Child porn convictions, sentence upheld for father

A father convicted on multiple child porn charges has failed to find relief from his convictions or sentence at the 7th Circuit Court of Appeals.

Shawn Dewitt was found guilty of production, possession and distribution of child pornography after a three-day jury trial before Indiana NOrthern District Court Judge Jon E. DeGuilio in October 2018 after an undercover Lafayette FBI agent communicated with Dewitt via social media. Dewitt had sent undercover agent Timothy Palchak videos and images of child pornography and asked Palchak to send him images of sexual acts with his fictional 9-year-old daughter in exchange for Dewitt providing similar images of his 4-year-old daughter. Lafayette police and FBI agents eventually conducted a search and arrested Dewitt.

During trial, Dewitt objected to the Northern District’s admission of the photograph and video he sent to Palchak but was overruled. However, the district court 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.

A grand jury ultimately charged 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 was found guilty as charged, and once the verdict was released, the district court denied Dewitt’s Rule 29 motion and rejected his argument that the two images were such a close call to require expert testimony to establish the subjects’ status as minors.

Specifically, DeGuilio determined the two images depicted girls under the age of 18 based on their physical underdevelopment, concluding a rational jury could have likewise determined that beyond a reasonable doubt. Similarly, in a review of the denied Rule 29 motion, the 7th Circuit Court found the district court was correct in concluding that the answer to whether the girls depicted in the photos were minors was “sufficiently clear to eliminate any need for expert testimony.

“ … For the video, the jury also had the opportunity to observe the girl’s ‘immature demeanor’ and hear her ‘child-like voice,’” the 7th Circuit added.

The appellate court likewise rejected Dewitt’s contentions that a gap in the government’s showing of his cellphone’s chain of custody following his arrest meant the district court shouldn’t have admitted the images found on it into evidence at trial.

“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 [Richard] Davies left the phone on his desk overnight,” Judge Michael Scudder wrote. “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.”

Scudder also said the 7th Circuit found that Dewitt offered no evidence to prove the phone had been  tampered with.

Lastly, the 7th Circuit found no issue with Dewitt’s 30-year sentence, pointing out that the district judge “gave careful and sufficient mitigating consideration to Dewitt’s mental infirmities.” The below-guidelines sentence, it concluded, was not unreasonably high.

The case is United States of America v. Shawn M. Dewitt, 19-1295.

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