* The Honorable John R. Adams, United States District Judge for the Northern District of

Ohio, sitting by desig

nation. NOT RECOMMENDED FOR FULL-TEXT PUBL ICATI ON File Name: 04a0013n.06 Filed: October 6, 2004

No. 03-5960 UNIT ED S TAT ES COU RT OF A PP EALS FOR THE SIXT H CIR CUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. GARY COPELAND, Defend ants-App ellants. ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRI CT CO URT FOR THE WESTERN

DISTRI CT O F TENNESSEE AT M EMP HIS

Before: MOORE and SUTTON, Circuit Judges; and ADAMS, District Judge. * ADA MS, J

. A jury convicted De fendant Gary Copeland o f attemptin g to board an aircraft with a concealed dange rous wea pon that w ould be ac cessible to him durin

g flig ht, in violation of 49 U.S.C.§ 46505. On

appeal, Copeland

argue s that the t

rial court erred in deny

ing his motion for judgment of acquittal on the grounds that no reasonable jury could hav e found, bey

ond a rea sonable doubt, that he had actual knowledge that a fire arm was in his carry-on luggage. F or the reasons that follow, we reject Copeland’s arguments on appea l and affirm the district court’s denial of his motion for judgment of acquittal, thus affirming his conviction.No. 03-5960

United States v. Copeland

1 The brief

case that Copeland was int ending t o carry ont o the plane was not of th e box-ty

pe but more l ike a bag. - 2 - I. FACTS OnNovember 7, 2002, Defendant Gary Copeland

was scheduled to travel with his wife on Air Tran Airl ines, Flight No. 520 from Memphis, Tennessee to Atlanta, Georg ia. After a brief layover they were to c ontinue on

to Chatham , Virginia to visit a relative. Flight 520 was scheduled to depart at 6:15 A . M . Both Copeland and his wife testified that the week of the scheduled trip ha d been a hectic

one. Copeland

had bee n occupie d with a la

rge pr oject for work a

nd was at tending a cla ss t hree nights a week after work. The night be fore they were scheduled to fly

out, Copeland arrived

home at approximately 9:30 P . M . The two had a late dinner and bega n packingfor

the trip. They did not get to bed until around 1:00 A . M . and awoke sometime before 4:15 A . M . Copeland intended to carry a briefcase and book onto the airplane. Af ter having breakfast, Copeland continued

to pack it

ems into his briefcase. 1 Both Cope land and h is wife c la imed t he briefcase was stuffed full. Copeland further described it as being so full that he could not zip it. The two rushed to the airport to catch their fli ght. On the way to the airport, Copeland removed a Swiss Army knife

from his key cha

in because he did not want to get caug ht goingthrou gh security with it. When they arrived at the a irport, Copeland assisted his wife in carry ing the luggage to the ticke

t counter and then l eft to pa

rk the ca r. After joining h is wife in th e airpor

t, the cou ple got their tickets a

nd appro ached a

security checkp oint, whic

h requir ed the pr esentat io n of theirNo. 03-5960

United States v. Copeland

2 In Copel and’ s bri ef, he cl aims Mr. Ril ey t est if ied t hat Copelan d was n ot acting su spicio usly. Ho weve r, this is an incorrect st atement. Mr. Riley t estif ied that he could not say how Copeland was act ing becaus e he did not look at Co pelan d. - 3 - identificationand tickets. The couple then p laced t heir carry -on items onto the belt of the x-ray screening machine and proce eded to walk through the metal detector. Copeland’s wife retrieved her items when they

exitedthe x-ray machine. The screener, Mr. Eddie Riley, stopped the

x-ray machine while Copela nd’s briefcase was still inside. He identified, fromthe x-ray, that

a firearm was contained within the briefca se. Mr. Riley contacted his supervisor andthe a irport’s

legal e nforce ment offi cer at the airpor t to come to

the secu rity checkp oint an d inspect the briefcase. At that time, Copeland “slapped his head and said oh, no, did I leave my spee d loader in the re[?]” While detained at the security checkpoint, Copeland told Mr. Riley, two or thre e times, that there was only ammunition in the briefcase. Mr. Riley testified that the firea rm was not hidden in the briefcase and was easily spotted. 2 Officer Terry Coc

hran of the Memph is International Police Dep artment a rrived a t the sec urity checkp oint. He asked Copeland if the briefcase in question was his. Copela nd confir med that it

was. Copeland did not ask what the problem was but made the statement that at least his gun was not in the bag. Officer Cochran told Copeland that he believed there was a firearm in the briefcas e. A s Cope land was escorted away

from the machine, he pointed to a pocket of the briefc ase indi catin g to look in that pocket becaus e that would be where the gun was, if it was there . Officer Cochran looked in the designated pocket and discovered a loaded .357 Magnum, holster, loaded speed loader, Tenn essee permit ca

rd, and a badge that cont ained the words “h andgun

permit” a

nd the per

mit number.No. 03-5960

United States v. Copeland

3 Th e secu rity chec kpo int supe rvisor w as no t prese nted a s a witnes s at trial. 4 Cop eland’s testimony was that if he were ca rjacked he would know wh ere his weapo n was. - 4 - Becau se of the ba

dge, Of ficer Co chran a sked if

Copeland was a law

enforcement officer. He stated that he was not. Copeland offered to take the firearm back out to his car, but his request was denied. Office

r Cochra n testifie d that he d

id not know

if Copeland had

forgotten the gun. Copeland asked if he wou ld lose his permit to carry the weapon. Officer Cochran re sponded that there was a good possibility he could. Special Agent Daniel Sobolewski of the FBI inter viewed Copeland at the airport. Copeland admitted to him that t

he fire arm was h

is and that he carried it every day for protect ion. At all

times, Copeland was cooperative with the officers. The checkpoint supervisor prepared a re port of the inc ident. 3 Mr. Riley and Offic er Cochran reviewed the document and Mr. Riley signed it at the bottom. Both testified that it was a true and

accura te account. The incident report stated that the reason f or carry ing th e weapon was, “forgot firearm in bag.” Mr. Riley testified that Copeland had not said this to him personally. Ondirect examination, Copeland stated that the last time he remembered having his firearm

was at the firing range the previous weeken d. He cla imed that he had no id

ea it was in his briefc ase when he went to the airport. On cross-examination, Copeland testified that he put the firearm, speed loader, holster, permit and badge into the briefcase and that he carries them in the same pocket every da y. When questioned, he acknowledged that he wou ld know where his weapon was if it was needed. 4 Co pe la nd de sc ri be d t he we ap on as re la ti ve ly h ea vy, something that could not have been mistakenfor papers or a compact disc. He a dmitted he was the only

person w ho packe d the brie fcaseNo. 03-5960

United States v. Copeland

- 5 - and that he had handled it while packing. It is noted that the Government admitted as exhibits the firearm, holster, permit card, badge, speed loader, carry

-on bag, ammunition, and the incident report.

II . PROCEDURA

L HI STORY On November

7, 2002, a Criminal Complaint was filed against Copeland alleging that he “attempt[ed] to board an aircraft intended for operati on in air tr

ansporta tion while having on or about his person and

property a

concealed

dangerous weapon, specifica lly, a loaded fire arm.” Copeland

was indicted for this offens e on Novembe r 12, 2002. A jury trial wa s held on March 20, 2003. Copeland made a motion for judgment of acquittal at the end of the Government’s case, which was de nied. Copeland

present ed himself

and his wif

e as witne sses for

the defe nse. The motio n fo r judgment of acqui ttal was r enewed after a ll evidenc e had be en prese nted. This

motion was

also denied. Copeland

was conv icted by the jury on the sole

count in the Indictment. He was sentenced to one yea

r of probation. One week after completion of trial, Copeland filed a renewed motion for judgmentof acquittal or alternatively a motion for a new trial. He raised no new g rounds fo r th e motion, but stated that “based on the proof presented by

both sides at

trial, no r easonab le jury

could have found

hi m g ui lt y, by proof bey

ond a rea sonable d

oubt, of vi olating

49 U.S.C. §4 6505.” Th

is motion was also denied in a written order by the court. Cope l and timely filed a notice of appeal. III. STANDARD OF REVI EW Onappeal, Copeland argues that the trial cour t erred in denying his motion for judg ment of acquittal on the g

rounds tha

t no reas onable ju

ry could have found, beyond a re asonable doubt, that he had actual knowledge that a fire arm was in his carry-on luggage. This cour t reviews de novo theNo. 03-5960

United States v. Copeland

- 6 - denial of a motion for judgment of acquittal. United States v. Keeton , 101 F.3 d 4 8, 52 (6th Cir. 1996). Such a moti on challe nges the suffic ienc y of the evidenc e supporting the conviction. See Fed.R.Cr im.P. 29; United States v. King , 169 F.3d 1035, 1038 (6th Cir. 1999) (citation omitted). Anappellate c o urt must af firm a conviction if

, “afte r viewing the evide

nce in the

light most favora ble to the prosecution, and afte r giving the gov ernment

the bene fit

of all inf erence s that cou

ld

reaso nably

be drawn from the testimony , any rational trie r of fact could find the elements of t h e crimebeyond

a reasonable doubt.” United States v. M/G Transport Services, Inc., 173 F.3d 584, 589 (6th Cir. 1999) (emph asis o mitt ed) (ci ting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L.Ed.2d 560 (1978)). The burden is on the appellant to show that the “government failed to prove beyond a

reasona ble doubt that he committed the elements of the crimes for which he was charged.” United States v. Talley , 164 F.3d 989, 996 (6th C ir. 1999). This Court "will reverse a judgment for insufficiency of evidence only if th[e] judg ment is not supported by substantial and competent evidence upon the record as a whole, an d . . . this r ule applies whether the evidence is direct or whollycircumstantial." United States v. Stone , 748 F.2d 361, 362 (6th Cir. 1984). “Circumstantial evidenc e al one is sufficient to sustain a conviction and such evidence need not re move every

reasona ble hyp othesis except that of guilt.” United States v. Abner , 35 F.3d 251, 253 (6th Cir. 1994). A re vi ew in g c ou rt ma y no t i nd ep en de nt ly j udge the weight of the evidence or assess the credibi lity

of the witnesses. United States v. Well s , 211 F.3d

988, 1000 ( 6th Cir. 200 0); United S tates v. Jackson , 55 F.3d 1219, 1225 (6th Cir. 1995). “If the e vidence, however, is suc h that a rational fact

finder mu st

conclude that a re asonable

doubt is ra

ised, this c ourt is obli gated t o reverseNo. 03-5960

United States v. Copeland

- 7 - a denial of an acquittal motion.” United States v. Lloyd , 10 F.3d 1197, 1210 (6th Cir.1993) (citing United States v. Collon , 426 F.2d 939, 942 (6th Cir.1970)). IV. SU FFI CIEN CY OF EVI

DENCE It is first noted that during oral ar gument, Copeland’s counsel stated that this Court was to look only to the evidence

presented by

the Government

in its cas e in chief. This, however, is an incorrect statement. In United

States v. Black, 525 F.2d 668 (6th Cir. 1975), this Court stated, “[t]he rule is settled that when a defendant introducesevidence, he waives any objection to the denial of his motion to acquit at the close of the government’s case.” Id. at 669 (citi ng U nit ed States v. Calderon , 348 U.S. 160, 164, n.1, 75 S.Ct. 186, 99 L .Ed. 202 ( 1954); United Sta tes v. Am brose , 483 F.2d 742 (6th Cir . 1973)). In the case at bar, Cope land intro duced e vidence after the close

of the Government’s case and after the di strict co

urt denie d his initia

l motion for

judgmen t of acqu ittal. Therefore, an y ob

je ction to the district court’s denial of Copeland’s first motion for judgment of acquittal has been waived. Copeland argues that based on the evidence presented at trial and the instructions given by the district c ourt, no r

easonab le jury

could hav e found h

im guilty by proof bey

ond a rea so nab le doubt. At trial, the j ur y was given the following instruction on the elements of a violation of 49 U.S.C. §46505: The United Sta

tes must prov e each o f the foll owing e lements be yon d a reas onable doubt: (1) That the defe ndant must

have be en on or a

ttempting to get on an aircraft[;] (2) The aircraft must have been in or intended for operation

in air tra nsportat ion[;] (3) The defendant must have knowingly had on or about his person or property a concealed and danger

ous weapon[;] and (4) That dange rous wea pon would b e acce ssible to th e defen dant duri ng the f light.No. 03-5960

United States v. Copeland

- 8 - Copeland does not di spute tha

t he was a ttempting to board an aircraft that was intended for operation inair tran sportation or that the weapon at issue would hav e been a

ccessib le to him

during the flight. Copeland’s only arg

ument on appeal is that the Government presented insufficient evidence for the jury to find that he “knowingly” attempted to board a n aircraft with the firearm. The district court defined the term “knowingly ” as meaning “the act was done voluntarily an d inten tion ally and n ot bec ause o f mis take o r accid ent.” It furth er defi ned th e term by stati ng: Mr. Copeland is charged with knowing ly attem pting to board an aircraft with a dangerous weapon, to-wit[:] a pistol. If y oufind that Mr. Copeland did not knowing ly

have the pistol onor about h is person or prope rty , yo u must acq

uit him. If you find that Mr. Copeland did voluntarily and intentionally have the pistol on or about his person or prope

rty and atte mpted to c arry

it aboard an aircraft, y

ou may find hi m g ui lt y. The distr ict cour t also pro vided a de finition f or intent: Intent ordinarily may

not be proved

directly bec ause there is no way of fathoming or s crutinizing the operations of the human mind. But y ou may infer the

de fendant ’ s intentfrom the surroundi ng circumstances. You may c onsider anything done or omittedby the

defendant and all facts and circumstance s in evidence which indicate his state of mind. You may consider it re asonable to draw the infe rence and to find that a person intends the natural and probable consequences of acts knowingly

done or knowing ly omitted. Copeland claims that the evidence presented at trial demonstrated only that he ha d possessi on of the firearm, that the firearm was found in his carry-on bag and that he had stated, “at least the gun is not in the bag.” Copeland further points out that no witnesses testified as to what he describes asNo. 03-5960

United States v. Copeland

5 Copeland argues there was no evidence that : (1) t he fi rearm was on top of t he other ite ms in t

he bag or that it was concealed to a greater extent than the other i tems in the bag; (2) the fi rearm was contained in a unique contai ner to conceal i ts i dentit

y; ( 3) he unsu cces s ful ly at tempted t o check it

through on a prior occ asion; (4) th e fi rearm was concealed in a way thatwould avoid det ecti on; (5) h e tri ed to avoid put tin g his carry -on lu ggage through t he x-r ay machine; (6) he att empted to get another t o take the carry- on luggage through the checkpoint; (7) he tried to divert the scree ner’s att enti on while the carry-o n lugga ge wa s being scree ned ; (8) he attemp ted to alt er his ident ity ; or (9) there was any pu rpo se or n eed for the firea rm at his d estinatio n. - 9 - a “typical basis for

proving actual knowledge,” 5 such as statements or actions made by him, or other evidence indicating that he had actual knowledge that his firearm was on

or about h

is person when he went through the security checkpoint at the airport. Alt hough there is no direct evidence demonstrating that Copela nd had knowledge the firear m

was in his carry- on bag, sufficient circumstantial evidence was presented f or th e j ur y to infer that Copeland placed the firearm into his carry -on bag and kn owin gly a

ttempted to board the airplane with it. As stated above, “[c]ircumstantial evidence alone is sufficient to sus tain a conviction.” Abner , 35 F.3d at 253. During trial, Mr. Riley , Officer Cochran, and Age nt Sobolew ski testif ied for the Gover

nment. Mr. Riley testifie d that af

ter he c onfined C opeland’ s briefc ase inside the x-ray screening machine, Copeland stated to him, two or

three times, that there wa s only ammunition

inthe briefcase. Officer Cochran testified that after he told Copeland he belie ved a fir earm wa s in

the briefcase, Copeland pointed to a pocket of the briefc ase whe re the f irearm was conta

ined. Of ficer Co chran a

lso testified that Copeland offered to takethe firearm back to his car. Agent Sobolewski testified that Copeland had told him that he carried the firearm ever y day for protection. Copeland points to statements that he made to the officers indicating that he had forgotten the firear m was in the

briefc ase. How ever, th e jury was fre e to disbe lieve Cope land’s innoc entNo. 03-5960

United States v. Copeland

- 10 - explanation. United States v. Schreane , 331 F.3d 548, 562 (6th Cir.2003) (stat ing, “[i]t is well settled that when

a defendant offers an innocent explanation for the incriminating facts proved by the government, the jury

is free to disbelieve it.”) (citation and internal quotations omitted). During the defense case, Cope land testi fied to the following : he kept t

he fire arm in his briefc ase while traveling back and forth to work; he kept the firear m, speed l oader, h

olster, p ermit and ba dg e i n t he sa me po ck et ev er yda y; he would know where the firearm was if needed; when he and his wife are going

somewhe re and he intends on

taking t he brief case wit h them, he removes the firear m; he handle d the brie fca se while packing, both the morning of and the nig ht before the incident ; and no other person packed the briefcase. Copeland’s testimony also demonstrated that he had knowledg e of all the other c ontents of the brie fcase, including a pair of

concer t tic kets

. Although Copeland

argues that

the briefcase presented at trial wa s not packed similarly to the one he carried at the airport, this was brought to the jury ’s attention w h en Copeland was on the stand. Copeland further testifie d that the

last time he remembered seeing his firea rmwas when he went to the firing range the Sunday before. He stated that when he g oes to the firing range, he has

a routine o f removin

g the fi rearm f rom his bri efcase

and plac ing it

into a canvas range bag. He the n cleans his firearm after

using it a nd retur ns it to the brie fcase. Copeland stated tha t after he went to the range on November 3, 2002, he put the fir earm into his briefcase. In addition

to the above testimony, the Gover nment also admitted into evidence the firear m, briefcase, holster, ammunition, speed loader, badge, and permit. Thus, the jury was able to handle this evidence and decide whether they believed, given the size, weight and location in the briefcase, Copeland could have packed and carr ied the briefcase without realizing the firea rm was inside.No. 03-5960

United States v. Copeland

- 11 - Based ona review of the record as a w hole, viewing the evidence presented at trial in a light most favo rable to

the Gove rnment, th

is Court finds that there was sufficient evidence presented at trial for a reasonable jury to have f

ound, beyond a re asonable doubt, that Copeland had actual knowledge that a firearm was in his ca rry-on luggage. V. CONCLUSI ON For the fore going

reasons , it is dete

rmined tha

t the evid ence pr esented at trial s upports a finding that Copeland knowingly a ttempted to board an aircraft with a c oncealed and dangerous weapon that would be accessible to him during flight, in violation of 49 U.S.C. § 46505. The district court’s denial of Copeland’s motion for judgment of acquittal was proper. Copeland’s judg ment of conviction is AFFIRMED.