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Thursday, May 05, 2016

Ind. Decisions - 7th Circuit decides Indiana case May 4th by 2-1 vote

In U.S. v. Resnick (ND Ind., Moody), a 25-page, 2-1 opinion, Chief Judge Woods writes:

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 (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. * * *

The evidence at trial was sufficient to sustain Resnick’s brandishing conviction. The district court did not abuse its discretion in admitting K.M.’s testimony, nor did it commit plain error in the timing or content of its instruction limiting that testimony. Finally, the admission of testimony revealing that Resnick refused to submit to a polygraph was not plain error. The judgment of the district court is therefore AFFIRMED.

BAUER, Circuit Judge, dissenting. [begins at p.18]
I would remand this case for retrial. I believe that the district court committed reversible plain error by admitting Resnick’s refusal to submit to a polygraph examination into evidence and allowing the government to comment on this refusal during closing arguments. These actions virtually exclude the possibility of Resnick receiving a fair trial.

Our standard of review—plain error—is a “high bar,” see United States v. Love, 706 F.3d 832, 841 (7th Cir. 2013), but it should not be an impenetrable shield. Here, the introduction of the refusal to take the polygraph and the government’s subsequent comments constituted plain error which polluted the other evidence and compromised the entire trial. It had the effect of replacing the jury as factfinder and convicting Resnick by judicial fiat, not by the evidence presented. Because such actions prejudiced Resnick and seriously called into question the fairness, integrity, or public reputation of his trial, I would remand. * * *

I admire the discussion of the problem by the majority; I disagree with the legal implication. The error was plain, damning, and cannot be overlooked. I would reverse for a new trial that would be conducted without any discussion of the refusal of Resnick to submit to a polygraph examination.

Posted by Marcia Oddi on May 5, 2016 11:42 AM
Posted to Ind. (7th Cir.) Decisions