230 F.3d 1000 (7th Cir. 2000)
UNITED STATES OF AMERICA, Plaintiff-Appellee,v.JORGE M. LOPEZTEGUI, Defendant-Appellant.
No. 99-4230
In the  United States Court of Appeals  For the Seventh Circuit
Argued September 11, 2000Decided October 25, 2000

Appeal from the United States District Court  for the Eastern District of Wisconsin.  No. 99-CR-106--Rudolph T. Randa, Judge.
Before BAUER, EVANS, and WILLIAMS, Circuit Judges.
EVANS, Circuit Judge.


1
Were we giving awards for  creativity, novelty, or perhaps even chutzpah,  Jorge M. Lopeztegui would be a serious candidate  to receive one. Lopeztegui, convicted on various  drug charges, wants a new trial so he can raise  an entrapment defense. And the basis for the  defense is quite unusual. He wants to argue that  the government intentionally kept him out of  jail, and because he was free, he committed the  crimes.


2
In the spring of 1998, a Wisconsin drug  enforcement agent was working with a snitch named  Critton, who was talking with Lopeztegui about a  drug deal. At a meeting, with Critton wired for  sound, Lopeztegui agreed to sell a half a kilo of  cocaine, but he had two problems: the cocaine was  not readily available, and he was scheduled to be  sentenced in state court the next day on an  unrelated drug charge. Hearing this news, the  state agent, Broeske, solved one of Lopeztegui's  problems. She approached the assistant state's  district attorney and asked him to request a  postponement of the pending sentencing  proceeding. The case was adjourned, and  subsequently Critton purchased both crack and  powder cocaine from Lopeztegui. The sales formed  the basis of a federal indictment alleging two  counts of delivery and one of conspiracy.


3
Prior to the start of his trial, Lopeztegui  presented a pro se motion to dismiss the charges  based on what he called "outrageous government  conduct," alleging that Broeske, the assistant  district attorney, and his own state court  attorney, Michael Chernin, were in cahoots; that  they conspired to postpone the state sentencing  in order to complete the federal investigation.  Had that not happened, he would have received a  prison sentence and been behind bars unable to  complete the drug deals with Critton. The  district judge denied the motion, Lopeztegui went  to trial, and a conviction followed on all  counts.


4
Lopeztegui's motion for a new trial argued that  newly discovered evidence provides the basis for  an entrapment defense. The "evidence" is a  BAPR1 report issued by the State Bar of  Wisconsin in response to a grievance Lopeztegui  filed against his state court attorney, Mr.  Chernin. The motion was denied and Lopeztegui  appeals, raising this and two minor other issues  for our review.


5
Rule 33 of the Federal Rules of Criminal  Procedure provides that a defendant may be  awarded a new trial on the basis of newly  discovered evidence when that evidence (1) came  to his knowledge after trial, (2) could not have  been discovered sooner with due diligence, (3) is  material and not merely impeaching or cumulative,  and (4) would probably lead to acquittal in the  event of a retrial. United States v. Woolfolk,  197 F.3d 900, 905 (7th Cir. 1999), cert. denied,  120 S. Ct. 1705 (2000). The government, in  opposing Lopeztegui's motion, argues that the  BAPR report is not "evidence," that Lopeztegui  had actual knowledge of the facts contained in  the report prior to trial, and that, in any  event, nothing in the report supports an  entrapment defense.


6
The threshold issue is whether the BAPR report  constitutes evidence sufficient to trigger the  application of Rule 33. The government asserts  that the report merely contains the conclusions  and opinions of a state bar investigator, which  would not be admissible in court, and therefore  the report is not "evidence." Lopeztegui  counters, however, that reports and findings of  public agencies are exceptions to the hearsay  rule under Federal Rule of Evidence 803(8). More  importantly, he really is arguing that the facts  contained in the report, not the report itself,  are new evidence. Clearly, the facts revealed by  the investigator's interviews of Agent Broeske,  the state prosecutor, and attorney Chernin would  be admissible at a new trial. Thus, they  constitute "evidence."


7
It is more difficult, however, for Lopeztegui  to argue that the "facts" identified by the BAPR  investigator are new evidence. Indeed, as we just  noted, he filed a pro se motion to dismiss prior  to trial in which he claimed that "[o]fficers of  the court acted in conjunction with law  enforcement by means of manipulating [d]ue  [p]rocess in rescheduling defendant's date of  sentencing in state court for the sole purpose to  [sic] subject the defendant to an undercover  investigation by law enforcement." Lopeztegui now  attempts to explain this away by arguing that he  initially focused his attention on his state  court attorney (who was found blameless in the  report) and only became aware of the extent of  Agent Broeske's participation in the sentencing  hearing adjournment after the BAPR report was  issued. So we'll indulge Mr. Lopeztegui and  consider the "evidence," under an expanded view  of the word, as "new."


8
But even if the facts contained in the BAPR  report are considered new evidence, they do not  come close to supporting an entrapment defense.  To prevail on an entrapment defense a defendant  must prove (1) that the government induced the  crime and (2) that he was not predisposed to  commit it. Mathews v. United States, 485 U.S. 58,  63 (1988). Lopeztegui argues, citing United  States v. Hollingsworth, 27 F.3d 1196, 1200 (7th  Cir. 1994), that he was not predisposed to commit  the crimes for which he was convicted because,  without Agent Broeske's intervention, he would  not have had the physical ability (i.e., the  freedom) to do so.


9
Lopeztegui is guilty of a major misreading of  the meaning of "predisposition." It is true that  Hollingsworth recognized that predisposition goes  beyond the mere willingness to commit the crime,  and also includes some consideration of the  defendant's ability to carry it out. Id. However,  we made clear that we did "not wish to be  understood as holding that lack of present means  to commit a crime is alone enough to establish  entrapment if the government supplies the means."  Id. at 1202.


10
The problem for Lopeztegui is that he initiated  the drug connection with Critton. In addition, he  had previously been convicted of multiple drug  offenses and was on bond awaiting sentencing on  another drug conviction when the events in  question took place. And we can imagine no  scenario where a defendant with this kind of  baggage would be found to be without  predisposition. This is not a case in which the  government planted in Lopeztegui's mind the idea  to commit the crime, nor even a case in which it  supplied the means of carrying it out. Rather, by  extending Lopeztegui a little rope, the  government merely gave him the opportunity to  carry out the crime he already wanted to commit.


11
Lopeztegui goes on to argue that Agent  Broeske's actions constitute outrageous  government conduct in violation of his due  process rights. We refused to recognize that  doctrine in United States v. Boyd, 55 F.3d 239,  241 (7th Cir. 1995), but Lopeztegui attempts to  distinguish Boyd, pointing out that it involved  prosecutorial misconduct, not "misconduct by law  enforcement."


12
This argument is misplaced. First, we have  declined to recognize the doctrine of outrageous  government conduct in a case involving alleged  misconduct by law enforcement. See United States  v. Garcia, 89 F.3d 362, 367 (7th Cir. 1996).  Second, even if we were to recognize the  doctrine, it is hard to imagine how Agent  Broeske's actions could be branded as  "outrageous." Repeating himself, Lopeztegui  argues that it was outrageous for Broeske to keep  him out of prison because if he had been in  prison he would not have had the opportunity to  commit the crimes with snitch Critton. This  argument, ludicrous as it is, has been rejected  by at least one circuit court. See United States  v. Baker, 63 F.3d 1478, 1500 (9th Cir. 1995)  (rejecting "sentencing manipulation" claim in  which law enforcement delayed arresting defendant  in order to gather additional evidence).


13
Finally, Lopeztegui raises an ineffective  assistance of counsel claim. He says his federal  trial counsel (Anne Bowe) rendered ineffective  assistance in two respects: (1) she failed to  pursue his entrapment defense, and (2) she  allegedly conceded his guilt on the two  substantive delivery charges.


14
Direct appeal, of course, is not the preferred  method of raising an ineffective assistance of  counsel claim because the record may not be  developed enough to make the necessary factual  determinations. But having been warned of this  fact during oral argument, his counsel forged on.  We do not fault counsel for that choice in this  case because the claim, no matter when it is  raised, is totally devoid of merit.


15
Failing to push an entrapment defense, which  would have probably gotten Ms. Bowe laughed out  of court, was not ineffective. And considering  the strength of the government's case--Agent  Broeske's and Critton's testimony along with  audio tapes of the transactions--counsel's choice  to give some ground and focus the defense on the  only arguably winnable count, conspiracy--was  wise, not derelict.


16
AFFIRMED.



Notes:


1
 BAPR is the Board of Attorneys Professional  Responsibility, an investigative arm of the State  Bar of Wisconsin.


