U.S. v. Alcorn, 02-3189.
| Decision Date | 21 May 2003 |
| Docket Number | No. 02-3189.,02-3189. |
| Citation | 329 F.3d 759 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Ricky W. ALCORN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
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.
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.
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 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 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:
"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.
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.
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.
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.
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 placed the bucket of the backhoe on the railroad track?" R. Vol. VII at 340.2 The court refused that request.
The court then proposed giving the jury a modified Allen instruction, to which Alcorn objected, arguing that the jury's questions to the court indicated that they were confused about the meaning of "willful" in the context of this case, and that the modified Allen instruction "merely pressures [the jury] to make a decision with this fundamental misunderstanding being considered." Id. at 342. The court overruled that objection, and gave the jury the following instruction:
As I told you during instructions yesterday, your verdict must represent the considered judgment of each juror. In order to return a verdict, it will be necessary that each juror agree thereto. Your verdict must be unanimous.
In this light, it is your duty as jurors to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to re-examine your own views and change your opinion if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of the evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.
I have faith in your judgment, whatever your ultimate verdict.
You are not partisans. You are judges—judges of the facts. Your sole interest is to ascertain the truth from the evidence in this case.
R. Vol. IV at tab 42. The court also responded to the jury's two questions as follows:
The instructions, as supplemented in the response to jury question number one, adequately define "willful" actions. Please carefully review those instructions again. It is your responsibility to determine if defendant willfully caused the derailment of the train.
R. Vol. VII at 343. The court went on to say:
When I say the derailment, I'm including the whole statute—the wreck, the damage to the train. I think if you go back and take a look at the definition of willfully, you take a look at the definition of knowingly, and finally the supplement to that definition of knowing that we sent into you last night, that should guide you in terms of determining whether an act is willful or not.
I would remind you as well that while we have defined those terms for you in terms of the statute, you are still to apply—and its part of the instructions—your...
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...to an instruction on his theory of defense provided that theory is supported by some evidence and the law.'" United States v. Alcorn, 329 F.3d 759, 767 (10th Cir.2003) (quoting United States v. Haney, 318 F.3d 1161, 1163 (10th Cir.2003) (en banc)). Such an instruction is not required, howev......
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