NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 17, 2008
Decided September 3, 2008
Before
KENNETH F. RIPPLE, Circuit Judge
DANIEL A. MANION, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 07‐3275
DAVID KASTER, Appeal from the United States District
Petitioner‐Appellant, Court for the Eastern District of
Wisconsin
v.
No. 06 C 944
JUDY P. SMITH, Warden,
Respondent‐Appellee. Rudolph T. Randa, Chief Judge
O R D E R
In 2001, David Kaster, a former high‐school swim coach, was convicted in
Wisconsin state court of two counts of sexual assault by a school staff member, one
count of fourth‐degree sexual assault, and one count of disorderly conduct. Kaster
appealed one of his convictions for sexual assault by a school staff member, arguing
No. 07‐3275 Page 2
that he was not a “member of the school staff” as defined in Wis. Stat. § 948.095 at the
time he committed the assault because he was no longer under contract. After
exhausting his state court remedies, Kaster filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. The district court denied habeas relief, and we affirm.
I.
David Kaster was the head coach of the boys’ and girls’ swim teams at
Ashwaubenon High School (the “School”) in Green Bay, Wisconsin. Kaster had been
involved with the swim teams at the School since 1983. He began as an assistant coach
and eventually became the head coach of the varsity swim teams, a position he held
through the 1998‐1999 school year. In 2001, Kaster was charged and convicted of several
sexual offenses involving four girls whom he had coached at the School. Most relevant
to this appeal is Kaster’s conviction on count one of the criminal complaint for sexual
assault of a student by a school staff member, in violation of Wis. Stat. § 948.095.1
Section 948.095 of the Wisconsin Statutes makes sexual contact between a student and a
“member of the school staff” illegal. The statute defines “school staff” as “any person
who provides services to a school or a school board, including an employee of a school
or a school board and a person who provides services to a school or a school board
under a contract.” Wis. Stat. § 948.095(1)(b).
In count one, the criminal complaint alleged that Kaster fondled the breasts of
L.J.B.—a 16‐year‐old girl who was on the swim team Kaster coached—at his home on
March 14, 1999. At trial, Kaster laid out his theory of defense to that count. According
to Kaster, § 948.095 did not apply to his fondling of L.J.B. because he was not a
“member of the school staff” on March 14, 1999. Kaster, who was not a teacher at the
School, had a contract with the School to provide services as the swim coach for the
1998‐1999 school year. But Kaster argued, and presented evidence consistent with his
argument, that he was no longer under a contractual obligation to provide services to
the School as of March 14 because the high school swimming season had ended in mid‐
1
Kaster is not contesting the many encounters he had with other members of his
swim team that led to his other convictions, including sexual contact on several
occasions with S.I.F. during her junior year. The acts Kaster committed against S.I.F.
occurred at the School, Kaster’s house, and the hotels where they stayed together while
attending swim clinics.
No. 07‐3275 Page 3
February. In response to Kaster’s theory of defense, the state presented evidence that
Kaster’s contract was for the entire school year and had not expired after the end of the
swimming season. It also presented evidence that Kaster continued to provide services
to the School as the swim coach even after the season had ended. According to the
School’s athletic director, Kaster engaged in post‐season activities such as fundraising
and budget planning, as well as conducting “open swims” at the School’s pool.
At the close of evidence, Kaster argued that he could be found guilty under Wis.
Stat. § 948.095 only if he was “under contract” on March 14, 1999. Consistent with that
argument, Kaster proposed an instruction stating that the phrase “provides services” in
§ 948.095 did not include a person providing services on a volunteer basis. The trial
court rejected Kaster’s argument and proposed instruction. It chose to give the standard
instruction on the definition of “school staff,” the text of which mirrors the statutory
definition of “school staff” found in § 948.095(1)(b).2 The court also gave instructions on
the elements of a § 948.095 offense. The language of those instructions mirrored the
statutory text of § 948.095 as well.
After the jury convicted him on count one (as well as the other offenses
mentioned above), Kaster appealed his conviction on that count and pressed his
interpretation of § 948.095 on appeal to the Wisconsin Court of Appeals. That court,
like the trial court, rejected Kaster’s attempt to limit the phrase “school staff” in
§ 948.095 to only those who were “under contract” at the time of the commission of the
sexual assault and held that the trial court did not err by using the standard jury
instruction defining “school staff,” which, again, simply matched the statutory
language. It then reviewed the evidence at trial and stated: “[T]he evidence at trial was
sufficient to allow the jury to conclude that Kaster was providing services to the school
or school board when he committed the March 14 assault.” State v. Kaster, 663 N.W.2d
390, 395 (Wis. Ct. App. 2003) (“Kaster I”).
Kaster next filed for state collateral relief. He argued that the language from the
court of appeals’ decision quoted above created a new element for a § 948.095 offense
that required a defendant to be providing services to the school at the exact moment of
2
The instruction stated: “‘School staff’ means any person who provides services
to a school or school board, including an employee of a school or school board and a
person who provides services to a school or a school board under a contract.”
No. 07‐3275 Page 4
the alleged sexual offense. Because he was not aware of this “new element” at the time
of his trial, Kaster argued that he was denied the right to present a defense and the right
to a jury verdict on all the necessary elements of the charged offense. In a written
opinion, the Wisconsin Court of Appeals rejected that argument. According to the
court, the language from its prior opinion “did not create an additional element but
instead provided a description of Kaster’s relationship with the school for the purpose
of analyzing whether Kaster was school staff.” State v. Kaster, 714 N.W.2d 238, 240 (Wis.
Ct. App. 2006) (“Kaster II”). Kaster raised the same issues in his petition for review to
the Wisconsin Supreme Court, but that court denied review.
After exhausting his state court remedies, Kaster filed a petition for a writ of
habeas corpus in the district court where he renewed his argument that he was denied
the right to present a defense and the right to a jury verdict on all the necessary offense
elements by the state court of appeals’ interpretation of § 948.095 in Kaster I. The district
court denied Kaster’s petition for a writ of habeas corpus, and Kaster appealed. We
granted Kaster’s request for a certificate of appealability and directed the parties to
address whether the Wisconsin Court of Appeals’ interpretation of § 948.095 created a
new offense element and therefore denied Kaster his right to present a defense to that
element and his right to be found guilty by a jury on all the elements of the charged
offense.3
II.
This court reviews issues of law raised by a petition for writ of habeas corpus de
novo. Lechner v. Frank, 341 F.3d 635, 638 (7th Cir. 2003). “A federal court may afford
relief to a state prisoner if the state court’s decision was ‘contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States.’” Hill v. Wilson, 519 F.3d 366, 368 (7th Cir. 2008)
(quoting 28 U.S.C. § 2254(d)(1)). Kaster bears the burden of making that showing.
Lechner, 341 F.3d at 638.
3
While the order granting the certificate of appealability also asked the parties to
brief the issue as to whether § 948.095 is unconstitutionally void for vagueness, Kaster
has not pursued that claim.
No. 07‐3275 Page 5
Kaster does not assert that he did not fondle L.J.B.’s breasts on March 14, 1999.
Instead, Kaster claims that the Wisconsin Court of Appeals’ interpretation of Wis. Stat.
§ 948.095 violated two of his clearly established constitutional rights: the right to present
a defense and the right to a jury verdict beyond a reasonable doubt on all elements
necessary for conviction. See Petr.’s Br. at 16‐17 (citing, inter alia, Wolff v. McDonnell,
418 U.S. 539, 564 (1974), and In re Winship, 397 U.S. 358, 364 (1970)). Kaster bases those
claims on his belief that the Wisconsin Court of Appeals created a new element for a
§ 948.095 offense when it rejected Kaster’s narrow interpretation of § 948.095 in Kaster I.
In support of his position, Kaster seizes upon the Wisconsin Court of Appeals’
statement in Kaster I that “the evidence at trial was sufficient to allow the jury to
conclude that Kaster was providing services to the school or school board when he
committed the March 14 assault.” Kaster I, 663 N.W.2d at 395; see also Kaster II, 714
N.W.2d at 240 (“[T]he statute . . . required that [Kaster] be providing services at the time
of the alleged sexual contact . . . .”). Kaster interprets that passage and similar
statements as establishing what he calls a “temporal proximity requirement.” As we
understand Kaster’s use of that term, Kaster claims that to convict him, the jury would
have had to find either that he was a contract employee or that he was a volunteer and
committed the sexual assault while acting in his capacity as a volunteer swim coach.
Kaster asserts that he was not on notice before trial that § 948.095 only applied to
volunteers who committed a sexual assault while providing services to the school.
Because of that alleged lack of notice, and because the jury was not instructed on this
so‐called “temporal proximity requirement” (i.e., that he could only be convicted as a
volunteer if he had committed the sexual assault while he was providing services to a
school), Kaster contends that his constitutional rights were impaired.
Kaster’s arguments are without merit. First, Kaster is wrong to interpret the
Wisconsin Court of Appeals’ opinion in Kaster I as requiring that Kaster be in the act of
providing services to the School at the moment he sexually assaulted L.J.B. If that was
what the court meant, then it would have reversed Kaster’s conviction on count one,
since the evidence showed that Kaster assaulted L.J.B. at his home and not while
providing services to the School. But the court did no such thing. A more reasonable
interpretation of what the state court of appeals meant when it stated that Kaster “was
providing services to the school . . . when he committed the March 14 assault” is that
Kaster was still providing services to the School as the swim coach when he sexually
assaulted L.J.B. That interpretation is supported by the rest of the court’s opinion,
which detailed all the evidence presented at trial related to the off‐season services
No. 07‐3275 Page 6
Kaster continued to provide as the swim coach for the School.4 See Kaster I, 663 N.W.2d
at 395.
The Wisconsin Court of Appeals in Kaster I and Kaster II did seem to believe that
some sort of temporal nexus between the sexual assault Kaster committed and the
services Kaster provided to the School was required by § 948.095. But then again, so did
everyone else. At Kaster’s trial, both parties proceeded on the assumption that there
needed to be such a connection. Kaster states in his own brief that “the dispute at trial
was precisely over whether Kaster was ‘school staff’ at the time of the alleged sexual
contact . . . on March 14, 1999.” Indeed, Kaster’s whole defense to count one was that
he was not a “member of the school staff” because he was no longer under contract (and
therefore no longer “provid[ing] services to a school”) at the time the assault occurred.
True, Kaster anchored that defense on his narrow and textually unsupported
interpretation of § 948.095, which sought to limit the definition of “school staff” to only
those under contract with a school.5 But that does not diminish the fact that Kaster’s
defense also depended on the assumption that there had to be some temporal
connection between the assault and Kaster’s provision of services to the School. The
Wisconsin Court of Appeals was only echoing what Kaster had assumed to be true both
at trial and on appeal when it rejected Kaster’s argument that he had to be under
contract at the time of the assault and concluded it was enough that he still be providing
services to the School, whether voluntary or contractual, at the time of the assault.
An examination of the text of § 948.095 reveals that what everyone assumed to be
true about that statute is in fact supported by the statutory language. A requirement
that there be some temporal connection between the sexual assault and the defendant’s
provision of services to the school can be reasonably deduced from the text of the
statute. The statute—and, just as significantly, the instructions given to the jury in this
case, which mirror the statutory language—give the elements of the offense in the same
4
Indeed, while Kaster was continuing to provide services to the school, L.J.B.
was a member of the team and a student he coached. She likely would not have been
with him at his house were he not her coach.
5
We note that we have little authority to review the state court’s interpretation of
its own criminal statute. See Schlesinger v. Councilman, 420 U.S. 738, 755 (1975) (noting
that state court “alone can define and interpret state law”).
No. 07‐3275 Page 7
tense. The statute states that the “defendant is a member of the school staff” who “has
sexual contact” with a child who “is enrolled as a student in a school or a school
district.” Wis. Stat. § 948.095(2) (emphases added). Given that statutory language, as
well as Kaster’s conduct at trial, the Wisconsin Court of Appeals’ conclusion in Kaster II
that “the statute put Kaster on notice that a conviction required that he be providing
services at the time of the alleged sexual contact” was reasonable. At the least, it was
not so deficient as to warrant granting habeas relief. See Jones v. Wallace, 525 F.3d 500,
503 (7th Cir. 2008) (“To be unreasonable, the [state court] decision must not only be
incorrect, but so incorrect that it lies outside of the range of reasonable conclusions.”).
III.
For the foregoing reasons, we AFFIRM the judgment of the district court denying
Kaster’s petition for a writ of habeas corpus under 28 U.S.C. § 2254.