In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 19-1295

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

SHAWN M. DEWITT,

Defendant-Appellant.

____________________

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.

____________________

ARGUED SEPTEMBER 25, 2019 — DECIDED NOVEMBER 27, 2019

____________________

Before FLAUM, SYKES, and SCUDDER, Circuit Judges.

SCUDDER, Circuit Judge. Trials often require jurors, as laypeople 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 
2 No. 19-1295

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 fiancée, 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. 
No. 19-1295 3

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 returned its verdict, the district court denied 

Dewitt’s Rule 29 motion. It rejected the argument that the two 

images were such a close call to require expert testimony to 

establish the subjects’ status as minors. From his own review 

of the images, the district judge concluded that the appearance of the undeveloped girls—who had “narrow shoulders 

and thin hips and thighs”—allowed non-experts to determine

they were younger than 18. As to the video, the judge added 

that the jury “had the added benefit of watching [the girl’s] 

immature demeanor and hearing her child-like voice.” The 

court therefore determined that sufficient evidence supported 
4 No. 19-1295

the verdict on the distribution charge because a rational jury 

could find beyond a reasonable doubt that the two images depicted girls under 18.

II

A

In reviewing the denial of the Rule 29 motion for judgment 

of acquittal, we apply the same standard as the district court. 

The overarching question is whether there was sufficient evidence to support the guilty verdict. See United States v. 

Khilchenko, 324 F.3d 917, 921 (7th Cir. 2003). We “consider the 

evidence in the light most favorable to the Government,” and 

will reverse “only when the record contains no evidence, regardless of how it is weighed, from which the jury could find 

guilt beyond a reasonable doubt.” United States v. Blassingame, 

197 F.3d 271, 284 (7th Cir. 1999).

We have avoided requiring expert testimony in child pornography cases to establish an unidentified individual’s status as a minor. We agree with other circuits that answering 

whether expert testimony is needed “must be determined on 

a case by case basis.” United States v. Katz, 178 F.3d 368, 373 

(5th Cir. 1999). In some cases, the question may be difficult 

and all but require the government to present expert evidence 

as part of carrying its burden of proving age beyond a reasonable doubt. See id. 

In many cases, however, the fact that the unidentified subject is a child will be obvious from appearance. Expert testimony is unnecessary—and may even be properly excluded—

if people “of common understanding, are as capable of comprehending the primary facts and of drawing correct conclusions from them as are witnesses possessed of special or 
No. 19-1295 5

peculiar training, experience, or observation in respect of the 

subject under investigation.” Salem v. U.S. Lines Co., 370 U.S. 

31, 35 (1962); see also Cyrus v. Town of Mukwonago, 624 F.3d 

856, 864 (7th Cir. 2010). If the matter is within the jurors’ understanding, the expert testimony is not “specialized 

knowledge” that “will help the trier of fact,” as required by 

Federal Rule of Evidence 702. 

These principles apply with full force in child pornography cases. Jurors are capable of drawing on their own perceptions to determine a subject’s age because these types of assessments are “regularly made in everyday life.” United States 

v. Batchu, 724 F.3d 1, 8 (1st Cir. 2013) (explaining that expert 

testimony was unnecessary because a “multiplicity of indicators”—such as the victim’s gait, conversation with the defendant, voice, and general demeanor—would indicate her age to 

a layperson); see also United States v. Haymond, 672 F.3d 948, 

960 (10th Cir. 2012) (holding that expert testimony was unnecessary because the photographs were known child victims 

but also explaining that jurors at times can determine age for 

themselves “particularly when the subjects [are] sufficiently 

young”).

We have reached the same conclusion in similar circumstances. In United States v. Lacey, we held that “expert evidence is not required to prove the reality of children portrayed in pornographic images.” 569 F.3d 319, 324–25 (7th Cir. 

2009). As the First Circuit put the same point, the fact that experts are not required for the “more technical subject of 

whether a sexually explicit image depicts a real or computergenerated child,” “suggests that we should similarly not require the government to provide an expert witness for an 
6 No. 19-1295

assessment [about a child’s age, which is] frequently and routinely made in day-to-day experience.” Batchu, 724 F.3d at 8. 

Beyond appearance, the factfinder may consider other 

contextual factors in determining age. Those factors include a 

defendant’s own stated sexual preferences. Consider, for example, the Eighth Circuit’s reasoning in United States v. 

O’Malley, 854 F.2d 1085 (8th Cir. 1988). The evidence there 

showed that the defendant described the girls in the pictures 

he unwittingly sent to a postal inspector as 12 years old and 

younger than nine. See id. at 1086. The girl in one photo wore 

braces and the other “appeared diminutive in all her bodily 

proportions.” Id. at 1087 n.3. The defendant’s own description, combined with what the pictures themselves showed, 

was sufficient to sustain a child pornography conviction. Id.; 

accord United States v. Broyles, 37 F.3d 1314, 1317, 1319 (8th 

Cir. 1994) (affirming a jury’s verdict in part because the defendant’s expressed preference for “young white females between the ages of 11 and 15, just developing and not totally 

developed” supported the finding that a video of unidentified 

individuals fit that description and showed the subjects to be 

minors). 

B

The trial record contained ample evidence to support the 

jury’s decision to convict Dewitt on the distribution count. Jurors bring to their service the totality of lived experiences not 

only as adults (and, more specifically, as parents, guardians, 

grandparents, aunts, and uncles), but also as once themselves 

children too. All of these experiences instill the knowledge, 

judgment, and common sense requisite to tell the difference 

between a young child, a girl in the first stages of puberty, and 

someone who has reached the age of 18. That a particular 
No. 19-1295 7

individual has entered puberty informs the inquiry but does 

not automatically make expert testimony required as part of 

determining age. Whether a jury can answer the question 

must be assessed on a case-by-case basis, and here the district 

court got it right in concluding that the answer was sufficiently clear to eliminate any need for expert testimony. 

Recall that the district judge himself examined each image. 

He considered the appearance of the girls in the photograph 

and video in deciding that the jury could make the age finding 

on its own. Even more specifically, the judge determined 

that—based on physical appearances alone—the “jury would 

be able to determine based on routine experience that these 

undeveloped slender girls (with narrow shoulders and thin 

hips and thighs) were not as old as eighteen.” United States v. 

Dewitt, No. 3:17-CR-110 JD, 2018 WL 5961723, at *3 (N.D. Ind. 

Nov. 14, 2018). For the video, the jury also had the opportunity to observe the girl’s “immature demeanor” and hear 

her “child-like voice.” Id.

There was more too. The girls’ status as minors found reinforcing support in contextual evidence revealing Dewitt’s 

sexual preferences. In his online chats with Officer Palchak, 

Dewitt stated that he liked “development age,” barely postpubescent girls. In terms unnecessary to recount here, he then 

described in graphic detail his physical preferences, which 

corresponded sufficiently with that age and the appearance of 

the girls in the images. What is more, the sexual acts performed by the girl in the video were the same ones Dewitt 

urged Officer Palchak to have his fictitious nine-year-old 

daughter perform. 

All of this left the jury and the district court—and now 

us—of the clear view that expert testimony was not necessary: 
8 No. 19-1295

the girls appeared far from 18 and Dewitt’s own statements 

allowed a jury finding that each child fit his preferences. 

III

We also need to address Dewitt’s contention that a gap in 

the government’s showing of his cell phone’s chain of custody 

meant that the district court should have never admitted the 

images found on it into evidence at trial. What happened is 

straightforward. Upon Dewitt’s arrest, FBI Agent Richard Davies turned the phone off, took it to his office, and put it on 

his desk. While not itself locked, Agent Davies’s office is part 

of a larger FBI office accessible to only five or six employees 

with the requisite personal ID card and access code. Agent 

Davies was the last to leave the night of Dewitt’s arrest and 

the first to arrive the next morning. Upon returning he found 

the phone exactly as he had left it. At that point Agent Davies 

logged the phone into evidence and sent it to an FBI forensic 

facility.

To be admissible, “the physical exhibit being offered [must 

be] in substantially the same condition as when the crime was 

committed.” United States v. Moore, 425 F.3d 1061, 1071 (7th 

Cir. 2005). The chain of custody does not need to be perfect. 

Rather, the government needs to show that it took “reasonable precautions” to preserve the evidence—a standard that 

does not require excluding all possibilities of tampering. Id. 

Absent any evidence to the contrary, when property is in police custody a presumption arises that the evidence has not 

been tampered with. See United States v. Tatum, 548 F.3d 584, 

587 (7th Cir. 2008). Any gaps in the chain of custody or speculative claims of tampering go to the weight of the evidence 

rather than its admissibility. See United States v. Lee, 502 F.3d 

691, 697 (7th Cir. 2007).
No. 19-1295 9

We see no abuse of discretion in the district court’s admission of Dewitt’s cell phone at trial. All agree the chain of custody was imperfect, as Officer Davies left the phone on his 

desk overnight. But perfection is not the proper measure. The 

imperfection the law tolerates here comes from the fact that, 

at all times, the phone remained secured within the FBI’s office. In these circumstances, the law affords a presumption 

that the integrity of the phone remained intact, that nobody 

tampered with it. Dewitt offers no evidence to the contrary 

and any speculation could have been considered by the jury 

in assigning weight to the evidence.

IV

Finally, we reach Dewitt’s challenge to his sentence. The 

district court determined that Dewitt’s advisory guidelines 

range was 70 years’ imprisonment. At sentencing, the court 

considered Dewitt’s mental infirmities, abusive childhood, 

and other mitigating factors. It also noted that below-guidelines sentences are not uncommon for child pornography offenders. The court found that these circumstances warranted 

a downward variance and in the end sentenced Dewitt to 30 

years. 

We employ a two-step process in reviewing a sentence. We 

first review the sentence for procedural soundness and, if we 

find no error, assess its substantive reasonableness. See United 

States v. Jackson, 547 F.3d 786, 792 (7th Cir. 2008). Here Dewitt 

challenged only the substantive reasonableness of his 30-year 

term of imprisonment. The law is clear, however, that “[a] below-guidelines sentence is ‘presumptively reasonable against 

an attack by a defendant claiming that the sentence is too 

high.’” United States v. Solomon, 892 F.3d 273, 278 (7th Cir. 

2018).
10 No. 19-1295

We see no infirmity with Dewitt’s sentence. Contrary to 

Dewitt’s reading of the sentencing transcript, it is clear the 

district judge gave careful and sufficient mitigating consideration to Dewitt’s mental infirmities. And the ultimate sentence of 30 years was less than half the low-end of the advisory range. We have never held a below-guidelines sentence 

to be unreasonably high. See United States v. George, 403 F.3d 

470, 473 (7th Cir. 2005) (“It is hard to conceive of below range 

sentences that would be unreasonably high.”). This case does 

not warrant being the first. 

For these reasons, we AFFIRM.