noting that "[a] Fifth Amendment self-incrimination violation is not structural error"
How later courts described this case
- noting that "[a] Fifth Amendment self-incrimination violation is not structural error"
- “The law is not settled, and the case against Resnick was airtight.”
- applying the same standard
Written by the judges who cited it.
The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐3791
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
DAVID A. RESNICK,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:11 CR 68 — James T. Moody, Judge.
____________________
ARGUED OCTOBER 26, 2015 — DECIDED MAY 4, 2016
____________________
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
2 No. 14‐3791
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 ar‐
gues 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.
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
No. 14‐3791 3
were traveling through Washington, Resnick drove by a
weigh station without stopping. Washington State Patrol Of‐
ficer 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
4 No. 14‐3791
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‐exami‐
nation, 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
No. 14‐3791 5
said that, “before he took a polygraph he would want to con‐
sult 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 insuffi‐
cient evidence to convict him of the brandishing count. He
argues that his remaining convictions should be reversed be‐
cause 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,
6 No. 14‐3791
“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 (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 per‐
son 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 “bran‐
dishing” 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, 133 S. Ct. 2151, 2155 (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.
No. 14‐3791 7
Resnick contends that the government’s proof was inade‐
quate 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 eyewit‐
ness is sufficient to prove a crime beyond a reasonable doubt.
United States v. Payton, 328 F.3d 910, 911 (7th Cir. 2003).
Resnick overstates the case when he complains of T.M.’s
alleged uncertainty. In his testimony, T.M. confirmed many
times that Resnick had used a gun to threaten him. T.M. saw
the gun well enough to be able to draw a picture of it. He
identified a photograph of the model of gun he believed
Resnick had used and specified that it was a “German Luger.”
He was also able to pinpoint where the gun was located in the
truck cab. Additionally, Tim Podgorski, Victor Savia, Byron
Owen, Rocco Rigsby, and K.M. all testified that they regularly
saw Resnick with guns. Podgorski and Owen added that
Resnick took guns on work trips. Podgorski testified that he
had seen a thin‐barreled Luger in Resnick’s father’s shop that
was similar to the one that T.M. drew.
Resnick makes much of two moments during T.M.’s testi‐
mony when T.M. expressed a bit of uncertainty. On direct
examination, the prosecutor asked T.M., “As you sit here to‐
day, do you know what kind of gun it was that David put up
against your head?” T.M. answered, “Not exactly, no.” The
government then asked T.M., “Are you sure it was a gun?”
T.M. responded, “Pretty sure, ma’am.” Similarly, while asking
how well T.M. saw the gun during the brandishing on cross‐
examination, defense counsel asked, “So you never saw the
gun, did you?” T.M. responded, “Not a hundred percent.”
8 No. 14‐3791
In order for this testimony to be sufficient to sustain
Resnick’s conviction, T.M. need not be metaphysically posi‐
tive that Resnick was using a gun. See United States v. Moore,
572 F.3d 334, 337 (7th Cir. 2009) (noting that in circumstantial
cases “guilty verdicts rest on judgments about probabilities”
(quoting Stewart v. Coalter, 48 F.3d 610, 614 (1st Cir. 1995))).
The government was not required to prove that the object—
which T.M. saw, drew, identified, and felt as a gun while being
threatened—was not something other than a gun. See Jackson,
443 U.S. at 326 (prosecution does not have an “affirmative
duty to rule out every hypothesis except that of guilt beyond
a reasonable doubt”); Harmon v. McVicar, 95 F.3d 620, 623 (7th
Cir. 1996) (“The State need not exclude every reasonable
hypothesis of innocence.”). Finally, Resnick’s characterization
of T.M.’s “pretty sure” as an equivocation demonstrates why
reviewing courts must leave inferences based on witness
demeanor to the trier of fact. See United States v. Woody, 55 F.3d
1257, 1264 (7th Cir. 1995). Depending on T.M.’s inflection,
“pretty sure” could have denoted hesitation, great certainty,
or something in between. It was reasonable to infer that the
object T.M. said he was “pretty sure” was a gun was actually
a gun—and it was an inference for the jury to make.
Similarly, T.M.’s “not a hundred percent” on cross‐exami‐
nation could, in context, just as easily be interpreted as de‐
scribing how much of the gun he saw, rather than his certainty
that it was a gun. And just because someone is not one
hundred percent sure does not mean that he or she is unsure—
few things in life are one hundred percent certain. In any
event, T.M. clearly believed he was threatened with a gun.
Evaluating T.M.’s credibility was the jury’s prerogative. See
United States v. Patterson, 23 F.3d 1239, 1244–45 (7th Cir. 1994).
Together with testimony that Resnick habitually carried a gun
No. 14‐3791 9
on work trips, T.M.’s testimony made the jury’s inference that
the object Resnick brandished while threatening T.M. was a
gun “sufficiently strong to avoid a lapse into speculation.”
Moore, 572 F.3d at 337. The evidence at trial was sufficient to
support Resnick’s conviction for brandishing a firearm during
a crime of violence.
B
Resnick next contends that the district court misinter‐
preted Federal Rule of Evidence 414 to create a presumption
of admissibility, and that it abused its discretion under Rule
403 in admitting K.M.’s testimony that Resnick abused him.
We review the district court’s interpretation of the rules of
evidence de novo, United States v. Schmitt, 770 F.3d 524, 530 (7th
Cir. 2014), and its evidentiary rulings for abuse of discretion.
Id. at 532.
Rule 414(a) states that “evidence of the defendant’s com‐
mission of another offense ... of child molestation” is admissi‐
ble “in a criminal case in which the defendant is accused of an
offense of child molestation.” United States v. Miller, 688 F.3d
322, 327 (7th Cir. 2012) (quoting FED. R. EVID. 414(a)). The
district court must conduct a two‐step inquiry in evaluating
evidence under Rule 414. First, it must decide whether the
evidence falls under that rule. Then it must turn to Rule 403
and “assess the risk of unfair prejudice” the evidence poses.
Id. This inquiry is required because “[e]ven if the evidence
does not create unfair prejudice solely because it rests on
propensity, it may still risk a decision on the basis of
something like passion or bias—that is, an improper basis.”
Id. (quoting United States v. Rogers, 587 F.3d 816, 822 (7th Cir.
2009)). Rule 414 therefore confers no presumption of ad‐
missibility. See Rogers, 587 F.3d at 822 (explaining that Rule
10 No. 14‐3791
413 does not “reverse” a presumption against admissibility
because Rule 404(b) does not create a presumption against
admissibility, but rather bars certain inferences).
The district court’s opinion stated: “RULE 414 trumps the
restriction in RULE 404(b) by creating a presumption in favor
of admitting propensity evidence.” This statement was
erroneous, but we conclude that the error was harmless.
There is no evidence that the district court in fact applied a
presumption of admissibility in evaluating the evidence. In‐
stead, it specifically noted that it had to “carefully consider”
whether the evidence “should be excluded pursuant to Rule
403.” It conducted this inquiry dutifully.
The district court found K.M.’s testimony highly proba‐
tive. It correctly noted that Resnick’s sexual abuse of K.M.
constituted another “act of child molestation” under Rule 414.
It stated that “there is no doubt that the alleged act against
[K.M.] is relevant because [it is] indicative of a propensity to
commit the act charged involving [T.M.].” The district court
also noted that Congress had found that “in child molestation
cases ... a history of similar acts tends to be exceptionally
probative because it shows an unusual disposition of the
defendant ... that simply does not exist in ordinary people.”
United States v. Hawpetoss, 478 F.3d 820, 824 n.7 (7th Cir. 2007).
Later, the district court weighed the risk that the testimony
would result in unfair prejudice against Resnick. It noted that
“all child abuse and molestation is extremely disturbing, but
speaking in relative terms, the alleged incident that K.M. will
testify about is mild in comparison to [T].M.’s expected
testimony concerning the same charge at issue.” The court
therefore concluded that the risk of unfair prejudice in
admitting K.M.’s testimony was not too high. This line of
No. 14‐3791 11
reasoning is well‐established. See, e.g., United States v. Scop,
940 F.2d 1004, 1009 (7th Cir. 1991) (holding “evidence ... was
not unduly prejudicial” because “[i]t concerned truly similar
activities rather than inflammatory criminal acts”). The court
also observed that uncharged molestation evidence is
generally admitted under Rule 403 even when similar to the
charged conduct. See United States v. Roux, 715 F.3d 1019, 1026
(7th Cir. 2013) (collecting cases).
Resnick also argues that the district court should have is‐
sued a contemporaneous instruction limiting K.M.’s testi‐
mony to the “relevant testimony [he had] to offer on subjects
other than propensity.” But Resnick did not request any such
instruction at the time, nor did he object to the eventual in‐
struction at trial. We thus review this point only for plain er‐
ror. United States v. Reese, 666 F.3d 1007, 1016 (7th Cir. 2012).
There is no rule requiring the court to give even an unso‐
licited limiting instruction when potentially prejudicial testi‐
mony is offered. See United States v. Papia, 560 F.2d 827, 840
(7th Cir. 1977) (timing of limiting instruction is left to “sound
discretion of the trial judge”). Resnick argues that the even‐
tual instruction was “long, multifaceted, and difficult to un‐
derstand,” but he does not say how or why. Neither does he
indicate how K.M.’s testimony should have been limited. In
any event, because the testimony was properly admitted for
any purpose, no limiting instruction was required. See United
States v. Wilson, 31 F.3d 510, 515 (7th Cir. 1994) (lack of limiting
instruction not abuse of discretion where evidence properly
admitted). The district court’s decision to give its instruction
at the close of evidence was not an abuse of discretion, let
alone plain error.
12 No. 14‐3791
C
Finally, we come to the most troublesome issue on this ap‐
peal: the district court’s decision to admit evidence that
Resnick refused to take a polygraph exam. Because Resnick
did not contemporaneously object to the evidence at trial, we
review this decision for plain error. Puckett v. United States, 556
U.S. 129, 135 (2009). In order to qualify as “plain error,” the
error must be plain and “affect[] substantial rights.” United
States v. Olano, 507 U.S. 725, 732 (1993) (quoting FED. R. CRIM.
P. 52(b)). An error is not plain “unless [it] is clear under
current law” and not “subject to reasonable dispute.” Id. at
734. And while the reviewing court has discretion to correct
such an error, it “should not exercise that discretion unless the
error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. at 732 (internal
quotation marks omitted).
Resnick contends that it was plain error to admit evidence
of his refusal to take a polygraph exam because the technique
is fundamentally untrustworthy. His argument seems to be
that, given the unreliability of the technique and the ease of
manipulation, his refusal has no probative value. Essentially,
he seems to say, the police might as well have asked him if he
would submit to a horoscope or a tarot reading. But while
little prejudice (in most circles) would attach to someone who
declined examination using those techniques, a jury may
believe that a person who refuses to take a polygraph has
something to hide.
Polygraph evidence has faced sharp criticism, largely be‐
cause of serious doubts about its scientific or probative value.
See, e.g., United States v. Scheffer, 523 U.S. 303, 309 (1998)
(“[T]here is simply no consensus that polygraph evidence is
No. 14‐3791 13
reliable. … [T]he scientific community remains extremely
polarized about the reliability of polygraph techniques.”);
United States v. Lea, 249 F.3d 632, 639 (7th Cir. 2001) (noting
that, despite their discretion, “‘district judges often exclude[]
such evidence ‘because doubts about the probative value and
reliability of this evidence’ outweigh[] any rationale for
admission” (quoting United States v. Dietrich, 854 F.2d 1056,
1059 (7th Cir. 1988))); United States v. Dinga, 609 F.3d 904, 908
(7th Cir. 2010) (noting that an “offer of a willingness to submit
to a polygraph ‘is so unreliable and self‐serving as to be
devoid of probative value’” (quoting United States v. Bursten,
560 F.2d 779, 785 (7th Cir. 1977)); United States v. Rodriguez‐
Berrios, 573 F.3d 55, 73 (1st Cir. 2009) (holding that
“[p]olygraph results are rarely admissible” because they have
“long been considered of dubious scientific value” (quotation
and citation omitted)); United States v. Gill, 513 F.3d 836, 846
(8th Cir. 2008) (dubbing polygraph evidence “disfavored”).
Several of our sister circuits have taken the step of adopt‐
ing a per se rule excluding polygraph evidence. See, e.g.,
United States v. Sanchez, 118 F.3d 192, 197 (4th Cir. 1997) (en
banc); Rothgeb v. United States, 789 F.2d 647, 651 (8th Cir. 1986);
United States v. Russo, 796 F.2d 1443, 1453 (11th Cir. 1986). They
have done so out of a concern that there is no reliable way for
the district courts to separate sound polygraph results from
unreliable ones. They also note, with good reason, that
polygraph evidence entails a significant possibility of unfair
prejudice. The Supreme Court has recognized that “the aura
of infallibility attending polygraph evidence can lead jurors
to abandon their duty to assess credibility and guilt.” Scheffer,
523 U.S. at 314. The danger of prejudice is especially high
given that “a judge cannot determine, when ruling on a
14 No. 14‐3791
motion to admit polygraph evidence, whether a particular
polygraph expert is likely to influence the jury unduly.” Id.
It is thus no surprise that our decisions have, in practice,
pointed in only one direction: affirming the exclusion of poly‐
graph evidence. There is no scientific consensus that poly‐
graph testing is reliable, and there is a significant possibility
of unfair prejudice if it is introduced into evidence at trial.
That said, we have not yet adopted a blanket rule exclud‐
ing the use of polygraph evidence in federal prosecutions.
Given the standard of review, this case is not the right one in
which to take that step. We have given district courts “consid‐
erable deference” on the issue, indicating that the decision to
admit polygraph evidence “will be reversed only when the
district court has abused its discretion.” United States v. Ross,
412 F.3d 771, 773 (7th Cir. 2005) (quoting United States v. Lea,
249 F.3d 632, 638 (7th Cir. 2001)). This alone makes it
inappropriate for us to say that it was plain error to admit
evidence related to a polygraph in the absence of some
extraordinary reasons not suggested here. Olano, 507 U.S. at
732 (error not plain “unless [it] is clear under current law”).
The law is not settled, and the case against Resnick was
airtight. Moreover, this case is not in the end about polygraph
evidence: it is about evidence of a refusal to take a polygraph.
But the latter point moves us from one problem to another
one with constitutional overtones. Agent Chicantek’s
testimony did not describe the result of a polygraph test; he
instead revealed that Resnick had refused to take the test be‐
fore talking to a lawyer. A polygraph examination is almost
always a custodial interrogation. See Oregon v. Elstad, 470 U.S.
298, 304 (1985) (Miranda rights attach in custodial setting).
Therefore, “absent a waiver of [F]ifth [A]mendment rights, a
No. 14‐3791 15
person may not be compelled to submit to a polygraph
examination.” Garmon v. Lumpkin Cnty., Ga., 878 F.2d 1406,
1410 (11th Cir. 1989). Because a criminal defendant’s
constitutionally protected silence may not be used against
her, the “natural corollary to that rule” is that generally “a
defendant’s refusal to submit to a polygraph examination
cannot be used as incriminating evidence.” Id.; see also United
States v. St. Clair, 855 F.2d 518, 523 (8th Cir. 1988) (noting,
without stating grounds, that “[t]he Eighth Circuit has held it
is improper for a witness to testify whether or not a criminal
defendant refused to submit to a polygraph test”).
Resnick was interviewed during the execution of a search
warrant on his home. The officers read him his Miranda rights
before questioning him. Generally, a criminal defendant’s
silence after he has been read his Miranda rights may not be
introduced against him at trial. See Doyle v. Ohio, 426 U.S. 610,
618 (1976). But Resnick was not silent. He gave exculpatory
answers to a number of questions. Then, when asked whether
he would take a polygraph, Resnick said that he wanted to
consult with an attorney first. The fact that Resnick gave
exculpatory answers before declining the polygraph
complicates matters. In a noncustodial setting, where a
“defendant starts down an exculpatory path” and then re‐
fuses to expand on those statements, the use of his later si‐
lence at trial does not violate the Fifth Amendment. See United
States v. Bonner, 302 F.3d 776, 783–84 (7th Cir. 2002) (citing
United States v. Davenport, 929 F.2d 1169, 1174 (7th Cir. 1991)).
Since the interaction between Resnick and the officers appears
to have been voluntary up to the point when the polygraph
issue came up, this rule might apply. On the other hand,
Resnick’s refusal to take a polygraph was not selective silence
in response to specific questions. Rather, it was a wholesale
16 No. 14‐3791
refusal to answer questions in a particular setting. Under these
circumstances, Resnick’s refusal to submit to a polygraph
resists easy Fifth Amendment categorization.
Ultimately, however, the proper characterization does not
matter here. A Fifth Amendment self‐incrimination violation
is not structural error. See Chapman v. California, 386 U.S. 18,
24 (1967) (holding Fifth Amendment self‐incrimination error
not grounds for reversal of conviction if proven harmless
“beyond a reasonable doubt”); Jumper, 497 F.3d at 703 (same).
Thus, if the district court committed Fifth Amendment error
(a question we need not decide), we must still decide whether
any such error was “plain.” 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 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. It is Resnick’s burden to “make a specific showing of
prejudice” in order to satisfy the “substantial rights” part of
the plain error analysis. Olano, 507 U.S. at 735. He has not
done so. The dissent overstates matters when it says, post at 7,
that “only an innocent defendant could have his conviction
reversed” under the approach to plain error we have taken.
Any defendant who can point to an error that affected his
“substantial rights” (and the other criteria of Olano) can show
plain error. Resnick’s problem is that any error in admitting
the testimony about his reluctance to submit to a polygraph
was not plain and did not affect his substantial rights in light
of the record as a whole. It therefore does not support reversal
of his conviction.
No. 14‐3791 17
III
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.
18 No. 14-3791
BAUER, Circuit Judge, dissenting. 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 argu-
ments. 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.
The district court’s errors were constitutional and eviden-
tiary in nature. First, it was plain constitutional error to admit
Agent Chicantek’s testimony that Resnick refused to take a
polygraph and to allow comment on the refusal. This violated
Resnick’s Fifth Amendment right against self-incrimination, on
which our precedent is clear and obvious. See Puckett v. United
States, 556 U.S. 129, 135 (2009). The Self-Incrimination Clause
of the Fifth Amendment states that “[n]o person … shall be
compelled in any criminal case to be a witness against him-
self.” See also United States v. Manjarrez, 258 F.3d 618, 623 (7th
Cir. 2001) (quoting Rock v. Arkansas, 483 U.S. 44, 51 (1987) (“the
defendant’s right to testify is a fundamental constitutional
right ‘essential to due process of law in a fair adversary
process’” (other citations omitted)). This Fifth Amendment
No. 14-3791 19
right incorporates a right to consult an attorney before speak-
ing to police as well as a right to remain silent when facing
custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 444
(1966). This right is absolute, not situational. See id. at 479 (right
against compelled testimony is absolute and “cannot be
abridged”); Greene v. Finley, 749 F.2d 467, 472 (7th Cir. 1984)
(“the constitutional privilege against self-incrimination …
grant[s] … an absolute right”). Further, the government is
“prohibit[ed] … from ‘treat[ing] a defendant’s exercise of his
right to remain silent at trial as substantive evidence of guilt.’”
United States v. Ochoa-Zarate, 540 F.3d 613, 617 (7th Cir. 2008)
(quoting United States v. Robinson, 485 U.S. 25, 34 (1988)).
If a defendant refuses to testify or invokes his Miranda
rights, the prosecutor cannot comment on this refusal to the
jury. Miranda, 384 U.S. at 468 n.37 (“[I]t is impermissible to
penalize an individual for exercising his Fifth Amendment
privilege when he is under police custodial interrogation.”);
United States v. Tucker, 714 F.3d 1006, 1015 (7th Cir. 2013) (citing
Griffin v. California, 380 U.S. 609, 612–13 (1965)) (“A prosecutor
may not make comments, either directly or indirectly, that lead
the jury to draw a negative inference from a defendant’s
decision not to testify.” (Other citation omitted)). The govern-
ment violates a defendant’s right against self-incrimination if
“it manifestly intended to refer to her silence” when arguing to
the jury. United States v. Phillips, 745 F.3d 829, 834 (7th Cir.
2014) (quotation marks, citation, and brackets omitted).
Here, the government not only used Resnick’s refusal to
take a polygraph examination as substantive evidence of
consciousness of guilt, but also manifestly referred to this
refusal when arguing to the jury. As the majority notes, a
polygraph examination is a custodial interrogation. The
specific inquiry which Chicantek propounded was whether
20 No. 14-3791
Resnick wanted to continue to answer questions about his
activity with T.M. and K.M. A trained polygraph operator that
the government selected would propose these questions.
Resnick refused to submit to this test, as was his constitutional
right, and added: first, that he would not considering taking a
polygraph examination until he spoke with a lawyer; and
second, that “whoever is operating the machine can manipu-
late it to say whatever they want to say or the results to
be whatever they want them to be.” Resnick was later arrested,
was appointed counsel, and continued to refuse to take a
polygraph.
I see this as a clear and obvious example of someone
refusing to testify against himself. Having exercised his right,
the government absolutely could not (1) use his refusal as
substantive evidence against him or (2) comment on the silence
to the jury. See Griffin, 380 U.S. at 612–13; Tucker, 714 F.3d at
1015; Ochoa-Zarate, 540 F.3d at 617. Yet the government did
both, offering Chicantek’s testimony about Resnick’s refusal
into evidence and arguing to the jury that the refusal evi-
denced guilt. After Chicantek disclosed the refusal to answer
further questions, he also testified that Resnick did talk to a
lawyer but still did not submit to a polygraph test. The
implication is clear: even Resnick’s lawyer considered him a
liar. All of this occurred without an admonition from the judge
or apparently without a sense of law and fairness on the part
of the prosecution.
After all of this, to add further prejudicial unfairness to the
trial, the government argued to the jury that the refusal to take
the polygraph demonstrated Resnick’s consciousness of guilt.
The majority mentions this comment to the jury as “one
reference,” but this reference was notable. The government
stated, “Last but not least, I want to leave you with the defen-
No. 14-3791 21
dant’s lies.” It then published a demonstrative exhibit listing
Resnick’s answers to the April 27, 2011, interview questions.
The government noted that in addition to various other
denials, Resnick “refused to take a polygraph regarding his
sexual abuse of [T.M.] and [K.M.].” The government continued:
“And, yeah, he said, I should talk to a lawyer before I do that.
Well, guess what, he talked to a lawyer. There was no poly-
graph.” The government argued that this refusal, coupled with
other denials, evidenced Resnick’s consciousness of guilt
regarding sexual abuse of T.M. and K.M.
Under Griffin, Miranda, and their respective progeny, a
suspect like Resnick should feel empowered to refuse any
interrogation, including interrogation via polygraph. Here,
Resnick knew that he had this right, repeatedly and expressly
refused to take the polygraph test, and yet had this refusal
used against him. Compare United States v. Salinas, 133 S. Ct.
2174, 2179–80 (2013) (criminal defendant did not have Fifth
Amendment protection because he did not expressly invoke
his right to remain silent while under custodial interrogation).
This contravenes the spirit of Griffin, Miranda, and all other
pertinent Fifth Amendment jurisprudence from the last fifty
years. The district court’s failure to recognize the government’s
obvious violation of Resnick’s Fifth Amendment right consti-
tutes plain error.
Compounding the district court’s plain constitutional error
was its plain evidentiary error. Admitting a refusal to submit
to a polygraph examination into evidence mistakenly assumes
that polygraphs are reliable forms of evidence. This belies our
precedent, which has consistently stated that polygraphs are
not reliable forms of evidence. The majority ably describes the
suspicion with which we and other circuits regard polygraph
evidence. Polygraphs have their use in employment settings,
22 No. 14-3791
see, e.g., Veazey v. Commc’ns & Cable of Chicago, Inc., 194 F.3d
850, 854–58 (7th Cir. 1999), but their unreliability makes their
results extremely problematic when offered as evidence in a
criminal trial. See United States v. Scheffer, 523 U.S. 303, 309–10
(1998) (noting that the government has “a legitimate interest in
ensuring that reliable evidence is presented to the trier of
fact in a criminal trial,” that “there is simply no consensus
that polygraph evidence is reliable,” and that “the scientific
community remains extremely polarized about the reliability
of polygraph techniques”).
Yet, as the majority notes, polygraph tests still carry an
“aura of infallibility” in the minds of many jurors. Id. at 314.
This may lead jurors to give inappropriate credence to poly-
graphs findings; they could trust the polygraph more than
their own instincts and sensibilities. In instances where
scientific research conflicts with public perception of scientific
evidence, the court must be particularly vigilant in exercising
its role as gatekeeper. See Fed. R. Evid. 702(c); Brown v.
Burlington N. Santa Fe Ry. Co., 765 F.3d 765, 771–72 (7th Cir.
2014); Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 597
(1993).
The thrust of our jurisprudence on polygraphs establishes
that they are unreliable tools for finding truth, and have
limited value as criminal evidence. See United States v. Lea, 249
F.3d 632, 638 (7th Cir. 2001) (quoting Scheffer, 523 U.S. at
309–10) (“[T]he scientific community remains extremely
polarized about the reliability of polygraph techniques.”). As
the majority writes, our decisions regarding introduction
of polygraph evidence have reflected this concern, as we
have “in practice” only “affirm[ed] the exclusion of polygraph
evidence.” We give wide discretion to district courts to
disabuse jurors of the notion that polygraphs are valid evi-
No. 14-3791 23
dence. We have never given discretion to admit a refusal to take
a polygraph, because we have never deemed polygraphs
inherently reliable.
The district court’s actions constitute plain error on either
legal front: it violated Resnick’s right against self-incrimination
and it inflicted unfair prejudice by admitting historically
unreliable evidence. But the convergence of these two legal
issues solidifies the plainness of the district court’s error. Even
if not explicit, our jurisprudence on both issues is clear.
By admitting this evidence and allowing comment on it, the
district court misled the jury and inflicted prejudice on
Resnick. In the constitutional sense, the court violated a
bedrock principle of our criminal justice system: courts cannot
“impose[] … a penalty … for exercising a constitutional
privilege” or “cut[] down on the privilege by making its
assertion costly.” Griffin, 380 U.S. at 614. To do so would recall
“the inquisitorial system of criminal justice, … which the Fifth
Amendment outlaws.” Id. (quotation marks and citation
omitted). Indeed, the Griffin court understood the power of the
court’s allowance of prosecutorial comment on a jury, and its
words to that end are fitting: “What the jury may infer, given
no help from the court, is one thing. What it may infer when
the court solemnizes the silence of the accused into evidence
against him is quite another.” Id.
Second, in the evidentiary sense, the jury will be further
emboldened by the court’s tacit determination that a polygraph
is both reliable and probative, and will be more likely to
“abandon its duty to assess credibility and guilt.” Scheffer, 523
U.S. at 314. “A fundamental premise of our criminal justice
system is that the jury is the lie detector.” Id. at 313 (quotation
marks and citations omitted). When a court admits a refusal to
24 No. 14-3791
take a polygraph into evidence, it places its imprimatur on the
reliability and relevance of polygraph findings. This imper-
missibly leads a jury into error.
Ultimately, the gravity of the district court’s error necessi-
tates a new trial; it seriously calls into question the fairness,
integrity, and public reputation of the judicial proceedings.
See Olano, 507 U.S. at 732. The government argues that even
if it were plain error to admit the refusal evidence, it still
presented “mounds of evidence” sufficient to convict Resnick.
The majority agrees, calling the case against Resnick “airtight.”
This implies that only an innocent defendant could have his
conviction reversed under plain error review. More disturb-
ingly, it implies that a court may ignore a criminal defendant’s
clearly established rights if the evidence against him is strong
enough.
This characterization is not a proper understanding of the
fourth prong of Olano and thereby misinterprets plain error
review. According to Olano, a “miscarriage of justice” that
“seriously affects the fairness, integrity or public reputation of
judicial proceedings” is not limited to cases where defendant
is actually innocent. 507 U.S. at 736–37. In fact, the Supreme
Court noted in Olano that “we have never held that” remand
for plain error “is only warranted in cases of actual innocence.”
Id. This court has reaffirmed that a defendant need not
“establish actual innocence” under Olano plain error review to
trigger remand. United States v. Driver, 242 F. 3d 767, 771 (7th
Cir. 2001). Resnick’s guilt is not at issue on appeal; we only
review whether he received a fair trial.
The majority opinion enumerates all of the things wrong
with the polygraph evidence and discussion about it, but
concludes that this is not a proper case for a per se rule; I find
No. 14-3791 25
it the perfect case for the use of such a rule. The crime charged
is universally abhorred; the defendant is a wholly unsympa-
thetic one. But if we are to accord all persons with their
constitutional right to not be tried under rules that force them
to testify against themselves, and to require the prosecutors
and judges zealously ensure that criminal trials and evidence
used in the trials are delivered fairly and completely constitu-
tionally, this is the case to do so.
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.