United States v. David A. Resnick
823 F.3d 888
| 7th Cir. | 2016Background
- In 2008 Resnick, a long‑haul trucker and felon, took 9‑year‑old T.M. on a cross‑country trip during which he repeatedly sexually abused T.M.; T.M. later identified a laptop found in a 2011 search as the one from the trip.
- During a traffic stop in Washington, Resnick put a pistol to T.M.’s head and threatened him; T.M. later testified about the brandishing at trial.
- A second minor, K.M., later reported similar sexual abuse by Resnick after an overnight hotel incident; the government sought to admit K.M.’s testimony under Fed. R. Evid. 414.
- In a 2011 interview during execution of a search warrant, Resnick denied the abuse allegations, declined to take a polygraph without consulting a lawyer, and was later indicted in Indiana on counts including aggravated sexual abuse, interstate transportation of child pornography, brandishing a firearm in furtherance of a crime of violence (18 U.S.C. § 924(c)), and being a felon in possession of a firearm.
- At trial the district court admitted K.M.’s testimony under Rule 414 and allowed testimony that Resnick refused a polygraph; Resnick did not contemporaneously object to the polygraph testimony and did not testify at trial.
- A jury convicted Resnick on all counts; the Seventh Circuit affirmed on appeal, rejecting challenges to sufficiency of evidence for brandishing, admission of K.M.’s testimony, and (under plain‑error review) admission of testimony about Resnick’s refusal to take a polygraph.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for brandishing a firearm (§ 924(c)) | Resnick: T.M. was not certain he saw a gun; single inconsistent eyewitness insufficient to prove the object was a firearm beyond a reasonable doubt | Prosecution: T.M. consistently testified he was threatened with a gun, identified/drew the model, and witnesses established Resnick habitually carried similar guns | Court: Viewing evidence in light most favorable to govt, a rational juror could find brandishing proved beyond a reasonable doubt; conviction affirmed |
| Admissibility of K.M.’s testimony under Fed. R. Evid. 414 and Rule 403 | Resnick: Court misread Rule 414 as creating a presumption of admissibility and failed to exclude K.M. under Rule 403 | Govt: K.M.’s molestation was highly probative and similar to charged conduct; court balanced prejudice and probative value | Court: District court erred in wording but applied correct 414/403 analysis; K.M.’s testimony admissible and limiting instruction timing not plain error |
| Admission of testimony that Resnick refused polygraph | Resnick: Polygraph evidence is unreliable; refusal to submit implicates Fifth Amendment and cannot be used as evidence of guilt | Govt: No polygraph result introduced; refusal is probative of consciousness of guilt and defendant forfeited contemporaneous objection | Court: Reviewed for plain error; declined to find plain error — law unsettled on categorical exclusion and refusal did not affect substantial rights given strong case against Resnick |
| Constitutional (Fifth Amendment) claim for use of polygraph refusal | Resnick: Refusal to take polygraph after Miranda warnings is protected silence; using it violated Fifth Amendment and deprived him of fair trial | Govt: Interaction included exculpatory statements and the law is not settled that refusal is Fifth Amendment error; any error was not plain or prejudicial | Court: Did not decide definitively whether Fifth Amendment was violated; even if error, not plain or affecting substantial rights under Olano; conviction affirmed |
Key Cases Cited
- United States v. Olano, 507 U.S. 725 (plain‑error standard for forfeited errors)
- Jackson v. Virginia, 443 U.S. 307 (standard for reviewing sufficiency of the evidence)
- Alleyne v. United States, 133 S. Ct. 2151 (elements that increase mandatory minimums must be found by jury)
- United States v. Scheffer, 523 U.S. 303 (skepticism toward polygraph reliability and juror deference to polygraph evidence)
- Miranda v. Arizona, 384 U.S. 436 (Miranda warnings and custodial interrogation principles)
- Griffin v. California, 380 U.S. 609 (prosecutorial comment on defendant’s silence prohibited)
- Puckett v. United States, 556 U.S. 129 (plain‑error review clarification)
- Chapman v. California, 386 U.S. 18 (harmless‑beyond‑a‑reasonable‑doubt standard for constitutional error)
- United States v. Ross, 412 F.3d 771 (district court discretion on polygraph evidence)
- United States v. Lea, 249 F.3d 632 (Seventh Circuit’s caution on polygraph evidence)