Appeal from the United States District Court for the Central District of California, Stephen V. Wilson, District Judge, Presiding, D.C. No. 2:07-cr-01222-SVW-1.
The opinion of the court was delivered by: Gould, Circuit Judge
Submitted March 1, 2010*fn1 -- Pasadena, California
Before: Ronald M. Gould and Sandra S. Ikuta, Circuit Judges, and Lloyd D. George,*fn2 Senior District Judge.
Defendant-Appellant Carmel A. Tello appeals his conviction under 18 U.S.C. § 2422(b) of 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. 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.
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 name*fn3 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 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,*fn4 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??????????
[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 ...