### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 14

‐ 3791

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

D AVID A. R ESNICK

, 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

.

____________________

A RGUED O CTOBER 26, 2015

— D ECIDED M AY 4, 2016

____________________

Before W OOD

, Chief Judge

, and B AUER and S YKES

, Circuit

Judges

.

W OOD

, 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 and2 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);

F ED

. R. C RIM

. 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 theyNo. 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 stop4 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 heNo. 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 gunNo. 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 F ED

. R. E VID

. 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 Rule10 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 ofNo. 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 F ED

. R. C RIM

.

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 isNo. 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 a14 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, aNo. 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 wholesale16 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

A FFIRMED

.18 No. 14-3791

B A U E R

, 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 clos ing 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 polygra ph and the government’s

subsequ ent comments constituted pl ain error which polluted

the other ev ide nce and compromised the entire trial. It had

the ef fe ct 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 c ourt’s e rrors were constitutional and evidentiary 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

Res ni ck ’s Fi ft

h Ame nd me n t ri gh t ag ai ns t sel f-i nc ri mi na ti on

, on

which our precedent is clear and obvious. See Puckett v. United

State s

, 556 U.S. 129, 135 (2009). The Self-Incrimination Clause

of the Fifth Amendm en t st ates that “[n]o person

... shall be

compelled in any criminal ca se to be a witness against himsel f. ” Se e al so U nited States v. Manja rrez , 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 pr oc ess of law in a fair adversary

proc ess’ ” (other citations omitted)). This Fifth AmendmentNo. 14-3791 19

right incorporates a right to consult an attorney before speaking to police as well as a right to remain silent when facing

custodial interrogation

. Miranda v. Arizona

, 38 4 U.S. 436, 444

(1966). This right is absolute, not situational. See id

. at 479 (right

against compelled testimony is absolute and “cannot be

abridg ed ”) ; 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 defe ndant’s exercise of his

right to remain silent at trial as substantive evidence of guilt.’”

United States v. Ochoa-Zarate

, 54 0 F. 3d 613, 617 (7th Cir. 2008)

(quoting United Stat es v. Robinson , 485 U.S. 25, 34 (1988)).

If a defendant refuses to testify or invokes his Mi randa

rights, the prosecutor cannot comment on this refusal to the

jury. Miranda

, 384 U.S. at 468 n.37 (“[I]t is impermissible to

penali ze 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 governme nt 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 82 9, 834 (7th Cir.

2014) (quotation marks, citation, and brackets omitted).

Here, the government not only used Re snick’s refusal to

take a polygraph examination as substantive evidence of

co nsciousness of guilt, but also manifestly referred to this

refusal when arguing to the jury. As the majori ty not es, a

polygraph examination is a custodial interrogation

. The

specific inquiry which Chicante k propounded was whether20 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 select ed 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 ex amination until he spoke with a lawyer; and

secon d, that “whoever is operating the machine can manipulate 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 cl ear 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 ev id en ce 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

, 54 0 F.3d at 617. Yet the government did

both

, offerin g Chicantek’s testimony about Resnick’s refusal

into evidence and arguing to the jury that the refusal evidenced guilt. A fter Chicantek disclosed the re fusal to answe r

further questions, he also test if ied that Resnick did talk to a

lawyer but still did not submit to a polygraph test. The

implication is clear: even Resnic k’ s lawyer considered him a

liar. All of this occurred without an admonition from the judge

or apparently without a se nse of law and f airness 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 refe re nc e 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 exhib it listing

Resnick’s answers to the April 27, 2011, int erview questions.

The government noted that in addition to various other

denials, Resnick “refused to take a pol ygraph regarding his

sex ual abu se of [T. M. ] an d [K .M .]. ” Th e go ve rn men t con ti nu ed :

“And, yeah, he said, I should talk to a lawyer before I do that.

Well, guess wh at

, he talked to a lawyer. There was no polygrap h. ” 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 pr oge ny, a

suspect like Resnick should feel empowere d 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 thi s re fusal

used against him. Compare Unit ed St ate s v. Salinas

, 133 S. Ct.

2174, 2179–80 (2013) (crim inal defendant did not have Fifth

Amendment protection bec ause 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 juri sprudence from the last fifty

years. The district court’s failure to re co gn iz e th e go ve rn men t’ s

obvious violatio n of Resnick’s Fifth Amendment right constitutes plain error.

Compounding the district court’s plain constitutional error

was its plain evidentiary error. Adm itting a refus al to su bmit

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 an d other circuits regard polygraph

evidence. Po lygraphs have their use in employment settings,22 No. 14-3791

see, e.g., Veazey v. Commc’ns & Cable of Chi ca go, Inc.

, 194 F.3d

850, 854–58 (7th Cir. 1999), but their u nreliability ma kes their

res ul ts 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

en suring 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 rem ains extremely polarized ab out the re liability

of polygraph techn iques”).

Yet, as the majority notes, pol ygraph tests still carry an

“aura of infallibi lit y” in the minds of many jurors. Id. at 314.

This may lead jurors to give inappropriat e credence to polygraphs findings; they could trust the pol ygraph more than

their own instincts and sensibilities. In instances where

scientific research conflicts with public perception of scientific

evidence, the court must be part icularly vigilant in exercising

its role as gatekeeper. See Fed. R. Ev id. 702(c); Brown v.

Burlington N. Santa Fe Ry. Co

. , 76 5 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 polygr ap h techniques.”). As

the majority wr ite s, 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 not ion 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 reli able.

The district court’s actions constitute plain error on either

le ga l fro nt : it violat ed Resnick’s right against self- in cr im in at io n

and it inflicted unfai r 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 al lo wing comment on it, the

district court misl ed 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 consti tu tional

privilege” or “cut[] down on the privilege by mak ing 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 ci tation

omitted). Indeed, the Griffin court understood the power of the

court’s allowance of prosecutorial comment on a ju ry, and its

words to that end are fitti ng: “What the jury may infer, given

no help from the court, is one thing. What it ma y infer when

the court solem nizes the silence of the accused into evidence

against him is quite anoth er.” Id.

Second, in the evidentiary sense, the jury will be further

emb ol de ne d by th e co urt ’s ta ci t de te rmi na ti on th at a poly gr ap h

is both reliable and probative, and wil l be more likely to

“abandon its duty to assess credibility and guilt.” Scheffer

, 523

U.S. at 314. “A fu ndam ental 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 to24 No. 14-3791

take a polygraph into evidence, it places its imprimatur on the

reliability and relevance of polygraph findings. This impermissibly leads a jury into error.

Ultimately, the gravity of the district court’s error necessitates a new trial; it seriously ca lls into question the fairness,

integrity, and public reputation of the judicial proceed ing s.

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 im plies that only an innocent defendant could have his

conviction reversed under plain error review. More disturbingly, 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

fo urth 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 c ases where defendant

is actually innocent. 507 U.S. at 736–37. In fa ct

, the Supreme

Court noted in Olano that “we have never held that ” re ma nd

for plain error “is only warranted in cases of actual innocence.”

Id. This court has reaffirmed tha t a defendant need not

“establish actual innocence” under Olano plain error review to

trigger rem and. United State s v. Driver

, 242 F. 3d 767, 771 (7th

Cir. 2001). Resnick’s guilt is not at iss ue on appeal; we only

review whether he received a fair trial.

The majorit y opinion enumerates all of the things wrong

with the polygraph evidenc e and discussion about it, but

concludes that this is not a proper c ase for a pe r se ru le; I f indNo. 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 unsympathetic one. But if we are to accord al l persons with their

constitutional right to not be tried under rules that force them

to testify against themselves, and to require the pros ec utors

and judges zealously ensure that criminal t rials and evidence

used in the trials are delivered fairly and completely constitutionally, t his 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 Re snick to submit to a polygraph examination.