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Cates v. United States

United States Court of Appeals, Seventh Circuit

February 20, 2018

Ladmarald Cates, Petitioner-Appellant.
v.
United States of America, Respondent-Appellee.

          Argued September 7, 2017

         Appeal from the United States District Court for the Eastern District of Wisconsin. No. 14-CV-1092 - J. P. Stadtmueller, Judge.

          Before Wood, Chief Judge, and Bauer and Sykes, Circuit Judges.

          SYKES, CIRCUIT JUDGE.

         On a summer day in 2010, Iema Lemons called 911 to report that her neighbors were vandalizing her home on Milwaukee's north side. Officer Ladmarald Cates and his partner responded, but the investigation went seriously off track. By an odd series of events, Cates and Lemons were left alone in her home, and the officer sexually assaulted her.

         Cates was charged with two federal crimes: (1) depriving Lemons of her civil rights under color of law, 18 U.S.C. § 242; and (2) using or carrying a firearm in relation to that crime, id. § 924(c)(1)(A). The civil-rights charge was premised on the sexual assault by a law-enforcement officer, but the government also alleged that Cates's conduct amounted to aggravated sexual abuse, id. § 2241(a), which if proven would dramatically increase the maximum penalty from one year to life in prison, § 242. A jury convicted Cates on the civil-rights count, acquitted him on the firearm count, and found by special verdict that he committed aggravated sexual abuse.

         Soon after trial Cates lost confidence in his lawyer, so the judge allowed her to withdraw and appointed a new attorney. A few days before sentencing, the new lawyer moved to extend the deadline for posrverdict motions, which had expired several months earlier. The judge denied the motion, holding that the lawyer waited too long to file it and had not shown excusable neglect. Cates was sentenced to 24 years in prison.

         The new lawyer continued to represent Cates on direct appeal but inexplicably challenged only the denial of his untimely request for more time to file postverdict motions. We rejected that doomed argument and expressed concern that counsel had raised no challenge to Cates's conviction or sentence. United States v. Cates, 716 F.3d 445, 450-51 (7th Cir. 2013).

         The case now returns on Cates's petition for collateral relief under 28 U.S.C. § 2255. He argues, among other things, that his trial and appellate counsel were constitutionally ineffective for failing to challenge the jury instruction on aggravated sexual abuse. The judge rejected that claim, finding no error in the instruction.

         We reverse. As relevant here, aggravated sexual abuse is knowingly causing another person to engage in a sex act by "using force against that other person." § 2241(a)(1). At the government's request, the judge instructed the jury that "force" includes not just physical force but also psychological coercion and may even be inferred from a disparity in size between the defendant and victim. That contradicts both the statutory text and our precedent. "Force" under § 2241(a)(1) means physical force, not psychological coercion or threats. United States v. Boyles, 57 F.3d 535, 544 (7th Cir. 1995). The jury instruction relaxed the government's burden and permitted the jurors to find force even if they concluded that Cates only used psychological coercion or an implied threat based on his size or status as a police officer. Cates's trial and appellate counsel made key legal errors in not challenging the flawed instruction.

         And the errors were prejudicial. There is a reasonable probability that a properly instructed jury would find the evidence insufficient to prove aggravated sexual abuse. That, in turn, would cap Cates's maximum penalty at one year.

         I. Background

         Lemons and Cates have given radically different accounts of the events of July 2010. Neither has been entirely consistent, and the physical evidence and testimony from other witnesses likewise conflicts. So the jury had to sort through many credibility questions. What follows is a brief summary of the key evidence and procedural history of the case. This is not a comprehensive account; it's just enough background to understand this appeal.

         At about 1 p.m. on July 16, 2010, Lemons called 911 to report that a neighborhood dispute had turned violent. She had an argument with her neighbors earlier in the day, and the neighbors retaliated by throwing bricks and bottles through her windows. Officer Cates and his partner, Officer Alvin Hannah, arrived at her home, a duplex on Milwaukee's north side where ...


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