U.S. v. Cothran, 01-1437.

Decision Date11 April 2002
Docket NumberNo. 01-1437.,01-1437.
Citation286 F.3d 173
PartiesUNITED STATES of America, v. Mark William COTHRAN, Appellant.
CourtU.S. Court of Appeals — Third Circuit

Dolores M. Troiani (Argued), Paoli, PA, for Appellant.

Jennifer Chun (Argued), Office of United States Attorney, Philadelphia, PA, for Appellee.

Before SCIRICA and ROSENN, Circuit Judges, and WARD,* District Judge.

OPINION OF THE COURT

ROSENN, Circuit Judge.

In the present climate of terrorism, this appeal presents an important question pertaining to the conduct of a potential airline passenger. A jury in the United States District Court for the Eastern District of Pennsylvania convicted the appellant, Mark Cothran, of conveying false information and threats about carrying an explosive device on an airplane, in violation of 49 U.S.C. § 46507. The District Court sentenced Cothran to ten months imprisonment, three years of supervised release, a $1000 fine, and a $50 special assessment. Cothran raises three issues on appeal: (1) the Court erred in denying his motion for acquittal based on the sufficiency of the evidence; (2) the Court erred by finding that United States Sentencing Guideline (U.S.S.G.) § 2A6.1 was the most analogous offense guideline for Cothran's crime; and (3) the Court erred by denying Cothran a four-level reduction pursuant to U.S.S.G. § 2A6.1(b)(4). We discern no error and therefore affirm.

I.

On December 29, 1999, Cothran was scheduled to fly from Philadelphia, Pennsylvania, to Atlanta, Georgia, on a U.S. Airways (U.S.Air) flight. That morning, Cothran telephoned the U.S. Air Ticket Reservation Office in Pittsburgh, Pennsylvania. Reservation Sales agent Denise Gaich, now Blanc, answered the call. Cothran stated something to the effect that he was upset with U.S. Air for not letting him bring explosives on the plane, and that he wanted to blow a plane out at 35,000 feet. Blanc perceived this as a threat, and started recording the call. Subsequently, Cothran told Blanc that he was merely joking.

Later that day, while waiting in the airport for a flight from Philadelphia to Atlanta, Kate Stancil (Kate) observed Cothran talking on the phone and heard him say "don't tell me how to blow up a bomb." Joanne Stancil, Kate's mother, also believes she heard Cothran talking about "doing his job and a bomb." (Simultaneously, and in the same vicinity as Cothran, the airport television was tuned to CNN, which was airing a story about bombs.) Kate was alarmed and urged her mother to inform airport security of Cothran's behavior. Her mother did so; Cothran was then arrested based on his earlier phone call and Joanne's complaint.

II.
A. Sufficiency of the Evidence

The standard of review is "particularly deferential" when deciding whether a jury verdict is based on legally sufficient evidence. United States v. Dent, 149 F.3d 180, 187 (3d Cir.1998). It is not our role to weigh the evidence or to determine the credibility of the witnesses. Id. We must view the evidence in the light most favorable to the Government and sustain the verdict if any rational juror could have found the elements of the crime beyond a reasonable doubt. Id. The appellant carries a very heavy burden on appeal. Id.

Cothran was convicted under 49 U.S.C. § 46507(1), which provides criminal liability if a person:

knowing the information to be false, willfully and maliciously or with reckless disregard for the safety of human life, gives ... under circumstances in which the information reasonably may be believed, false information about an alleged attempt being made or to be made to do an act that would violate section ... 46505 ... of this title....

49 U.S.C. § 46507(1). Section 46505 criminalizes carrying a weapon or explosive on an aircraft. Thus, the elements here are: (1) Cothran gave false information about an attempt to be made to carry explosives on an aircraft; (2) Cothran knew the information was false; (3) Cothran acted willfully and maliciously; and (4) under the circumstances, the information reasonably may have been believed. There is no argument but that the first three elements are met. Cothran argues that the information he conveyed could not reasonably be believed, or, more precisely, that no rational juror could have found that a reasonable person would have believed that Cothran was threatening to destroy a plane.

Although there is no case law on § 46507(1), courts have interpreted analogous statutes as requiring an objective test to determine whether something is a threat. United States v. Malik, 16 F.3d 45, 49 (2d Cir.1994). Moreover, "[t]he use of ambiguous language does not preclude a statement from being a threat." United States v. Fulmer, 108 F.3d 1486, 1492 (1st Cir.1997). A bad joke can fall within the scope of the statute. In United States v. Irving, 509 F.2d 1325 (5th Cir.1975), the court sustained a conviction under 49 U.S.C. § 1472(m)(1), the statutory precursor to § 46507(1), when a passenger made a comment about hijacking an airplane. Id. at 1328. The Court of Appeals observed that Congress "was concerned with the prankster as well as with the individual acting out of malice." Id. at 1329. The question is whether an ordinary, reasonable person would view the language as a threat. Malik, 16 F.3d at 49. Another way of looking at this test is asking whether Cothran should have reasonably foreseen that the airline industry is highly sensitive to bomb threats and that his statement would be taken as a threat by the U.S. Air reservationist. United States v. Freeman, 176 F.3d 575, 578 (1st Cir. 1999). In determining whether something is a threat, "proof of the effect of the alleged threat upon the addressee is highly relevant." Malik, 16 F.3d at 49.

Cothran attempts to muddy the waters by portraying Blanc's testimony as inconsistent (e.g., at one time she stated that Cothran said he was "very" upset with U.S. Air, another time she stated that Cothran said he was a "little" upset with U.S. Air). There is no need for this Court to reconcile the "inconsistencies," because they relate to witness credibility, an area peculiarly within the jury's domain. See United States v. McGlory, 968 F.2d 309, 321 (3d Cir.1992). We are required solely to look at the trial record to determine if there is evidence sufficient for a rational juror to find Cothran guilty beyond a reasonable doubt. Here, there is more than sufficient evidence.

At the time of Cothran's phone call, Blanc had been a U.S. Air employee for twelve years, and had been in the position of taking phone calls for a decade. She testified that never in those ten years had she found a phone call as threatening as she found Cothran's. Cothran told Blanc that he was upset with U.S. Air and wanted to take explosives on the flight and blow the plane out of 35,000 feet. Blanc then pressed the emergency button to record the call. Protocol requires U.S. Air reservation sales agents when receiving a threatening call to press an emergency button that allows the call to be recorded. Blanc further testified that in her ten years of taking calls, she never previously felt the need to record a call. Blanc was upset because the situation was serious, "something not to be taken lightly." She felt that the passengers on the flight might be threatened by Cothran's comments. She further described any laughter heard on the recording as "nervous laughter," and stated that, despite Cothran's claim to be joking, she did not take his comments as a joke. Blanc's testimony is such that a rational juror could certainly have found Cothran guilty beyond a reasonable doubt. Thus, the District Court committed no error in denying his motion to acquit.

B. Analogous Sentencing Guideline

There is no specific sentencing guideline for 49 U.S.C. § 46507. Therefore, pursuant to U.S.S.G. § 2X5.1, the most analogous guideline should be applied.

The circuits are split vis-a-vis the standard of review applicable here. In United States v. Osborne, 164 F.3d 434 (8th Cir. 1999), the court provided a comprehensive and cogent analysis of the standard to be applied. The court first noted that 18 U.S.C. § 3742(e) provides the standard of review for guideline appeals.1 Id. at 437. The court then looked at the background note to U.S.S.G. § 2X5.1, which "states specifically, `The court is required to determine if there is a sufficiently analogous offense guideline and, if so, to apply the guideline that is most analogous.'" Id. (quoting U.S. SENTENCING GUIDELINES MANUAL § 2X5.1, cmt. background (1998)). The court noted that there is a two-step process involved: first, the district court must determine whether there is a sufficiently analogous offense guideline, and, if there is, it then must determine which guideline is most analogous. Id.

The court held that the first step, determining whether there is a sufficiently analogous guideline, is a legal question and is reviewed de novo. Id. Contra United States v. Cefalu, 85 F.3d 964, 968 n. 6 (2d Cir.1996) (whether there is a most analogous offense guideline involves applying guideline to facts and receives due deference review). Because determining whether there is an analogous guideline is substantially interpreting and applying the guidelines, the Osborne court was correct and review of that first determination should be plenary.

If there is more than one sufficiently analogous offense guideline, the second step requires the district court to apply the most analogous one. Osborne, 164 F.3d at 437. The Osborne court held that this determination is more factual than legal and thus should be reviewed with due deference. Id. at 438.

The court noted that in choosing the most analogous guideline, the "district court must take into account all the circumstances of the case and make factual findings to support its choice." Id. The district court then must decide which guideline is most analogous based on the factual findings. Id. The court further stated that choosing...

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