United States v. Ladmarald Cates ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 19-1806
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LADMARALD CATES,
Defendant-Appellant.
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:11-cr-00200-LA-1 — Lynn Adelman, Judge.
ARGUED JANUARY 15, 2020 — DECIDED SEPTEMBER 1, 2020
Before BAUER, EASTERBROOK, and HAMILTON, Circuit Judges.
BAUER, Circuit Judge. Ladmarald Cates, an officer with
the Milwaukee Police Department, sexually assaulted Iema
Lemons in her home after Cates responded to Lemons’ 911 call.
A jury convicted Cates by special verdict of aggravated sexual
abuse and the district court judge sentenced him to 24 years in
prison. We affirmed on direct appeal. Cates filed an action
2 No. 19-1806
alleging ineffective assistance of counsel. The district court
judge denied the motion. We reversed, finding Cates’ trial and
appellate counsel performed deficiently. The district court
reopened the criminal case and the government obtained a
three-count superseding indictment. Facing a second trial,
Cates moved to dismiss the aggravated sexual abuse by force
allegation based on issue preclusion. After his motion was
denied, this appeal followed. For the subsequent reasons, we
affirm the district court’s denial of that motion.
I. BACKGROUND
On July 16, 2010, Lemons had an altercation with neighbors
outside her home in Milwaukee. Officers Cates and Alvin
Hannah responded to her 911 call. While Lemons was alone
with Cates in her home, he sexually assaulted her.
Lemons testified Cates ordered her to perform oral sex on
him while they were alone. She testified that because he was a
police officer with a firearm and bigger and stronger than she
could fend off, she was afraid and submitted to Cates’ de-
mands. She stated he grabbed her hair and placed his penis
into her mouth while in her bathroom. He turned her around,
pushed her head toward the sink, and inserted his penis into
her vagina. He continued squeezing her neck while penetrating
her. After the sexual assault, Lemons told a friend she had been
raped. Following an altercation with Officer Hannah, after he
declined to arrest Lemons’ neighbors for destruction of her
property, Lemons was arrested. Lemons told the officers that
she had been raped by Cates and they did not believe her.
At the police station she was questioned, even by Cates
who told her to keep what happened between them private.
No. 19-1806 3
Lemons showed signs of physical distress and the police called
the paramedics. At the hospital, Lemons told the nurse about
the rape. The nurse documented swelling on Lemons’ neck and
her bloodshot eyes, which provided evidence suggesting that
she had been choked. She did not show signs of vaginal
trauma or injury.
The FBI and Milwaukee police opened an investigation into
Lemons’ allegation. Cates initially denied having sex with
Lemons in her home. However, he later admitted to having
oral and vaginal sex with Lemons, claiming it was consensual.
Cates’ uniform and boxer shorts were tested, and Lemons’
DNA was found.
In September of 2011, a federal grand jury returned a two-
count indictment charging Cates with violating 18 U.S.C. § 242
(deprivation of rights under color of law) (Count 1) and 18
U.S.C. § 942(c) (use of a weapon during commission of a crime
of violence) (Count 2). Under Count 1, the indictment alleged
that Cates’ actions constituted “aggravated sexual abuse” as
defined in 18 U.S.C. § 2241(a). While the civil rights crime has
a sentence in prison up to one year, the maximum penalty
increases to ten years for a violation that caused bodily
injury. If found guilty of the aggravated sexual abuse, it would
increase the possible sentence up to life in prison.
The jury returned a split verdict that found Cates guilty on
the civil rights count and not guilty on the firearm count. By
special verdict, the jury found Cates committed aggravated
sexual abuse but found Lemons did not suffer bodily injury as
a result of the assault. The jury’s verdict was silent as to
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whether the aggravated sexual abuse was by use of force or by
use of threats or fear.
Cates was sentenced to 24 years in prison. We affirmed the
conviction on direct appeal. United States v. Cates, 716 F.3d 445
(7th Cir. 2013). Cates filed a pro se petition for collateral relief
under 28 U.S.C. § 2255 that included a claim he had received
ineffective assistance from both his trial and appellate counsel.
The district court denied his petition; we reversed, by holding
that the district court had instructed the jury incorrectly on the
elements of aggravated sexual abuse. See In re Cates v. United
States, 882 F.3d 731, 733 (7th Cir. 2018). We found the aggra-
vated sexual abuse instruction which defined “force” to
include not just force, but also psychological coercion was in
error. Id. at 737 (emphasizing that in order to convict on
aggravated sexual abuse, the jury must find that defendant
used actual physical force against the victim or made a specific
kind of threat like fear of death, serious bodily injury, or
kidnapping).
In September of 2018, a grand jury returned a three-count
superseding indictment against Cates. Under Count 1, Cates
was charged with violation of civil rights under color of law,
which again alleged his actions constituted aggravated sexual
abuse. Cates moved to dismiss arguing that the Double
Jeopardy Clause of the Fifth Amendment precluded the
government from charging on retrial that his conduct consti-
tuted aggravated sexual abuse because the first jury had found
Lemons did not suffer bodily injury as a result of the assault.
The district court denied Cates’ motion to dismiss. This
interlocutory appeal followed.
No. 19-1806 5
II. ANALYSIS
We review a district court’s denial of a motion to dismiss an
indictment on double jeopardy grounds de novo. United States
v. Faulkner, 793 F.3d 752, 755 (7th Cir. 2015). The Double
Jeopardy Clause prevents any accused individual from being
“subject for the same offence to be twice put in jeopardy of life
or limb.” U.S. Const. Amend. V. The Double Jeopardy Clause
has an issue preclusion component. The common law doctrine
of issue preclusion prevents the government from relitigating
an issue that was decided by a jury’s prior acquittal. Yeager v.
United States, 557 U.S. 110, 119 (2009).
Using a double jeopardy argument, Cates asks us to
dismiss the aggravated sexual abuse allegation. Aggravated
sexual abuse can be reached when a person “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.” 18 U.S.C. § 2241(a).
Here, force in § 2241(a)(1) “is the exertion of physical power
upon another to overcome that individual’s will to
resist.” United States v. Boyles, 57 F.3d 535, 544 (7th Cir. 1995).
“[W]hereas fear and threats are not classified as physical
power, but rather overcoming one’s will to resist through
mental and emotional power.” Id. Consequently, a person can
be convicted of aggravated sexual abuse by either actual
physical force or by threats or fear.
In the first trial, the jury found by special verdict that Cates
committed aggravated sexual abuse, but that Lemons did not
suffer bodily injury as a result of the assault. Cates contends
6 No. 19-1806
this should preclude the government from arguing that he
committed aggravated sexual abuse by force. It is the defen-
dant’s burden to show that the jury resolved the issue in his
favor. Bravo-Fernandez v. United States, 137 S. Ct. 352, 363
(2016). For Cates to prevail on this argument, he would have to
show the jury decided that he did not use force to cause
Lemons to engage in sexual acts, which is not the case. Here,
Lemons’ testimony provides an account that Cates grabbed her
by the hair, held her by the neck, pushed her against the sink,
and continued squeezing her neck as he demanded sex. The
hospital nurse documented swelling on Lemons’ neck and her
bloodshot eyes, which shows evidence suggesting that she had
been choked.
It is possible to use physical force without causing bodily
injury or when causing minor bodily injury. See, e.g., United
States v. Shaw, 891 F.3d 441, 453 (3d Cir. 2018) (affirming a
§ 2241 conviction based on size disparity while using re-
straint); see also Wilkins v. Gabby, 559 U.S. 34, 38 (2010) (noting
that “(i)njury and force, however, are only imperfectly corre-
lated”). As emphasized in our previous opinion granting a
new trial in this case, the seriousness of trial counsel’s failure
to object to a badly flawed jury instruction was error. Cates,
882 F.3d at 737. In considering an improperly written jury
instruction, we questioned whether the jurors believed Cates
used physical force against Lemons since the jury found Cates
did not cause bodily injury. Id. at 738. However, we also
observed that “Lemons testified that Cates squeezed her neck
and pushed her head toward a sink; that testimony, if credited
by a properly instructed jury, could support a finding of
physical force within the meaning of § 2241(a)(1).” Id.
No. 19-1806 7
In order to prevent a second trial under the Double Jeop-
ardy Clause, the court “must be able to say that ‘it would have
been irrational for the jury’ in the first trial to acquit without
finding in the defendant's favor on a fact essential to a convic-
tion in the second” Currier v. Virginia, 138 S. Ct. 2144, 2150
(2018) (quoting Yeager, 557 U.S. at 127). Given Lemons’
testimony, a rational jury could conclude that Cates forcibly
grabbed Lemons’ neck and continued to squeeze it during the
assault without causing her bodily injury, which would be
consistent with the jury’s findings. Although we want to be
careful not to define force in an expansive way, Lemons’
testimony does support a finding of force within the meaning
of § 2241(a)(1).
Cates’ argument also fails under § 2241(a)(2). In our
previous opinion on this case, we were also skeptical of
whether the jurors believed that Cates placed Lemons in fear
of being shot noting the acquittal of the firearm violation. Cates,
882 F.3d at 738. However, there is sufficient evidence for a
reasonable jury to conclude Cates knowingly placed Lemons
in fear of death or serious bodily injury. Not only did Lemons
testify she was afraid that Cates would use his service firearm
against her if she resisted, his mere size and position as a police
officer also must be accounted for in our analysis under
§ 2241(a)(2). Although Cates contends this evidence is insuffi-
cient to show he knowingly put Lemons in fear of death or
bodily injury, it would not be irrational for a jury to come to
this conclusion. “A jury is entitled to infer knowledge from
circumstantial evidence.” United States v. Uriostegui-Estrada, 86
F.3d 87, 89 (7th Cir. 1996). Lemons testified that given his
authority as a police officer, she felt as though she had to
8 No. 19-1806
comply with his demands. In her testimony, she explained:
“You have to listen to what the police say” and it is not a
“smart idea” to fight the police. Because Cates fails to show the
jury decided he did not use force to cause Lemons to engage in
sexual acts, we find no double jeopardy violation.
III. CONCLUSION
We AFFIRM the district court’s denial of Cates’ motion to
dismiss Count 1 of the superseding indictment.