In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2761
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
S COTT G USTIN,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 1:09-CR-10019-002—Michael J. Reagan, Judge.
A RGUED M AY 9, 2011—D ECIDED JUNE 7, 2011
Before EASTERBROOK, Chief Judge, and W OOD and
W ILLIAMS, Circuit Judges.
E ASTERBROOK, Chief Judge. A jury concluded that,
while confined at a federal prison, Scott Gustin and a
confederate stabbed and wounded another inmate.
Gustin was convicted of attempted murder, 18 U.S.C.
§113(a)(1), and sentenced to life imprisonment. His
defense at trial was that he did not attack the victim, who
deliberately misidentified him as the aggressor in order
2 No. 10-2761
to settle a score among gangs and protect the true per-
petrator. The attack occurred in a common area, so
other inmates could have been responsible, but the
jury believed the victim, and other evidence also
supports the conviction.
After Gustin appealed, we appointed new counsel to
advocate his interests. Gustin’s new lawyers make a
single argument: That the district judge should have
disallowed Gustin’s actual defense and insisted that he
raise a different one: entrapment. Technically Gustin
could have argued entrapment while denying that he
attacked the victim, see Mathews v. United States, 485 U.S.
58 (1988), but inconsistent defenses usually are the func-
tional equivalent of a guilty plea. In Mathews itself, the
defendant admitted that he had committed the charged
acts but contended that he lacked criminal intent, in part
because of entrapment. Since Mathews we have never
seen any defendant argue: “I didn’t do it, but if I did
I was entrapped.” So appellate counsel is effectively
contending that the trial judge was obliged to override
the defense strategy of denying that Gustin stabbed
the victim. Appellate counsel suggests “outrageous
governmental conduct” as a separate defense, but it is
not one this circuit recognizes, see United States v. Van
Engel, 15 F.3d 623, 631 (7th Cir. 1993); United States v.
Olson, 978 F.2d 1472 (7th Cir. 1992), and in the circum-
stances would have come to the same thing as entrap-
ment. Failure to remake the defense as one based on
entrapment was plain error by the court, appellate
counsel insist.
No. 10-2761 3
A proposal that a district judge must force counsel
to present an entrapment defense is defective at the level
of both theory and practice. We start with theory.
Every criminal defendant has a right, in consultation
with counsel, to choose a line of defense. See United
States v. Gonzalez-Lopez, 548 U.S. 140, 150 (2006). Judges
must not interfere. As a rule, judges should not even
inquire why the defense follows a particular approach.
Inquiry might breed distrust between lawyer and client,
while providing the prosecutor with valuable informa-
tion that he could not obtain via discovery. See Taylor v.
United States, 287 F.3d 658, 662 (7th Cir. 2002). After all,
an accused’s trial strategy, and the reasons for it, are
covered by the attorney-client privilege and the work-
product privilege. Perhaps a judge would not err by
reminding defense counsel that exploring the possibility
of an entrapment defense could help. But the judge
would rarely know enough before trial to advise defense
counsel about the best lines of argument—and it is not
a judge’s job to assist one advocate at another’s expense.
Gustin’s appellate counsel do not contend that the
judge should have made a suggestion before trial; they
think that the judge should have intervened at trial. By
then, however, defense strategy is set, and the risk of
disruption (and inciting distrust) is substantial. More
than that: introducing entrapment as a defense at trial
not only undermines the defense plan but also hands
a weapon to the prosecutor. For, when entrapment is at
issue, the prosecutor must establish that the accused was
predisposed to commit the unlawful acts. See Jacobson
4 No. 10-2761
v. United States, 503 U.S. 540 (1992). To demonstrate
predisposition, the prosecutor can introduce evidence
about the accused’s character and criminal history,
subjects that otherwise would be off limits. See, e.g., United
States v. Bastanipour, 41 F.3d 1178, 1183 (7th Cir. 1994). Few
defendants willingly open this door, and no defendant
would want a judge to invite evidence of predisposition
by injecting entrapment into a case spontaneously.
These considerations lead us to conclude that it can
never be error, let alone plain error, for a district judge
to permit defense counsel to omit an entrapment defense.
If an entrapment defense offers the best chance of
acquittal, its omission could reflect ineffective assistance
of counsel, but it could not demonstrate judicial error.
Gustin does not contend that his trial lawyer furnished
substandard assistance, and at all events an argument
along these lines is best reserved for a collateral attack.
See Massaro v. United States, 538 U.S. 500 (2003). We
have not found any appellate decision, in the history of
this nation’s jurisprudence, holding that a trial court
committed plain error by neglecting to instruct the jury
on an entrapment defense never raised by the defendant
or his lawyer. Our case will not be the first.
So much for theory. Practice is equally dispositive
against Gustin’s current argument. He is a member of
Nuestra Familia, a gang based in northern California. The
victim was a member of the Sureños, a gang from
southern California. The Sureños are enemies of the
Norteños, a gang that has an alliance with Nuestra Fa-
milia. Gustin contends, and the prosecutor does not deny,
No. 10-2761 5
that the constitution and democratically elected leader-
ship of Nuestra Familia require its members to kill mem-
bers of the Sureños on sight—or be killed themselves.
(That a criminal gang has a constitution and practices
internal democracy would not be a surprise to a reader
of Peter T. Leeson, The Invisible Hook: The Hidden Econ-
omics of Pirates 23–44 (2009).) Gustin’s appellate lawyers
contend that putting a member of the Sureños in the
same cell as Gustin compelled him to attack and thus
should be equated to governmental inducement to do so.
The federal prison in Pekin, Illinois, where this crime
occurred, has experienced conflict among members of
different gangs. Assigning each gang to its own cellblock
could reduce inter-gang violence, but at the expense of
allowing one gang to dominate each cellblock. That not
only would undercut the authority of the warden and
guards but also would imperil non-members of gangs,
for they would be in hostile territory without allies.
Considerations such as these underlay an argument that
the Constitution forbids what Gustin’s appellate lawyer
thinks it requires: reserving cellblocks for members of
single gangs, which also entails segregation by race and
national origin. Yet we have held that the Constitution
leaves to the sound discretion of prison officials how to
deal with gangs in prison. See David K. v. Lane, 839 F.2d
1265 (7th Cir. 1988). See also Johnson v. California, 543 U.S.
499 (2005) (risk of racial violence does not justify routine
racial segregation in prison).
Pekin’s warden decided to scatter gangs’ members
throughout the general population, so that any given
6 No. 10-2761
gang was a minority in each cellblock. The warden’s
policy dealt with the risk of inter-gang violence by
trying to identify the most likely aggressors and victims,
then assigning the aggressors to segregation while
keeping the potential victims in protective custody. The
warden and guards also tried to negotiate truces between
gangs.
The warden believed that a truce was in place at Pekin
between the Sureños and the Norteños. Even so, before
assigning the victim to a cell with Gustin, guards asked
him whether the assignment would create a problem.
Gustin declared that the assignment was acceptable and
pledged to remain peaceable. He broke that promise, and
his appellate lawyers contend that the guards should
have known that he would. Maybe, but ours is not a suit
by the victim contending that the guards violated the
eighth amendment by exposing him to a known dan-
ger. See Farmer v. Brennan, 511 U.S. 825 (1994).
Gustin’s insistence that every guard must have
known that he was bound to attack his cellmate confesses
predisposition, which defeats any entrapment defense.
Gustin’s trial lawyer omitted this defense because it had
no prospect of success, yet would have opened the door
to damning evidence that would have painted Gustin as
a predator with a history of violence and no qualm be-
forehand or repentance afterward. And it would not have
done trial counsel any good to argue self-defense, duress,
or any of the other justification defenses. If Gustin feared
that his cellmate would attack him, he should have
raised the subject with the guards. The law does not
No. 10-2761 7
permit a preemptive strike when other options are avail-
able. See United States v. Bailey, 444 U.S. 394 (1980).
A contention that the guards’ conduct was “outrageous”
because they know how members of gangs behave, and
that the guards compelled Gustin to attack by placing
him near a member of a rival gang, is the sort of thing
that kidnappers and terrorists put in demand notes. It is
not a legal argument; it is the opposite of one. A kidnapper
may write: “Pay me $5 million or I will kill the victim.
The fault will be yours for refusal to pay. If the victim
dies, you bring it on yourselves.” Terrorists make
similar statements when they insist that a nation that
fails to withdraw from disputed territory is “responsible”
for the deaths from the terrorists’ action. Or suppose a
drug dealer wires himself to a bomb that will detonate if
he ever refuses a drug deal, or his confederates say
that they will beat anyone who does not take every profit-
able offer and hand over 50% of the gain. The dealer
then says that it would be “outrageous” for an agent to
offer drugs, because the dealer just couldn’t refuse. The
idea in any of these situations is that a person who
makes a sufficiently grave and credible threat shifts to
someone else the responsibility if that threat is carried out.
This is not how the criminal law works. A kidnapper
who kills his victim when the ransom is not paid is
guilty of premeditated murder; he cannot contend that
failure to pay is entrapment or “outrageous government
conduct” that excuses the killing. Someone who commits
a crime willingly, when the opportunity is extended on a
silver platter, must pay the penalty. See United States v.
8 No. 10-2761
Murphy, 768 F.2d 1518, 1524 (7th Cir. 1985). Gustin cannot
shift the blame to the guards. Placement of the victim
in Gustin’s cell (or perhaps even his cellblock) played a
causal role, to be sure; had Gustin and his victim always
been physically separated, the attack could not have
occurred. One could equally say that a bank’s placement
of money in tellers’ drawers, rather than a locked vault, is
responsible for bank robbery and excuses the robber, who
could not turn down the opportunity. So too with people
who walk on deserted streets at night: making oneself
an easy target does not excuse a mugging. We are non-
plussed that Gustin’s appellate lawyers could think
otherwise.
A FFIRMED
6-7-11