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’ demands. 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 twocount 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 aggravated 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 constituted 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 defendant’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 restraint); see also Wilkins v. Gabby, 559 U.S. 34, 38 (2010) (noting

that “(i)njury and force, however, are only imperfectly correlated”). 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 Jeopardy 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 conviction 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 insufficient 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.