The 7th Circuit Court of Appeals upheld a man’s child abuse and firearms convictions in a split decision. The court was divided over the admittance of the man's refusal to take a polygraph test into evidence.
David Resnick was supposed to take the son of a family friend, T.M., 9, to Disneyland as part of cross-country work trip since he was a long-haul truck driver, but they did not go there. Instead they drove through Washington state, with Resnick sexually abusing T.M. He also brandished a firearm once against T.M. after they were pulled over, threatening T.M. and telling him not to tell the police officer about what had happened or he would “kill you and your family.”
T.M. did not initially tell anyone about what had happened, and later Resnick invited T.M. and his friend K.M. to a “pool party” at a local Comfort Inn. T.M. got in a fight with K.M. and was sent home, but K.M. was abused. K.M. later told his mother, and Resnick pleaded guilty to child pornography charges in Florida. He was charged in the Northern District of Indiana with 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. He was found guilty on all charges and he appealed.
Chief Judge Diane Wood wrote the opinion for the majority in the case. On the gun charge, she said T.M. didn’t need to be “metaphysically positive” Resnick was brandishing a gun. Also, T.M.’s “pretty sure” comment when asked it was a gun doesn’t mean he wasn’t sure at all. Resnick always carried a gun on his trips as well.
Wood also wrote that K.M.’s testimony was property admitted, and there is no rule limiting instruction when potentially prejudicial testimony is offered as Resnick claimed. Resnick doesn’t say why the instruction the judge gave should not have been used and doesn’t explain how K.M.’s testimony should be limited as he says it should be.
Resnick did not object to his refusal to take a polygraph test being admitted at trial. He claimed the evidence of his refusal violated his Fifth Amendment rights, but Wood wrote a Fifth Amendment violation is not structural error.
“We have never before held that the refusal to take a polygraph implicates the Fifth Amendment. Moreover, Resnick’s refusal to take a polygraph was mentioned only once by each side during the closing, the evidence against him was very strong and his defense did not depend on his credibility because he did not take the stand at trial,” Wood wrote.
Judge William Bauer dissented in the case. He said he would remand the case for retrial because the District Court committed plain error by admitting Resnick’s refusal to submit to a polygraph test into evidence. Bauer wrote the evidence “had the effect of replacing the jury as factfinder and convicting Resnick by judicial fiat, not by the evidence presented.”
He wrote that not only does the refusal incriminate Resnick, but it also assumes that polygraphs themselves are valid evidence, which Bauer said they are plainly not.
The case is United States of America v. David A. Resnick, 14-3791.