329 F.3d 759 (10th Cir. 2003), 02-3189, U.S. v. Alcorn

Docket Nº:02-3189
Citation:329 F.3d 759
Party Name:UNITED STATES OF AMERICA, Plaintiff
Case Date:May 21, 2003
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 759

329 F.3d 759 (10th Cir. 2003)

UNITED STATES OF AMERICA, Plaintiff–Appellee,

v.

RICKY W. ALCORN, Defendant–Appellant.

No. 02-3189

United States Court of Appeals, Tenth Circuit

May 21, 2003

Page 760

Cyd Gilman, Assistant Federal Public Defender, Wichita, Kansas, for Defendant–Appellant.

Debra L. Barnett, Assistant United States Attorney (Eric F. Melgren, United States Attorney, and Brent I. Anderson, Assistant United States Attorney, on the briefs), Wichita, Kansas, for Plaintiff–Appellee.

Before LUCERO, Circuit Judge, McWILLIAMS and ANDERSON, Senior Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

Defendant Ricky W. Alcorn appeals his conviction, following a jury trial, for willfully and unlawfully wrecking a train, in violation of 18 U.S.C. §1992. We affirm.

BACKGROUND

At approximately 11:00 p.m. on August 29, 2001, Alcorn drove his pick-up truck north along Greenwich Road in Sedgwick County, Kansas. As he approached 95th Street, he encountered two barricades stretching the width of the road and indicating that the road was closed. Alcorn drove around the barriers and proceeded towards a construction project in which L.G. Pipe Construction Company was rebuilding an 80-foot section of the railroad crossing near 95th Street and Greenwich Road.

As Alcorn approached the railroad crossing, he realized that there was an eighteen-inch trench between the end of Page 761

the roadbed and the newly replaced railroad tracks, which had not yet been filled in. The trench was eight to ten inches deep. As Alcorn drove across the trench between the roadbed and the tracks, his truck became stuck. He then got out of his truck and walked some 120 feet to a large excavator which had been used by the construction crew. The crew had left the excavator with its excavating arm stretched across the road as an additional barrier to traffic. The arm, when fully extended, stretches twenty-five feet from the front of the machine. The arm also has a large bucket attached at its end, which is fifty-four inches wide and forty-eight inches tall. The operating cab of the excavator rotates so that the operator always faces in the direction of the excavating arm. Alcorn knew how to use the machine, as he had worked previously at construction jobs. Alcorn found the key which the operator of the excavator had hidden, got into the cab, started the machine, turned on its lights, raised the arm and proceeded towards his truck, intending to use the arm to push his truck out of the trench. He maneuvered the excavator behind his truck, and pushed the truck out of the trench with the arm. He then backed the excavator up, dropped the arm and bucket to the ground, turned off the excavator's lights, wiped his fingerprints off the inside of the cab, and returned the key to the compartment in which it had been hidden. The bucket lay partially across one of the railroad tracks.

Alcorn walked north towards his truck, passing by the bucket. He acknowledged at trial that he had seen the bucket as he walked past it.1 He got into his truck, which by now had two flat tires, drove around additional barricades, got stuck again, but finally freed his truck and proceeded towards the intersection of 95th Street and Greenwich Road. When he saw the headlights of a car approaching on 95th Street, he pulled behind a barricade, turned off his lights, and waited for the car to pass.

Alcorn realized that he could not drive the car because of the two flat tires. Accordingly, after passing several houses as he drove north on Greenwich Road, he eventually stopped and parked his truck at the house of Kathy Willis. He left a note on Ms. Willis's door, apologizing for leaving his truck in her front yard and stating that he would be back soon to pick it up. He did not leave his name or phone number. Alcorn called a friend, John Martin, on his cell phone and asked him to pick him up.

While waiting for Martin to arrive, Alcorn heard the crash of a train as it hit the excavator bucket. The 7,000 foot long train had hit the bucket going 55 miles per hour and derailed, causing a total of more than $3.2 million in damage. When Martin arrived, he and Alcorn drove to the scene of the crash. When Martin suggested they call 911 on Alcorn's cell phone, Alcorn said he did not want to. They then left the scene of the derailment. Later, Alcorn discussed with Martin various stories he could tell the police about the incident.

Alcorn was indicted on one count alleging that he "did willfully and unlawfully, Page 762

derail, disable and wreck a train," in violation of 18 U.S.C. §1992. R. Vol. IV at tab 11. At trial, the court gave the following instructions to the jury: INSTRUCTION NO. 11

"Willfully," as that term is used in 18 [U.S.C.] [§] 19[9]2, means the acts charged in the indictment were committed voluntarily, deliberately and intentionally, even if defendant did not know his or her acts constituted a specific crime.

Id. at tab 42. INSTRUCTION NO. 12

A willful act is done knowingly. An act is done "knowingly" if defendant was aware of the act, realized what he was doing or what was happening around him, and did not act or fail to act because of ignorance, mistake, or accident. The government is not required to prove defendant knew these acts or omissions were unlawful. You may consider evidence of defendant's words, acts, or omissions, along with all the other evidence, in deciding whether the defendant acted knowingly.

Id.

INSTRUCTION NO. 13

The question of intent is also a matter for you, as jurors, to determine.

In every crime there must exist a union or joint operation of act and intent.

"Intent" means more than the general intent to commit an act. The government must prove that defendant knowingly did an act which the law forbids.

"Intent" is a state of mind. Because you cannot look directly into a person's mind, the only reasonable way to determine intent is to consider all the facts and circumstances shown by the evidence and determine from that evidence defendant's intent at the time in question.

Id.

INSTRUCTION NO. 14

The intent required to violate [18 U.S.C. §1992] is that a person act willfully to derail, disable or wreck a train. The government is not required to prove that a specific intent to derail, disable or wreck a train existed at the time of the events herein. In other words, you are not required to find the defendant acted with the intent to derail, disable or wreck a train.

Willfulness may be shown by evidence of the natural, probable consequences of the defendant's actions.

Id.

After deliberations began, the jury submitted a question to the court seeking clarification of Instruction No. 12. The court conferred with the parties and responded, without objection, as follows: "An act is done knowingly if it's done voluntarily and intentionally and not out of mistake or accident or other innocent reason." R. Vol. VII at 337. After deliberating further, the jury asked two more questions: (1) "If Rick failed to check whether the bucket was on the track, is that considered to be a willful act, in terms of the bucket being left on the track?"; and (2) "If he could have made sure he didn't obstruct the track and chose not to look or take any other action is that willful?" R. Vol. IV at tab 43. Alcorn requested that the court instruct the jury "Do you find or not find that Ricky Alcorn knew that he...

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