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-

SVW-1 CARMEL A. TELLO,

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
COUNSEL

Mark Yanis, Huntington Beach, California, for the defendantappellant.

George S. Cardona, Acting United States Attorney; Christine

C. Ewell, Assistant United States Attorney; and Mark A. Williams, Assistant United States Attorney, Los Angeles, California, for the plaintiff-appellee.

OPINION

GOULD, Circuit Judge:

Defendant-Appellant Carmel A. Tello appeals his conviction under 18 U.S.C. § 2422(b) of using a means of interstate

UNITED STATES v. TELLO 5313
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 telephone 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 criminal 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 “Cutelagrl93.” Unbeknownst to Tello, the actual user of the Cutelagrl93 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 identified, Tello elaborated his illicit criminal plans to his detriment: 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). 

5314 UNITED STATES v. TELLO
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 witnesses, 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 running 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, including 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 California and that he and Cutelagrl93 would have sex in his

home in Arizona:

Cutelagrl93 [05:13 PM]: where wud we have

sex??????????

2Because Internet communication is often informal, involving typographical errors, symbols, shorthand, and abbreviations, we do not use

“[sic]” to indicate every grammatical or spelling error or mistake in the

chat room text. 

UNITED STATES v. TELLO 5315
[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 bookstore 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

5316 UNITED STATES v. TELLO
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 evidence, 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 bookstore. He explained that, while he did not bring any medication 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 California 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 support a conviction. United States v. Salman, 531 F.3d 1007,

UNITED STATES v. TELLO 5317
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 sexual 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,

3Tello 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. 

5318 UNITED STATES v. TELLO
which in the context of this chat room would indicate a girl

of thirteen, clearly under eighteen, to come with him to Arizona. 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 prosecuted.” United States v. Dhingra, 371 F.3d 557, 565 (9th Cir.

2004). “[A]pplication of § 2422(b) is limited to the jurisdiction 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 violation 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 contends that there was insufficient evidence to support his conviction 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

UNITED STATES v. TELLO 5319
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:

5320 UNITED STATES v. TELLO
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 providing 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 support a finding that Tello entered California with the requisite

criminal intent and partially executed that intent within the

state.4See People v. Renteria, 82 Cal. Rptr. 3d 11, 15 (Ct.

4Tello’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 extraterritorialUNITED STATES v. TELLO 5321
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 California. The court did not call into question the crucial requirement 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). 

5Nor are we persuaded that California’s extraterritorial-jurisdiction statute does not apply in this case because there was no actual victim. California 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 conviction under 18 U.S.C. § 2422(b).”) (quotation marks omitted). 

5322 UNITED STATES v. TELLO
IV

[4] California has a strong interest in protecting its residents 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 California law, even if he intended to engage in sexual activity with

the minor only after returning to Arizona. There was sufficient evidence to support his conviction under § 2422(b).6

 We

affirm.

AFFIRMED.

6Because 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. 

UNITED STATES v. TELLO 5323