United States V Dana Curtin
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-3368
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DANA CURTIN,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 22-cr-10018 — James E. Shadid, Judge.
____________________
ARGUED FEBRUARY 27, 2025 — DECIDED JULY 1, 2025
____________________
Before ST. EVE, LEE, and MALDONADO, Circuit Judges.
ST. EVE, Circuit Judge. A jury convicted Dana Curtin of at-
tempted sex trafficking of a minor. The government based the
charge on text communications between Curtin and a federal
agent posing as the father of a 12-year-old girl. The two dis-
cussed Curtin paying for sex with the agent’s “daughter.” Af-
ter ten weeks of intermittent texting, Curtin went to meet the
girl and her “father” at an agreed upon location, where law
2 No. 23-3368
enforcement arrested him. The district court sentenced Curtin
to 180 months’ imprisonment.
In this appeal, Curtin challenges the district court’s exclu-
sion of two lines of expert testimony. Because Curtin waived
his challenge to the exclusion of one and the district court
acted within its discretion in excluding the other, we affirm
Curtin’s conviction.
I. Background
A. Factual History
Dana Curtin strayed outside of his marriage for sexual
partners. He visited one website dedicated to “selling sex for
money” almost daily. While browsing, he came across an ad-
vertisement offering a “girl” for “some taboo no limits fun.”
Entitled “TabuFun,” the post stated the prices for several sex
acts, and included a picture of a young-looking woman who
weighed “95 pounds” and was “99 years old.”
In reality, the advertisement depicted an FBI confidential
informant. Agent Kurt Bendoraitis created the post because
the FBI had identified real minors operating on the site. About
two hours after the post went live, Agent Bendoraitis received
a text from Curtin asking whether the girl was available the
next day. Posing as the girl’s father, Agent Bendoraitis dis-
cussed timing, sexual acts, and the girl’s age: 12 years old.
Curtin assumed the girl’s “father” was just “messing around”
on the site. After Agent Bendoraitis assured Curtin that the
advertisement was real and that he was not setting Curtin up,
the two began to discuss logistics. Curtin asked whether the
girl was “okay with all this” and whether she had “[s]een
guys before[.]”
No. 23-3368 3
The two continued to communicate via text over the next
ten weeks, during which time Agent Bendoraitis continuously
reminded Curtin of his “daughter’s” age. When conversation
lagged, Curtin was typically the one to reinitiate it. After one
lull, Curtin texted that he would love to get together. Agent
Bendoraitis asked how long Curtin wanted to be with the “12
y[ear] o[ld],” to which Curtin responded, “I’m not sure what
12 yo means and don’t want to know, but I think [$]150 … was
what we talked about last time.” Agent Bendoraitis once
again reminded Curtin that the girl was 12 years old. After he
asked whether Curtin had condoms, Curtin replied “sure,”
said he did not remember what the girl looked like, and Agent
Bendoraitis sent a picture. Curtin responded, “Okay. Just [let
me know] the plan.” Curtin then sent a picture of $150 in cash
at Agent Bendoraitis’s request.
Agent Bendoraitis and Curtin decided they would meet at
a public place on May 19, 2022. Curtin arrived first, and Agent
Bendoraitis texted him to go into the nearby store to buy a
smoothie for the girl. Curtin did not get out of his truck. After
five minutes, law enforcement officers at the scene moved to
arrest him.
The officers uncovered condoms, personal lubricant, and
cash in Curtin’s vehicle. The cash totaled $240, with $150 in a
separate compartment. Officers also searched Curtin’s phone,
which contained evidence of adult pornography and solicita-
tion of prostitutes, but no child sexual abuse material
(“CSAM”) or material associated with a sexual interest in chil-
dren. When asked about the purpose of his meeting with the
girl that day, Curtin claimed that he wanted to see if it was
“real.” He explained that he did not report his conversation
4 No. 23-3368
with her “father” because he was embarrassed that he used
the website for sex.
B. Procedural History
A grand jury indicted Curtin with attempted sex traffick-
ing of a minor, in violation of 18 USC §§ 1591(a)(1), (b)(1), &
1594(a). 1
In preparation for trial, Curtin disclosed his intent to pre-
sent the testimony of forensic psychiatrist Dr. Fabien Saleh.
Dr. Saleh’s terse report concluded that Curtin “does not meet
the Diagnostic and Statistical Manual’s [‘DSM-5’s’] diagnostic
criteria for Pedophilic Disorder or any other paraphilic disor-
der.” Citing to the DSM-5, Dr. Saleh found “no evidence in
support of ‘intense sexually arousing fantasies, sexual urges,
or behaviors involving sexual activity with a prepubescent
child or children.’” He also clarified that “the presence or ab-
sence of a diagnosis [for] Pedophilic Disorder … does not ne-
gate the offense conduct as alleged.” “In fact,” he continued,
“individuals who engage in criminal sexual conduct repre-
sent a heterogenous population and some of them do and
some do not suffer from a diagnosable mental health condi-
tion.”
In response to the government’s motion to exclude Dr.
Saleh’s testimony, Curtin argued that the testimony bore rel-
evance to intent—namely, that Curtin’s “intent was to rescue
the minor from what he believed to be a human trafficking
situation.” Curtin also asserted that Dr. Saleh’s testimony
1 The grand jury also indicted Curtin with attempted enticement of a
minor, in violation of 18 USC § 2422(b), but the government voluntarily
dismissed that count at the start of trial.
No. 23-3368 5
would be “essential” to rebut the testimony of the govern-
ment’s identified expert witness, who the government ulti-
mately withdrew.
At the start of trial, defense counsel restated her desire to
call Dr. Saleh “to explain to the jury the factors to consider
with intent.” In response to the court’s remark that caselaw
precludes admission of “expert testimony on a diagnosis or
lack thereof of … pedophil[ic] disorder,” defense counsel re-
sponded, “I agree with you, Judge, and we’re not trying to call
him to talk about pedophilia.” Counsel explained that Dr.
Saleh would rebut Agent Bendoraitis’s testimony regarding
what actions evince intent. The court reserved ruling, observ-
ing that if the government opened the door, the court might
permit Dr. Saleh to opine on intent.
Later during trial, the court pushed defense counsel on
what, precisely, Dr. Saleh would testify to:
[Y]ou have indicated a couple of times that you
think your expert should be able to testify as to
factors the jury should consider on the issue of
intent. Tell me what those are, and have those
been – I’m looking at his report … and I’m not
seeing it. So tell me what that would be.
Curtin’s counsel first acknowledged that she “did assert” she
would not solicit an opinion regarding Curtin having pe-
dophilic disorder. She then explained that Dr. Saleh would
testify about what an expert relies upon to determine that a
person lacks pedophilic disorder. Pressed again by the court
for greater precision, Curtin’s counsel provided some exam-
ples: “the fact that someone engages in paid-for sex with
adults does not mean that you can extrapolate they paid for
6 No. 23-3368
sex with a child,” and “[t]he fact that someone views adult
pornographic material … is very distinguishable” from view-
ing CSAM.
After considering arguments from both parties, the district
court excluded Dr. Saleh’s testimony as insufficiently helpful
to the jury. It described the proposed testimony as “kind of a
commonsense thing for all of us.” The court acknowledged
that it would have been “more inclined” to allow Dr. Saleh’s
testimony had the government introduced its own expert. It
also cautioned the government against converting Agent Ben-
doraitis’s factual testimony into anything bordering expert
testimony. With these caveats, the court invited Curtin to
make his argument—that his interest in sex with adults does
not evince a sexual interest in minors—without an expert.
The trial lasted three days. Agent Bendoraitis and one
other agent testified for the government, and five witnesses,
including Curtin, testified for the defense. Curtin stated that
he engaged with Agent Bendoraitis because he wanted to find
out if it was “real”—if someone was “really” offering a 12-
year-old girl for sex—and to “turn him in.” But he acknowl-
edged that he never reported the situation to authorities. After
deliberating for approximately five hours, the jury returned a
guilty verdict. The court sentenced Curtin to 180 months’ im-
prisonment, the statutory minimum.
Curtin now appeals.
II. Discussion
Curtin faults the district court for excluding two lines of
expert testimony from Dr. Saleh: (1) Curtin lacked pedophilic
tendencies; and (2) an interest in adult sex and pornography
does not evince an interest in child sex and CSAM.
No. 23-3368 7
Curtin has waived the first challenge. To preserve an issue
for appeal, a defendant must make “a timely and specific ob-
jection … [that] notif[ies] the court and the opposing party of
the potential error and the ground for objection.” United States
v. Burns, 843 F.3d 679, 685 (7th Cir. 2016) (citation modified).
A failure to object that is intentional or otherwise strategic re-
sults in waiver and precludes appellate review. See United
States v. Olano, 507 U.S. 725, 733 (1993); United States v. Flores,
929 F.3d 443, 447 (7th Cir. 2019). We regularly find waiver
where the defendant or defense counsel affirmatively agreed
with a decision of the district court. See, e.g., United States v.
Robinson, 964 F.3d 632, 640–41 (7th Cir. 2020) (finding waiver
where counsel “affirmatively agreed with [the court’s] recita-
tion of the record”); United States v. McGhee, 98 F.4th 816, 824
(7th Cir. 2024) (the defendant’s acknowledgement that
caselaw foreclosed an argument resulted in waiver); Flores,
929 F.3d at 449 (a defendant “obvious[ly]” and “intentionally”
waives a sentencing challenge “when he affirmatively t[ells]
the district court that he ha[s] no objection” (citation modi-
fied)).
That is what happened here. The court expressed that
caselaw precluded expert testimony on a diagnosis or lack
thereof of pedophilic disorder. Rather than offering a “specific
objection” to alert the court to a purported error, Burns, 843
F.3d at 685, Curtin’s counsel responded, “I agree with you,
Judge, and we’re not trying to call him to talk about pedo-
philia.” Right or wrong as a matter of law, counsel’s
“state[ment] on the record” agreeing with the court’s conclu-
sion constitutes waiver. Robinson, 964 F.3d at 640–41.
Resisting this conclusion, Curtin points to several state-
ments that he contends preserved his request for Dr. Saleh to
8 No. 23-3368
testify to his lack of pedophilic tendencies: statements found
in his expert report, response to the government’s motion in
limine, and made during trial. Many of these statements were
made before Curtin’s counsel unambiguously agreed that
such testimony was irrelevant and disclaimed any intent to
rely on it.
In any event, rather than preserve his argument, Curtin’s
statements throughout the pendency of this case reflect fluc-
tuation and opacity regarding what, precisely, Dr. Saleh
would testify to. In his response to the government’s motion
in limine, for example, Curtin claimed that Dr. Saleh’s testi-
mony regarding Curtin’s lack of pedophilic disorder was rel-
evant to his intent to “save” or “rescue” a minor, but else-
where pronounced that “what can or cannot be admitted in
relationship to pedophilia is of no consequence.” During trial,
when the court understandably expressed confusion about
the contours of Dr. Saleh’s testimony, Curtin provided two
examples that pertained to the disconnect between a desire to
engage in sex with an adult as compared to sex with a minor.
None of these statements signaled to the court that Curtin
sought to introduce testimony about his lack of pedophilic
tendencies. Instead, considered alongside his agreement with
the court on relevance, they reflect a decision to forgo reliance
on pedophilic tendency testimony in favor of other kinds of
testimony.
Which brings us to Curtin’s remaining challenge: the dis-
trict court erred in excluding Dr. Saleh’s testimony that
(1) “the fact that someone engages in paid-for sex with adults
does not mean that you can extrapolate they paid for sex with
a child”; and (2) an interest in viewing adult pornography is
“very distinguishable” from an interest in viewing CSAM.
No. 23-3368 9
Curtin argues that he needed Dr. Saleh’s testimony to show
that, although the government argued that Curtin had “sex
on his mind,” it was not “sex with a minor.”
The court excluded the testimony as not helpful to the
jury. See Fed. R. Evid. 702. Because Curtin has not challenged
the court’s application of the appropriate legal standard,
which would trigger de novo review, we review for an abuse
of discretion. Carter v. City of Wauwatosa, 114 F.4th 866, 879
(7th Cir. 2024). Under this highly deferential standard, we will
reverse only if the court made a “manifestly erroneous” deci-
sion, United States v. Tsarnaev, 595 U.S. 302, 323 (2022) (quoting
Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142 (1997))—that is, a de-
cision with which “no reasonable person” could agree, United
States v. Brown, 871 F.3d 532, 536 (7th Cir. 2017).
Federal Rule of Evidence 702(a) permits only helpful expert
testimony. United States v. Gan, 54 F.4th 467, 475 (7th Cir.
2022). Expert testimony is not helpful if the jury, using logic
or common sense derived from everyday experiences, does
not need an expert to understand the evidence and arguments
presented. See Salem v. U.S. Lines Co., 370 U.S. 31, 35 (1962);
United States v. Christian, 673 F.3d 702, 710–11 (7th Cir. 2012).
Although district courts “are not compelled to exclude all ex-
pert testimony merely because it overlaps with matters within
the jury’s experience,” United States v. Lamarre, 248 F.3d 642,
648 (7th Cir. 2001) (citing United States v. Hall, 93 F.3d 1337,
1344 (7th Cir. 1996)), they may in their discretion “properly”
exclude such testimony if “the primary facts can be accurately
and intelligibly described to the jury” and if its members “are
as capable of comprehending the primary facts and of draw-
ing correct conclusions from them” as expert witnesses, Salem,
370 U.S. at 35; see also United States v. Dewitt, 943 F.3d 1092,
10 No. 23-3368
1096 (7th Cir. 2019) (“If the matter is within the jurors’ under-
standing, the expert testimony is not ‘specialized knowledge’
that ‘will help the trier of fact’….” (quoting Fed. R. Evid. 702));
Dhillon v. Crown Controls Corp., 269 F.3d 865, 871 (7th Cir.
2001) (“the district court was well within bounds” to exclude
“commonsense” expert testimony).
The district court did not abuse its broad discretion in ex-
cluding Dr. Saleh’s testimony. It determined that the jury did
not need an expert to understand that an interest in sex or
pornography involving adults does not imply an interest in
the same involving minors. We have said that “[j]urors bring
to their service the totality of lived experiences … as adults.”
Dewitt, 943 F.3d at 1097. Each of these experiences “instill the
knowledge, judgment, and common sense requisite to tell the
difference” between an interest in minor and adult sex. Id.
This is true even if the manner of adult sex Curtin engaged
in—e.g., exchanging money for sex—is itself not commonly
accepted.
The court also expressly permitted Curtin to make argu-
ments concerning the difference between an interest in sex
with adults and minors, undermining Curtin’s contention
that he could not rebut the government’s argument without
Dr. Saleh’s testimony. Curtin presented evidence regarding
the absence of CSAM on his phone, and multiple witnesses
(Curtin included) testified about his lack of sexual interest in
children. Given the evidence that came into the record, the ab-
sence of any government expert, and the jury’s ability to un-
derstand the commonsense distinction at issue, we cannot say
No. 23-3368 11
that the district court’s decision to exclude the evidence was
manifestly erroneous. 2
Even if the court improperly excluded Dr. Saleh’s testi-
mony, though, and assuming Curtin preserved his chal-
lenges, harmless error review applies to the court’s eviden-
tiary decisions. Gan, 54 F.4th at 475; Fed. R. Crim. P. 52(a). We
will reverse only if “the prosecution’s case would have been
significantly less persuasive” absent the court’s errors. United
States v. McGhee, 88 F.4th 1236, 1240 (7th Cir. 2023). To make
this determination, “we consider the entirety of the evidence
that the government presented.” United States v. Boros, 668
F.3d 901, 910 (7th Cir. 2012).
Curtin himself admits that the government’s evidence
“was sufficient to infer criminal intent.” Brief for Appellant at
37. More than that, it strongly evinced Curtin’s guilt. Curtin
consistently reinitiated conversation with Agent Bendoraitis
and continued those conversations for ten weeks. He
prompted the agent to send him a picture of the girl he be-
lieved to be 12 years old, and after receiving it, immediately
expressed his intent to move forward with the plan. Curtin
drove to the meeting point, bringing with him $150 ear-
marked for the encounter in a separate compartment of his
wallet. Finally, although Curtin attempted to defend his
2 The commonsense nature of this testimony distinguishes it from the
testimony at issue in the cases upon which Curtin relies. See Viamedia, Inc.
v. Comcast Corp., 951 F.3d 429, 484 (7th Cir. 2020) (finding an abuse of dis-
cretion where the district court excluded economic incentives testimony
that required analysis of market conditions); Lamarre, 248 F.3d at 648 (af-
firming the defendant’s conviction on harmless error review but conclud-
ing that the district court abused its discretion by excluding intellectual
functioning testimony).
12 No. 23-3368
actions by claiming that he only sought to obtain information
to turn in the abusive “father,” the jury learned that Curtin
never reported the abuse to authorities.
We consider the strength of this evidence against the po-
tential effect of Dr. Saleh’s testimony: very little. His expert
report revealed that Curtin’s lack of markers for pedophilic
disorder carries minimal probative value; the absence of the
disorder “does not negate the offense conduct as alleged.”
And his proposed testimony that sexual interest in adults
does not evince sexual interest in minors reflects a com-
monsense proposition—one that came into the record by
other evidence and arguments. The admission of Dr. Saleh’s
testimony thus would not have made the government’s case
significantly less persuasive. We find any errors in exclusion
harmless.
* * *
The judgment of the district court is
AFFIRMED.