United States v. David Telles, Jr. ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 19-10218
Plaintiff-Appellee, 19-10402
v. D.C. No.
4:16-cr-00424-JSW-1
DAVID JOHN TELLES, JR.,
Defendant-Appellant. ORDER AND
AMENDED
OPINION
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Argued and Submitted June 14, 2021
San Francisco, California
Filed July 29, 2021
Amended November 16, 2021
Before: MARY M. SCHROEDER, MILAN D. SMITH,
JR., and LAWRENCE VANDYKE, Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
2 UNITED STATES V. TELLES
SUMMARY *
Criminal Law
The panel (1) filed an Amended Opinion affirming John
Telles, Jr.’s convictions and sentence for 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); (2) denied
a petition for panel rehearing; and (3) denied on behalf of the
court a petition for rehearing en banc.
In the Amended Opinion, the panel held that the district
court did not err in denying Telles’s motions for a
competency hearing. The panel observed that at no point in
the proceedings was there substantial evidence of Telles’s
incompetence and that, instead, the evidence reveals a
consistent pattern of intentionally disrupting the proceedings
and feigning incompetence to avoid trial and later,
sentencing.
The panel held that the district court acted within its
discretion when it excluded based on Fed. R. Crim. P.
12.2(d) a defense psychiatrist’s expert testimony relating to
a mental condition bearing on guilt, where Telles, who did
not cooperate with the government’s expert, failed to submit
to the government’s expert’s examination, as required under
Fed. R. Crim. P. 12.2(d)(1)(B).
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. TELLES 3
The panel held that under either de novo or abuse of
discretion review, the district court correctly denied Telles’s
Faretta request to represent himself on the ground that it was
made for the purpose of delay.
The panel held that the district court did not abuse its
discretion in admitting a forensic-psychologist’s testimony
on typical behaviors of sex offenders of child victims. Telles
argued that admission of the testimony violated Fed. R. Evid.
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.” The panel wrote that this argument is foreclosed
by United States v. Halamek, 5 F.4th 1081 (9th Cir. 2021).
The panel held that the district court did not err by
applying U.S.S.G. § 4B1.5(b)(1), which requires that the
defendant engaged in a “pattern of activity” involving
prohibited sexual conduct. The panel wrote that Telles
provided no authority to support the argument that his abuse
of the victim—he sexually abused her the first night he
arrived in the United Kingdom and the second night of his
trip—constitutes a single occasion of abuse.
COUNSEL
Elizabeth Garfinkle (argued), Oakland, California, for
Defendant-Appellant.
Anne Chantaline Hsieh (argued) and Vanessa Baehr-Jones,
Assistant United States Attorneys; Merry Jean Chan, Chief,
Appellate Section; David L. Anderson, United States
4 UNITED STATES V. TELLES
Attorney; United States Attorney’s Office, Oakland,
California; for Plaintiff-Appellee.
ORDER
The Opinion filed July 29, 2021 (Dkt. 79), and reported
at 6 F.4th 1086, is amended by the Amended Opinion filed
in its place concurrently with this order.
With these amendments, the panel unanimously voted to
deny the petition for panel rehearing. Judge M. Smith and
Judge VanDyke voted to deny the petition for rehearing en
banc, and Judge Schroeder so recommended. The full court
has been advised of the petition for rehearing en banc, and
no judge has requested a vote. Fed. R. App. P. 35. The
petitions for rehearing and rehearing en banc are DENIED.
No future petitions for rehearing or rehearing en banc will
be entertained.
OPINION
M. SMITH, Circuit Judge:
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 thirty-
eight.
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 (ADOS-
2), 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, non-
responsive, 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
2For 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.
CONCLUSION
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.