raised on appeal the government hasn't really contested that that's present in this case i think the performance of appellate counsel really was quite shameful if i can use that word  but it was clearly deficient he stood at this podium and asked the court to affirm both the conviction and sentence but sent it back on a procedural issue that had no merit so i think we have to talk about prejudice then and that's whether any appeal would have resulted in a different outcome other than affirms that then in terms of the merits of this jury instruction that was problematic and that both attorneys messed and both attorneys should have raised because under the law of this circuit force in fear are clearly demarcated terms that is not so in some of the other shirkers and what they cannot imply force i'm unsure you know they use that for things to problem that i mean although there's a threat element to the twenty to forty one a it has to be a threat of death serious bodily injur y kidnappings other kinds of threats lesser body injury for example you're saying had to be somehow excluded that's right so so there are two subsections and the first subsection is what that jury instruction was trying to define saying forced is this and then after the court explains that the court said alternatively you can find aggravated sexual abuse on the basis of fear of death or serious bodily injury we think that the jury did not convict under that subsection because the the jury did not find mr cates guilty beyond reasonable doubt of using the firearm in connection with the offense and if that was the victim testimony essentially i was scared he was bigger he was a police officer he had a gun and so it appears the jury did not credit her testimony that in fact this assault occurred because she feared serious bodily injury and that wasn't really even the theory of the prosecution here the prosecution argued from this erroneous instruction as i understand that that is the case that's exactly right they said you know look he's a police officer he's much bigger than her and that was he testimony you know if there is one points she said well and the prosecutor asked her so you know what happened next well i agreed to have sex with him well did you mean agreed well i didn't agree but i let him do whatever he was going to do because he's bigger he's a police officer i'm scared of him so that that's a serious you know it i think it's more probable than not that had the jury been correctly instructed it would have found not guilty on the aggravated sexual abuse because again it didn't find guilty either causing bodily harm and so this was a very close case that jury instruction was was problematic and  charged with just regular sexual abuse the non aggravated form because that's that's not an aggravator under the separate deprivation of civil rights right without the aggravator it's a one year alamy that's right and charged as such so that's not available for the government to back up to no that's right well and i mean what you back up to is just the one year maximum penalty under section two forty two  what establishes the distinction between the twenty two forty one and twenty two forty two offenses definition only but it's probably wrong on the double jeopardy question right about the lesser included i don't recall the case of that force this is fear force this physical force forces physical force right just like the johns we have a whole nother line of kate i mean we've been thinking about force in all different kinds of contexts heavily and yes physical force right johnson twenty ten or whatever but that's right you know we're all over that so you know the the typical remedy for ineffective assistance of counsel on appeal would be to give the person a new appeal what we've argued is that that would essentially be duplicat who would be duplicative it's a matter of law for this panel to decide either it was erroneous and plainly around news in which case he's entitled to a new trial or it wasn't and he didn't suffer prejudice and so it should be a firm so this issue was certified in the district court and of course recertified on appeal mr cates in our view has had two ineffective attorneys who never spotted the issue and then of course was pro se in the district court and i think the rule that pro se pleading should be construed liberally and the fact that the district court actually looked at the jury instructions and said i don't see anything wrong with them means there's no waiver here right and he talked about the ineffectiveness with respect to the jury instructions and then keyed it to the question from the jury right which which involved aggravated sexual abuse so he certainly raised it and said there's a problem here i don't know what it is and that's something we pointed out brief i think judge samuel a did an admirable job with i think a sixty four page opinion you know going through each claim giving an analysis i think it really would have helped in this case for the district court to appoint lawyer if we're concerned about waiver on appeal this is a case where both lawyers have been criticized by this court and it's not a run of the mill twenty two fifty five now that's not a legal requirement we haven't argue that as a basis for ursule but the accurate you're essentially saying even pro se he hit the side of the barn and so the district judge and everybody else understood what was going on big exactly and twenty to fifty five has some equitable principles associated with it i think it would be extremely inequitable say you haven't waived that yet you have waived this argument because you have to know in effect as soon as attorneys and you are pro se but let me let me turn to trial counsel just briefly ensure hearing is typically required and inthe in this case he alleged two things that i think requires that hearing one is he alleged that he was essentially given no choice but to testify right and so that part i guess the what i recall from the briefs is that he remembers the lawyers saying you really need to testified that the lawyer never wraps it up by saying but of course it's up to you lawyer didn't talk to his lawyer you know he sent out she sent out the investigator to talk to him a couple times but there really wasn't any joint preparation for this trial and part of that was he alleged that she called him up and said they're offering i think maybe seven or eight years something like that do you want to take and said no i'm innocent i'm not going to take that and she's ok well we're going to try and you're going to have to testify that's enough at least to get an evidentiary hearing on whether that took place how many times they met was whether the trial would have come out differently had he not test but but whether had the effect of advice been given whether he would have made the decision to testify or not that you know when we've got a guilty plea it's whether you would have done it without the judge and the defendant on this point there usually is you're not to be not that i recall i can look for that during the break but i don't recall i think it was basically mr cates is going to testify and you know i'm going to call the ineffective assistance both by mr pitts trial counsel bridget boyle and his sentencing in appellate counsel dennis coffee the first allegation of ineffective assistance is the failure to object to a jury instruction an aggravated sexual abuse that was significant because of aggravated sexual abuse was present in the case that increased the maximum sentence to which mr cates was subject to jury instruction looks quite problematic to me to tell you the truth if we're just going to start with whether that was something to object to well i would not say it's problematic in fact i would say so water from stances it was a good an appropriate instruction but outfit how i'm looking  page seventeen of the opening for a force may also be implied from the disparity in coercive power or in size between the defendant and lemons they could have been standing in different rooms i don't see how you it's like an instruction  could have simply decided force existed because he's a really big guy and she apparently is a very petite woman and so the risk that the jury found force on an impermissible basis is the problem her i don't know i mean the statute itself twenty to forty one a which i think has spirit starting point has to subpart using force against the other person that's what we're talking about and then there's a part this is typically address es threats or fear but that has to be death serious bodily injury or kidnapping and the struction did go on in the final paragraph to cover that but the force part of the statute shouldn't blend over into the threat part of the statute or the fear of power and i don't think that that this paragraph that you're talking about which set forth things that the jury could consider in determining whether there was a bit special if you how can the jury consider on the on the force side just the fact that these are two different sized people well the instruction didn't say if there are different sizes you sh patient and so if that's the only thing they find under this instruction they could find they could convict they just find you know he's you know a former player for the chicago bears and she's you know you know petite size model ergo force well i don't think that that's a fair reading of the instruction and worse maybe between the defendant and lemons that's what it sounds well but the implied only means that something you can take into account doesn't it means that you can draw an inference that the disparity in size equals force that's what the english language means here well but but there is no reason to believe based on the record that that was argued or it was the government's theory or was relied upon as a basis to convict mr cates because the testimony of ms lemons about what occurred when so far beyond that she didn't mention the fact that he was bigger than she was contested he you know i don't know and well it was contested but the jury found beyond a reasonable doubt as they were told that they could look at this they didn't have to believe he grabbed her in the way that she said he did they all they had to believe is that an imposing man comes into the room and she decides to case law which is cited that page is thirty seven and thirty eight of my brief all of them logically fit together and all of them are consistent with the testimony of ms lemons but they're not going to i would suggest with all due respect that boils was wrongly decided because boyle's did not rely on the complete wording of the statutory definitions of speculated sexual abuse complaint sexual abuse and so that lent itself to the defense argument that this instruction somehow conflated aggravated sexual abuse and plain sexual abuse but boyle's did not discuss the complete definition of aggravated sexual abuse so i would suggest to you that boils boils distinguish between forcible aggravated sexual abuse in other words the want to fence under twenty two forty one and that the base offense of sexual abuse which is the put in fear threat or put in fear and your instruction from it at the jury to convict injury or kidnapping qualifier well yes said have those qualifiers but yes if they opted to convict under the two definitions but if they opted to convict and of the one definition the instruction was plainly wrong because it reduced the burden below even the eight t offense because it didn't include those qualifiers so it reduced the burden to basically the base offense of sexual abuse in other words put in fear or threat threatened sexual abuse by threat or being placed in fear without the a requirement to fear of death serious bodily injury or kidnapping and that's what this instruction does and that's why it's textual if wrong in terms of extrapolating from the elements of the statute and it's also wrong as a matter of law this circuit right i'd make several responses first of all i want to reiterate our position that this issue was waived by the defendant's failure to raise it in his twenty through fifty five o he already has the general point he said pro se person and you know he's not going to write a brief the way a lawyer would i everybody knew this was on the table you could tell that i didn't know if you look in the arguments submitted to the to judge that in the end you look at his decision you don't find a real discussion of this point because it wasn't really raised the question that was raised by the defendant and it sa page nineteen of the combined document which was just twenty two fifty five titian and his supporting memorandum the jury instruction issue here raised was that his counsel was in effect there for keeping silent and agreeing with assistant u s attorney mel johnson concerning not repeating the jury instruction when the jury asked the question so that that's what this was about and there was a question asked  deliberations in the why jenna was having nothing to do with this and the question was if we answered guilty on count one but answer no to either question one or two do we invalidate the verdict the government crafted an additional jury instruction we asked the court to give judge stan miller disagreed friends and pointed the jury back to the existing instructions and the defense attorney agreed with that and that's the issue that this claim by mr cates raised and that's the issue the judge said no result because no other issue was raised by this claim beyond that i was clearly proffered it tracked the language of twenty to forty one a which defines aggravated sexual abuse as we've noted in terms of force and here the defense argues that this and i'm adding to the discussion the fact that you can see that coercion is not physical force you know so if i found that i said she you i'm going to kidnap your son well you know are you is that force i'm not touching you yeah i should say that do not so at a minimum the reference to coercion in your instruction is what is flawed wrong as a matter of law instruction was erroneous perhaps but  the prior paragraph of the instruction to fines aggravated sexual abuse in the statutory terms it distinguishes itself from sexual abuse by its reference to death serious injury or that's the alternatively paragraph the paragraph of the preceding paragraphs about what force means are the ones we're trying to get you to focus on in the first one you you can involved aggravated sexual abuse if you find that he used force during the alleged counter fine you know if that had been the only thing you'd said maybe you could have said something about restraint because if it's a physical restraint of somebody such that they can't move maybe that's a form of force the troops then to say you can infer force or force can be implied from a disparity of coercive power he's a police officer she isn't or in a disparity size that's the problem well i would suggest that it's more appropriate to look at the entire instruction rather than pick out one phrase and say that's what they're for the whole instruction is your remaining time to tell us why there's no prejudice all right there's no prejudice because the evidence was very strong and the proposition that this was a sexual abuse was lemon's testified that she was alone in the house with officer cates she felt she had no ability to resist him because he was a police officer with a gun he physically manhandled her he spawn her around he pulled down her pants he ordered her to commit oral sex on him he grabbed her head and pulled her hair various times he choked her from behind during sexual intercourse and saw all those things which were not meaningfully contradicted asked to focus on the right things how can we be sure it would have come out the same on the freedoms well i don't think that the fact that there's a phrase in the jury instruction which we could argue about whether it was proper or not i don't think that that needs to be focused on hundreds appropriately focused on in a way that ignores the rest of the instruction and in a way that  es the record here and i say that mr cates did not credibly contradict ms lemons as to what happened because both to the police and then he admitted it in his own testimony he was interviewed in effect three times by the police each time he gave a different story the first time he said there was no sexual contact that's the second time he said well there was some sexual contact but it was all her touching him and she was the aggressor the third time he said well there was oral sex and there was badgering of course but she not only agreed she was  sexual aggressor so the fact that he gave these three different in contrast in versions not only didn't credibly contradict her version as to what occurred but it actually strengthened it because his attempted defense was that week that if i can just finish one more thought on that thank you quickly i would suggest to you that the contention that ms lemons was a sexual aggressor here is it is even more ridiculous because let's think of the circumstances she had been in a physical fight with a neighbor she said she was bruised and a shovel then rocks and bricks were thrown through most of the windows of her  house leaving glass all over the house she felt it was enough for an emergency to call nine one one the police arrived they all agreed that there was too much glass around her children shouldn't be there wasn't safe she called a relative and said come on pick up the kids they jettison that i think that's a very strong argument that trial counsel is affected because it seems to concede you have boils says this jury instruction is wrong and of course the district court couldn't overrule this court's opinion so even if on appeal the court would have overruled oils which i think would have happened on trial counsel than was ineffective and the last point mr johnson i just gave a an argument about that there this was a sexual assault the jury instruction question is is not about that it's about whether it's an aggravated sexual assault or or just a regular one and the conflation of the fear and the force was was the centerpiece of this trial  so thank you very much we will take the case