In the
United States Court of Appeals
For the Seventh Circuit

No. 99-4230

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JORGE M. LOPEZTEGUI,

Defendant-Appellant.



Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 99-CR-106--Rudolph T. Randa, Judge.


Argued September 11, 2000--Decided October 25, 2000



  Before BAUER, EVANS, and WILLIAMS, Circuit Judges.

  EVANS, Circuit Judge. 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.

  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.
  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.

  Lopeztegui’s motion for a new trial argued that
newly discovered evidence provides the basis for
an entrapment defense. The "evidence" is a
BAPR/1 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.

  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.

  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."
  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."

  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.

  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.

  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.

  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."

  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).

  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.

  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.

  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.

AFFIRMED.

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