Seventh Circuit Finds Ineffective Assistance of Trial and Appellate Counsel for Failure to Object to Instruction on Use of Force in Aggravated Sex Abuse Prosecution.

In this case, the defendant responded to a call in his role as a police officer. As circumstances would have it, he had intercourse with the person who placed the call. The entire proceedings were about whether or not this was sexual assault or a consensual encounter.

The jury was supplied with an instruction without objection that, for the purposes of aggravated sexual abuse defined force expansively to include physical and psychological force. The jury was also instructed to consider the size difference between the two in determining force.

Appellate counsel did not raise this issue on appeal, either. This led to the Defendant filing a 2255 petition alleging ineffective assistance of both counsel regarding the failure to object to this instruction.

The Seventh Circuit found that the jury instruction was contrary to the plain text of the statute as well as prior Circuit precedent. They concluded that this instruction should have been challenged on at the trial court and on direct appeal.

The Seventh Circuit found that both counsel were ineffective based on the record below and set aside the conviction, remanding for further proceedings.

The case is United States v. Cates; No. 16-1778.

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