Ladmarald Cates v. United StatesLadmarald Cates v. United States
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 14-CV-1092 - J. P. Stadtmueller, Judge.
SYKES, Circuit Judge. On
Cates was charged with two federal crimes: (1) depriving Lemons of her civil rights under color of law,
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 postvеrdict 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 case now returns on Cates‘s petition for collateral relief under
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.”
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 viоlent. 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 she lived with her 15-year-old brother LaQuan Lemons, her boyfriend Jermaine Ford, and her two children.
When the officers arrived, they secured the home and discovered that LaQuan was wanted on an outstanding juvеnile arrest warrant. Lemons, who was her brother‘s guardian, insisted that the warrant was mistaken. She called LaQuan‘s social worker to sort things out, but he didn‘t answer. She left a message asking him to call her back.
In the meantime the officers took LaQuan into custody and placed him in the back of their squad. Officer Hannah stayed there with him while Cates returned to the house. Lemons sent her children away with Ford‘s sister, ostensibly because of thе broken glass in the house. (There‘s conflicting evidence about who suggested this measure.) She then sent Ford to the store to buy cigarettes. Lemons and Cates were now alone in the house.
Lemons testified that she didn‘t consent to perform oral sex but she also didn‘t resist because she was afraid. Cates was bigger and stronger than she, and if she tried to fight him, she would lose. Cates also had his service firearm and could kill her if she tried to resist. Finally, she testified that Cates‘s position of authority as a police officer made her feel as though she had no chоice but to comply. She explained: “You have to listen to what the police say,” and it‘s not a “smart idea” to fight them. She did as he demanded.
When Ford returned from his errand, Cates gave him $10 and told him to go back to the store to buy water for him and Officer Hannah. Ford again left the house, and Lemons was once again alone with Cates. After several more minutes of oral sex in the bathroom, Cates demanded intercoursе. Lemons was too afraid to resist. She testified that Cates grabbed her by the neck, pushed her head toward the sink, and raped her. When he was finished, Lemons vomited on the floor of the dining room. (According to Ford‘s account, however, Lemons threw up on the dining-room floor before she made the 911 call.)
As Cates and Lemons emerged from the house, LaQuan‘s social worker called back. Lemons answered and handеd the phone to Hannah, who was still in the squad with LaQuan. At some point Officer Hannah released LaQuan from the squad, and Cates walked down the street to use the bathroom at a nearby restaurant, behavior that Hannah found to be odd. Two of Lemons‘s friends-Kandice Velez and Kristi Brooks-were in the neighborhood and approached the house. The evidence is inconsistent about whether Lemons told one or both оf them that she had been raped, either at this point or later. The troublesome neighbors then emerged
from across the street, and Lemons began to scream at them. (She denied this.) To calm things down, Officer Hannah escorted Lemons and LaQuan back into the house, where Lemons began yelling at him about why he wasn‘t arresting the neighbors. The situation became increasingly volatile, and Lemons and LaQuan hurled expletivеs at the officer. In the midst of this escalating argument, LaQuan suddenly fled the house. Hannah gave chase and attempted to rearrest him. Chaos ensued outside.
LaQuan resisted arrest, and Officer Hannah struggled to physically subdue him. The officer‘s use of force against her brother enraged Lemons, and she kicked Hannah twice in the back. (She denied this too.) Cates then returned to the scene. LaQuan, still resisting, picked up a briсk, which prompted Hannah to summon backup. A swarm of officers responded and finally gained control over the situation. They arrested LaQuan, Lemons, Velez, and Brooks. Lemons remained agitated, so an officer had to drag her to the paddy wagon. As she was being taken into custody, she protested in a loud voice that she had been raped. The officers did not take her seriously.
At the police station, Lemons continued to say that she had been raped and vomited several times. She was transported to the hospital, where she repeated her rape charge to a nurse. The nurse examined her and noted that she had bloodshot eyes, pain and swelling in her neck, and had vomited, all potential indications of having been choked. But she had no signs of vaginal trauma or injury.
The FBI and Milwaukee police oрened an investigation into Lemons‘s allegations.
times and he eventually admitted both the oral sex and intercourse. He maintained that the entire sexual encounter was consensual. Stains on Cates‘s uniform and boxer shorts were tested and found to contain Lemons‘s DNA.
In September 2011 a grand jury issued an indictment charging Cates with two federal сrimes. Count One alleged that he deprived Lemons of her civil rights under color of law in violation of
The civil-rights crime carries a prison term of up to one year, but the maximum penalty increases to ten years if the violation results in bodily injury.
The jury returned a split verdict, finding Cates guilty on the civil-rights count and not guilty on the firearm count. The jury also found by special verdict that Cates did not cause bodily injury but did commit aggravated sexual abuse. As we‘ve noted, the latter finding raised the maximum penalty from one year to life in prison.
When the sentencing date arrived, Cates announced that he was dissatisfied with his retained counsel. Indeed, two months earlier we removed the attorney from our bar for neglecting a client in an unrelated case. See In re Boyle-Saxton, 668 F.3d 471 (7th Cir. 2012). The Wisconsin Supreme Court
later revoked the attorney‘s law license for “widespread” professional misconduct. Office of Lawyer Regulation v. Boyle, 850 N.W.2d 201, 206 (Wis. 2014). The judge allowed the attorney to withdraw, adjourned the sentencing hearing, and ordered new counsel appointed.
Just days before the rescheduled sentencing hearing, Cates‘s new attorney moved to enlarge the time to file postverdict motions under Rules 29 and 33 of the Federal Rules of Criminal Procedure. The deadline had expired five months earlier, and nеw counsel had been on the case for two months before he asked the judge to reopen the time. The judge denied the motion, finding that the attorney had delayed too long and had not shown excusable neglect. Cates, 716 F.3d at 448-49. When things finally got back on track, the judge rescheduled the sentencing hearing and imposed a sentence of 24 years in prison.
Cates‘s new counsel stayed with the case through direct appeal but challenged only the judge‘s denial of his untimely request for more time to file posttrial motions. That argument was clearly a loser; we affirmed, finding no abuse of discretion. Id. at 449-50. We also expressed our concern that Cates‘s attorney had not challenged “any aspect of [the] conviction or sentence on appeal.” Id. at 450.
After his ill-fated direct appeal, Cates filed a pro se petition to vaсate his conviction and sentence under
appeal). The judge denied relief across the board. As relevаnt here, he concluded that the challenged jury instruction was correct.
II. Discussion
Cates asks us to vacate his conviction and sentence based on a violation of his Sixth Amendment right to the effective assistance of counsel for his defense.
Cates‘s Strickland claim rests on an alleged instructional error. If the jury instruction on aggravated sexual abuse misstated the law and the error was not harmless, then the first part of the Strickland standard has been met. There is no conceivable strategic reason for a defense lawyer to forgo a challenge to a prejudicial jury instruction; a mistake of law is deficient performance. See Vinyard v. United States, 804 F.3d 1218, 1225 (7th Cir. 2015) (citing Hinton v. Alabama, 134 S. Ct. 1081, 1089 (2014)). And because the instructiоn at issue here concerned a key sentencing factor that would significantly elevate the maximum prison term, Strickland prejudice is established if there is a reasonable probability that a properly instructed jury would have reached a different result. These are pure questions of law, so our review is de novo. See United States v. Bloom, 846 F.3d 243, 255 (7th Cir. 2017).
We begin with the statutory definition of aggravated sexual abuse. A person commits the crime of aggravated sexual abuse if he “knowingly causes another person to engage in a sexual act-(1) by using force against that other person; or (2) by threatening or placing that other person in fear that any person will be subjected to death, serious bodily injury, or kidnapping.”
Note the carve-out language in the latter statute, which reinforces the difference
We long ago held that the term “force” in
Alternatively, a jury may find a defendant guilty of aggravated sexual abuse based on proof of a particularly grievous kind of threat or fear-a threat or fear of death, serious bodily injury, or kidnapping.
Here the jury instruction on aggravated sexual abuse told the jurors that “[t]o establish force, the government need not demonstrate that the defendant used actual violence.” The instruction continued: “The requirement of force may be satisfied by a showing of ... the use of threat of harm sufficient to coerce or compel submission by the victim.” Finally, the instruction stated that “[f]orce may also be implied from a disparity in coercive power or in size between the defendant and [Lemоns].”
By defining “force” in this expansive way, the jury instruction flatly contradicted the text of
It was a serious mistake for trial counsel not to object to this badly flawed jury instruction. Appellate counsel, moreover, should have raised the instructional error on apрeal. The argument he did raise was certain to fail. And although trial counsel had forfeited the error and thus review would have been limited to plain error, the flaw in the instruction was both obvious and clear under current law. See United States v. Natale, 719 F.3d 719, 731 (7th Cir. 2013) (“Plain error requires obvious error that is clear under current law.“) (internal quotation marks omitted). Finally, the last step in plain-error analysis is satisfied here. The instructional error affected Cates‘s substantial rights, see id., for the same rea- sons that the error was prejudicial under the Strickland standard. We turn to that inquiry now.
Two circumstances give us substantial reason to doubt that the special verdict rested on either of these findings. First, the jury specifically found that Cates did not cause bodily injury, which makes it unlikely that the jurors believed that he used physical force against Lemons. Second, the jury acquitted Cates on the firearm charge, which makes it unlikely that the jurors believed that he placed Lemons in fear of being shot.
Lemons also testified that she did not resist Cates‘s demands because he was bigger and stronger and was а police officer. That‘s clearly insufficient to support a finding of force under
In closing, it‘s worth repeating that the errors by trial and appellate counsel meant the difference between a sentence capped at one year and a maximum penalty of life in prison. We have little difficulty concluding that the errors by Cates‘s counsel prejudiced his case. Relief under
REVERSED and REMANDED.