U.S. v. Resnick

In prosecution on aggravated sexual abuse of minor, transportation of child pornography and certain firearm charges, Dist. Ct. did not err in admitting under Rule 403 testimony from second child victim that defendant had abused him, even though such conduct was not alleged in charged offense. Rule 414(a) allows evidence of uncharged child molestation where defendant is accused of child molestation, and although Rule 414 does not create presumption in favor of admitting propensity evidence, Dist. Ct. properly found that admission of such evidence was not unfairly prejudicial, where second victim’s testimony was mild in comparison to charged conduct. Also, Dist. Ct. did not commit plain error by allowing evidence that defendant had refused to take polygraph examination, where: (1) Seventh Circuit has not adopted blanket rule excluding use of polygraph evidence in federal prosecutions; (2) although defendant’s refusal to submit to polygraph examination cannot be used as incriminating evidence, said evidence could give context to other evidence that defendant had provided police with exculpatory explanations for his conduct prior to his refusal to take polygraph examination; and (3) defendant could not establish that any error in admitting such evidence affected his substantial rights, especially where his refusal to take polygraph examination was mentioned only once by each party, and where evidence of his guilt on charged offenses was overwhelming. (Dissent filed.)