Ladmarald Cates, Petitioner-Appellant.
United States of America, Respondent-Appellee.
September 7, 2017
from the United States District Court for the Eastern
District of Wisconsin. No. 14-CV-1092 - J. P. Stadtmueller,
Wood, Chief Judge, and Bauer and Sykes, Circuit Judges.
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.
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
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.
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).
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.
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.
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.
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.
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 ...