Ineffective Assistance of Counsel and Jury Instructions

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7^th Circuit Court of Appeals

Case Name: Ladmarald Cates v. United States of America

Case No.: 16-1778

Officials: WOOD, Chief Judge, and BAUER and SYKES, Circuit Judges.

Focus: Ineffective Assistance of Counsel and Jury Instructions

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 postverdict 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.

Reversed and Remanded

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.