background, inexperience with court proceedings, lack of legal training, and

ignorance of the Federal Rules of Criminal Procedure, the Federal Rules of

Evidence, and local court rules. The district court then concluded: “Well, based on

what you’ve told me here today, I think you are not in a position to represent

yourself. So I’m going to continue to have Ms. Norris represent you, because

frankly, I think, you know, at this point, it’s in your best interests.”

“[A] timely request to proceed pro se—made unequivocally, knowingly and

intelligently—must be granted so long as it is not made for purposes of delay and

2 The parties are familiar with the factual and procedural background of this matter. Therefore, we recite only those facts necessary for this disposition. 2 the defendant is competent.” United States v. Farias, 618 F.3d 1049, 1052 (9th

Cir. 2010). The district court did not find that Nekeferoff’s request was equivocal,

involuntary, or made for the purpose of delay, or that Nekeferoff was

incompetent.3 The district court emphasized its lack of confidence in Nekeferoff’s

legal abilities, but the voluntariness and competence inquiries turn on a defendant’s

mental competence, not legal competence, and denying a request for self-

representation based on a defendant’s lack of legal competence is error. See

Godinez v. Moran, 509 U.S. 389, 400 (1993) (“[A] criminal defendant’s ability to

represent himself has no bearing upon his competence to choose self-

representation.”); Faretta, 422 U.S. at 836 (explaining that a defendant’s

“technical legal knowledge, as such, was not relevant to an assessment of his

knowing exercise of the right to defend himself”).

By quizzing Nekeferoff on his legal acumen and then stating it would deny

his request because he was “not in a position to represent [himself],” and that it

was “in [his] best interests” to keep his attorney, the district court indicated that it

was denying Nekeferoff’s request based on his lack of legal competence. This was

error. United States v. Arlt, 41 F.3d 516, 518 (9th Cir. 1994).

3 The government argues that Nekeferoff’s request did not satisfy all these factors, but the district court did not make any findings or base its decision on these factors, and we will not engage in such fact-intensive inquiries for the first time on appeal. See, e.g., United States v. Carbajal, 956 F.2d 924, 931 (9th Cir. 1992). 3 The government argues that we should nevertheless affirm because the

district court advised Nekeferoff that he was free to renew his request “down the

road.” But a defendant has no duty to “renew his request for self-representation,”

id. at 524, and Nekeferoff’s failure to make another request does not obviate the

error, notwithstanding the district court’s invitation to do so. “The district court’s

improper denial of [Nekeferoff’s] request to proceed pro se is structural error and

therefore requires reversal.” Farias, 618 F.3d at 1055. Accordingly, we reverse

Nekeferoff’s convictions and sentences.

2. Next, Nekeferoff argues that there was insufficient evidence to

convict him of enticing a child in violation of 18 U.S.C. § 2422(b). Although we

reverse Nekeferoff’s conviction based on the Faretta error, we consider his

sufficiency-of-the-evidence challenge “in order to determine whether there should

be an acquittal or retrial upon remand.” United States v. Gergen, 172 F.3d 719,

724 (9th Cir. 1999). To the extent Nekeferoff disputes the scope of the conduct

covered by the criminal statute, we review de novo. United States v. Deeb, 175

F.3d 1163, 1167 (9th Cir. 1999). We review his challenge to the sufficiency of the

evidence by asking “whether ‘after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.’” United States v.

Nevils, 598 F.3d 1158, 1163–64 (9th Cir. 2010) (en banc) (quoting Jackson v.

4 Virginia, 443 U.S. 307, 319 (1979)).

We hold that the government presented sufficient evidence to support

Nekeferoff’s conviction. Despite Nekeferoff’s suggestion that communications

through an adult intermediary are insufficient to trigger criminal liability, he

conceded that communicating with an adult intermediary to groom a child for

molestation can constitute an attempted violation of § 2422(b) when the defendant

“intends to persuade the minor by having the adult assist him in grooming” her.

This is consistent with the plain language of the statute. 18 U.S.C. § 2422(b).

Here, the evidence certainly permitted a jury to infer that Nekeferoff attempted to

groom Ava by directing Jennifer to prepare Ava to engage in sexual acts with

Nekeferoff.

In particular, the evidence showed that Nekeferoff urged Jennifer to “[t]ry

[to] make [Ava] orgasm,” to “[m]ake her cum,” to perform oral sex on her, and to

touch her genitals. Moreover, the jury could reasonably infer that Nekeferoff

directed Jennifer to perform these acts to groom Ava for his own sexual advances.

When Jennifer told Nekeferoff that Ava had let Jennifer “lick” her, Nekeferoff

responded, “Awesome! So I can lick her?” On another occasion, he responded,

“Wow.. so will she be used to licking when I get her?” Nekeferoff argues that his

actual motivation was not to persuade Ava, but his alternative interpretation of the

evidence misses the point that a rational jury could reasonably have drawn these

5 inferences. Nevils, 598 F.3d at 1164.

3. Nekeferoff also argues that the district court improperly admitted

evidence that he previously molested his adoptive sister when she was between

four and six years old, and that he had sex with his girlfriend’s fifteen-year-old

daughter. We review the district court’s admission of this evidence for abuse of

discretion. United States v. Hanson, 936 F.3d 876, 881 (9th Cir. 2019). The

district court did not abuse its discretion in admitting evidence that Nekeferoff had

previously molested his adoptive sister, given the similarities between the victims’

ages and other circumstances of the incidents, and the relevance of this evidence to

whether Nekeferoff intended to groom Ava through Jennifer. See United States v.

Thornhill, 940 F.3d 1114, 1117–23 (9th Cir. 2019) (affirming admission of prior

conviction of sexual abuse of a minor in a child pornography trial).

The district court did, however, abuse its discretion by admitting testimony

that Nekeferoff previously had sex with his girlfriend’s fifteen-year-old daughter.

Given the significant differences between that incident and Nekeferoff’s present

charged conduct—particularly the victims’ ages (fifteen versus eight) and that the

fifteen-year-old, unlike Ava, initiated the alleged encounter with Nekeferoff—the

limited probative value of this testimony “is substantially outweighed by a danger

of . . . unfair prejudice.” Fed. R. Evid. 403. Nevertheless, the exclusion of this

evidence would not have impacted the sufficiency of the evidence discussed above

6 to support a conviction, and because we reverse for structural error, we need not

address whether this evidentiary error was harmless in the context of the previous

trial. Because there was sufficient evidence to support a conviction, we remand for

a retrial.

4. Nekeferoff also argues that the district court erroneously instructed

the jury that it could find him guilty of violating 18 U.S.C. § 2422(b) without

finding a link between Nekeferoff’s use of a means of interstate commerce and his

attempt to persuade, induce, entice, or coerce a minor. Because Nekeferoff did not

object to the instructions at trial, we review for plain error. United States v.

Sanders, 421 F.3d 1044, 1050 (9th Cir. 2005).

Nekeferoff argues that the relevant instructions did not require the jury to

find that he had “employ[ed] . . . interstate means for the essential function of

communicating with the adult intermediary for the purpose of persuading,

inducing, enticing, or coercing the minor,” United States v. Hite, 769 F.3d 1154,

1165 (D.C. Cir. 2014) (emphasis added), as he argues the statute requires.4 In Hite,

4 Specifically, Instruction 18, which set out the elements of a § 2422(b) violation, required the jury to find only that Nekeferoff “intended to persuade, induce, entice, or coerce” Ava and that he “used a means and facility of interstate commerce” in his attempted enticement—not that he used the interstate means to persuade (or for the purpose of persuading) her. Instructions 21 and 22, in turn, could be read as allowing the jury to convict based on a finding that Nekeferoff used a means of interstate commerce simply to arrange a meeting and that he intended to persuade Ava in person at that meeting. 7 the court suggested that 18 U.S.C. § 2422(b) requires a connection between the

interstate means and the defendant’s purpose of persuading a minor, see id., and

our own model jury instructions also support this requirement, see Ninth Circuit

Jury Instructions Committee, Manual of Model Criminal Jury Instructions 8.192A

(Dec. 2019) (“First, . . . the defendant [used] [attempted to use] . . . [a means or

facility of [interstate] . . . commerce, . . . to knowingly [persuade] [induce] [entice]

[coerce] an individual to engage in . . . [any sexual activity for which someone

could be charged with an offense] . . . .” (brackets in original)). However, this

court has never addressed the nexus issue. See United States v. Goetzke, 494 F.3d

1231, 1234–35 (9th Cir. 2007) (discussing the elements of a § 2422(b) violation);

United States v. Meek, 366 F.3d 705, 718 (9th Cir. 2004) (same). Given the lack of

controlling authority on the matter and sparse persuasive authority, any

instructional error in this case was not plain. See United States v. De La Fuente,

353 F.3d 766, 769 (9th Cir. 2003).

5. Finally, Nekeferoff challenges his sentence, arguing that the district

court relied on a clearly erroneous finding that he had “continuously” abused his

adoptive sister for ten years, that his sentence was substantively unreasonable, and

that the district court improperly included nonstandard conditions of supervised

release in the written judgment that it failed to announce when orally imposing the

sentence. Because we reverse Nekeferoff’s convictions and sentence, we do not

8 reach these arguments.

REVERSED AND REMANDED.

9