scheme, the defendant had directed his son (who worked for the
company) to prepare false labor sheets. As a consequence, the
defendant's son was also indicted, and ultimately pleaded guilty to aiding
and abetting a false statement. At sentencing, the district court departed
downward, based in part upon the mental anguish the defendant felt at
seeing his son, an otherwise law-abiding citizen, convicted of a crime
because of his father's felonious scheme. Id. at 799-80.
40
For a departure based on a factor unmentioned in the
Guidelines (such as improper investigatory techniques) to
be permitted, however, it must comply with U.S.S.G.
S 5K2.0. Under that section, a sentencing court may
"impose a sentence outside the range established by the
applicable guideline, if the court finds ``that there exists an
aggravating or mitigating circumstance of a kind, or to a
degree, not adequately taken into consideration by the
Sentencing Commission in formulating the guidelines that
should result in a sentence different from that described.' "
U.S.S.G. S 5K2.0 (policy statement). Koon instructs that, in
order to determine whether a departure shall be permitted
under S 5K2.0, courts must, "after considering the
structure and theory of both relevant individual guidelines
and the Guidelines taken as a whole, . . . decide whether it
[the departure factor] is sufficient to take the case out of
the Guidelines' heartland." 518 U.S. at 96 (citations
omitted). Moreover, Koon states that, in conducting this
"heartland" analysis, we must "bear in mind the
Commission's expectation that departures based on
grounds not mentioned in the Guidelines will be``highly
infrequent.' " Id. Nolan-Cooper contends that various
aspects of the misconduct by the government agents
detailed above take this case out of the heartland.
Primarily, she contends that Agent Oubre's manipulation of
her romantic and sexual life constitutes an unprecedented
invasion well-beyond the manipulation and trickery that
the typical subject of a sting operation must endure. If
Nolan-Cooper renews her motion for a downward departure
_________________________________________________________________
Although not considered by the Sentencing Commission, we did not
believe that the Guidelines foreclosed the possibility of a downward
departure under these circumstances. Id. at 801. The government
argued, however, that since the defendant's guilt was not in any way
diminished by involving his son in the scheme, any anguish he felt
would not be mitigating and therefore should not be permitted to ground
a departure. Id. at 802. We rejected this argument, citing Lieberman in
support of the proposition that "reduced moral culpability is not the only
permissible basis for a downward departure." Id. Accordingly, we
concluded that "certain factors unrelated to guilt may be relevant for
departure purposes in extraordinary circumstances." Id. at 803.
41
on this basis on remand, the district court will have to
decide whether the misconduct found here is sufficient to
take this case outside the Guidelines' heartland.14
V. Conclusion
For the foregoing reasons, we will affirm the order of the
district court rejecting defendant's motion to dismiss the
indictment for outrageous government misconduct. We will,
however, vacate the defendant's sentence and remand for a
new sentencing consistent with this opinion before a
different judge of the district court.
_________________________________________________________________
14. Nolan-Cooper also moved for a downward departure based on the
contention that the government controlled the amount of money
laundered during the course of Agent Oubre's investigation, and was
thus able to inflate the severity of the sentence that she received under
the Guidelines. Nolan-Cooper presented the district court with two
related claims on this ground: (1) that the government's conduct was
improper (and deserving of a departure) under the "sentencing factor
manipulation" doctrine; and (2) that the government's determination of
the amount of funds laundered took this case outside of the money
laundering offense guidelines. The district court denied the motion for a
downward departure, finding that:
[T]here is no evidence that the undercover agent pressured Ms.
Nolan-Cooper to engage in the money laundering, or influenced her
to launder more money than she was ordinarily willing to launder.
. . . The Court concludes that this thirteen month investigation
which involved the laundering of nearly $200,000 was neither
extended nor expanded for improper purposes and, therefore, the
government did not engage in conduct even approaching the
"extraordinary misconduct" required to show sentence factor
manipulation.
Att. at 84. Nolan-Cooper does not now contend that the court
erroneously rejected her "sentencing factor manipulation" claim. Rather,
she asserts that the court failed to consider the"heartland" claim,
violating what she terms the court's duty to consider the nature and
circumstances of the offense, necessitating a remand for that reason. We
find no merit to this argument.
42
RENDELL, Circuit Judge, concurring:
I concur in the foregoing opinion, and yet am troubled by
the nature of the government's conduct in this case, which
might easily be said to involve conduct which "falls below
standards, to which common feelings respond, for the
proper use of governmental power." Sherman v. United
States, 356 U.S. 369, 382 (1958) (Frankfurter, J.,
concurring). Particularly troublesome is the nature and
extent of expenditures for wining and dining Nolan-Cooper
to "cement" the money-laundering relationship. The agents
entertained her with suites at the Four Seasons and
dinners at lavish restaurants, followed by club-hopping
until the wee hours. In total, the expenses incurred in
connection with the undercover investigation exceeded
$50,000 (App. at 1146.) If this is standard operating
procedure for government stings, it is little wonder that our
citizens often question how their government spends
taxpayers' dollars. I am less troubled as to the results in
this case, however, because the inquiries set forth in United
States v. Cuervelo, 949 F.2d 559, 567 (2d Cir. 1991), that
we have adopted provide the essential test for determining
whether the government's conduct gives rise to a due
process violation that bars prosecution. In United States v.
Twigg, the defendant posed the same question as we
address here, namely, was "the nature and extent of police
involvement in this crime . . . so overreaching as to bar
prosecution of the defendants as a matter of due process of
law." 588 F.2d 373, 377 (3d Cir. 1978). Employing the
Cuervelo test as the means of determining the answer to
this question in this unique type of case, we must respond
in the negative. I view the totality of the government's
conduct as having been reprehensible, but, as it takes two
to tango, Nolan-Cooper's conduct was not the result of
overreaching or overinvolvement by the government.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
43