F I L E D

United States Court of Appeals

Tenth Circuit

MAY 21 2003

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 02-3189

RICKY W. ALCORN,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

(D.C. NO. 01-CR-10098-JTM)

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.

ANDERSON , Circuit Judge.
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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 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
1On cross-examination, the following exchange occurred:

Q. You saw where the bucket was at, correct?

A. Yes. Didn’t look like it was on the tracks.

Q. You saw where it was at?

A. I must have. I might not have.

Q. You walked right by it, didn’t you?

A. I ran. I ran to my pickup to leave.

(continued...)

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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
1

(...continued)

Q. You ran right by it, didn’t you, sir?

A. Yes.

R. Vol. VII at 308. 

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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
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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:

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.
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“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
2As we discuss more fully, infra, Alcorn suggested several variations of the

instruction he wished the court to give, all of which contained the basic idea

expressed in the language quoted.

-7-

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:

INSTRUCTION NO. 21

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
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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 common sense and knowledge and

experience as you consider all the things that you’re looking at in this

case. We are not going to be able to tell you because it’s your job to

determine from what you have whether something is willful or not. 

We can’t tell you whether it is or whether it isn’t. If we could do

that, we would probably be telling you what the verdict should be in

the case. Again, that is–as difficult as it may seem, may even seem

overwhelming at times–your responsibility. We’ll give you as much

help as we possibly can, but we can’t ultimately decide the case for

you, which is what we would, in effect, be doing if we say, “Yes, this

is willful conduct.” “No, that’s not willful conduct.” Because it is
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ambiguous to some extent in the sense that there could be some

question with respect to whether an act was willful or not, depending

on what the circumstances are. So you need to take a look at the

whole case again, what all the circumstances are, and make a

determination here with respect to the charge against the defendant

based on the information that you heard during the trial, the evidence

and based upon the instructions I have given you.

Id. at 343-44.

The jury resumed deliberations after receiving the above instructions, and

returned a guilty verdict later that day.

Alcorn then filed a motion for judgment of acquittal, which the district

court denied in a written memorandum order. The court stated, “The jury could

and did determine beyond a reasonable doubt that the defendant’s actions

willfully wrecked a train. As in Youts, the jury was required to find and did find

that the defendant knowingly set in motion the events which caused the train to

wreck.” Mem. Order at 7, R. Vol. IV at tab 48.

The court subsequently denied Alcorn’s request for a downward departure

under the Sentencing Guidelines, finding that Alcorn’s case fell within the

heartland of cases to which the particular guideline applied. The court

accordingly sentenced Alcorn to 46 months imprisonment, followed by three years

of supervised released, and directed Alcorn to make restitution in the amount of

$3,210,519.56.
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Alcorn appeals, arguing the district court erred in (1) refusing to provide a

“substantive answer to the second set of questions submitted by the jury regarding

the intent that must be proved in order to convict, and instead, referred the jurors

to previous instructions,” Appellant’s Br. at 34; (2) giving an Allen instruction in

response to the jury’s questions; (3) refusing to give a theory of the defense

instruction, as requested by Alcorn; and (4) refusing to depart downward in

sentencing Alcorn under the Sentencing Guidelines.

DISCUSSION

I. Jury Instructions

Alcorn’s basic defense at trial was that he did not realize that he had left

the excavator arm’s bucket on the railroad track, and therefore he did not

“willfully” derail the train, as required by 18 U.S.C. § 1992. He further argues

that the jury’s questions during deliberations revealed that they were confused

about the meaning of the term “willful” in this case, that the court’s response to

the jury’s questions failed to eliminate that confusion, and that the jury’s

confusion was exacerbated by the modified Allen instruction and by the denial of

Alcorn’s requested theory of the defense instruction.

“We review the jury instructions de novo to determine whether, as a whole,

the instructions correctly state the governing law and provide the jury with an
-11-

ample understanding of the issues and applicable standards.” United States v.

Fredette , 315 F.3d 1235, 1240 (10th Cir. 2003) (quotation omitted). “The

instructions as a whole need not be flawless, but we must be satisfied that, upon

hearing the instructions, the jury understood the issues to be resolved and its duty

to resolve them.” Id. at 1240-41 (quotation omitted). Further, while we review

de novo the jury instructions as a whole, “the district court’s decision to give a

particular jury instruction is reviewed for abuse of discretion.” Id. at 1241.

“We review whether an Allen instruction was erroneously given on a caseby-case basis with a view towards determining whether the instruction had a

coercive effect on the jury.” United States v. Rodriguez-Mejia , 20 F.3d 1090,

1091 (10th Cir. 1994). “Some of the factors we consider in making this

determination include: (1) the language of the instruction, (2) whether the

instruction is presented with other instructions, (3) the timing of the instruction,

and (4) the length of the jury’s subsequent deliberations.” Gilbert v. Mullin , 302

F.3d 1166, 1173 (10th Cir. 2002) (quotation omitted). Finally, with respect to

Alcorn’s theory of defense argument, “[w]e review de novo whether a district

court committed reversible error in failing to submit a requested theory of defense

instruction.” United States v. Bindley , 157 F.3d 1235, 1241 (10th Cir. 1998).

Alcorn first argues that the district court erred in failing to give a specific

“substantive” answer to the jury’s second set of questions, and instead simply
-12-

referred the jury to the instructions already given which defined the term

“willful.” He argues that those prior definitions were inadequate and that their

inadequacy stemmed from the district court’s misinterpretation of United States v.

Youts, 229 F.3d 1312 (10th Cir. 2000).

In Youts, the defendant boarded an idling locomotive, drove it to a place

near his house, put the train in reverse at full throttle and jumped off the train. 

The driverless train rounded a curve at fifty-six miles per hour and derailed. 

Agreeing with the few other circuits which have addressed the matter, we rejected

the defendant’s argument in Youts that § 1992 requires proof of a specific intent

to disable, derail or wreck a train. We held, rather, that “the willfulness language

in section 1992 is best understood as a knowledge requirement.” Id. at 1316. We

further held that “‘[a] person acts knowingly with respect to a material element of

an offense when[,] . . . if the element involves a result of his conduct, he is aware

that it is practically certain that his conduct will cause such a result.’” Id.

(quoting Model Penal Code § 2.02(2)(b)(ii)). Thus, “[t]he natural, probable

consequences of an act can satisfactorily evidence the state of mind

accompanying it.” Id. at 1317. As applied in Youts, we held that “[t]he natural,

probable, and practically certain consequences of sending a driverless locomotive

down curving tracks at full speed will be the result punished by the statute.” Id.

We concluded our analysis in Youts by stating, “Mr. Youts knowingly set in
3While the district court expressed concern that Youts lowered the level of

intent required under § 1992 so that something akin to negligence, as opposed to a

general criminal intent, satisfies the statute’s intent requirement, we do not agree. 

As indicated above, Youts requires willful and knowing conduct, which can be

demonstrated when the “natural, probable and practically certain consequences of

an act” result in the derailment of a train. We read the instructions given in this

case as adequately stating that intent requirement. 

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motion—literally and figuratively—the events which caused the train to wreck. 

That is all section 1992 requires.” Id. 3

We hold that the instructions given to the jury in this case adequately and

accurately defined the intent required to find a violation of § 1992 and adequately

defined the term “willful,” as our circuit has interpreted the intent requirement of

§ 1992. As instruction No. 12 stated, “[a] willful act is done knowingly.” R. Vol.

IV at tab 42. The instruction, in turn, defined “knowingly” as where the

“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.” Id. Instruction No. 14 correctly informed the jury that the

government need not prove a specific intent to derail, but that “[w]illfulness may

be shown by evidence of the natural, probable consequences of the defendant’s

actions.” Id. Thus, just as in Youts the natural, probable consequence of sending

a driverless train at full speed around a corner was derailment, in this case the

natural, probable consequence of leaving an excavating bucket partially across a

railroad track is derailment of an oncoming train.
4Although Alcorn denied that he realized he had left the bucket on the rail,

there was evidence that visibility that night was good, that Alcorn was familiar

(continued...)

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Alcorn argues that the jury’s questions indicate the jurors were confused

about the definition of willfulness and knowing. We disagree. The jury’s

questions indicate that jurors were having difficulty applying those instructions to

the particular facts of this case. But the fact that jurors submit questions

indicating they are having difficulty applying particular instructions to the facts of

the case does not necessarily mean that the instructions are themselves faulty. 

Rather, the jury’s questions suggest they were focused precisely on the crucial

issue in this case—whether the government proved that Alcorn willfully left the

bucket on the rail, with the inevitable result that a train hitting the bucket would

derail.

We conclude that, considering the instructions as a whole, they “correctly

state the governing law and provide the jury with an ample understanding of the

issues and applicable standards.” Fredette , 315 F.3d at 1240. Given the adequacy

of the instructions, the district court did not err in referring the jury to them,

particularly the definition of willful provided therein, in response to the jury’s

second set of questions. And we conclude that, while this was a very close case,

there was sufficient evidence to support the jury’s conclusion that Alcorn

willfully and knowingly left the bucket on the rail. 4
4

(...continued)

with construction equipment and knew how to run the excavator, that he saw the

bucket after he had lowered it on to the rail, and that his actions immediately

following his use of the excavator were consistent with an attempt to cover up

illicit activity. Thus, while the jury evidently struggled with this case, it

ultimately concluded, consistent with the instructions, that Alcorn had willfully

left the bucket on the rail. We cannot say that no reasonable jury could have

reached that conclusion.

5

“With respect to the coerciveness of the charge actually given, this circuit

has adopted a case-by-case approach, . . . considering such factors as ‘(1) [t]he

language of the instruction[;] (2) its incorporation with other instructions; and (3)

the timing of the instruction.’” United States v. McElhiney, 275 F.3d 928, 940

(10th Cir. 2001) (quoting United States v. Porter, 881 F.2d 878, 888 (10th Cir.

1989)) (further citations omitted). As indicated above, we also consider the

length of the jury’s subsequent deliberations. See Gilbert, 302 F.3d at 1173.

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Alcorn next argues that the court erred in giving a modified Allen

instruction along with its response to the jury’s second set of questions, and in

refusing to give the specific theory of the defense instruction Alcorn requested.

We have long sanctioned the use of Allen instructions, provided that

neither the content of the charge nor the context in which it is given render the

instruction unduly coercive. 5 The content of the instruction in this case conforms

to Allen charges we have previously upheld. It was a “modified” charge, in that it

was directed to all members of the jury, not just “those holding the minority

view.” United States v. Arney , 248 F.3d 984, 988 (10th Cir. 2001). 

Additionally, the timing of this instruction does not compel the conclusion

that it was coercive. While we have indicated that it is preferable for an Allen

instruction to be given along with all the other jury instructions, it may be given
6

It is not clear from the record how long the jury deliberated after receiving

the Allen charge. 

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after the jury has commenced deliberations. See id. at 988-89 (“Although this

court has stated that the preferred practice is to issue an Allen charge prior to jury

deliberations along with other jury instructions, we have found on numerous

occasions that Allen charges given to a jury during its deliberations were not

unduly coercive.”) (citation omitted). And such an instruction may be given even

without any indication that the jury is deadlocked. See Darks v. Mullin , No. 01-

6308, 2003 WL 1861527 at *10 (10th Cir. April 11, 2003) (“A court may give a

supplemental instruction sua sponte before counsel requests one, even without

any indication from the jury that it is deadlocked.”). Alcorn particularly argues

that the court’s giving of the Allen charge in response to the jury’s second set of

questions was coercive and therefore reversible error. We disagree. While the

jury was struggling with a critical issue in the case, the court properly referred the

jury to its instructions, and reminded the jury that its task was to carefully apply

those instructions to the facts of the case. Thus, the fact that the Allen charge

was given in connection with the court’s response to the jury’s second set of

questions is not fatal. 6

Considering our prior case law, the Allen instruction in this case was not

coercive. It contained the cautionary language to each juror not to “surrender
-17-

your honest conviction as to the weight or effect of the evidence,” but it did not

contain the embellishments we have found problematic in prior cases. Cf.

McElhiney , 275 F.3d at 944. Neither the content of the instruction nor the

circumstances in which it was given convince us that it was impermissibly

coercive.

Alcorn also argues the court should have given his theory of defense

instruction to the jury. “A criminal defendant is entitled to an instruction on his

theory of defense provided that theory is supported by some evidence and the

law.” United States v. Haney , 318 F.3d 1161, 1163 (10th Cir. 2003) (en banc). 

“However, a ‘theory of the defense’ instruction is not required if it would simply

give the jury a clearer understanding of the issues.” United States v. Wolny , 133

F.3d 758, 765 (10th Cir. 1998). Furthermore, such an instruction “is required

only if, without the instruction, the district court’s instructions were erroneous or

inadequate.” Id.; see also United States v. Hollis , 971 F.2d 1441, 1452 (10th Cir.

1992) (“While the defense is entitled to an instruction as to his theory of defense

if there is evidence to support it, the court is not required to give an instruction

that misstates the law or that is already covered by other instructions.”) (citation

omitted).

Alcorn asked the court to give either of the following two instructions on

his theory of defense: “If you found that [Alcorn] did not know that he placed the
7Alcorn did not include a transcript of closing arguments as part of the

record on appeal. We assume, however, that his closing argument reiterated his

defense, as expressed in the instructions he wanted the court to give the jury, that

he left the bucket on the track negligently, inadvertently, accidentally or

mistakenly. The jury obviously rejected that assertion. 

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bucket of the backhoe on the tracks, you must find him not guilty,” R. Vol. VII at

339, or “Do you find or not find that Ricky Alcorn knew that he had placed the

bucket of the backhoe on the railroad tracks?” Id. at 340. Alcorn’s testimony

made it clear to the jury that his defense, as his proposed instructions state, was

that he did not realize he had left the bucket on the rail. 7 Other jury instructions

in this case informed the jury that, in order to find Alcorn guilty, they would have

to find that he willfully derailed the train, and that a “willful” act is an act done

“knowingly,” which in turn requires that Alcorn be “ aware of the act, realize[]

what he was doing or what was happening around him, and . . . not act or fail to

act because of ignorance, mistake, or accident .” (emphasis added). His proposed

instructions were simply another way to express the willful and knowing

requirement–i.e., that he be “aware,” “realize[] what he was doing” and “not act

or fail to act because of ignorance, mistake, or accident.” Indeed, his theory of

defense was, in essence, that the government had simply failed to prove a critical

element of its case. Other instructions fully covered the elements of the charged

offense, including the willful and knowing requirement. “There is no requirement

that a trial judge must follow the exact language from the jury instructions offered
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by the defendant.” United States v. Pack , 773 F.2d 261, 267 (10th Cir. 1985). 

Nor is there a requirement that the court give an express instruction on a

defendant’s assertion that the prosecution has failed to establish an element of its

case. The district court did not err in refusing to submit either of the instructions

Alcorn proposed on his theory of defense.

II. Refusal to Depart Downward

Alcorn asked the district court to depart downward based on an argument

that the district court’s interpretation of the level of intent required by § 1992, as

interpreted in Youts, took the case outside of the heartland of cases to which the

relevant guideline applied. The district court refused, stating, “I think Mr.

Alcorn’s conviction is sufficient to satisfy the heartland requirement of the

guidelines, and the other information that came out during the course of the trial

does not have any bearing on moving Mr. Alcorn out of the heartland.” R. Vol.

VII at 364.

“Courts of appeal cannot exercise jurisdiction to review a sentencing

court’s refusal to depart from the Guidelines, either upward or downward, unless

the court refused to depart because it interpreted the Guidelines to deprive it of

the authority to do so.” United States v. Fortier , 180 F.3d 1217, 1231 (10th Cir.

1999). Further, “[a]mbiguous statements made by district court judges must be
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treated ‘as though the judge was aware of his or her legal authority to depart but

chose instead, in an exercise of discretion, not to depart.’” United States v.

Miranda-Ramirez , 309 F.3d 1255, 1258-59 (10th Cir. 2002) (quoting Fortier , 180

F.3d at 1231). The district court clearly realized it had the authority to depart

downward, but decided that Alcorn’s case did not warrant it. In that situation, we

lack jurisdiction to entertain his appeal from that refusal.

CONCLUSION

For the foregoing reasons, we AFFIRM Alcorn’s conviction.