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Seventh Circuit: ‘Force’ for Aggravated Sexual Abuse Requires ‘Physical Force,’ Not Psychological Coercion

by Christopher Zoukis

The United States Court of Appeals for the Seventh Circuit reversed the denial of a prisoner’s § 2255 claim of ineffective assistance of counsel, rendering the prisoner’s conviction on charges of aggravated sexual abuse void. The February 20, 2018, opinion sent the case back to the district court for further proceedings.

Milwaukee police officer Ladmarald Cates and his partner responded to a 911 call reporting a fight. During the course of the call, Cates found himself alone with Iema Lemons, one of the alleged participants in the fight. According to Lemons, Cates demanded oral sex and ultimately choked and raped her in the bathroom of her home. Following the sexual encounter, the fighting outside the home resumed, and several individuals, including Lemons, were arrested.

At the police station, Lemons told other officers that she had been raped. She was taken to the hospital, and an examination revealed signs that she had been choked. There were no signs of vaginal injury or other trauma.

The FBI and Milwaukee Police opened an investigation into Lemons’ allegations. Cates initially denied a sexual encounter, but after Lemons’ DNA was found on his boxers, he admitted to having sex with her. He said, however, that it was consensual.

Cates was charged with two federal crimes as a result of the investigation. Count one alleged deprivation of civil rights by sexual assault, in violation of 18 U.S.C. § 242. Count two alleged the use of a firearm in furtherance of a crime, in violation of 18 U.S.C. § 924(c)(1)(A). The Government also alleged two aggravators to the § 242 charge: bodily injury and aggravated sexual abuse.

Cates was convicted of violation of § 242 and aggravated sexual abuse. He was found not guilty of the § 924(c) charge. While violation of § 242 carries a prison term of up to one year in prison, the aggravator increases the maximum to life. Immediately before sentencing, Cates replaced his attorney, who was later disbarred. He was sentenced to 24 years in prison.

Two months after being hired, Cates’ new attorney filed a motion to extend the time to file post-verdict motions. But by this time, the post-verdict motions were five months late. Finding no excusable neglect, the district court denied the motion.

Cates’ new attorney then filed a direct appeal in which he challenged a single issue—the denial of his motion for enlargement of time. When the Seventh Circuit entertained the appeal, it expressed concern that the attorney made no other challenges. The argument about post-verdict motions was a “clear loser,” and the attorney failed to challenge what the court saw as a real error: the jury instructions used to define aggravated sexual abuse. Because no argument was made as to the propriety of the instruction, the Court couldn’t rule on it. But it made clear that there appeared to be a mistake made by Cates’ attorneys.

Cates got the message and filed a pro se motion under § 2255. Among other claims, he alleged ineffective assistance of counsel for failure to challenge the aggravated sexual abuse instruction at trial and on appeal. The district court denied his petition, but certified the jury instruction question for appeal. The Seventh Circuit took up the appeal, found ineffective assistance of counsel, and reversed.

According to the Court, the crime of aggravated sexual abuse under 18 U.S.C. § 2241 requires the jury to find that the defendant “(1) actually used force against the victim or (2) that he made a specific kind of threat—i.e., that he threatened or placed the victim in fear of death, serious bodily injury, or kidnapping. At trial, the jury instruction on aggravated sexual abuse advised the jurors that “[t]o establish force, the government need not demonstrate that the defendant used actual violence,” and that “[t]he requirement of force may be satisfied by a showing of . . . the use of threat or harm sufficient to coerce or compel submission by the victim.” The jury instruction further stated that “[f]orce may also be implied from a disparity in coercive power or in size between the defendant and [Lemons].”

The Court found this definition of force to be erroneous. As precedent all over the country, including the Seventh Circuit, is now making clear, force means physical force. The jury instruction given at Cates’ trial allowed the jury to find aggravated sexual abuse without actually finding force—physical force.

Both Cates’ trial attorney and appellate attorney failed to render effective assistance of counsel when they missed this obvious error. Strickland v. Washington, 466 U.S. 668 (1984), requires a showing of deficient performance and prejudice to make out an ineffective assistance of counsel claim. The Court easily found deficient performance—the jury instruction misstated the law, and the attorneys’ failure to do something about that was a mistake of law. Prejudice also was easily established, as Cates was given 23 extra years in prison as a result of his attorneys’ deficient performance.

Accordingly, the Seventh Circuit granted § 2255 relief, reversed the district court, and remanded for further proceedings. See: Cates v. United States, 882 F.3d 731 (7th Cir. 2018). 

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