United States v. Resnick

823 F.3d 888

UNITED STATES of America, Plaintiff–Appellee

v.David A. RESNICK, Defendant–Appellant.

No. 14–3791.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 26, 2015.

Decided May 4, 2016.

Thomas Matthew McGrath, Attorney, Office of the United States Attorney, Fairview Heights, IL, Plaintiff–Appellee.

Joshua Sachs, Attorney, Law Office of Joshua Sachs & Associates, Evanston, IL, Raymond Wigell, Attorney, Law Offices of

Raymond G. Wigell, Olympia Fields, IL, for Defendant–Appellant.

Before WOOD, Chief Judge, and BAUER and SYKES, Circuit Judges.

WOOD, Chief Judge.

During the summer of 2008, David Resnick, a long-haul truck driver, took T.M., the nine-year-old son of family friends, on a cross-country work trip that was supposed to end at Disneyland. They never got there. Instead, they traveled to Washington State and back to Indiana. Over the two-week trip, Resnick sexually abused T.M. repeatedly. Eventually, T.M. told his parents about Resnick's conduct and Resnick was charged with a variety of child-abuse and firearms offenses. After a four-day trial, a jury convicted Resnick on all four counts.

Resnick challenges his convictions on three bases. He argues that the evidence presented at trial was insufficient to prove beyond a reasonable doubt that he was guilty of the charge of brandishing a firearm. He also contends that his remaining convictions should be reversed because the district court erred in admitting testimony of a second minor victim and in allowing testimony and argument about Resnick's refusal to take a polygraph. Ultimately, all of Resnick's arguments fail. With respect to the references to a polygraph (that never occurred), however, we stress that our result is heavily influenced by the fact that we are reviewing only for plain error. See United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) ; Fed.R.Crim.P. 52(b). This evidence, to the extent it is admissible at all, must be used with great caution. Resnick, however, forfeited his objection to this evidence at trial, and because we find no plain error, we affirm.

I

In 2008, T.M. was nine years old and lived in Indiana with his mother and stepfather. Resnick was a friend of the family who sometimes took T.M. and his siblings to dinner or gave them gifts. In July 2008, T.M.'s parents allowed him to accompany Resnick on a two-week, cross-country work trip. T.M. believed that they would go to Disneyland, and that it would be his job to care for Resnick's puppy.

T.M. was badly mistaken. Throughout the trip, Resnick sexually abused him, subjecting him to pornography, sexual touching, oral sex, and forcible sodomy. One night, as they were traveling through Washington, Resnick drove by a weigh station without stopping. Washington State Patrol Officer Lace Koler pulled over Resnick's rig. Before Koler walked up to the truck, Resnick put a pistol against T.M.'s head. “If you tell anybody,” Resnick said, “I will kill you and your family.” T.M. kept silent. Resnick and T.M. returned to Indiana, and T.M. went home. At that time, he told no one about the abuse he experienced on the trip.

Some time after they returned, Resnick invited T.M. and his friend K.M. to a “pool party” at a local Comfort Inn. K.M. was eight years old. There were no other children at the party, and the two boys were to spend the night alone with Resnick in the hotel. Knowing what was in store, T.M. fought with K.M. and threw a cell phone against the wall. He was sent home, leaving K.M. alone with Resnick. Over the course of the night, Resnick showed K.M. a firearm and allowed him to hold it. They slept in the same bed, and Resnick sexually abused K.M. When K.M. returned home, he initially did not tell his mother what Resnick had done to him. But that November, he confided in her, and she called the police.

In April 2011, law enforcement personnel searched Resnick's house in Florida. They found more than 66 hours of video of minors being sexually abused or exploited. Among the items seized was a laptop that T.M. later identified as the one Resnick brought on their 2008 trip. During the execution of the search warrant, Resnick was interviewed by FBI Special Agents Matt Chicantek and Lana Sabata. Chicantek asked Resnick about T.M. and K.M.'s accusations of abuse.

At first, Resnick said that he did not know T.M. and K.M. at all. Then he backpedaled with a denial of any inappropriate behavior. He stated that he could not remember a traffic stop in Washington on his 2008 trip with T.M., and denied staying overnight alone with K.M. at the hotel. He also denied having carried a firearm since his felony conviction in 2000. When Chicantek asked Resnick whether he would be willing to take a polygraph exam, Resnick demurred, saying he would have to talk to a lawyer first and noting that polygraph exams were unreliable. Resnick was later arrested and indicted in the Southern District of Florida for possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). He pleaded guilty.

At the same time, Resnick was indicted in the Northern District of Indiana on charges related to his abuse of T.M. The Indiana charges included aggravated sexual abuse of a minor, interstate transportation of child pornography, brandishing a firearm in furtherance of a crime of violence, and being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 2241(c), 2252(a)(1), 924(c)(1)(A)(ii), and 922(g)(1).

Resnick elected to go to trial on the Indiana charges. Before trial, the government gave notice that it intended to proffer evidence of Resnick's abuse of K.M. Resnick filed a motion in limine to exclude that evidence. The district court denied Resnick's motion, finding the evidence admissible under Rules 414 and 403 of the Federal Rules of Evidence.

Resnick chose not to take the stand at trial. On the third day of the trial, the government introduced evidence during its direct examination of Agent Chicantek that Resnick had denied any abuse of T.M. or K.M. and had declined to take a polygraph. Resnick's counsel did not object. On cross-examination, Resnick's counsel asked Chicantek if Resnick had sought an attorney during the interview. Chicantek replied that the only time Resnick mentioned a lawyer was when he said that, “before he took a polygraph he would want to consult with an attorney.” Later during cross-examination, Resnick's counsel also noted, through a leading question, that Resnick had said that he wanted to speak with a lawyer before taking a polygraph exam. On redirect, Chicantek stated that Resnick had said that he did not want to take the polygraph because “everyone knows that whoever is operating the polygraph machine can manipulate it to say whatever they want to say or the results to be whatever they want them to be.” Chicantek also noted that, to his knowledge, Resnick never took a polygraph examination. During their closing arguments, the government and Resnick's counsel each made one reference to Resnick's refusal to take a polygraph.

The jury convicted Resnick on all four counts. The district court sentenced him to life imprisonment, plus a mandatory consecutive seven-year sentence for the brandishing count. It entered judgment and sentence that day. Resnick filed a timely notice of appeal.

II

Resnick contends that the government presented insufficient evidence to convict him of the brandishing count. He argues that his remaining convictions should be reversed because the district court erred by admitting evidence of his abuse of K.M. and by admitting evidence that he refused to take a polygraph examination.

A

We first consider Resnick's attack on the sufficiency of the evidence supporting the conviction for brandishing a weapon in violation of 18 U.S.C. § 924(c)(1)(A)(ii). He faces a difficult standard of review, under which we ask only whether, “viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The reviewing court must “give[ ] full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Id.

In relevant part, section 924(c)(1)(A)(ii) punishes any person who, “during and in relation to any crime of violence ... for which the person may be prosecuted in a court of the United States ... uses or carries a firearm” and “brandish[es]” it in furtherance of the crime. Section 924(c)(1)(A)(ii)'s “brandishing” is a fact that increases the minimum penalty for the crime, and therefore “is an ‘element’ that must be submitted to the jury and found beyond a reasonable doubt.” Alleyne v. United States, –––U.S. ––––, 133 S.Ct. 2151, 2155, 186 L.Ed.2d 314 (2013).

The government had to prove that Resnick committed a crime of violence and that he knowingly brandished a firearm during and in relation to the crime. See United States v. Castillo, 406 F.3d 806, 812 (7th Cir.2005). Resnick accepts that the underlying crime of violence was proved beyond a reasonable doubt. See United States v. Munro, 394 F.3d 865, 870 (10th Cir.2005) (sexual abuse of a minor is a crime of violence). He also concedes that there was sufficient evidence for the jury to find beyond a reasonable doubt that Resnick “threatened [T.M.] to prevent him from complaining to Officer Koler and that in doing so he used some object that he wanted [T.M.] to believe was a gun.” But, Resnick says, the evidence was insufficient to prove that that object actually was a gun.

Resnick contends that the government's proof was inadequate because T.M. was the only witness to the brandishing and was not sure that he saw a gun. The fact that there were no other witnesses, however, is beside the point: one eyewitness is sufficient to prove a crime beyond a reasonable doubt. United States v....