STATEMENT OF FACTS TO SUPPLEMENT MOTION UNDER 28 U.S.C. §2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE
John W. DeCamp
DeCamp Legal Services P.C.
414 South 11th Street
Lincoln, Nebraska 68508
Attorney for Defendant
Yorie Von Kahl
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NORTH DAKOTA
UNITED STATES OF AMERICA,
YORIE VON KAHL,
STATEMENT OF FACTS TO
SUPPLEMENT MOTION UNDER
28 U.S.C. §2255 TO VACATE,
SET ASIDE, OR CORRECT SENTENCE
The Petitioner, Yorie Kahl, has filed a motion with this court under 28 U.S.C. §2255 to vacate, set aside, or correct sentence. Petitioner Kahl alleges that he is in custody in violation of the Constitution of the United States. The Petitioner suffered through a trial involving prosecutorial misconduct and a biased judge. But for the denial of his right to due process, Yorie Kahl would never have been convicted of any crime. This Statement of Facts has been prepared for the benefit of the judiciary who will be reviewing this case for the first time.
The case before this court is complex. It involves a chain of events and a compounding of errors that occurred over a time frame of several years. On February 13, 1983, Yorie Kahl was in a group who were involved in a shooting incident with United States Marshals and others in Medina, North Dakota. Four United States Marshals and two local law enforcement officers allegedly attempted to serve an arrest warrant on Gordon Kahl for an alleged violation of misdemeanor probation. A gun battle erupted and two U.S. Marshals were killed. Three other law enforcement officers were injured as well as the Petitioner, Yorie Kahl. As a direct result of the "shoot-out," Petitioner Yorie Kahl was charged with and convicted of second degree murder, assaulting federal officers, harboring a fugitive and conspiracy.
Before this case can be understood it is critical that events leading up to the confrontation be examined and understood. The Kahl Saga, involving both father Gordon and son Yorie, consists of four significant episodes. These are: (1) Preliminary causes, 1976-1982; (2) the "shoot-out" event at Medina, North Dakota on February 13, 1983; (3) the trial in which Petitioner Yorie Kahl was convicted, May 9 through June 24, 1983; and (4) the death of Gordon Kahl in Arkansas, June 3, 1983.
II. EVENTS LEADING UP TO MEDINA
Yorie Von Kahl, the Petitioner, is the son of the late Gordon Kahl. Gordon Kahl was a farmer and a decorated veteran of World War II. He held strong religious and political convictions. He came to the conclusion in the 1970s that America was headed, politically and morally, in the wrong direction. This distressed him. Despite his personal lack of resources, he felt he had an obligation to share his beliefs and views with anyone who would listen. Towards this end, Gordon Kahl regularly spoke out publicly, criticizing the Government and particularly the federal income tax system. Often, Gordon Kahl used the media and public gatherings to spread his message.
A. POLITICAL ACTIVISM.
Gordon Kahl was particularly outspoken and a strong critic of what he perceived to be the perversion of politics, law and justice which he believed was occurring in America. So prolific were his written and oral attacks on what he sincerely believed to be unconstitutional applications of laws (such as Income Tax and the Federal Reserve System), that he eventually became a well-known political dissident among those who generally shared his concerns. Among what today is referred to as the "Patriot Community," Gordon Kahl might properly be termed an American "Refusenik."
In the mid 1970s, Gordon Kahl, along with other "Refuseniks," appeared on local television in Texas to share their beliefs with other Americans. The primary target of their criticism was the foundational basis of the American Income Tax system and its application. Gordon Kahl publicly advocated and encouraged non-compliance, and he claimed that non-compliance could be exercised with impunity. Such public disdain for the Income Tax system helped fan the flames of "non-compliance" as far as the IRS was concerned. For a tax system built on the very theory of voluntary compliance and self-assessment, individuals such as Gordon Kahl posed a threat to the superstructure of the income tax system.
To stem the feared spreading of non-compliance with the tax system, the IRS in 1977 officially targeted Gordon Kahl as the leader of the "tax rebellion." The IRS initiated what it deemed to be reasonable and necessary measures to shut down the developing tax rebellion. To do this, the Government initiated a very public prosecution of Gordon Kahl under IRS rules and laws which penalize NON-COMPLIANCE OR FAILURE TO FILE AN INCOME TAX RETURN. A co-leader in the tax rebellion with Gordon Kahl, Mr. W. M. Rinehart, was also prosecuted, convicted and subsequently died in prison. Both Kahl and Rinehart were prosecuted for and convicted of misdemeanors for failure to file a tax return. Yorie Von Kahl was a teenager living at home at the time of his father's prosecution.
Gordon Kahl was tried and convicted in 1978 in the United States District Court for the Western Division of Texas, on two misdemeanor counts of willful failure to file federal income tax returns. Specifically, Gordon Kahl was prosecuted under 26 U.S.C. §7203, a misdemeanor carrying a maximum sentence of up to one year imprisonment and/or maximum fine of $10,000.
IT IS MOST IMPORTANT TO NOTE, however, that at the time of sentencing, Gordon Kahl was sentenced to one year imprisonment on Count I under the felony provision of 18 U.S.C. §4205(a). Additionally, his sentence on the second misdemeanor conviction was also a felony sentence. Specifically, Gordon Kahl was sentenced to "...probation for five years..." on Count II. This felony sentence itself violated 18 U.S.C. §3651, which provides that the probation period cannot exceed the maximum incarceration penalty allowable. In this case the maximum incarceration sentence allowed was one year. Statutorily, the maximum probation that the court should or could have imposed even under the felony provisions of 18 U.S.C. §3651, was one year.
The judicial abuse of Gordon Kahl, whether through accident or artifice----did not end with the sentencing errors. The special conditions of Kahl's parole were blatantly unconstitutional. Parole condition one required that Kahl divorce himself, not from illegal activity or groups participating in illegal activity, but rather from groups ADVOCATING the expression of free speech, all in contravention of the First Amendment to the U.S. Constitution. Condition two required that Kahl furnish copies of his tax return every year to his probation officer. This was a direct and clear contravention of the Revenue Laws of the United States.
After Conviction and sentencing, Gordon Kahl was immediately sent to the Medical Center for Federal Prisoners in Springfield, Missouri for psychiatric evaluation. There he was found to be competent to engage in further proceedings. He was then released on bond pending appeal.
In January of 1979, having exhausted his appeal rights, Gordon Kahl entered the Leavenworth Prison Camp in Leavenworth, Kansas. Mr. Kahl was credited for time served at Springfield although he was given no credit towards probation for his exemplary behavior while awaiting appeal. No attempt by the IRS was ever made to collect any alleged back taxes from Mr. Kahl until 1982, some four years later.
When Gordon Kahl arrived at Leavenworth prison, his federally appointed case worker advised Mr. Kahl that his sentence was illegal and that he was improperly sent to prison by the sentencing court. When the same case worker reported this fact to her supervisors, the case worker was instructed that if "she wanted to keep her job to keep her mouth shut." Shortly after that, Gordon Kahl was offered release in exchange for extremely onerous terms of probation. He refused, preferring to serve his time and be free when released.
In August 1979, Gordon Kahl was released from Leavenworth Prison Camp. While being processed out of the camp, he refused to sign the probation papers. After he went home to the farm in North Dakota, his probation officer went out to the farm to see Kahl. Kahl told him that if it would make him (the probation officer) happy, he (Kahl) would sign the papers. That was the only visit the probation officer made to Kahl's house. Subsequently, for a few months, he left the probation report papers in Kahl's mailbox. Then he quit doing even that.
For a substantial time following his release from prison, Gordon Kahl maintained a low profile and he specifically declined invitations to attend and speak at public meetings. Consistent with the character of a dissident though, he eventually renewed his denunciation and criticism of what he believed to be unconstitutional Government actions and judicial corruption. Gordon Kahl was particularly outspoken about what he perceived to be the perfidy of the State and Federal judiciary in North Dakota and their links to Masonic organizations. Specifically, Kahl targeted Federal District Judges Paul Benson and Bruce VanSickle for his strongest criticism. Consequently, they took Kahl's vitriolic criticism as a personal affront, but even more importantly, an affront to their judicial authority and the prestige of the position of federal judicial officers.
On June 27, 1980, the U.S. District Court for the Western Division of Texas issued a summons for Gordon Kahl to appear before the court to show cause why his probation should not be revoked. On August 6, 1980, twelve months after his release from Leavenworth Prison Camp, the summons was allegedly served on Gordon Kahl. It was further alleged that Gordon Kahl had advised the Deputy U.S. Marshal who served the summons that he (Kahl) did not believe he was on probation and that consequently he had no intention of appearing at any show cause hearing.
According to uncontroverted testimony at trial by Joan Kahl, then the wife (and now the widow) of Gordon Kahl, the signature on the summons was not that of Gordon Kahl. The sole reason given on the motion for revocation of probation was "On or about May 20, 1980, the probationer has not abided by his Special Conditions of Probation that he be required to furnish the probation office with a copy of his income tax return each year at the appropriate time for filing a return."
On September 23, 1980, one month after any legal probation period would have expired, the U.S. Attorney was given leave of the U.S. District Court of Texas to withdraw the motion to revoke the Defendant's probation. This was granted by order of the court. It is believed that the reason for the withdrawal of the motion was that the condition of probation was illegal. It is also believed that fact was known to the Federal Judiciary as well as the consequential fact that the order could not be enforced lawfully.
F. THE WARRANT.
Six months later on March 30, 1981, the U.S. District Court for the Western Division of Texas issued a warrant for the arrest of Gordon Kahl. The supporting ground on the petition requesting the warrant this time was, "It is alleged that probationer is in violation of Condition No. 7---YOU SHALL REPORT TO THE PROBATION OFFICER AS DIRECTED." (emphasis in original)
According to a United States Marshals Service Field Report, the Texas judge who had issued the warrant wanted Gordon Kahl returned to Texas. The report also stated, "the JUDGE HAS SET THE BOND ON KAHL AT $1,000,000 CASH OR $75,000 + 10% CORPORATE SURETY." (emphasis in original)
All this for an "alleged" misdemeanor probation violation, a probation which was itself null and void and violative of federal law. Remember, no new motion had ever been entered to revoke Gordon Kahl's probation. And, of course, the original probation imposed on Gordon Kahl was illegal and therefore void. Any legal probation would have expired necessarily at the latest on August 19, 1980. Therefore, for any one of at least three reasons, the action by federal marshals, led by the United States Marshal for North Dakota, Ken Muir, on February 13, 1983 resulting in the "shoot-out," was knowingly initiated under a faulty warrant at best.
The three reasons, summarized again, are: (1) Illegal 5-year FELONY probation sentence given for a misdemeanor, thereby rendering the probation itself illegal; (2) Any legal Maximum probation period allowed would necessarily have expired on August 19, 1980, more than 2 years before the "shoot-out" at Medina; (3) The supporting ground for issuing the "alleged" warrant under which U.S. Marshal Muir was operating on February 13, 1983 was itself a legally defective ground. Why? Because the probation conditions imposed ordered Gordon Kahl to perform acts which the courts are constitutionally forbidden to order, namely: (1) Violation of the First Amendment by prohibiting Gordon Kahl from "associating" with groups "advocating willful disobedience..." (2) Requiring Gordon Kahl to furnish copies of his future tax returns to the probation office, in violation of federal revenue laws.
G. UNITED STATES MARSHAL, HAROLD "BUD" WARREN.
Harold "Bud" Warren was the United States Marshal for North Dakota on March 30, 1981, when the so-called "misdemeanor arrest warrant" for "probation violation" arrived at the U.S. Marshal's office in Fargo, North Dakota. Warren immediately reacted by personally traveling to Carrington, North Dakota where he had been advised Gordon Kahl might be located. Based on information from the federal officials with whom he had dealt, Warren went there expecting to find a fugitive in hiding. What he found, by his own admission, was a friendly, smiling farmer leaning against the front of a church. Gordon Kahl had attended church and was waiting for his wife, Joan, to join him.
Marshal Warren made arrangements to meet personally a few days later with Gordon Kahl to discuss the "misdemeanor warrant" and resolve the situation. Warren went unarmed, as did Gordon Kahl. Warren advised him of the existence of the warrant and gave him thirty days to try to straighten out the situation relative to the warrant. Marshal Warren advised Mr. Kahl, that after thirty days he would be required to take action to arrest Kahl.
During the thirty-day moratorium he had given to Gordon Kahl to clear up the misdemeanor warrant, Warren himself was removed from office. Warren's removal from office was itself a highly charged political maneuver. Deputy U.S. Marshal Ken Muir was quickly installed as United States Marshal for North Dakota.
Marshal Warren himself had incurred the wrath and animosity of the political kingmakers in North Dakota politics by 1981. His decision to accommodate Gordon Kahl by attempting amicably to resolve the issue of the arrest warrant was not well received. Gordon Kahl's very presence in North Dakota had become a significant embarrassment and irritant to the political system and economic power structure. He was loud and outspoken in his criticism, blaming these elements for the almost total collapse of the agricultural economy in North Dakota that was occurring in the early 1980s as part of the so-called "farm crisis."
H. A NEW U.S. MARSHAL FOR NORTH DAKOTA.
In 1981 Ronald Reagan replaced Jimmy Carter in the White House. This change in presidential administrations afforded the North Dakota power brokers and politicians the opportunity to appoint a U.S. Marshal who promised to rid the system of the irritating Gordon Kahl. The culmination of this desire took form in the person of U.S. Deputy Marshal Ken Muir. At the request and behest of Judges Benson and VanSickle, Senator Mark Andrews of North Dakota was induced to recommend to President Reagan that "Bud" Warren be removed from his position as U.S. Marshal for North Dakota and that he be replaced by Ken Muir. As is customary, President Reagan then nominated Ken Muir for the position of U.S. Marshal for North Dakota, and the U.S. Senate routinely approved the nomination.
Following the transfer of the office, new U.S. Marshal Muir refused Warren's offer of information, guidance and assistance in resolving the Gordon Kahl affair. He specifically told outgoing Marshal Warren: "When you were Marshal you did it (handling Kahl) your way; now we do it my way."
After failed attempts by Marshal Muir to apprehend Gordon Kahl----"keystone cop" type attempts which Kahl himself apparently was never even aware of----"Bud" Warren, now a Deputy U.S. Marshal, again contacted Ken Muir. He offered to give to Muir the information about Gordon Kahl that had been gathered. Muir responded by advising Warren that no need existed any more for assistance from him or concern about Gordon Kahl because he (Muir) had been advised by the U.S. Marshals Service Deputy Director Toomey in Washington, D.C., "...to file the Gordon Kahl warrant away and not spend any more time or manpower on it." That was in 1981.
I. LIVING IN THE OPEN.
During 1982, dissident Gordon Kahl freely roamed the country. He attended political meetings and personally, publicly and openly addressed these gatherings, giving his strong opinions on constitutional issues such as gun control, income taxes, abortion, land use planning, and his beliefs about excessive Masonic influence. Contrary to claims made by the Federal Government, Gordon Kahl went about his business in the light of day.
During the summer of 1982, Gordon Kahl's wife, Joan, and a neighbor friend, Herman Widiker, went to the IRS office in Fargo, North Dakota and offered to pay Gordon Kahl's tax bill. The IRS told them that it didn't know how much Kahl owed and therefore couldn't provide that information. Gordon Kahl attempted to file for a Temporary Restraining Order in the Bismarck Federal District Court to halt the sale of his farmland by the IRS. The clerk of the court accepted the restraining order documents but, unknown to Kahl, actually refused to file his petition and complaint for the temporary restraining order. To repeat: this refusal to file was unknown to Gordon Kahl. Instead of advising Kahl of the refusal, the clerk of the court personally turned Kahl's paperwork over to U.S. District Court Judge Bruce VanSickle and notified the U.S. Marshals Service.
Judge VanSickle was then personally contacted by Deputy U.S. Marshal Bob Cheshire, who would later be killed at the shoot-out on February 13, 1983 at Medina, North Dakota. Cheshire advised Judge VanSickle in the fall of 1982, many months before the shoot-out in 1983, that Gordon Kahl was a fugitive, and apparently suggested therefore that the clerk should not file Kahl's motion. It may be confidently maintained that Gordon Kahl surely did not know he was a fugitive at that time , and there seems to be no reason in retrospect for anyone else to believe Gordon Kahl was a fugitive at that time in 1982.
For whatever reasons, apparently based on instructions from Judge VanSickle, Gordon Kahl's complaint and petition for a temporary restraining order were never filed. This was never known to Gordon Kahl, nor was he ever informed of this refusal action. In November, 1982 the IRS attempted to sell Gordon Kahl's farm. That effort failed when no one would bid on the farm, so the IRS bought the farm itself.
Of particular interest during the early 1980s was the problem farmers had remaining solvent, and likewise, the banks that were financing them. Record numbers of farms and farmers were in foreclosure. In such an environment of despair and economic upheaval, many farmers saw themselves as victims of a political and economic system gone berserk.
Seeing themselves also as twentieth century patriots, many farmers proposed the return to their perception of what constitutionally mandated government should be as the essential, immediate and long-term solution to the farm problem. Harkening back to their patriot heritage and the "Spirit of 1776," these citizens openly exercised their right to keep and bear arms, to assemble and to speak out against the Government. The typical farmer/patriot was also a hunter. But the "bottom-line" was that they were simply citizens concerned about losing their farms and their personal safety.
J. ALL POINTS BULLETIN.
During the week of February 6, 1983, an All Points Bulletin (APB) was disseminated by law enforcement officials in North Dakota through their State law enforcement communications network, State Radio. The contents of the APB were factually inaccurate. The APB originated from a confidential source in Carrington, North Dakota. It related that Gordon Kahl and another man were carrying machine guns and were driving to Fessenden, North Dakota to kill the sheriff. However, the automobile Kahl was allegedly driving was in the possession of someone else that day. Needless to say, Kahl and his friend did not show up to shoot the sheriff.
It now appears that the real purpose of the APB was not informational but was designed to provoke or create a violent confrontation between Gordon Kahl and law enforcement. The expectation was that the elimination of Gordon Kahl would quash the emerging tax rebellion. This picture only emerges by looking back with new factual data and documentation that is available now, which was not available in the heat of the 1983 Medina shoot-out and the emotionally, politically charged trials that followed.
III. EVENTS AT MEDINA, NORTH DAKOTA, FEBRUARY 13, 1983.
On Sunday morning, February 13, 1983, Gordon Kahl, his wife Joan and son Yorie traveled from their farm near Heaton, North Dakota to Medina to attend a meeting of dissidents, tax protesters and financially troubled farmers. They took their friend Scott Faul with them, who suggested that Yorie bring his rifle in case they saw some rabbits. Yorie ran back into the house and retrieved his Ruger Mini-14. Gordon, Joan and Yorie Kahl and Scott Faul then left for Medina. Along the way they shot a rabbit to feed to the dog.
A. Police Surveillance.
Early that afternoon of February 13, 1983, Bradley Kapp, the Deputy Sheriff of Stutzman County, North Dakota, contacted State Radio (law enforcement network). He told the law enforcement radio network that the rumored meeting of the tax protesters/dissidents was underway in Medina, North Dakota at the Medina Medical Clinic and that Gordon Kahl himself was physically present at the meeting. State Radio immediately relayed the message to the U.S. Marshals Service for North Dakota. The Marshals Service immediately contacted U.S. Marshal Ken Muir at his home and advised him of the meeting and Kahl's presence. Muir and Deputy U.S. Marshal Carl Wigglesworth immediately left Fargo and headed for Medina. At Medina, Muir and Wigglesworth met Deputy U.S. Marshals Cheshire and Hopson who had come from Bismarck, North Dakota. At Medina, the four marshals enlisted the help of another local law enforcement officer, Steven Schnabel, a Medina city policeman.
Under the pretense of executing the very warrant that Marshal Muir had specifically been instructed by higher authorities to ignore and not waste further resources attempting to serve, the marshals set up a roadblock in the town of Medina at the railroad crossing. Darrell Graf, the Chief of Police of Medina, became aware of the marshals' plans and demanded that the roadblock be moved out of town. Unable to convince the marshals to abandon their ill-conceived plan, Chief Graf persuaded Marshal Muir and the others with him to move their roadblock out of town into the countryside north of Medina.
While all of these preparations were being made, the meeting was winding up at the Medina Medical Clinic. As those in attendance were walking out, they noticed someone watching the clinic. Dr. Martin, the operator of the clinic said, "That's just Brad Kapp (Stutzman County Deputy Sheriff) being Brad. He does stuff like that." David Broer decided to call Darrell Graf about it, and Chief Graf told him about the APB described above that had been issued a few days earlier.
The automobile described in the APB matched Scott Faul's vehicle. This troubled Scott because the day the APB was supposedly generated, his wife Shauna had driven the car to Harvey to do laundry. None of those with Kahl or Faul could think of any valid reason for the issuance of a legitimate warrant, especially involving Scott's car. Someone said to Gordon, Joan and Yorie Kahl, "It looks like you're being set up." This disturbed Joan, but Gordon reassured her that nothing was occurring of which he was aware.
Uncertain as to what to think about the APB and the comment about a setup made by an unidentified person at the clinic, Yorie Kahl and his father traded coats and hats. Yorie and Joan, accompanied by Vern Wegner and Scott Faul entered Gordon's Chrysler station wagon. Gordon drove with David Broer in Broer's car so they could converse on the way to Gordon's home. The two vehicles left the Medina Clinic and headed north for Kahl's home. All of the passengers were totally unaware of the presence of the marshals or the ambush the marshals had planned for them.
B. PUBLIC SAFETY.
Based on his discussion with the marshals during the afternoon of February 13, 1983, Chief Graf was convinced that the marshals planned a violent ambush and confrontation, and that the marshals intended to initiate the upcoming violence. Chief Graf was so certain of the impending danger accompanying a shoot-out or the execution of the dissident Kahl and his party by the marshals, that he (Graf) took extraordinary measures to minimize the damage to the town of Medina and its citizens. He called out the Medina rescue unit just before 5:00 p.m., a full hour before the planned shoot-out, and then prepared to set up roadblocks of his own to keep citizens out of the marshals' planned ambush and fire zone.
After observing the two vehicles in Kahl's group and Marshal Cheshire's Ramcharger leave town heading north, Chief Graf stopped citizens Mark and Carol Lanenga because they were unknowingly about to drive north out of town into the planned ambush zone, unaware of the danger.
From the vantage point where Chief Graf stopped them, the Lanengas could see the marshals standing outside the Ramcharger, aiming their weapons at the vehicles in Kahl's group. The Lanengas later testified at the trial of Yorie Kahl. They stated that Chief Graf told them, "There is going to be a shoot-out and this time the police are in the wrong."
Two other citizens who had attended the meeting at the Medina Clinic with Gordon Kahl were also prevented by Chief Graf from entering the ambush fire zone. Graf told them, "we are going to try at least to save Dave's (Broer's) life." Other people at the scene also testified that Graf told them, "There is a tax protester up there and now they are going to shoot him."
Kahl's entourage first saw the roadblock ahead of them on a hilltop a mile north of Medina as they topped a hill on the edge of town. Still unaware that they were the intended targets of the roadblock, they pulled into the first driveway they could to turn around. Immediately, their exit route from the area was blocked by a Dodge Ramcharger which had followed them out of Medina.
In the Ramcharger were Deputy U.S. Marshals Cheshire and Hopson, and Stutzman County Deputy Sheriff Brad Kapp. At the roadblock ahead were U.S. Marshal for North Dakota Ken Muir, Deputy U.S. Marshal Carl Wigglesworth and Medina city policeman Steven Schnabel.
After the marshals had cut off all the routes of retreat from the planned ambush zone, they jumped out of their unmarked vehicles and aimed their weapon at Kahl's group. None of the law enforcement officers at the scene were in uniform. Deputy Marshal Cheshire even told Deputy Marshal Hopson to remove his badge.
Out of their cars and with their weapons clearly and obviously aimed at Kahl's group, the marshals began yelling, "....we're going to blow your (meaning those in Kahl's group) goddamn heads off," and "you are going to die."
Gordon, Yorie and Scott Faul, after getting out of their cars, began to separate from each other. None of the marshals knew who Gordon Kahl was in the group or had any knowledge of his appearance. Relying ONLY on the description provided by Deputy Kapp who had seen Gordon Kahl attending the meeting in Medina, the marshals directed their shouted epithets, their attention and their weapons DIRECTLY AT YORIE KAHL WHO, AS HAS BEEN MENTIONED, WAS WEARING HIS FATHER GORDON'S COAT AND HAT. This standoff continued for a period of time that is still disputed, ranging from a minute to as much as 13 minutes.
Then U.S. Marshal Ken Muir fired the first shot of the shoot-out. Firing his .38 Special revolver at Yorie Kahl, Muir's shot hit the grip of the pistol Yorie was wearing in a shoulder holster. As Yorie fell backward from the impact of Muir's bullet, the Ruger Mini-14 "ranch rifle" Yorie was carrying discharged twice. Yorie was then shot in the abdominal area by two shotgun blasts fired by Deputy Brad Kapp. Marshal Muir----rated as one of the top ten pistol shots in the United States of America---- then fired three more times, hitting Yorie repeatedly. During the remainder of the gun battle, victim Yorie Kahl lay on the ground with his near-fatal wounds.
Gordon Kahl's friend and traveling companion Scott Faul attempted to retreat from the fire zone, but was cut off by an unknown but armed assailant who turned out to have been U.S. Deputy Marshal Wigglesworth. With his escape route cut off, Scott reversed his course and headed back towards Yorie Kahl who was lying wounded on the ground. At this time, Scott also came under fire from the marshals. In response to being fired at, he returned fire in the direction of the Ramcharger.
Seeing his son shot repeatedly and believing him to be dead, Gordon Kahl himself opened fire on the marshals, Deputy Kapp and Officer Schnabel. Marshal Muir and Deputy Marshals Cheshire and Hopson quickly succumbed to the deadly volley of fire laid down by the veteran aerial gunner Gordon Kahl. Deputy Kapp and Officer Schnabel were soon wounded and out of the fight also. Gordon then went over to the Ramcharger and put two more rounds into Deputy Marshal Cheshire.
By the time Scott Faul reached the wounded Yorie Kahl, the shooting had stopped. Scott then assisted Yorie into a vehicle and headed into Medina to the Medical Clinic.
The moment the shooting had stopped, and right on schedule, ambulances and rescue personnel began to arrive. The injured were taken directly to the Medina Clinic where Dr. Martin began treating them and preparing the critically wounded for transportation to the hospital in Jamestown, North Dakota. Marshal Hopson and Yorie Kahl underwent emergency surgery for their wounds. Hopson was disabled from the effects of his head wound, but recovered sufficiently to testify in the rush to judgment called a trial 85 days later.
David Broer, Vern Wegner and Scott Faul all surrendered within a day. Joan Kahl was arrested along with Yorie Kahl at the Jamestown Hospital. Gordon Kahl remained at large for four months and became the center of what was officially called by U.S. Marshals "the largest manhunt in American history."
IV. THE RUSH TO JUDGMENT.
Eighty-five days after the events at Medina and fifty-nine days after the Grand Jury returned an indictment, trial began in U.S. District Court for North Dakota, Southeastern Division. The trial was held before District Judge Paul Benson in Fargo and the case was prosecuted by Assistant U.S. Attorneys Lynn Crooks and Dennis Fisher. The details of the trial and the issues there under attack are presented more fully in the Motion to Vacate, Set Aside or Correct Sentence. It suffices here generally to list the defects in what was passed off as a trial in Fargo, North Dakota thirteen years ago.
In the words of the Chief Judge of the Eighth Circuit Court of Appeals, "The record amply demonstrates the defendants did not and could not receive a fair trial in the District of North Dakota." United States v. Faul, et al ., 748 F.2d 1205, 1223 (Judge Lay, dissenting opinion). Below is an enumerated list of major issues that prevented the Petitioner, Yorie Kahl, from receiving a fair trial. But for the illegal actions of the United States Government in the prosecution of the Petitioner, and the lack of a fair and impartial Judiciary, the petitioner could have proved his innocence. The Petitioner, Yorie Kahl:
A. Was denied counsel and held incommunicado for ten days while he was interrogated by federal and State law enforcement agents.
B. Was prejudiced by denial of access to the Petitioner by available counsel and private investigative services being offered during the above ten day period.
C. Was denied effective assistance of counsel.
D. Was prejudiced by a partial and biased judge.
E. Was prejudiced by material non-disclosure and concealment by a juror.
F. Was tried by a jury that was "Presumably Biased" and "Actually Biased."
G. Was prejudiced by prosecutorial misconduct.
H. Suffered the condition that potential defense witnesses were hindered or prevented from testifying as a result of threats, intimidation and subterfuge by Government officials.
I. Was prejudiced by improper contact with the jury on the part of U.S. Deputy Marshal Carl Wigglesworth, a victim in the shooting incident.
J. Was unjustly and adversely affected by the fact that on February 13, 1983, U.S. Marshals traveled to Medina, North Dakota for the purpose of killing Gordon Kahl, and by the fact that the spurious arrest attempt of Gordon W. Kahl was illegal and not based on a valid warrant.
K. Was prejudiced by numerous other incidents and actions, the cumulative effects of which surely combined to deny the Petitioner's right to a fair and impartial trial and his rights to due process of law.
From the beginning of the proceedings, the defendants tried to have Judge Paul Benson removed from the case. Judge Benson was the Masonic brother and sponsor of the deceased Marshal Muir. The defendants were well aware of the animus Judge Benson bore for those who would dare to defend themselves against Government agents. Seven years earlier in another proceeding involving confrontations between citizens and Government agents at a place called WOUNDED KNEE, the team of Benson and Crooks had gained similar attention for its handling of the case in which Leonard Peltier was prosecuted.
From the start the push was on to rush the trial and to prejudice the defendants. Prior to trial there was a tremendous amount of negative pretrial publicity and a deliberate disinformation campaign carried out by the Government, while a unilateral gag order was being enforced on the Defense. The biasing effect this had on the jury pool was demonstrated during jury selection. There was a presumption of bias in the jury and it was proved after trial that there was actual bias.
One juror willfully gave deceitful answers to specific questions during voir dire relative to the juror's personal relationship with the prosecutor, Mr. Crooks.
Incredibly, the impaneled jury was guarded and even entertained by the U.S. Marshals Service, whose members clearly viewed themselves as a whole as the victims of the shoot-out with the defendants. Marshal Wigglesworth, who was himself a participant in the Medina shoot-out and one of the victims whom the defendants were charged with assaulting, actually engaged with the other marshals guarding the jury in recreational activities with the jurors.
When this conduct was reported to presiding Judge Benson, he responded by simply brushing aside the incidents and refusing to hold a hearing on the matter, thus insuring that the event was not recorded when he met in chambers with a select portion of the defense attorneys to discuss Wigglesworth's contacts with the jury.
The Petitioner was denied effective assistance of counsel. U.S. Magistrate Hill appointed an inexperienced civil attorney named Warren Sogard to defend the most notorious criminal trial in North Dakota History.
Sogard had seventy-six days from the time of his appointment to the date trial began to prepare for an extremely complex multi-defendant homicide trial. Sogard did not even see his client, Yorie Kahl, for days after being appointed.
What is even more shocking: Sogard spent almost all of his time between appointment as Yorie Kahl's attorney until the date trial began OUT OF TOWN AND OUT OF TOUCH WITH YORIE KAHL, HIS CLIENT THE DEFENDANT, APPARENTLY BELIEVING, AND AS A CONSEQUENCE ASSURING YORIE, THAT THE TRIAL WOULD NOT BEGIN IN LESS THAN A YEAR. This simply is one more example of Sogard's deficiency as an advocate for Yorie Kahl.
In addition to his being prejudiced by ineffective assistance of counsel, Yorie Kahl was denied counsel prior to the appointment of Warren Sogard. Attorney Jerry LaFountain and private investigator-paralegal Gary Fredricks from Montana traveled to Jamestown, North Dakota to offer their services to Yorie Kahl and the other defendants. LaFountain and Fredricks made themselves available to the family but they were denied access to the defendants, including Yorie Kahl who was still in the hospital recovering from his wounds. For ten days Yorie Kahl was prevented from obtaining counsel or contacting Jerry LaFountain or anyone else who could or would provide or obtain counsel for him. Assistant United States Attorney Lynn Crooks, lead prosecutor on the case, was quoted after trial saying, "We did everything in our power to make sure that they did not wind up having tax protester lawyers."
When Jerry LaFountain and Gary Fredricks arrived in North Dakota, they were harassed, intimidated and threatened by federal and local law enforcement officers. The motel room and the automobile of the attorney and the investigator were bugged. Everywhere LaFountain and Fredricks went they were followed by a detachment of law enforcement. They were not allowed in the area of the shooting incident to investigate. They went to interview Dave Broer's wife, Joanne, and the marshals followed them there. The legal team then departed the Broer residence to see Shauna Faul, wife of defendant Scott Faul. While they were driving on the Interstate and no one else was on the highway, they came upon a road block and were then blocked from behind by U.S. Marshals. The marshals searched LaFountain, Fredricks and the car, including LaFountain's legal papers.
Another incident involving Mr. LaFountain and Mr. Fredricks was staged for their benefit. They went to the Ramada Inn one night for entertainment. The place was full of U.S. Marshals. The marshals dragged a young woman outside and stripped off half of her clothes. This happened within the view of LaFountain and Fredricks, who were standing inside the lobby of the motel, watching through the window. They did not go out to help the woman because they feared the incident was a set-up to charge them with rape and assault. The half-nude woman whom the marshals were assaulting came in screaming at the marshals. Jerry LaFountain went to the front desk to call the police and discovered that the female desk clerk was herself a U.S. Marshal. He then called a federal judge to advise him of what was happening, in order to ensure his safety and that of Fredricks. The marshals later harassed LaFountain and Fredricks because of that call, telling them that they (the marshals) didn't like LaFountain and Fredricks calling "their" judges. It was clear to LaFountain and Fredricks that if they went outside they would be arrested or shot for rape.
Gary Fredricks said that at one point they were so scared they couldn't sleep for 50 hours. They eventually became so frightened that they decided to return home, and they agreed to avoid doing or saying anything because they feared for their own lives and those of their families.
The first testimony in the Government's case was not from witnesses with actual knowledge relevant to the case or from experts, but was from the grieving widows of the dead marshals presenting studio photos of their husbands and telling about their children. There was no probative value whatever to their testimony. The only purpose served was to garner sympathy with the jury and create animosity and prejudice against the defendants.
The Government withheld exculpatory evidence from the Defense that would have substantially bolstered the Petitioner's affirmative defense. The pistol that saved the life of the Petitioner by stopping the bullet which Marshal Muir meant for Gordon Kahl was not permitted to be utilized by the defendants to help prove their case. The Government withheld knowledge of the existence and use of informants and undercover agents who could have provided exculpatory evidence of the events of February 13, 1983 as well as knowledge of the plan by the U.S. Marshals to kill Gordon Kahl. The APB upon which the marshals relied was inaccurate and was based on false information provided by a confidential informant in Carrington, North Dakota, whose name was withheld from the defendants. Additionally, it is now known that a key undercover agent named Mike Phillips from Ashley, North Dakota, who was a principal involved in helping to orchestrate the shoot-out, was concealed from the defendants during the trial stage. The existence of the informant from Carrington who generated the suspicious APB was also improperly concealed from the defendants at trial.
Potential defense witnesses were hindered or prevented from testifying as a result of threats, intimidation and subterfuge by Government officials. The intimidating presence of law enforcement officers following LaFountain and Fredricks as they went to interview witnesses was very effective. An unusual number of Government witnesses testified contrary to statements and reports made shortly after the incident and subsequently supplied to the Defense.
Especially interesting is the case of defense witnesses Mark and Carol Lanenga. After they finished testifying at trial and had been excused by the court, an FBI agent approached Carol Lanenga and said, "We're not done with you yet." This upset her, as it certainly should have. A few months after the trial, the Lanengas were informed by the IRS that they were being audited. They thought it was an unusual coincidence, although the IRS said it was routine. When the Lanengas were audited again within a few months, it was no coincidence. Another witness called for the defense was U.S. Deputy Marshal Bud Warren. He was also dunned by the IRS after testifying too truthfully for the defense. After the audit he received a refund.
Incidents of prosecutorial misconduct were condoned and sometimes defended by Judge Benson. During cross examination of Government witness Lonny Reuer by defense counsel Mr. Ramlo, several people in the courtroom including jurors, defendants and defense counsel observed the following: (I) Mr. Ramlo would ask Mr. Reuer a question; (ii) the witness, Mr. Reuer, would then turn his head to look at the prosecution table; (iii) Mr. Crooks would then shake his head up and down or side to side; (iv) Mr. Reuer would then turn his head back to face Mr. Ramlo and answer the question. This happened several times until Mr. Ramlo noticed others in the courtroom following these actions. He then asked the witness, "When Mr. Crooks shakes his head at you like that, is that a signal to answer one way or another?" Assistant U.S. Attorney Dennis Fisher objected, and Judge Benson immediately came to the defense of Mr. Crooks. Judge Benson said, "I've watched Mr. Crooks try cases for 12 years.....The question is uncalled for." He further chastised Mr. Ramlo for suggesting such a thing, totally ignoring that perhaps what Mr. Ramlo said was true. Noting the futility of pressing the issue, Mr. Ramlo dropped it, asked a token question of the witness and abandoned further cross-examination.
On Appeal, the majority opinion did not address some of the issues raised. After saying 28 U.S.C. §§ 144 and 455 are similar and that it would consider them together, the court ignored §455. The court was also disingenuous in the way it dealt with the issue of biased prospective jurors. The court misconstrued the fact that fifty percent of the prospective jurors who were actually questioned were removed for cause arising from partiality. Judge Lay in a footnote to his dissent stated, "The Majority's statement that only 27% of the jurors attributed their partiality to media coverage is misleading." United States v. Faul, et al., 748 F.2d at 1231, footnote 8. It should not matter what their partiality was attributable to, just that they were partial.
The details of the grounds for the motion under §2255 appear in the motion itself. One thing is certain. As Chief Judge Lay wrote in his dissent, "The record amply demonstrates the defendants did not and could not receive a fair trial in the District of North Dakota." United States v. Faul, et al., 748 F.2d at 1223.
V. EXECUTION IN ARKANSAS.
On February 17, 1983 Leonard and Norma Ginter of Walnut Ridge, Arkansas, were introduced to Gordon Wendell Kahl by Bill Wade, an acquaintance of theirs. Gordon Kahl requested the Ginters to house him after he advised them that he was wanted by federal authorities. On February 25, 1983, Gordon Kahl wrote an affidavit witnessed by Leonard Ginter recounting the events of the shooting incident in Medina, North Dakota on February 13, 1983. Kahl expressed that if he was discovered he would not be given a chance to surrender before being killed. Because he expected to be murdered, he wrote the affidavit to preserve details of the previous events so that the truth could eventually be made known. For thirteen years these original documents, made in contemplation of impending death, have been hidden. The defense attorney for Yorie Kahl has now obtained this original sworn affidavit of Gordon Kahl. In these documents, Gordon Kahl details what actually happened at the Medina shoot-out on February 13, 1983. These documents clearly exonerate Yorie Kahl. Copies of these documents were not allowed to be admitted into evidence in the original trial because they were not the originals.
About the middle of April, 1983, Bill Wade had heard that the FBI was closing in on Gordon Kahl, so Leonard Ginter took Gordon Kahl to the house of Art Russell. Kahl stayed at Russell's house until Leonard Ginter brought him back to Ginter's house during the last part of May, 1983. On June 2, 1983, Gordon Kahl learned of the conviction of his son, Yorie Von Kahl. Gordon expressed to Leonard Ginter his desire to surrender to federal authorities to help his son.
The next day, June 3, 1983, Leonard left the house without explanation at 5:15 p.m. and started driving up the driveway when he was seized by FBI Special Agent James Blassingame. Gordon Kahl was seated at the kitchen table eating dinner when Leonard left. At 5:30 p.m. the news was just coming on and while eating, Gordon was watching for news of his son, Yorie. Norma Ginter heard a noise outside the house and went to look out the door. She was grabbed by Sheriff Gene Mathews. She was told to be quiet, was handcuffed and taken around the corner of the house and placed next to her husband, Leonard.
Sheriff Mathews left Leonard and Norma with Special Agent Blassingame. Then Sheriff Mathews and Deputy U.S. Marshal Hall entered the house armed with pistols. State Police Investigator Ed Fitzpatrick remained outside armed with a shotgun. Sheriff Mathews stepped through the kitchen doorway undetected by Gordon Kahl. Mathews then shot Gordon Kahl in the back of the head using Mathews' .41 magnum revolver. This single shot in the house was followed by four or five shotgun blasts directed into the house through the kitchen window by State Police Investigator Fitzpatrick while he was standing outside on the patio. Sheriff Mathews was hit by the shotgun pellets fired by Fitzpatrick. This was followed by two explosions that shook the ground where Leonard and Norma had been placed. All these events occurred in rapid succession over a very short period of time, a few minutes or possibly seconds. Sheriff Mathews remained in the house twenty to forty minutes after that.
Immediately after the initial shots were fired, Special Agent Blassingame approached Leonard Ginter and asked, "Was Gordon Kahl clean shaven?" Ginter answered, "the man at my house was clean shaven." Blassingame then returned to the house.
The Ginters were then moved about 50 feet west of the house and pushed down to the ground. FBI agent David King then pointed a gun at Leonard Ginter and said several times, "I'm going to kill you, son of a bitch." About ten minutes later the Ginters were taken a little further west to where Leonard had previously removed a large rock. During this entire time, the various law enforcement personnel were continuously shooting into the house. Leonard and Norma were then moved up the hill to the road about 250 feet from the house and handcuffed to a police car.
At about 6:00 p.m. an unidentified law enforcement officer positioned up the hill southwest of the house started shooting. Leonard Ginter said that two of the many shots from this shooter sounded similar to the sound made when bullets hit a deer. This sound came from the corner of the garage. At this time several people began yelling that Sheriff Gene Mathews had been shot. Dero Downing, an FBI agent who was at the scene, testified at trial that the wounded Sheriff Mathews came out of the house and was subsequently mortally shot in the side by the corner of the house as Leonard Ginter had described. The autopsy would later find glass and shotgun pellets in Sheriff Mathews' bullet proof vest. This resulted from his being shot inside the house through the glass of the kitchen window, by a shotgun fired by State Police Investigator Fitzpatrick.
Responding to the shooting of Sheriff Mathews, a police car came down the hill on the driveway to assist him and went to the corner of the house where he had been shot. Within only a minute or two the police car came back up the road past where Leonard and Norma remained handcuffed to a police car. The car carrying Mathews passed closely by the Ginters, and Leonard saw Sheriff Mathews alone in the back seat. He appeared to be dead and was receiving no attention. This was about ten or fifteen minutes after 6:00 p.m., forty minutes after Gordon Kahl had been shot and killed.
Immediately after seeing the Sheriff taken from the scene, Leonard Ginter heard a radio transmission from the police car to which he was handcuffed. The broadcast said that Bill Wade had been shot. The law enforcement officers obviously did not know who had actually been killed in the house, but the transmission confirmed that the man in the house was dead. Persons monitoring the police frequencies on their scanners called Wade's telephone number to check on the report and were assured by Bill Wade himself that he had not been shot.
At about 8:00 p.m. the Ginters saw Tom Lee, Marshal of the City of Ravenden, with two 5-gallon cans of fuel. Lee stopped immediately behind the police car to which the Ginters were still handcuffed, and he began stirring the contents of the cans. Lee then went onto the roof of the house and poured the contents of the cans down a roof vent. The fuel was then ignited by dropping smoke grenades and tear gas canisters into the vent. Mr. Lee testified by sworn affidavit that he was ordered to do this by FBI agents at the scene.
The Ginters were then taken up the road to the top of the hill to the police car in which they were to be transported, and as they walked up the hill, they could see that their house was on fire. Gordon Kahl had been confirmed dead about forty minutes after the initial shots were fired and before the house was burned. The evidence suggests that law enforcement officers at the scene knew Gordon Kahl was dead before the fire was set. Kahl's body was found in front of a large picture window, easily visible to the SWAT Team from outside the house.
Later independent investigation would find accelerant pour points all over the house, in corners, and on the body, as well as under the roof vents where accelerants were admitted to have been poured. The body was definitely burned by materials not found in the house. The temperature required to burn human bones is higher than what could be attained by what was in the house or even by gasoline. Neither would 10 gallons of fuel poured down the roof vents have been enough to reach the body where it was or burn it to the extent it was. Considering the accelerants found on the corpse at autopsy, there is no doubt that fuel must have been poured directly on the body.
The feet and one hand were either completely burned off or were cut off. Part of a foot was found later suggesting that the hand and feet had been cut off. Whichever alternative is correct, it may be confidently asserted that the fire was hot, it was deliberately set, and it destroyed a great deal of evidence.
As stated in the Introduction, this case is one of an unfortunate chain of events complicated by compounded errors. The negligent manner in which the original sentencing of Gordon Kahl was mishandled served to prove beyond any reasonable doubt, in Gordon Kahl's mind, the duplicity of the Federal Government and its court system, in which he was selectively prosecuted. To the man whom the media and Government described as a paranoid fanatic, this treatment confirmed Gordon Kahl's belief that the courts were corrupt and further validated his deeply held conviction that the U.S. Government was acting as an outlaw government.
Whether it was mere negligence or by design, the illegal warrant used to give color of law to the actions of the U.S. Marshals at Medina, North Dakota, was nothing less than a license to kill. The illegality of the outrageous actions of the Government in provoking the incident at Medina is unconscionable and inexcusable.
The resultant proceeding was mischaracterized as resembling a trial. Whether it was the defective voir dire, improper conduct and influence with the jury by the Marshals Service and a victim-witness, prosecutorial misconduct, intimidation of witnesses and legal counsel, ineffective assistance of counsel, or an assassination plot by certain government officials, any one of these issues was a gross violation of the Petitioner's right to due process of law. Any one should be enough to warrant a reversal of the verdict. The cumulative effect of other infringements of the Petitioner's rights combined unfairly to prejudice him. The major individual issues of this case are outrageous. It is for the prevention of this kind of government misconduct and persecution of political dissidents that constitutional protections were memorialized in the Bill of Rights.
The fiery chapter in Arkansas of this saga is bizarre, to say the least. Gordon Kahl was never given a chance to surrender and the officers involved made no attempt to subdue him when they had opportunity to do so. The cloud of suspicion and uncertainty that hangs over the true identity of the burned corpse found in Leonard Ginter's house may never dissipate.
The Arkansas chapter of this saga would be the last were it not for the continued unconstitutional and unjust incarceration of Yorie Kahl and Scott Faul. For thirteen years, the Petitioner, Yorie Kahl, and Scott Faul have been model prisoners, demonstrating every day that they are not typical criminals, but political prisoners.
The whole Kahl affair and the injustice of it can be identified as the defining moment in American history that spawned the constitutionalist, patriot, militia movement. The circumstances leading up to Medina and following events were an injustice resembling and predating the events at Ruby Ridge, Idaho in August, 1992. The conduct and atmosphere of the trial of the Medina defendants is typified by the answers received by members of the United States Senate Judiciary Committee, who were conducting hearings regarding Ruby Ridge in 1995. In response to the question from Senator Kohl, "Why is the death of a marshal different in terms of response than if it's a civilian?" Henry Hudson, former director of the Marshals Service replied angrily, "Because that is the height of defiance of the Government." It is this mind-set of the U.S. Marshals Service that promoted the shoot-out in Medina and the quest for vengeance that later resulted in the execution of Gordon Kahl in Arkansas.
The Petitioner asks of you to do justice and reverse the injustice done to him and give him relief by granting him a new trial.
John W. DeCamp
Attorney for Movant, Yorie Von Kahl.
Read Gordon Kahl's affidavit written in his own hand 12 days after the shoot out at Medina, North Dakota, giving his description of the circumstances that led to the confrontation and the fire fight itself - http://www.future.net/~thetruth/kahl_gdn.html.
Read the 14 page Summary of the Motion Under 28 U.S.C. §2255 To Vacate, Set Aside, Or Correct Sentence and Statement Of Facts - http://www.future.net/~thetruth/kahl_sum.html
Read the 41 page Motion Under 28 U.S.C. §2255 To Vacate, Set Aside, Or Correct Sentence - http://www.future.net/~thetruth/kahl_mot.html
Webspace courtesy of "The Truth (as I see it)" Weekly Cable Show -http://www.future.net/~thetruth/ for the enlightenment of the internet community.
E-mail Wilhelm E. Schmitt - firstname.lastname@example.org