United States v. Resnick

UNITED STATES OF AMERICA v. DAVID ALAN RESNICK

No. 2:11 CR 68

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA HAMMOND DIVISION

December 19, 2019

OPINION and ORDER

Petitioner David Alan Resnick has filed a motion to vacate his sentence under 28 U.S.C. § 2255. (DE # 183.) Resnick argues that he is entitled to relief on the basis that his trial counsel provided ineffective assistance during the plea, trial, and sentencing phases of his case. For the reasons that follow, Resnick's motion will be denied.

I. BACKGROUND

A. Plea Agreement

In May 2011, a grand jury indicted Resnick on charges of aggravated sexual abuse of a nine-year-old boy (hereinafter "A.M.") in violation of 18 U.S.C. § 2241(c) (Count I) and transportation of child pornography in violation of 18 U.S.C. § 2252(a)(1) (Count II). (DE # 1.) In January 2013, Resnick entered into a plea agreement with the Government pursuant to Federal Rule of Criminal Procedure 11(c)(1)(B), in which he agreed to plead guilty to Count Two, in exchange for the Government's dismissal of Count One. (DE # 23.)

In the Plea Agreement, Resnick and the Government agreed to recommend certain sentence enhancements, two of which are relevant here. First, Resnick agreed to a seven-level enhancement under § 2G2.2(b)(3)(E) for distributing child pornography to a minor with the intention of persuading, inducing, enticing, coercing or facilitating the travel of a minor to engage in prohibited sexual conduct. (Id. at 4.) Second, he agreed to a five-level enhancement under § 2G2.2(b)(5) for engaging in a pattern of activity involving the sexual abuse or exploitation of a minor. (Id.) The Plea Agreement contained a provision that permitted the Government to withdraw from the Agreement if Resnick violated any of the provisions of the Plea Agreement, including his continuing obligation to demonstrate acceptance of responsibility. (Id. at 5.) The Plea Agreement, if accepted by this court, would have lowered the minimum penalty Resnick faced from 30 years, to five, and would have lowered the maximum penalty Resnick faced from life, to 20 years.

B. Change of Plea Hearing

On February 13, 2013, Resnick appeared with his counsel for his change of plea hearing before Magistrate Judge Andrew P. Rodovich. During the hearing, Judge Rodovich went over the Plea Agreement with Resnick, including the Guidelines calculations. Resnick agreed with all of them. (DE # 31 at 7-9.)

Judge Rodovich then requested that the Government recite the factual basis for the plea, which had not been incorporated into the Plea Agreement. The Government stated that the evidence at trial would have shown, among other things, that Resnick transported minor A.M. across state lines on "a two-week, over-the-road trip" and "[w]hile on that trip, the defendant sexually abused A.M. repeatedly." (Id. at 18.) WhenJudge Rodovich asked Resnick whether he agreed with the Government's recitation of the factual basis for the plea, Resnick disagreed. While Resnick agreed with the Guidelines calculation set forth in the Plea Agreement - including the enhancements identified in subsections 7(d)(ii)(B), and (D) - he denied engaging in any contact offense with the victim. (Id. at 21.)

First, while Resnick agreed to a seven-level enhancement for showing child pornography to a minor with the intent to entice the minor to engage in sexual conduct, under USSG § 2G2.2(b)(3)(E), he claimed that A.M. found the child pornography on Resnick's computer on his own. (Id. at 22-23.) Resnick told Judge Rodovich that he was agreeing to the enhancement "for guideline purposes." (Id. at 23.) However, when pressed by Judge Rodovich, Resnick attempted to walk his denial back, and agreed that he had provided child pornography to A.M. (Id. at 24.)

Next, Judge Rodovich attempted to clarify Resnick's position on the five-level enhancement under USSG § 2G2.2(b)(5), for engaging in a pattern of activity involving the sexual abuse or exploitation of a minor. While Resnick agreed to the imposition of the enhancement, he denied that he ever sexually abused A.M. or any other minor. (Id. at 25.) Resnick first attempted to explain his position by claiming that the possession of child pornography itself would constitute a pattern of activity involving the sexual abuse or exploitation of a minor. (Id. at 26.) However, the Government correctly explained that the definition of "sexual abuse or exploitation" specifically excludes themere receipt or possession of child pornography.¹ When Judge Rodovich explicitly asked Resnick whether he traveled in interstate commerce with the intent of engaging in a pattern of activity involving sexual abuse or exploitation of a minor, Resnick responded, "No, I did not." (Id. at 29.)

The Government then expressed its position that Resnick had breached the terms of the Plea Agreement by denying relevant conduct and denying the factual basis for the sentencing enhancements. The Government stated that it wished to withdraw from the Agreement. (Id. at 34-36.) Defense counsel's position was that Resnick could agree to the enhancements for the purpose of reaching an agreement with the Government, while also maintaining his denial that he engaged in the conduct that would support the enhancements, on the basis that he was not pleading guilty to the offense related to that underlying conduct. (Id. at 35.)

Judge Rodovich granted the parties nine days to determine whether a resolution could be reached regarding the Plea Agreement. The parties could not come to an agreement and at a second change of plea hearing, before this court on February 22, 2013, the Government requested that this court permit it to withdraw from the Agreement. (DE # 157 at 3.) Resnick's counsel, who Resnick concedes "vigorouslydefended" the validity of the Plea Agreement during discussion with the prosecutor and Judge Rodovich, told this court "there is no plea agreement." (Id. at 5.) This court found that there was no agreement between the parties and set the matter for trial. (Id.)

The Government subsequently offered Resnick a second plea deal. (See DE # 194-1.) This second deal removed the enhancements that led to the problems during the first change of plea hearing, and instead only required Resnick to admit that he transported child pornography across state lines. (Id. at 4.) The second deal, made pursuant to Rule 11(c)(1)(C), would have guaranteed Resnick a 20-year term of incarceration. (Id.) Resnick did not accept this second plea deal. (See DE ## 53, 189 at 2.)

C. Trial

After Resnick rejected the Government's second plea deal, the Government filed a superseding indictment, adding charges for brandishing a firearm in furtherance of a crime of violence (Count III) and possessing a firearm as a felon (Count IV). (DE # 57.) Thereafter, Resnick's case proceeded to trial on all four counts.

The following recitation of the trial is taken from the Seventh Circuit's opinion on direct appeal.

In 2008, A.M.² was nine years old and lived in Indiana with his mother and stepfather. Resnick was a friend of the family who sometimes took A.M. and his siblings to dinner or gave them gifts. In July 2008, A.M.'s parents allowed him to accompany Resnick on a two-week, cross-country work trip. A.M. believed thatthey would go to Disneyland, and that it would be his job to care for Resnick's puppy.

A.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 A.M.'s head. "If you tell anybody," Resnick said, "I will kill you and your family." A.M. kept silent. Resnick and A.M. returned to Indiana, and A.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 A.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, A.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 A.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 A.M. and K.M.'s accusations of abuse.

At first, Resnick said that he did not know A.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 A.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 theSouthern 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 A.M. The

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