United States v. Angela Nolan-Cooper

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, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958) (Frankfurter, J., concurring). Particularly *245troublesome 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. Cueruelo, 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, 877 (3d Cir.1978). Employing the Cueruelo test as the means of determining the answer to this question in this unique type of ease, 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.