In the

United States Court of Appeals

For the Seventh Circuit

No. 10-2761

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

SCOTT GUSTIN,

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.

ARGUED MAY 9, 2011—DECIDED JUNE 7, 2011

Before EASTERBROOK, Chief Judge, and WOOD and

WILLIAMS, Circuit Judges.

EASTERBROOK, 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 perpetrator. 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 functional 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 circumstances would have come to the same thing as entrapment. 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 information 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 workproduct 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 Familia. Gustin contends, and the prosecutor does not deny,
No. 10-2761 5

that the constitution and democratically elected leadership of Nuestra Familia require its members to kill members 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 Economics 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 danger. 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 beforehand 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 available. 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 profitable 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 nonplussed that Gustin’s appellate lawyers could think

otherwise.

AFFIRMED

6-7-11