United States v. Dewitt, 112719 FED7, 19-1295

Docket Nº:19-1295
Opinion Judge:SCUDDER, CIRCUIT JUDGE.
Party Name:United States of America, Plaintiff-Appellee, v. Shawn M. Dewitt, Defendant-Appellant.
Judge Panel:Before Flaum, Sykes, and Scudder, Circuit Judges.
Case Date:November 27, 2019
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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United States of America, Plaintiff-Appellee,

v.

Shawn M. Dewitt, Defendant-Appellant.

No. 19-1295

United States Court of Appeals, Seventh Circuit

November 27, 2019

Argued September 25, 2019

Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:17-cr-110 - Jon E. DeGuilio, Judge.

Before Flaum, Sykes, and Scudder, Circuit Judges.

SCUDDER, CIRCUIT JUDGE.

Trials often require jurors, as lay-people considering evidence, to draw inferences based on their life experiences. The duty is most unenviable in cases requiring jurors to view images of child sexual abuse. After doing so in Shawn Dewitt's trial, the jury found him guilty of child pornography offenses. Dewitt argues the government's evidence was insufficient because the jury heard no expert testimony (from a medical doctor, for example) about the age of girls depicted in images sent from his cellphone. While some cases may present close calls that benefit from expert evidence, this one does not. The jury heard and saw more than enough to make a reliable finding that Dewitt possessed, produced, and distributed images of children. We affirm.

I

A

Shawn Dewitt was living in Lafayette, Indiana with his fiancee, three-year-old son, and four-year-old daughter when he began chatting with Timothy Palchak on an anonymous phone application. The two men met in an online group called "Open Family Fun." Unbeknownst to Dewitt, Palchak was an undercover officer and member of the FBI's Internet Crimes Against Children Task Force who had targeted the group for a sting operation because its name suggested sexual interest in children.

In their online conversation, Dewitt told Officer Palchak about his children. Officer Palchak reciprocated by conveying information about his (fictitious) nine-year-old daughter. Dewitt admitted to sexually abusing his four-year-old daughter but made plain he preferred slightly older girls-"development age" girls at the beginning of puberty, as he put it. He offered to send images of himself abusing his daughter if Officer Palchak would do the same.

While repeatedly soliciting images of Officer Palchak's daughter, Dewitt also sent one video and one still image of fully nude girls. Dewitt accompanied the images with descriptions of the sexual acts he would like to see Officer Palchak's nine-year-old daughter perform.

In time the FBI arrested Dewitt and seized and searched his phone. The search uncovered the images sent to Officer Palchak and a photo of Dewitt engaged in a sexual act with his four-year-old daughter. All of this led to a grand jury charging Dewitt with three counts relating to the production, distribution, and possession of child pornography in violation of 18 U.S.C. §§ 2251(a), 2252(a)(2), and 2252(a)(4)(B). He proceeded to trial, and a jury returned a guilty verdict on all counts. The district court sentenced Dewitt to 30 years' imprisonment.

B

At trial Dewitt objected to the district court's admission of the photograph and video he sent to Officer Palchak, which formed the basis of the distribution charge. He contends that the law required the government to present expert testimony about the subjects' ages before the images could be received into evidence. The court overruled the objection but noted that, upon the return of a guilty verdict, Dewitt could raise the issue in a new motion for a judgment of acquittal under Federal Rule of Criminal Procedure 29.

After the jury...

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