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United States v. Resnick

United States District Court, N.D. Indiana, Hammond Division

December 19, 2019




         Petitioner David Alan Resnick has filed a motion to vacate his sentence under 28 U.S.C. § 2255. (DE # 183.) Resnick argues that he is entitled to relief on the basis that his trial counsel provided ineffective assistance during the plea, trial, and sentencing phases of his case. For the reasons that follow, Resnick's motion will be denied.

         I. BACKGROUND

         A. Plea Agreement

         In May 2011, a grand jury indicted Resnick on charges of aggravated sexual abuse of a nine-year-old boy (hereinafter “A.M.”) in violation of 18 U.S.C. § 2241(c) (Count I) and transportation of child pornography in violation of 18 U.S.C. § 2252(a)(1) (Count II). (DE # 1.) In January 2013, Resnick entered into a plea agreement with the Government pursuant to Federal Rule of Criminal Procedure 11(c)(1)(B), in which he agreed to plead guilty to Count Two, in exchange for the Government's dismissal of Count One. (DE # 23.)

         In the Plea Agreement, Resnick and the Government agreed to recommend certain sentence enhancements, two of which are relevant here. First, Resnick agreed to a seven-level enhancement under § 2G2.2(b)(3)(E) for distributing child pornography to a minor with the intention of persuading, inducing, enticing, coercing or facilitating the travel of a minor to engage in prohibited sexual conduct. (Id. at 4.) Second, he agreed to a five-level enhancement under § 2G2.2(b)(5) for engaging in a pattern of activity involving the sexual abuse or exploitation of a minor. (Id.) The Plea Agreement contained a provision that permitted the Government to withdraw from the Agreement if Resnick violated any of the provisions of the Plea Agreement, including his continuing obligation to demonstrate acceptance of responsibility. (Id. at 5.) The Plea Agreement, if accepted by this court, would have lowered the minimum penalty Resnick faced from 30 years, to five, and would have lowered the maximum penalty Resnick faced from life, to 20 years.

         B. Change of Plea Hearing

         On February 13, 2013, Resnick appeared with his counsel for his change of plea hearing before Magistrate Judge Andrew P. Rodovich. During the hearing, Judge Rodovich went over the Plea Agreement with Resnick, including the Guidelines calculations. Resnick agreed with all of them. (DE # 31 at 7-9.)

         Judge Rodovich then requested that the Government recite the factual basis for the plea, which had not been incorporated into the Plea Agreement. The Government stated that the evidence at trial would have shown, among other things, that Resnick transported minor A.M. across state lines on “a two-week, over-the-road trip” and “[w]hile on that trip, the defendant sexually abused A.M. repeatedly.” (Id. at 18.) When Judge Rodovich asked Resnick whether he agreed with the Government's recitation of the factual basis for the plea, Resnick disagreed. While Resnick agreed with the Guidelines calculation set forth in the Plea Agreement - including the enhancements identified in subsections 7(d)(ii)(B), and (D) - he denied engaging in any contact offense with the victim. (Id. at 21.)

         First, while Resnick agreed to a seven-level enhancement for showing child pornography to a minor with the intent to entice the minor to engage in sexual conduct, under USSG § 2G2.2(b)(3)(E), he claimed that A.M. found the child pornography on Resnick's computer on his own. (Id. at 22-23.) Resnick told Judge Rodovich that he was agreeing to the enhancement “for guideline purposes.” (Id. at 23.) However, when pressed by Judge Rodovich, Resnick attempted to walk his denial back, and agreed that he had provided child pornography to A.M. (Id. at 24.)

         Next, Judge Rodovich attempted to clarify Resnick's position on the five-level enhancement under USSG § 2G2.2(b)(5), for engaging in a pattern of activity involving the sexual abuse or exploitation of a minor. While Resnick agreed to the imposition of the enhancement, he denied that he ever sexually abused A.M. or any other minor. (Id. at 25.) Resnick first attempted to explain his position by claiming that the possession of child pornography itself would constitute a pattern of activity involving the sexual abuse or exploitation of a minor. (Id. at 26.) However, the Government correctly explained that the definition of “sexual abuse or exploitation” specifically excludes the mere receipt or possession of child pornography.[1] When Judge Rodovich explicitly asked Resnick whether he traveled in interstate commerce with the intent of engaging in a pattern of activity involving sexual abuse or exploitation of a minor, Resnick responded, “No, I did not.” (Id. at 29.)

         The Government then expressed its position that Resnick had breached the terms of the Plea Agreement by denying relevant conduct and denying the factual basis for the sentencing enhancements. The Government stated that it wished to withdraw from the Agreement. (Id. at 34-36.) Defense counsel's position was that Resnick could agree to the enhancements for the purpose of reaching an agreement with the Government, while also maintaining his denial that he engaged in the conduct that would support the enhancements, on the basis that he was not pleading guilty to the offense related to that underlying conduct. (Id. at 35.)

         Judge Rodovich granted the parties nine days to determine whether a resolution could be reached regarding the Plea Agreement. The parties could not come to an agreement and at a second change of plea hearing, before this court on February 22, 2013, the Government requested that this court permit it to withdraw from the Agreement. (DE # 157 at 3.) Resnick's counsel, who Resnick concedes “vigorously defended” the validity of the Plea Agreement during discussion with the prosecutor and Judge Rodovich, told this court “there is no plea agreement.” (Id. at 5.) This court found that there was no agreement between the parties and set the matter for trial. (Id.)

         The Government subsequently offered Resnick a second plea deal. (See DE # 194-1.) This second deal removed the enhancements that led to the problems during the first change of plea hearing, and instead only required Resnick to admit that he transported child pornography across state lines. (Id. at 4.) The second deal, made pursuant to Rule 11(c)(1)(C), would have guaranteed Resnick a 20-year term of incarceration. (Id.) Resnick did not accept this second plea deal. (See DE ## 53, 189 at 2.)

         C. Trial

         After Resnick rejected the Government's second plea deal, the Government filed a superseding indictment, adding charges for brandishing a firearm in furtherance of a crime of violence (Count III) and possessing a firearm as a felon (Count IV). (DE # 57.) Thereafter, Resnick's case proceeded to trial on all four counts.

         The following recitation of the trial is taken from the Seventh Circuit's opinion on direct appeal.

In 2008, A.M.[2] was nine years old and lived in Indiana with his mother and stepfather. Resnick was a friend of the family who sometimes took A.M. and his siblings to dinner or gave them gifts. In July 2008, A.M.'s parents allowed him to accompany Resnick on a two-week, cross-country work trip. A.M. believed that they would go to Disneyland, and that it would be his job to care for Resnick's puppy.
A.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 were traveling through Washington, Resnick drove by a weigh station without stopping. Washington State Patrol Officer Lace Koler pulled over Resnick's rig. Before Koler walked up to the truck, Resnick put a pistol against A.M.'s head. “If you tell anybody, ” Resnick said, “I will kill you and your family.” A.M. kept silent. Resnick and A.M. returned to Indiana, and A.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 A.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, A.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 A.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 A.M. and K.M.'s accusations of abuse.
At first, Resnick said that he did not know A.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 in Washington on his 2008 trip with A.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 A.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 A.M. or K.M. and had declined to take a polygraph. Resnick's counsel did not object.
On cross-examination, 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 said that, “before he took a polygraph he would want to consult 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.

United States v. Resnick, 823 F.3d 888, 890-892 (7th Cir. 2016).

         D. Sentencing

         After his conviction, Resnick faced a mandatory minimum sentence of 37-years imprisonment and a Guideline recommended sentence of life imprisonment, plus seven years. (See DE # 145 at 9.) This court sentenced Resnick to life imprisonment, plus seven years; a fifteen-year term of supervised release; a $400 special assessment; and payment of victim restitution in the amount of $123, 210.30. (DE ## 151, 180.) Resnick appealed, and the Seventh Circuit affirmed his conviction. Resnick, 823 F.3d at 898.

         E. Motion to Vacate

         Throughout his criminal proceedings, Resnick was represented by attorneys Raymond Wigell and Huma Rashid. Now, through new counsel, Resnick has filed a motion to vacate his conviction and sentence pursuant to § 2255, on the grounds that he received ineffective assistance of counsel during the plea, trial, and sentencing phases of his criminal proceedings. The court will address each of these arguments in turn.


         A § 2255 motion allows a person in federal custody to attack his or her sentence on constitutional grounds, because it is otherwise illegal, or because the court that imposed it was without jurisdiction. 28 U.S.C. § 2255(a). Motions to vacate a conviction or correct a sentence ask a court to grant an extraordinary remedy to a person who has already had an opportunity of full process. Kafo v. United States, 467 F.3d 1063, 1068 (7th Cir. 2006).


         A. Ineffective Assistance Legal Standard

         Claims for ineffective assistance of counsel are analyzed under Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, “a defendant claiming ineffective counsel must show that counsel's actions were not supported by a reasonable strategy and that the error was prejudicial.” Massaro v. United States, 538 U.S. 500, 505 (2003).

         “To satisfy the deficient performance prong, a petitioner must show that the representation his attorney provided fell below an objective standard of reasonableness.” Vinyard v. United States, 804 F.3d 1218, 1225 (7th Cir. 2015). “A court's scrutiny of an attorney's performance is ‘highly deferential' to eliminate as much as possible the distorting effects of hindsight, and we ‘must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'” Id. (internal citation omitted). “The challenger's burden is to show ‘that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.'” Harrington v. Richter, 562 U.S. 86, 104 (2011) (internal citation omitted).

         To satisfy the prejudice prong, a petitioner must establish that “‘there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'” Strickland, 466 U.S. at 694. “This does not mean that the defendant must show that counsel's deficient conduct more likely than not altered the outcome in the case. Rather, a reasonable probability is a probability sufficient to undermine confidence in the outcome, which in turn means a substantial, not just conceivable likelihood of a different result.” Harris v. Thompson, 698 F.3d 609, 644 (7th Cir. 2012) (internal citations and quotation marks omitted). See also Canaan v. McBride, 395 F.3d 376, 386 (7th Cir. 2005) (“Even if the odds that the defendant would have been acquitted had he received effective representation appear to be less than fifty percent, prejudice has been established so long as the chances of acquittal are better than negligible.” (internal citation omitted)). “Making this probability determination requires consideration of the totality of the evidence before the judge or jury, and a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.” Harris, 698 F.3d at 645 (internal citations and quotation marks omitted).

         “[T]he two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel.” Hill v. Lockhart, 474 U.S. 52, 58 (1985). The performance prong is the same as that outlined in Strickland. Id. The showing required to establish prejudice varies depending on the specific claim.

         “To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel's deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel.” Missouri v. Frye, 566 U.S. 134, 147 (2012). However, the prejudice inquiry does not end there. “[I]t is necessary to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time.” Id. See also Glover v. United States, 531 U.S. 198, 203 (2001) (“[A]ny amount of [additional] jail time has Sixth Amendment significance.”).

         A petitioner's “failure to establish either element of the Strickland framework will result in denial of his claim.” Daniels v. Knight, 476 F.3d 426, 434 (7th Cir. 2007). If a petitioner fails to make a proper showing under one of the Strickland prongs, the court need not consider the other. See Strickland, 466 U.S. at 697.

         B. Counsel's Performance During the Plea Process

         Resnick argues that his counsel was constitutionally ineffective when he failed to raise an objection before this court to the Government's attempt to withdraw from the Plea Agreement. (DE # 184 at 25.) However, Resnick has not demonstrated that he was prejudiced by his counsel's failure to object.

         Resnick was subsequently offered a second plea deal. This deal appeared to give Resnick exactly what he wanted: the benefit of a plea agreement without having to admit to the factual basis underlying the sentence enhancements in the first deal. Instead, in the second plea deal, the sentence enhancements were removed and replaced with a guaranteed 20-year term of imprisonment.

         Resnick argues that this court should disregard the existence of the second deal on the basis that “the subsequent plea offer was considerably less advantageous than the one he accepted, given that it was a Rule 11(c) offer that locked him into a 20-year sentence rather than allowing him to argue for any sentence within the applicable guideline range.” (DE # 197 at 5 (internal citation omitted).) Yet, the applicable Guideline range was the same under both plea agreements. Under the first plea agreement, after the twenty-five level enhancements Resnick agreed to recommend, Resnick's applicable Guideline range was life imprisonment. The Guideline range would then be reduced to the statutory maximum of twenty years - the same term guaranteed in the second plea deal.

         There are instances where a defendant's own actions, and not the poor performance of his counsel, must be said to be the cause the defendant's prejudice. For example, in United States v. Parker, the defendant's counsel misadvised him regarding the effects of accepting the government's plea deal. 609 F.3d 891, 893 (7th Cir. 2010). Specifically, counsel underestimated the maximum possible term of imprisonment and told the defendant that admitting to 50 or more kilograms of cocaine in the plea agreement, versus the 15 kilograms for which the defendant actually believed himself responsible, would not affect his sentence other than determining the recommended Guideline range. Id. The defendant subsequently entered into the plea agreement, in which he admitted to the 50 or more kilograms of cocaine, and was sentenced to a term of imprisonment greater than the term his counsel had identified as the maximum possible term. Id. Nevertheless, the Seventh Circuit rejected the defendant's subsequent ineffective assistance claim, finding that the defendant “has only himself to blame for admitting under oath to a quantity of drugs he now disputes.” Id. at 895. The Court found that defense counsel's bad advice was not the cause of the defendant's prejudice because the defendant had a subsequent opportunity to truthfully respond to the judge's questions, and had he done so, potentially secured the lower sentence he claims his counsel's bad advice deprived him. Id.

         Here, as in Parker, the prejudice Resnick suffered was self-inflicted. Resnick had the opportunity to accept a second plea deal that would have secured him the more favorable sentence that he claims his counsel's performance deprived him of when his counsel failed to object to the Government's withdrawal from the first deal. In determining whether Resnick was denied his Sixth Amendment right to counsel, the court's “ultimate inquiry must concentrate on ‘the fundamental fairness of the proceeding.'” Weaver v. Massachusetts, 137 S.Ct. 1899, 1911 (2017) (internal citation omitted). Here, counsel's failure to renew his objection before this court did not affect the fundamental fairness of the plea process, because Resnick had the opportunity to enter into a second plea agreement that would have guaranteed him the same sentence. Resnick failed to accept that second deal. Any prejudice he sustained as a result cannot be attributed to his counsel.


         Resnick raises nine instances where he claims his counsel provided ineffective assistance during the course of the trial. None of these instances, alone or considered as a whole, establishes a claim for ineffective assistance of counsel.

         A. Counsel's Failure to Obtain a Forensic Psychologist Expert

         The Government called several expert witnesses to testify at trial. The Government provided timely notices for each of these witnesses. (DE # 86.)

         One expert witness was Supervisory Special Agent William Donaldson of the Federal Bureau of Investigation's Behavioral Analysis Unit. The Government's notice stated that Agent Donaldson's testimony would include testimony that: (1) it is common for law enforcement to discover child pornography material in the possession of targets under investigation for sexually abusing minor children; (2) the ways in which offenders “groom” child victims; and (3) delayed disclosure of abuse by child victims is common. (Id. at 6-7.)

         At trial, Agent Donaldson testified that in his experience it is common to find child pornography when investigating individuals accused of sexually abusing children. (DE # 122 at 140.) He also explained that there are scientific studies that show the importance of child pornography to offenders who abuse children. (Id.) Agent Donaldson testified:

A. For example, there is a study that's referred to as the Butner Study. And in the Butner Study, they were looking at child pornography collectors and to try to determine out of that pool of collectors, was there any ties to hands-on offending, contact offending. And in the Butner Study, they were able to determine that there were approximately 85 percent of their sample population that they were looking at had actual contact offenses above and beyond what they had been incarcerated for just the possession of child pornography.
Q. So those people were in jail for possessing child pornography, and they disclosed - - 85 percent of them admitted to having prior to that ...

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