FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-50579
Plaintiff-Appellee, D.C. No.
v. 2:07-cr-01222-
CARMEL A. TELLO, SVW-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Submitted March 1, 2010*
Pasadena, California
Filed April 7, 2010
Before: Ronald M. Gould and Sandra S. Ikuta,
Circuit Judges, and Lloyd D. George,**
Senior District Judge.
Opinion by Judge Gould
*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable Lloyd D. George, Senior United States District Judge
for the District of Nevada, sitting by designation.
5311
UNITED STATES v. TELLO 5313
COUNSEL
Mark Yanis, Huntington Beach, California, for the defendant-
appellant.
George S. Cardona, Acting United States Attorney; Christine
C. Ewell, Assistant United States Attorney; and Mark A. Wil-
liams, Assistant United States Attorney, Los Angeles, Califor-
nia, for the plaintiff-appellee.
OPINION
GOULD, Circuit Judge:
Defendant-Appellant Carmel A. Tello appeals his convic-
tion under 18 U.S.C. § 2422(b) of using a means of interstate
5314 UNITED STATES v. TELLO
commerce to knowingly persuade, induce, entice, or coerce a
minor to engage in a sexual activity for which he can be
charged with a criminal offense. The government alleged in
the criminal indictment that Tello used the Internet and tele-
phone to knowingly persuade, induce, and entice a minor to
engage in sexual activity for which Tello could be charged
with a criminal offense under California law. Tello argues on
appeal that the evidence at trial showed only that he intended
to engage in sexual activity with the minor in Arizona, not
California. We have jurisdiction pursuant to 28 U.S.C.
§ 1291. Because Tello could have been convicted of a crimi-
nal offense under California law, even if he intended to
engage in sexual activity with the minor only after returning
to Arizona, we affirm his conviction.
I
Carmel A. Tello, who lived in Arizona, initiated an Internet
chat conversation with a computer user known as “Cutela-
grl93.” Unbeknownst to Tello, the actual user of the Cutela-
grl93 screen name1 was an undercover agent with the Federal
Bureau of Investigation (“FBI”) who was posing online as a
thirteen-year-old girl living in Southern California. Thus iden-
tified, Tello elaborated his illicit criminal plans to his detri-
ment: During the ensuing chat sessions, Tello proposed that
he and Cutelagrl93 engage in sexual activities, including
intercourse, oral sex, and other sex acts. Tello said he would
drive to California to meet Cutelagrl93 and return with her to
Arizona where she could live with him and have sex. The
defendant drove to California to meet Cutelagrl93. He was
arrested by the FBI when he arrived at the prearranged time
and place in West Los Angeles. The government charged
1
“A screen name is an appellation used to identify oneself in a chat
room or when sending instant messages to another computer user.
Although it can be the user’s real name, it is more often a pseudonym.”
United States v. Meek, 366 F.3d 705, 710 n.3 (9th Cir. 2004) (quotation
marks omitted).
UNITED STATES v. TELLO 5315
Tello with violating 18 U.S.C. § 2422(b), using a means of
interstate commerce to knowingly persuade, induce, entice, or
coerce a minor to engage in a sexual activity for which he can
be charged with a criminal offense.
During Tello’s bench trial, the government called six wit-
nesses, including the undercover FBI agent and Tello’s son.
The FBI agent testified that he created the Cutelagrl93 screen
name with an online profile of a thirteen-year-old girl and
entered a chat room called “Taken [read: Take In] Unwanted
YF” (presumably “YF” meaning “young females”). Tello,
using the screen name “CrmTel1,” initiated a conversation
with Cutelagrl93.
During the Internet conversation,2 Cutelagrl93 explicitly
stated that she was a thirteen-year-old girl living in Southern
California. Tello asked Cutelagrl93 if she had considered run-
ning away and if so whether she wanted to live with him.
Tello brought up sexual topics and discussed various sexual
activity that he wanted to engage in with Cutelagrl93, includ-
ing oral sex, sexual intercourse, and masturbation. Tello also
started a live webcam session showing Cutelagrl93 his nude
body. In addition to discussing the various sex acts that he
wanted to perform on or with Cutelagrl93, Tello stated that he
thought about sex all the time and that he specifically wanted
to have sex with Cutelagrl93 all the time. Tello explained that
he wanted to travel from Arizona to meet Cutelagrl93 in Cali-
fornia and that he and Cutelagrl93 would have sex in his
home in Arizona:
Cutelagrl93 [05:13 PM]: where wud we have
sex??????????
2
Because Internet communication is often informal, involving typo-
graphical errors, symbols, shorthand, and abbreviations, we do not use
“[sic]” to indicate every grammatical or spelling error or mistake in the
chat room text.
5316 UNITED STATES v. TELLO
[Tello] [05:13 PM]: yes in my house
[Tello] [05:13 PM]: I live in a traler home
Cutelagrl93 [05:14 PM]: so do u drive ur traler to
LA?
[Tello] [05:14 PM]: no
[Tello] [05:14 PM]: when I go there it will be in my
truck
Cutelagrl93 [05:14 PM]: so u wud pick me up then
take me to ur house then we wud have sex?
[Tello] [05:14 PM]: an if we have sex it will be here
Cutelagrl93 [05:15 PM]: where wud that be?
[Tello] [05:15 PM]: here in az
Tello said he would leave Arizona and be in California to
meet Cutelagrl93 in ten hours. Cutelagrl93 asked Tello when
he would go back to Arizona, and Tello said he did not know.
Tello arranged to meet Cutelagrl93 the next day at a book-
store in Los Angeles at 8:00 p.m. Tello drove from his home
in Arizona straight through for approximately ten hours until
he reached Los Angeles, stopping only for gas and food.
When Tello arrived at the bookstore, the FBI arrested him.
The government admitted into evidence the transcripts of
the Internet chat conversations as well as excerpts of Tello’s
videotaped interrogation. Tello waived his Miranda rights and
agreed to answer the FBI’s questions. Tello said that he
planned to spend the night in California with his son and
would return home the next morning. But Tello did not bring
with him any medication, any luggage, or any change of
clothing. Tello admitted to creating the “young female” chat
UNITED STATES v. TELLO 5317
room and talking to Cutelagrl93 about sexual activity that he
sought with her. After the close of the government’s case,
Tello moved for judgment of acquittal under Federal Rule of
Criminal Procedure 29, arguing about the weight of the evi-
dence, and, at Tello’s request, the district court deferred ruling
on the motion until after the defense’s case.
Tello admitted in his testimony that he communicated with
Cutelagrl93 and made sexual statements. But Tello testified
that he thought he was talking to an older woman who was
role playing as a young girl. Tello also testified that he did not
intend to go home after he picked up Cutelagrl93 at the book-
store. He explained that, while he did not bring any medica-
tion with him, he did not have to take his medication every
day. He also testified that he was going to his son’s house.
Tello’s son testified that Tello said he would be visiting the
son but later cancelled because Tello said he was going to
meet a girl instead.
During closing arguments, Tello’s counsel argued that
Tello did not know that Cutelagrl93 was a minor, that Tello
was only role playing, and that there was no evidence that
Tello’s visit to California was for the purpose of engaging in
sexual conduct. The government argued that the Internet chat
sessions showed that Tello specifically intended to engage in
sexual activity with Cutelagrl93; that the role-playing defense
came up only at trial, not during Tello’s interrogation; that
Tello “had every intention to pick the girl up, turn right
around and return to Arizona and have sex with her in his
trailer”; and that Tello’s conduct would have violated Califor-
nia law. The trial judge rejected Tello’s defensive theories and
found Tello guilty, and then sentenced him to ten years’
imprisonment. Tello timely appealed his conviction.
II
We review de novo the sufficiency of the evidence to sup-
port a conviction. United States v. Salman, 531 F.3d 1007,
5318 UNITED STATES v. TELLO
1010 (9th Cir. 2008). We view the evidence in the light most
favorable to the prosecution to determine whether any rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. Id. The same standard
applies to bench trials. United States v. Overton, 573 F.3d
679, 685 (9th Cir. 2009).
III
Tello was convicted of violating 18 U.S.C. § 2422(b),3
which states the following:
Whoever, using the mail or any facility or means of
interstate or foreign commerce, or within the special
maritime and territorial jurisdiction of the United
States knowingly persuades, induces, entices, or
coerces any individual who has not attained the age
of 18 years, to engage in prostitution or any sexual
activity for which any person can be charged with a
criminal offense, or attempts to do so, shall be fined
under this title and imprisoned not less than 10 years
or for life.
To convict Tello under this statute, the government had to
prove that Tello, using a means of interstate commerce,
“knowingly (1) attempted to (2) persuade, induce, entice, or
coerce (3) a person under 18 years of age (4) to engage in sex-
ual activity that would constitute a criminal offense.” United
States v. Goetzke, 494 F.3d 1231, 1234-35 (9th Cir. 2007)
(per curiam).
There is no doubt that, from the evidence, Tello was using
the Internet, an instrumentality of interstate commerce, and
that he tried to persuade the FBI agent posing as Cutelagrl93,
3
Tello was also convicted of violating 18 U.S.C. § 2423(b) (traveling in
interstate commerce with intent to engage in illicit sexual conduct). Tello
does not appeal that conviction.
UNITED STATES v. TELLO 5319
which in the context of this chat room would indicate a girl
of thirteen, clearly under eighteen, to come with him to Ari-
zona. Tello’s appeal focuses solely on the fourth element—
engaging in sexual activity that would constitute a criminal
offense. This element requires that the statute be applied “to
situations in which an individual could actually be prosecut-
ed.” United States v. Dhingra, 371 F.3d 557, 565 (9th Cir.
2004). “[A]pplication of § 2422(b) is limited to the jurisdic-
tion and venue restrictions of state and federal law. [F]ederal
criminal law can properly incorporate the criminal law of the
state in which the offenses occurred.” Id. (internal citation and
parentheses omitted).
The criminal indictment alleged that Tello “could be
charged with a criminal offense under California law, namely:
Lewd Act Upon a Child Under the Age of 14 Years, a viola-
tion of California Penal Code Section 288; Oral Copulation,
a violation of California Penal Code Section 288a; and
Unlawful Sexual Intercourse with a Person Under the Age of
18 Years, a violation of California Penal Code Section 261.5.”
Tello argues that a conviction under one of the California
statutes pleaded in the indictment required that he intend to
commit a physical sexual act upon a minor within the state of
California. Tello argues that the evidence showed only that he
intended to pick up a thirteen-year-old girl in California and
return to Arizona, where he would engage in sexual activity
with her. Because the government did not plead that Tello
could be charged with a criminal act under Arizona law,
where the intended sexual activity was to occur, Tello con-
tends that there was insufficient evidence to support his con-
viction as pleaded. He concludes that his drive to Los Angeles
to pick up what he thought was a thirteen year old to take to
Arizona for sex does not show a crime under California law.
We disagree.
[1] Under California statutory law, a person intending to
commit a crime may be charged with a criminal offense if the
5320 UNITED STATES v. TELLO
person commits any act within the state in partial execution
of that intent. California Penal Code section 778a provides in
relevant part,
Whenever a person, with intent to commit a crime,
does any act within this state in execution or part
execution of that intent, which culminates in the
commission of a crime, either within or without this
state, the person is punishable for that crime in this
state in the same manner as if the crime had been
committed entirely within this state.
Cal. Penal Code § 778a(a). California Penal Code section 27
further provides that “[a]ll persons who commit, in whole or
in part, any crime within this state” are liable to punishment
under the law of California. Cal. Penal Code § 27(a).
[2] In People v. Betts, the Supreme Court of California
held that section 778a “is satisfied if the defendant, with the
requisite intent, does a preparatory act in California that is
more than a de minimis act toward the eventual completion of
the offense.” 103 P.3d 883, 893 (Cal. 2005). The defendant in
Betts was a California truck driver who was convicted under
California Penal Code section 288(a) for committing lewd or
lascivious acts on a child under the age of fourteen—one of
the same statutes pleaded in the Tello indictment—when he
molested his young step-granddaughters during two interstate
and one intrastate trucking trips. Id. at 885-86. On appeal, the
defendant argued that the evidence was insufficient to convict
him on all counts because some of the offenses took place
outside of California. Id. at 892-93. The California Supreme
Court disagreed and affirmed the convictions. Id. at 893, 896.
The court held that the evidence supported the conclusion that
while the defendant was in California he had the intent to
molest the girls and performed acts in furtherance of that
intent:
UNITED STATES v. TELLO 5321
The evidence presented at trial amply supports the
conclusion that defendant formed the intent to
molest the girls while he was in California . . . .
Defendant’s acts of driving the girls across the
state in his truck constitute sufficient conduct to
establish California’s jurisdiction over his crimes.
These acts were not de minim[is]; they furthered the
completion of the charged offenses by removing the
girls from the protection of their mother and provid-
ing defendant with opportunities to be alone with
each of them. Both of the victims were California
residents, and California has a legitimate interest in
protecting its residents from criminal conduct.
Id. at 893.
[3] Here, Tello concedes that the evidence showed that he
intended to meet Cutelagrl93 in California for the purpose of
engaging in illegal sexual activity and then drive to Arizona
to complete his intended illegal acts. The evidence showed
that Tello repeatedly sent Internet messages into California to
persuade Cutelagrl93 to engage in illegal sexual activity with
him, that Tello arranged to meet her in California, that Tello
drove through California to meet her, and that Tello entered
the California bookstore in Los Angeles at the prearranged
time to pick her up. Tello’s conduct in California was more
than a de minimis act in furtherance of his intent to commit
the crime. See People v. Herman, 119 Cal. Rptr. 2d 199,
215-16 (Ct. App. 2002). The evidence was sufficient to sup-
port a finding that Tello entered California with the requisite
criminal intent and partially executed that intent within the
state.4 See People v. Renteria, 82 Cal. Rptr. 3d 11, 15 (Ct.
4
Tello’s reliance on United States v. Patten, 397 F.3d 1100 (8th Cir.
2005), is misplaced, even if we were inclined to follow it. Patten dealt
with a state legal structure entirely unlike the one we face today. At the
time of the Patten decision, North Dakota did not have an extraterritorial-
5322 UNITED STATES v. TELLO
App. 2008) (“The ultimate question is whether given the
crime charged there is a sufficient connection between that
crime and the interests of the State of California such that it
is reasonable and appropriate for California to prosecute the
offense.”).
Tello contends that California’s extraterritorial-jurisdiction
statute does not apply in this case because his criminal intent
originated while he was in Arizona, not California. Tello
relies on the statement in Betts that the defendant “formed the
intent to molest the girls while he was in California.” See
Betts, 103 P.3d at 893 (emphasis added). Tello misapprehends
the nature of the statement. The court’s use of the term
“formed” merely reflected that the defendant lived in Califor-
nia. The court did not call into question the crucial require-
ment of section 778a—that the defendant, regardless of where
the intent originated, perform an act in furtherance of the
criminal intent while in California. See People v. Brown, 109
Cal. Rptr. 2d 879, 883 (Ct. App. 2001). The evidence in this
case sufficiently satisfied the statute.5
jurisdiction statute like the one in California, and North Dakota generally
criminalized conduct occurring within its borders or commencing outside
its borders but consummated within the state. N.D. Cent. Code §§ 29-03-
01, 29-03-01.1 (2003). In 2007, after the Patten decision, North Dakota
amended its extraterritorial-jurisdiction statute to include out-of-state
solicitation for sexual contact of a minor who is located within the state.
Id. § 29-03-01.1(3) (2008).
5
Nor are we persuaded that California’s extraterritorial-jurisdiction stat-
ute does not apply in this case because there was no actual victim. Califor-
nia has repeatedly rejected the factual-impossibility defense, even in
undercover Internet operations investigating illegal sexual activity with
minors. People v. Rojas, 358 P.2d 921, 924 (Cal. 1961); Hatch v. Superior
Court, 94 Cal. Rptr. 2d 453, 465-66 (Ct. App. 2000); see also Meek, 366
F.3d at 717 (“[A]n actual minor victim is not required for an attempt con-
viction under 18 U.S.C. § 2422(b).”) (quotation marks omitted).
UNITED STATES v. TELLO 5323
IV
[4] California has a strong interest in protecting its resi-
dents from sexual predators like Tello who enter the state to
lure minors away to engage in illegal sexual activity in
another state. We conclude that Tello could have been
charged and convicted with a criminal offense under Califor-
nia law, even if he intended to engage in sexual activity with
the minor only after returning to Arizona. There was suffi-
cient evidence to support his conviction under § 2422(b).6 We
affirm.
AFFIRMED.
6
Because we may affirm on any ground supported by the record, Atel
Fin. Corp. v. Quaker Coal Co., 321 F.3d 924, 926 (9th Cir. 2003), we do
not address the various alternate grounds on which the government asks
us to affirm.