                                                                                      FILED
                               NOT FOR PUBLICATION                                     MAR 15 2012

                                                                                  MOLLY C. DWYER, CLERK
                       UNITED STATES COURT OF APPEALS                               U .S. C O U R T OF APPE ALS




                                FOR THE NINTH CIRCUIT



 UNITED STATES OF AMERICA,                              No. 10-30051

                Plaintiff - Appellee,                   D.C. No. 2:08-cr-00295-JCC-1

   v.
                                                        MEMORANDUM *
 GINO AUGUSTUS TURRELLA,

                Defendant - Appellant.



                       Appeal from the United States District Court
                         for the Western District of Washington
                      John C. Coughenour, District Judge, Presiding

                        Argued and Submitted February 10, 2012
                                 Seattle, Washington

Before: SCHROEDER, ALARCÓN, and GOULD, Circuit Judges.

        Gino Augustus Turrella appeals from his conviction of transmitting in

interstate commerce a communication containing a threat to injure another person,

in violation of 18 U.S.C. § 875(c), the use without lawful authority of the

identification of another person, contrary to 18 U.S.C. § 1028(a)(7) and (c)(3)(A),



         *
              This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
with the intention to commit a violation of § 875(c), as well as the possession of

.45 caliber pistols in furtherance of the violation of § 875(c) under 18 U.S.C.

§ 924(c)(1)(A)(i). Accordingly, at Turrella’s trial, the jury was required to

determine, from the totality of the circumstances, whether it was persuaded beyond

a reasonable doubt that Turrella used another person’s identity to threaten his

alleged victims with violence.

      The jury found that Turrella communicated threats of violence using another

person’s identity. The jury also found that Turrella possessed firearms in

furtherance of the threats he made while using another person’s identity. Turrella

has not appealed from his conviction of violations of § 875(c) or § 1028(a)(7) and

(c)(3)(A). Therefore the only issue in this appeal is whether the prosecution

presented sufficient evidence to persuade a rational trier of fact beyond a

reasonable doubt that Turrella possessed .45 caliber pistols in furtherance of the

threats he communicated while using another person’s identity. We affirm because

we conclude that the direct and circumstantial evidence presented by the

Government was sufficient under this standard to support Turrella’s conviction of

the possession of a firearm in furtherance of the threats he communicated. We also

reject Turrella’s contention that the district court erred in finding that he was

competent to stand trial.


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                                           I

      We first discuss Turrella’s contention that the district court erred in finding

that he was competent to stand trial. “A district court’s determination that a

defendant is competent to stand trial is reviewed for clear error.” United States v.

Gastelum-Almeida, 298 F.3d 1167, 1171 (9th Cir. 2002).

      The test for competency to stand trial is whether the defendant “has

sufficient present ability to consult with his lawyer with a reasonable degree of

rational understanding . . . and a rational as well as factual understanding of the

proceedings against him.” Cooper v. Oklahoma, 517 U.S. 348, 354 (1996); see 18

U.S.C. § 4241(a). “In performing its fact-finding and credibility functions, a

district court is free to assign greater weight to the findings of experts produced by

the Government than to the opposing opinions of the medical witnesses produced

by the defendant.” United States v. Frank, 956 F.2d 872, 875 (9th Cir. 1992).

      The district court was persuaded by the opinion of the prosecution’s expert

witness that Turrella was competent to stand trial. This reliance by the district

court was not clear error. Id.

                                           II

      Turrella contends that the district court erred in denying his Rule 29(c)

motion for a judgment of acquittal of the allegation that he possessed a firearm in


                                           3
furtherance of a crime of violence. He argues that the Government failed to

present sufficient evidence to demonstrate that a nexus existed between his

ownership of firearms and the fact that he transmitted threatening emails using

another’s identity. He argues that “the fact that [he] used someone else’s name [to

send the threatening emails] negates any inference that he intended to use his own

firearms to facilitate the crime.” (Opening Br. 16.) We disagree. We are bound

by the jury’s finding that Turrella, while using another person’s identity, threatened

his victims with violence and death. The jury also found that he threatened to use a

.45 caliber weapon to kill his co-workers, possessed three .45 caliber pistols at the

time that he made his threats, and also bragged to his co-workers that he possessed

such weapons.

      The record shows that, during the summer of 2004, graffiti was written on

the walls of a men’s restroom in one of the buildings of the Boeing Company’s

Auburn plant on several occasions. The first one stated, “POSTMANS (sic)

COMING BUT ITS NOT TO DELIVER THE MAIL, BITCH.” Two others

expressed anger at people at the Boeing Company and again referenced the post

office. The fourth incident read:

             WANNA FUCK WITH PEOPLE IN THE 6?
             POSTMAN HAS AN AK47 AND THE BAG NO MAIL.
             COME ON FUCKERS.


                                           4
      On November 3, 2004, Mr. James Ockerman received an inter-plant

envelope that contained a live bullet. On November 10, 2004, Ockerman received

a second inter-plant envelope which contained a live bullet wrapped in a note

which also contained a threat of violence. Ockerman received a third inter-plant

envelope on March 23, 2005. It contained a powder that flew up in the face of

John Seltzer, a corporate investigator in the security department at the Boeing

Company. The envelope also contained a live bullet and a note that stated, inter

alia, “what will you say to survivors’ families?” On the day that the envelope with

powder was received, Seltzer decided that Turrella was responsible for writing the

threats and placing graffiti on bathroom walls.

      Seltzer met Turrella that afternoon at his car when he arrived at the Boeing

Auburn facility. Seltzer advised Turrella that he was investigating the various

threats. He asked Turrella if Turrella owned any weapons. Turrella replied that he

owned “a couple” of .45 caliber handguns. When Seltzer asked Turrella to provide

handwriting samples, including writing out the statements that were in the

threatening notes, Turrella objected, stating that Seltzer was making him “‘write

things that are in my notes.’” He quickly corrected himself, calling them “the

notes.” He stated further that this was “immoral and unethical.” Seltzer had not

shown Turrella the notes prior to Turrella’s admission. Based on Seltzer’s


                                          5
recommendation, Boeing suspended Turrella. Turrella’s employment was

terminated on August 16, 2005.

      On April 19, 2007, an email was sent to Ockerman which stated, inter alia,

“boeing (sic) security will live to regret it” and “pay back can be more effective

now than anything in the past.” On April 22, 2007, another email was sent to

Ockerman and Seltzer. It stated that “Auburn fabrication is about to get some

national publicity you mother fuckers will regret.”

      On May 2, 2008, Turrella sent an email to Seltzer, using James Ockerman’s

name, which stated in part: “I’m coming in the 6 building with a gun and shoot

ever (sic) employee I see.” It also stated: “I’ll drop you like a sack of shit with my

.45 auto.” When Seltzer read the email he “immediately thought it was Gino

Turrella writing it” based on prior investigation and interview with Turrella. He

referred the results of his investigations to the Federal Bureau of Investigation. In

searching Turrella’s home, FBI agents found three .45 caliber handguns and

ammunition similar to the live bullets Ockerman received.

      The evidence that Turrella included live ammunition in some of his

threatening messages, told Seltzer and other Boeing employees that he owned .45

caliber pistols, and threatened to kill Boeing employees with a .45 automatic

weapon was sufficient to support an inference that Turrella possessed firearms in


                                           6
furtherance of his threats to commit violence and homicide. Therefore, we

conclude that the evidence was sufficient to persuade a rational trier of fact beyond

a reasonable doubt that he used his own firearms to further his crimes of violence.

      AFFIRMED.




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