United States of America v. John Telles, Jr.

San Francisco, CA - Criminal defense lawyer represented defendant with online enticement of a minor, travel with intent to engage in illicit sexual conduct and engaging in illicit conduct in foreign places charges.

David John Telles, Jr. appeals from his convictions

following a jury trial for one count each of online enticement

of a minor in violation of 18 U.S.C § 2422(b), travel with

intent to engage in illicit sexual conduct in violation of

18 U.S.C. § 2423(b), and engaging in illicit conduct in

foreign places in violation of 18 U.S.C. § 2423(c). Telles

asserts that the district court violated his constitutional rights

by denying him a competency hearing, excluding his

psychiatric expert, denying his motion to represent himself,

proceeding with trial in absentia, and conducting

UNITED STATES V. TELLES 5

fundamentally unfair proceedings. Telles also challenges

the district court's inclusion of the government's

psychologist's expert testimony and the application of the

"repeat and dangerous sex offender against minors”

sentencing enhancement to his sentence.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and

we affirm the district court in all respects.

FACTUAL AND PROCEDURAL BACKGROUND

A.

Telles met T.B., a fourteen-year-old British girl, in May

2014 through an online gaming site, Clash of Clans. In their

first interaction, T.B. informed Telles of her age. Telles

initially used an alias and presented himself as fourteen years

old, but ultimately disclosed his true age, which was thirtyeight.

Over the next two months, Telles and T.B. chatted on

Clash of Clans and over Kik, a messaging application. Their

conversations eventually became romantic and sexual in

nature, with Telles profusely complimenting T.B. and

calling her his girlfriend. During this time, T.B. shared

horrifying, made-up stories of family members' deaths,

abuse by fictional foster family members, a fall requiring

hospitalization, and an assault resulting in surgery. Telles

responded with concern, assistance, and romantic and sexual

interest.

Telles escalated the conversations by expressing his

intent to visit T.B. in England and marry her. Telles bought

a ring, applied for and obtained an expedited passport, and

informed his teenaged children about "everything,”

"[m]arriage[,] new mom.” Telles told T.B., that one of his

6 UNITED STATES V. TELLES

children "ke[pt] asking [T.B.'s] age,” and Telles suggested

that they had to say T.B. was older, "[l]ike 18[,] maybe 17.”

Telles then purchased round-trip tickets for a two-day trip to

England, saved a photo of T.B.'s passport to his phone, and

shared his travel plans with T.B.

Telles arrived in London in June 2014. T.B. sent him a

map to help him find her. Telles suggested that she pack her

passport, birth certificate, money, and medicine, clear her

phone, and leave her parents a note. Once Telles arrived,

T.B. sneaked out of her house, and they drove to a nearby

hotel. In the hotel room, Telles sexually assaulted T.B.

"Midway through” the assault, Telles "pulled out a ring and

got down on a one knee and proposed to [T.B.]” Telles and

T.B. spent the next day driving, purportedly looking for a

lawyer to help them marry in Scotland. The following night,

Telles took T.B. to a second hotel. Telles again sexually

assaulted T.B.

They woke up the next morning to T.B.'s father calling

Telles's phone. Telles discouraged T.B. from speaking with

her father or the police, advising T.B. that she "shouldn't tell

anyone what happened because he'll get in trouble.” Telles

tried to coax T.B. into cooperating with him by telling her

that, due to a medical condition, he would die if he went to

jail, which would effectively make her a murderer. Telles

also convinced T.B. that in their initial conversations, she

had lied about her age, causing her to blame herself for his

crimes. T.B.'s father ultimately found her and Telles at a

nearby pub. Soon after T.B.'s father arrived, the police

arrived and arrested Telles.

B.

In October 2016, a grand jury returned an indictment

against Telles, charging him with (1) online enticement of a

UNITED STATES V. TELLES 7

minor in violation of 18 U.S.C § 2422(b) (count 1); (2) travel

with intent to engage in illicit sexual conduct in violation of

18 U.S.C. § 2423(b) (count 2); and (3) engaging in illicit

conduct in foreign places in violation of 18 U.S.C. § 2423(c).

Once charged, Telles had difficult relationships with his

appointed counsel. His first federal public defender

successfully moved to withdraw as counsel nearly a year

after the indictment was filed, citing "[a] serious breakdown

in communication and trust” in his relationship with Telles.

Telles's second appointed counsel also expressed an

inability to work with him, and in February 2018, Telles

successfully moved to replace him. The district court then

appointed Michael Stepanian to represent Telles.

In April 2018, after twelve exclusions of time to allow

for effective preparation of Telles's various counsel, the

district court set a trial date for October 15, 2018. A few

months later, however, in June 2018, government counsel

and defense counsel received a message from one of Telles's

family members indicating that Telles was "considering

firing” Stepanian. The district court scheduled a hearing to

discuss the issue, during which Telles moved to have

additional co-counsel appointed, or alternatively, to replace

Stepanian. The district court denied the motion, finding that

Telles's request was "done for the purpose of delay.”

Approximately three months later—six weeks before

trial—Stepanian notified the district court that he intended

to move to withdraw as counsel. At a subsequent status

conference in September 2018, Telles moved to represent

himself, and Stepanian formally moved to withdraw. Telles

claimed that he had "made it clear to the lawyers for several

months” that he wished to discharge Stepanian. Stepanian

also acknowledged that their relationship had deteriorated,

rendering it "virtually impossible for [Stepanian] to prepare

8 UNITED STATES V. TELLES

an adequate defense for [Telles].” Stepanian also raised

concerns about Telles's competency to stand trial,

explaining to the district court that they had a psychiatrist

appointed to examine Telles and that doctor's preliminary

diagnosis was that Telles was autistic. Telles's autism,

Stepanian argued, "superimposed itself on [their]

relationship,” which led Stepanian to "feel that [he could

not] get proper assistance from [Telles] in his own defense.”

After conducting a colloquy on Telles's self-representation,

the district court ordered an expedited briefing schedule on

that issue and whether the trial should be postponed.

A few days later, Stepanian formally moved for a

competency hearing. In his brief, Stepanian explained that

the aforementioned psychiatrist, Dr. Denise Kellaher, met

with Telles on two separate occasions and believed that

"Telles clearly suffers from a severe case of Autism

Spectrum Disorder (ASD) such that he lacks the capacity to

consult counsel and assist in preparing his defense.”

Stepanian then renewed his motion, attaching Dr. Kellaher's

abbreviated report and his own declaration. Dr. Kellaher's

report concluded that "Telles has high functioning [ASD]

and an unspecified learning disorder. Both of these

developmental conditions contribute to his present inability

to understand information related to court, to appraise risks

and benefits when making decisions, and to collaborate

reasonably with his attorneys for the benefit of his defense.”

Applying the Autism Diagnostic Observation Scale (ADOS2), Dr. Kellaher found Telles scored 18, 11 points above the

threshold for a clinical diagnosis of ASD. Dr. Kellaher

opined that "[a]t this severity level, individuals with ASD

are inflexible, have trouble coping with change, and may

find their restricted or repetitive behaviors interfere with

functioning.”

UNITED STATES V. TELLES 9

Telles refuted Stepanian and Dr. Kellaher's claims that

he was not competent to stand trial. The district court asked

Telles whether he had the capacity to understand the charges

against him, and Telles responded, "I know it full well.” The

district court then asked, "And would you tell me what you

base that on?” To which Telles answered, "The charge

carries ten years to life for the first one, and maximum of 30

for the second and a maximum of 30 for the third.” Telles

also claimed that his capacity to communicate with his

attorney was "perfectly fine.” From his perspective, his

"irreconcilable differences” with Stepanian were "separate”

from his competency to stand trial.

The district court denied all three motions—Stepanian's

motion to withdraw as counsel, Telles's motion to represent

himself, and the motion for a competency hearing—in one

order. As to the competency hearing, the district court

concluded that "the available evidence show[ed]

overwhelmingly that Mr. Telles ha[d] actively participated

in his defense, assisted his counsel, and [was] capable of

continuing to do so.” The district court further noted that

Telles understood the criminal proceedings against him,

citing Telles's calls to his family from jail where he "made

explicit representations indicating he was reviewing and

drafting documents and engaged in plea negotiations” and

"instructed his family to communicate to the government

and to his own attorneys on his behalf.” Finally, the district

court relied on Telles's own claims of competence.

In denying Stepanian's motion to withdraw, the district

court concluded that Stepanian failed to show good cause.

The district court held that appointing new counsel would

not resolve anything because "Telles's difficulties with his

attorneys [were] not specific to [his] relationship with

10 UNITED STATES V. TELLES

Mr. Stepanian or Ms. Naegele,” they were "entirely [ ] of his

own making.”

Lastly, the district court denied Telles's request to

represent himself, finding that it "was made for the purpose

of delay.” The district court cited Telles's indication that "if

allowed to proceed pro se, his first action would be to file a

motion to delay the trial,” and Telles's "serial requests for

new counsel,” which "have already caused significant

delays.” The district court also found that that any further

delay of trial would prejudice the government given that it

"had already made extensive arrangements to procure more

than a dozen international witnesses,” including T.B. In

addition, the district court relied on Telles's concession that

"he would not be able to effectively represent himself”

because of his autism and learning disabilities.

Several weeks after Telles moved to represent himself

but before the district court ruled on the motion, Telles

(through counsel) had filed a notice of intent to introduce

expert evidence relating to a mental condition bearing on

guilt under Federal Rule of Criminal Procedure 12.2(b).

Telles attached Dr. Kellaher's preliminary report to the

notice. Upon the government's request, the district court

ordered that the government be permitted to conduct its own

exam of Telles, pursuant to Rule 12.2(c)(1)(B).

The government's expert, Dr. Daniel Martell, a forensic

neuropsychologist, attempted to conduct an evaluation of

Telles's mental condition over approximately seven hours.

Telles, however, refused to answer many of Dr. Martell's

questions and made little effort in performing Dr. Martell's

tests, leading Dr. Martell to conclude that Telles was

obstructionist and malingering. Because of Telles's

behavior, the district court granted the government's motion

to order Dr. Kellaher to videotape all future interviews with

UNITED STATES V. TELLES 11

Telles and give those recordings to the government within

48 hours. But after this order was entered, Telles had no

further meetings with Dr. Kellaher.

Upon the government's motion, the district court

excluded Dr. Kellaher's testimony at trial, relying on three

grounds. First, the court held that Telles's behavior during

Dr. Martell's evaluation violated the court's previous

warning that Telles "risked forfeiting the opportunity to

present his own expert or to present a mental disease or

defect if he did not cooperate with the government's expert.”

Second, the district court held that Dr. Kellaher's testimony

fell short of both prongs of the Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993), test, pursuant to

Federal Rule of Evidence 702, because her report "was

chock-full of conclusory, broad statements, with little

scientific or factual support for her conclusions or her

methodology.” Finally, the district court held that Dr.

Kellaher's report improperly "focused on whether Mr. Telles

had the appropriate mens rea at the time of the alleged

offense,” testimony that Federal Rule of Evidence 704(b)

prohibits. The court did not, however, prevent Telles from

presenting a mental disease or defect defense.

Stepanian renewed his competency hearing request for a

second time on October 12, 2018, after the jury had been

empaneled and before the court had ruled on the

government's motion to exclude Dr. Kellaher's testimony.

Telles was found unresponsive in his holding cell and

remained hospitalized in a catatonic state for five days. Trial

proceedings halted as the district court heard evidence to

determine the cause of Telles's comatose state. Dr. Sharon

Chan, an internal medicine doctor treating Telles, diagnosed

12 UNITED STATES V. TELLES

Telles with either malingering or conversion disorder.1



Dr. Matthew Arnold, a neurologist, examined Telles and

concluded that the "more likely” diagnosis was malingering,

not conversion. Lastly, Dr. Matthew Hirschtritt, an adult

psychiatrist doing a residency in forensic psychiatry,

testified that based on his review of Telles's medical records

and Dr. Martell's report, it was his opinion "that there [was]

a strong discrepancy between the symptoms that Mr. Telles

[had been] exhibiting . . . and any known medical neurologic

or psychiatric condition.” Accordingly, Dr. Hirschtritt

concluded that it was "more likely than not” that Telles was

malingering.

The district court denied the renewed motion for a

competency hearing, finding that the government clearly

established that Telles was malingering. Next, because

Telles "consciously and deliberately voluntarily absented

himself” from trial, pursuant to Federal Rule of Criminal

Procedure 43, the court granted the government's motion to

proceed with trial. To remedy Telles's absence, the district

court ordered that the trial proceedings be streamed live

through an audio feed into Telles' hospital room and that the

trial be video recorded. By the second day of witness

testimony, Telles had come out of his comatose state and

returned to the courtroom.

On the third day, after T.B. had finished testifying and

was leaving the courtroom, Telles stood up, took off his

jacket, fell backward to the floor, and was removed, nonresponsive, on a gurney. The next day, Telles was found

1 Dr. Chan explained that "malingering is when you intentionally

consciously either feign or cause a symptom for the purpose of some sort

of personal gain as opposed to conversion disorder when you have a

symptom develop as a result of a subconscious response to stress.”

UNITED STATES V. TELLES 13

unresponsive in his cell and was again absent from the

proceedings. Stepanian renewed his competency motion for

a third time and requested that trial be delayed to

accommodate audio-streaming to the jail to which Telles

was being transferred. The district court denied both

requests.

Telles returned to the courtroom the following day.

However, when counsel attempted to discuss whether Telles

would testify, Telles appeared not to "understand the

proceedings against him [or] . . . what is happening” and not

to recognize the names of parties in courtroom. Stepanian

then renewed his motion for a competency hearing for a

fourth time, emphasizing that Telles hit his head upon his

last fall. The district court denied the motion, admonished

Telles of his right to testify or not to testify and noted on

record that Telles was "playacting and looking at his papers

and continuing with this charade that he has attempted to put

on this court.”

Telles did not testify, and the trial proceeded without any

further issue. The jury returned guilty verdicts on all counts.

Problems again arose before and during sentencing.

While preparing for sentencing, Stepanian renewed his

motion for a competency hearing for a fifth time and moved

to withdraw as counsel. He noted that Telles refused to meet

with him or the probation officer. The district court again

denied both motions.

Stepanian renewed his motion for a competency hearing

for the sixth and final time in his response to the

government's sentencing memorandum. Stepanian attached

a retained-psychologist's report which concluded that Telles

was psychologically disturbed and suffered from obsessive

and self-destructive behaviors. At the sentencing hearing,

14 UNITED STATES V. TELLES

the district court again denied the motion, concluding that

"none of th[e] new information raises a genuine doubt as to

Mr. Telles's competence.” Telles then, speaking in the third

person, proclaimed in a long, rambling speech, "I have tried

to remove or understand this, but it is important to Mr. Telles

that he is a coffee bean. He will only say that the one who

matters understands it.”

The district court ultimately sentenced Telles to

302 months in custody and 15 years of supervised release.

Over Telles's objections, the district court applied the

obstruction of justice enhancement under U.S.S.G. § 3C1.1,

and the enhancement for repeat and dangerous sex offender

under U.S.S.G. § 4B1.5(b)(1). Telles timely appealed.

ANALYSIS

A.

We first consider whether the district court erred in

denying Telles's repeated motions for a competency hearing.

We conclude that it did not.

Pursuant to 18 U.S.C. § 4241, a district court must grant

a defendant's motion to hold a competency hearing "if there

is reasonable cause to believe that the defendant may

presently be suffering from a mental disease or defect

rendering him mentally incompetent to the extent that he is

unable to understand the nature and consequences of the

proceedings against him or to assist properly in his defense.”

See also Dusky v. United States, 362 U.S. 402, 402 (1960)

(per curiam). On appeal, "we review the record 'to see if the

evidence of incompetence was such that a reasonable judge

would be expected to experience a genuine doubt respecting

the defendant's competence.'” United States v. Brugnara,

856 F.3d 1198, 1214 (9th Cir. 2017) (quoting United States

UNITED STATES V. TELLES 15

v. Dreyer, 705 F.3d 951, 960 (9th Cir. 2013)). And "we are

mindful that in general, the district court is in the best

position to evaluate claims of physical and mental illness

impacting the defendant at trial.” United States v. Turner,

897 F.3d 1084, 1105 (9th Cir. 2018).

A genuine doubt about the defendant's competence

exists if there is substantial evidence of incompetence.

United States v. Garza, 751 F.3d 1130, 1134 (9th Cir. 2014).

This "standard is 'not easily applied,'” id. (quoting Bassett

v. McCarthy, 549 F.2d 616, 619 (9th Cir. 1977)), but our

previous case law has set "[t]he bar [ ] plainly high.” Id. at

1135. "Relevant evidence falls into three broad categories:

medical history, the defendant's behavior in and out of court,

and defense counsel's statements about the defendant's

competency.” Id. at 1134 (citing United States v. Marks,

530 F.3d 799, 814 (9th Cir. 2008)).

Telles contends that substantial evidence of his

incompetency existed before trial, during trial, and at

sentencing. Telles relies on Dr. Kellaher's report,

Stepanian's declarations, his bouts of catatonia, and his

behavior during trial and at sentencing. In opposition, the

government argues that Telles demonstrated active

participation in his defense throughout his proceedings, and

that his bizarre and disruptive conduct was more litigation

strategy than evidence of incompetence. We agree with the

government: "[A] reasonable judge, faced with this record,

would not have found it necessary to doubt [Telles's]

competency.” Brugnara, 856 F.3d at 1215–16.

Telles's understanding of the proceedings against him

and his assistance in his defense were evident in his recorded

calls from jail and his conversations in court before trial.

The district court found that "Telles made explicit

representations [to his family] indicating he was reviewing

16 UNITED STATES V. TELLES

and drafting documents and engaging in plea negotiations,

among other things.” He insisted on correcting factual

discrepancies in the record and "advocated, apparently

vociferously, for trial strategies and arguments,” often

depending on his own intensive legal research. "Telles also

discussed using mental health as part of his litigation

strategy.” Moreover, in his pretrial colloquies with the

district court, Telles "indicated an awareness of the nuances

of privilege, prejudice, and jeopardy.” And when asked,

Telles "time and time again insisted that he [was]

competent.” He told the court that he understood the charges

against him and the sentences each one carries. These were

not the conversations of an incompetent defendant, but of

one deeply involved in his defense and knowledgeable of the

nature of the proceedings against him, applicable case law,

and his constitutional rights. See Brugnara, 856 F.3d

at 1215–16 (relying on a telephone call from jail to the

defendant's family to demonstrate a lack of substantial

evidence of incompetence).

Dr. Kellaher's report does nothing to change our minds.

Although we do not doubt her diagnosis of ASD was correct,

we do doubt—and more importantly, the record fails to

demonstrate—that Telles's autism "impact[ed] [ ] his ability

to understand the proceedings or assist in his defense.”

Garza, 751 F.3d at 1137. Our circuit's precedent is clear:

"[S]trong evidence of a serious mental disease or defect” is

not enough to raise a genuine doubt as to a defendant's

competency. Id. at 1135. There must also be "a clear

connection between that disease or defect and some failure

by the defendant to understand the proceedings or assist in

his own defense.” Id. "Even a mentally deranged defendant

is out of luck if there is no indication that he failed to

understand or assist in his criminal proceedings.” Id. at 1136

(citing Steinsvik v. Vinzant, 640 F.2d 949, 951–54 (9th Cir.

UNITED STATES V. TELLES 17

1981)). And conclusory allegations like Dr. Kellaher's are

plainly not enough to establish a connection between

Telles's autism and his competence to stand trial.2

Telles's behavior during trial bolsters our conclusion.

Telles's two episodes of catatonia were not accompanied by

any measurable medical problem. His vital signs always

remained normal, and he recovered and returned to the

courtroom after the district court concluded that his absences

were voluntary. In addition, two experts concluded that

Telles's first catatonic state was more likely malingering

than conversion disorder, and the third concluded that it was

either malingering or conversion disorder. Telles's

behavior, therefore, resembles "nothing more than a

deliberate attempt to circumvent the court's rules.” 856 F.3d

at 1216. Such behavior does nothing to demonstrate Telles's

inability to understand the proceedings or assist in his

defense. See id. at 1215–16; see also Garza, 751 F.3d

2 For similar reasons, Stepanian's declarations concerning Telles's

alleged incompetence are not enough to get his case over the high bar of

substantial evidence. See Garza, 751 F.3d at 1135. Although a defense

counsel's representations are a "unquestionably a factor which should be

considered,” Drope v. Missouri, 420 U.S. 162, 177 n.13 (1975), "[a]

defendant who refuses to work with his lawyer out of spite alone is not

incompetent even if that defendant has a serious mental disease or

defect.” Garza, 751 F.3d at 1136. Telles's difficulties with his attorneys

appear to stem from his spite, not his ASD.

18 UNITED STATES V. TELLES

at 1136. It "makes him a nuisance, not incompetent.”3, 4



Brugnara, 856 F.3d at 1216.

We therefore affirm the district court's denials of

Telles's motions for a competency hearing. At no point in

the proceedings was there substantial evidence of Telles's

incompetence. Instead, the evidence reveals a consistent

pattern of intentionally disrupting the proceedings and

feigning incompetence to avoid trial and later, sentencing.

B.

Telles next challenges the district court's exclusion of

Dr. Kellaher's expert testimony. The district court provided

three bases for its decision: Federal Rules of Evidence 702

and 704 and Federal Rule of Criminal Procedure 12.2(d).

We review the district court's decision for abuse of

discretion. United States v. Cohen, 510 F.3d 1114, 1123 (9th

Cir. 2007) (quoting United States v. Finley, 301 F.3d 1000,

3 The strongest evidence of Telles's potential incompetence was his

bizarre allocution at sentencing. However, we cannot view this evidence

"in isolation,” Chavez v. United States, 656 F.2d 512, 517 (9th Cir.

1981); it must be considered against the background of Telles's

malingering during and before trial. And although we recognize that "a

trial court must always be alert to circumstances suggesting a change that

would render the accused unable to meet the standards of competence,”

Drope, 420 U.S. at 181, there was no accompanying medical evidence at

sentencing to a raise a genuine doubt as to Telles's incompetence, see

Garza, 751 F.3d at 1134–53.

4 Given that we affirm the district court's finding that Telles's

absence from trial was a result of his malingering, we also affirm the

court's conclusion that Telles's absence was voluntary. We therefore

reject Telles's argument that the district court abused its discretion in

proceeding with trial in absentia. Telles waived his right to be present

by feigning catatonia. See Brewer v. Raines, 670 F.2d 117, 119 (9th Cir.

1982).

UNITED STATES V. TELLES 19

1007 (9th Cir. 2002)). And we give "the district court wide

latitude in admitting or excluding psychiatrist evidence.”

United States v. Byers, 730 F.2d 568, 571 (9th Cir. 1984).

Because we agree that Telles failed to comply with the

requirements of Rule 12.2(d), we decline to review the

district court's alternative holdings.

Pursuant to Federal Rule of Criminal Procedure

12.2(d)(1)(B), the district court "may exclude any expert

evidence from the defendant on the defendant's mental

disease, mental defect, or any other mental condition . . . if

the defendant fails to . . . submit to an examination when

ordered under Rule 12.2(c).” The question before us is

whether Telles sufficiently "submit[ted]” to the

government's expert's examination, and we conclude that he

did not.

The district court "warned Mr. Telles that he risked

forfeiting the opportunity to present his own expert or to

present a mental disease or defect defense if he did not

cooperate with the government's expert.” Yet Telles

proceeded to do exactly that. Telles "moved slowly,

procrastinated, and seemed unwilling to answer basic

biographical questions.” The government's expert,

Dr. Martell, administered three malingering tests. All of

them showed that Telles was malingering. Because of

Telles's recalcitrance, Dr. Martell concluded that "Telles

thwarted [his] ability to accomplish [a forensic examination

to evaluate his capacity to form the specific intent required]

by refusing to discuss [the] case, malingering during the

clinical examination, and working so slowly that no

psychodiagnostics testing could be completed.” This left the

government unable to rebut Dr. Kellaher's conclusions with

its own expert's diagnosis.

20 UNITED STATES V. TELLES

Accordingly, we conclude that the district court acted

within its discretion by excluding Dr. Kellaher's testimony.

Holding otherwise would unfairly prejudice the government

and incentivize future defendants to adopt malingering as a

defense strategy. Because we conclude that the district court

did not err, we need not consider whether any error was

harmless.

C.

Telles's third argument on appeal is that the district court

erred in denying his motion to represent himself. We

disagree.

The Sixth Amendment "guarantees the . . . right to

proceed without counsel at trial.” United States v. Farias,

618 F.3d 1049, 1051 (9th Cir. 2010) (citing Faretta v.

California, 422 U.S. 806, 814–15 (1975)). "[T]o invoke the

right to self-representation,” a defendant "must make a

timely 'unequivocal, voluntary [and] intelligent' request.”

Id. (footnote omitted) (quoting United States Maness,

566 F.3d 894, 896 (9th Cir. 2009) (per curiam)). The district

court must then "hold a hearing—commonly known as a

Faretta hearing—to determine whether the defendant is

knowingly and intelligently forgoing his right to appointed

counsel.” Id. at 1051–52. A defendant's "motion to proceed

pro se is timely if made before the jury is empaneled, unless

it is shown to be tactic to secure delay.” Fritz v. Spalding,

682 F.2d 782, 784 (9th Cir. 1982).

"We review the district court's factual findings for clear

error, but we have not yet clarified whether denial of a

Faretta request is reviewed de novo or for abuse of

discretion.” United States v. Kaczynski, 239 F.3d 1108, 1116

(9th Cir. 2001). Because we agree with the district court's

conclusion that Telles exercised his right to represent

UNITED STATES V. TELLES 21

himself "as a tactic to delay trial proceedings,” Telles's

claim fails under either standard of review. Id.

Where the defendant's "pre-trial conduct ha[s] already

caused substantial delay, a showing that his motion [to

represent himself] included a request for a continuance

would be strong evidence of a purpose to delay.” Fritz,

682 F.2d at 784. The record reflects both here. Telles

substantially delayed trial by consistently requesting to

substitute his counsel and refusing to work with appointed

counsel, and Telles's request to represent himself was

accompanied by a request for a continuance. We need no

further proof that Telles's Farreta request was made for the

purpose of the delay. The district court, therefore, correctly

denied his motion and proceeded with trial.

D.

Telles challenges the district court's denial of his motion

to exclude forensic-psychologist Dr. Darrel Turner's

testimony on typical behaviors of sex offenders of child

victims. Telles argues that admission of the testimony

violated Federal Rules of Evidence 702 and 403 and due

process because the testimony concerned behaviors

associated with sex offenders and their "groomed” victims

that "are not scientifically probative of the statutory elements

and issue the jury was tasked to resolve.”

Our recent decision in United States v. Halamek, 5 F.4th

1081, 1088 (9th Cir. 2021), forecloses Telles's argument.

There, we affirmed the district court's inclusion of expert

testimony on grooming, concluding that such evidence was

probative because it "'illuminate[d] how seemingly innocent

conduct . . . could be part of a seduction technique.”

Halamek, 5 F.4th at 1088 (quoting United States v. Romero,

189 F.3d 576, 585 (7th Cir. 1999)). The same reasoning

22 UNITED STATES V. TELLES

applies here: Dr. Turner's "testimony explained for the jury

that [Telles's] behavior with [T.B.]” could be "innocent [ ]

behavior,” or it "could actually have been part of his plan to

engage in illicit sexual activity with her.” Id. The admission

of the testimony, therefore, did not violate Rule 702. Nor

did the admission of Dr. Turner's testimony violate Rule 403

or Telles's right to due process of law. Dr. Turner did not

testify as to Telles or T.B. specifically—he "merely gave a

straightforward account of relevant background information

based on [his] own knowledge and experience.” United

States v. Johnson, 860 F.3d 1133, 1141 (8th Cir. 2017). The

district did not abuse its discretion in admitting this

testimony.

E.

Finally, Telles challenges the district court's application

of U.S.S.G. § 4B1.5(b)(1) to his sentence, arguing that his

"behavior with T.B. was not a pattern of repeated criminal

behavior.” We review the district court's interpretation of

the sentencing guidelines de novo, United States v. Riley,

335 F.3d 919, 925 (9th Cir. 2003), and we affirm.

Section 4B1.5(b)'s sentencing enhancement applies

when "the defendant's instant offense of conviction is a

covered sex crime, neither [the career offender

enhancement], nor [§ 4B1.5(a)] applies, and the defendant

engaged in a pattern of activity involving prohibited sexual

conduct.” A pattern is established if the defendant commits

the prohibited conduct "on at least two separate occasions.”

U.S.S.G. § 4B1.5, Cmt. 4(B)(i). Although we have not yet

set forth a definition of "separate occasions,” the record here

clearly reflects that Telles sexually abused T.B. on two

separate occasions—the first night he arrived in the United

Kingdom and the second night of his trip. Telles provides

no authority to support the argument that his abuse of T.B.

UNITED STATES V. TELLES 23

constitutes a single occasion of abuse. The district court's

application of the sentencing enhancement, therefore, was

not error.

Telles alleges several errors rendered his trial unfair, yet

the record makes clear that any error was “largely of his own

making.” Brugnara, 856 F.3d at 1216. Thus, in spite of his

disruptive behavior, Telles received a fair trial, and we

affirm his conviction on all grounds.



AFFIRMED