                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-11-2002

USA v. Cothran
Precedential or Non-Precedential:

Docket No. 01-1437




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Recommended Citation
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PRECEDENTIAL

       Filed April 11, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-1437

UNITED STATES OF AMERICA

v.

MARK WILLIAM COTHRAN,
       Appellant

Appeal from the United States District Court
For the Eastern District of Pennsylvania
D.C. No.: 00-cr-00223
District Judge: Honorable J. Curtis Joyner

Argued: March 4, 2002

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

(Filed April 11, 2002)

       Dolores M. Troiani (Argued)
       45 Darby Road, Suite E
       Paoli, PA 19301

        Counsel for Appellant
_________________________________________________________________

* Honorable Robert J. Ward, United States District Judge for the
       Southern District of New York, sitting by designation.


       Jennifer Chun (Argued)
       Office of United States Attorney
       615 Chestnut Street, Suite 1250
       Philadelphia, PA 19106

        Counsel for Appellee

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. S 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.) S 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. S 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.

                                 2


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. S 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. S 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

                                3


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 S 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. S 1472(m)(1), the statutory precursor to S 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

                                4
(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.
S 46507. Therefore, pursuant to U.S.S.G. S 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. S 3742(e) provides the standard of
review for guideline appeals.1Id. at 437. The court then
_________________________________________________________________

1. The relevant portion of the statute provides:"[t]he court of appeals . . .
shall accept the findings of fact of the district court unless they are
clearly erroneous and shall give due deference to the district court’s
application of the guidelines to the facts." 18 U.S.C. S 3742(e).

                                5


looked at the background note to U.S.S.G. S 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 S 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 the
most analogous guideline involves more than mere
interpretation, but rather "involves evaluating which of two
or more legal standards is most akin to the facts." Id. The
court found this to be an "application of the guidelines to
the facts," and worthy of due deference pursuant to 18
U.S.C. S 3742(e). Id.; accord United States v. Rahman, 189
F.3d 88, 150 (2d Cir. 1999); United States v. Mariano, 983
F.2d 1150, 1158 (1st Cir. 1993).2 The Osborne analysis is
_________________________________________________________________

2. Courts to the contrary that apply de novo review are: United States v.
Couch, 65 F.3d 542, 544 (6th Cir. 1995) (de novo review); United States
v. Norman, 951 F.2d 1182, 1184 (10th Cir. 1991) (same).

                                6


logical, United States v. Calbat, 266 F.3d 358, 363 n.1 (5th
Cir. 2001), and is the one we accept.

The Presentence Investigation Report in this case
prepared by the probation officer recommended applying
U.S.S.G. S 2K1.5 as the most analogous guideline.3 Section
2K1.5 is the guideline applicable to "Possessing Dangerous
Weapons or Materials While Boarding or Aboard an
Aircraft," and provides for a base offense level of 9. The
District Court demurred, finding S 2A6.1 the"appropriate
section to apply to [Cothran’s] conduct." Section 2A6.1 is
the guideline applicable to "Threatening or Harassing
Communications," and provides for a base offense level of
12.

Section 2A6.1 is the more analogous guideline. First, in
contrast to S 2K1.5, it accurately embodies Cothran’s
conduct. Cothran was convicted of conveying a false threat,
not of possessing dangerous weapons while on an aircraft.
Moreover, there is a scienter element present in the base
offense level for S 2A6.1 that is not present in the base
offense level of S 2K1.5. That is, a defendant sentenced
pursuant to the base offense level of S 2A6.1 has knowingly
conveyed a threat, while a defendant sentenced pursuant to
the base offense level of S 2K1.5 has not boarded the
aircraft knowing that he has a dangerous weapon. If such
a boarding takes place with actual knowledge of the
presence of dangerous weapons, the base offense level of 9
increases 15 levels to 24. U.S. SENTENCING GUIDELINES MANUAL
S 2K1.5(b)(1) (2000). To most accurately analogize Cothran’s
act under S 2K1.5, we would therefore have to increase his
base offense level to 24 because he knowingly conveyed the
false threat. Thus, speaking strictly in terms of base offense
levels, S 2A6.1 is the more analogous guideline.

Cothran cites United States v. Norman, 951 F.2d 1182
(10th Cir. 1991), as support for applying S 2K1.5. Norman
involved a defendant who falsely reported that his ex-wife’s
suitor had boarded an aircraft with a handgun and
_________________________________________________________________

3. At sentencing, the probation officer renounced his original position,
stating, "in retrospect, I would agree with the Government that Section
2A6.1 is more analogues [sic] to the actual statute that defendant was
found guilty of."

                                7


explosives. Id. at 1183. The district court had applied
S 2A6.1 as the most analogous guideline during sentencing,
and the appellate court reversed, ruling that it should have
applied S 2K1.5. See Id. As its rationale, the court stated
that "[t]he offense of threatening communications, codified
in 18 U.S.C. SS 871, 876, 877, 878(a), and 879, is
committed by making threats against a President, using the
mail to make threats, making threats against foreign
dignitaries and officials, and making threats against a
former President." Id. at 1184. The court found that the
defendant’s conduct implicated none of those offenses and
that S 2K1.5 was therefore the most analogous guideline. Id.

We reject the Norman court’s analysis. Although it is true
that 18 U.S.C. S 871, 876, etc. are enumerated in S 2A6.1’s
commentary, U.S. SENTENCING GUIDELINES MANUAL S 2A6.1,
cmt. (2000), the statutory list is not exhaustive, but merely
illustrative. Immediately following the list of statutes, the
commentary provides, "[f]or additional [applicable] statutory
provision(s), see Appendix A (Statutory Index)." Id.
Appendix A provides for application of S 2A6.1 to, inter alia,
violations of 18 U.S.C. S 35(b). U.S. SENTENCING GUIDELINES
MANUAL, app. A (2000). Title 18 U.S.C.S 35(b) provides
criminal liability if a person, "willfully and maliciously . . .
imparts or conveys or causes to be imparted or conveyed
false information, knowing the information to be false,
concerning an attempt . . . to do any act which would be a
crime prohibited by this chapter." 18 U.S.C.S 35(b). In the
same chapter as S 35(b) is 18 U.S.C. S 32, which provides
criminal liability for the destruction of an aircraft.
Furthermore, S 35(b)’s language closely tracks that of 49
U.S.C. S 46507, the provision under which Cothran was
convicted. When we look at these sections and S 32, the
statutory provisions aim at the heart of Cothran’s crime:
conveying false information about an attempt to destroy an
aircraft. Accordingly, S 2A6.1 is the most analogous
guideline applicable to Cothran’s crime.

C. Guideline Reduction

Cothran argues that if S 2A6.1 is applicable, he is entitled
to a four-level reduction because his "offense involved a
single instance evidencing little or no deliberation." U.S.

                                8


SENTENCING GUIDELINES M ANUAL, S 2A6.1(b)(4) (2000). The
District Court disagreed, stating that, "I do not find that it
was one single episode and I find the conduct existed over
the two different episodes and over a period of hours and
that there was some serious deliberation and thought. . .
in reference to both of these conversations and both of
these activities." We review the District Court’s refusal to
decrease Cothran’s criminal level for clear error. United
States v. Green, 25 F.3d 206, 210-11 (3d Cir. 1994).

Cothran argues that his offense was a single episode and
that he is thus entitled to the reduction. Assuming
arguendo that the offense was a single episode, Cothran
would still not ipso facto be entitled to the reduction. For
the reduction to be applicable, Cothran’s single episode
would also have to "evidence[ ] little or no deliberation."
U.S. SENTENCING GUIDELINES MANUAL, S 2A6.1(b)(4) (2000). The
District Court clearly did not err in finding that Cothran
seriously deliberated before acting. Federal Bureau of
Investigation agent Richard Marx testified that Cothran told
him that he wanted to get a reaction from a U.S. Air
reservation agent, "and that he knew that a good terrorist
would speak of explosives" to accomplish that goal. Such a
statement demonstrates sufficient deliberation for the
District Court’s decision to refuse a downward departure
from the guideline. The court’s decision to do so was not
clear error.

III.

In summary, the District Court did not err in finding the
evidence sufficient to convict Cothran. Moreover, the
District Court committed no error in finding U.S.S.G.
S 2A6.1 to be the most analogous guideline and in denying
Cothran a four-level reduction pursuant to S 2A6.1(b)(4).
Accordingly, the District Court’s judgment will be affirmed.

A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit

                         9
