155 F.3d 221 (3rd Cir. 1998), 97-1171, United States v. Nolan-Cooper

Docket Nº:97-1171, 97-1298.
Citation:155 F.3d 221
Party Name:UNITED STATES of America v. Angela NOLAN-COOPER, Appellant.
Case Date:September 02, 1998
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 221

155 F.3d 221 (3rd Cir. 1998)

UNITED STATES of America

v.

Angela NOLAN-COOPER, Appellant.

Nos. 97-1171, 97-1298.

United States Court of Appeals, Third Circuit

September 2, 1998

Argued March 19, 1998.

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David M. Howard (Argued), Jeffrey S. Edwards, Dechert, Price & Rhoads, Philadelphia, PA, for Appellant.

Michael R. Stiles, United States Attorney, Walter S. Batty, Jr., Assistant United States Attorney, Chief of Appeals, Terri A. Marinari (Argued), Assistant United States Attorney, Office of the United States Attorney, Philadelphia, PA, for Appellee.

Before: BECKER, Chief Judge, RENDELL and HEANEY, [*] Circuit Judges.

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, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), and Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (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 --- U.S. ----, 117 S.Ct. 623, 136 L.Ed.2d 546 (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 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

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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 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 reassigned 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, 116 S.Ct. 2035, 135 L.Ed.2d 392 (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 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.

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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 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...

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