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THE FRANKLIN COVER-UP -- CHILD ABUSE, SATANISM, AND MURDER IN NEBRASKA |
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CHAPTER 24: THE U.S. JUSTICE DEPARTMENT MURDER OF GORDON KAHL Because I had successfully represented various clients in, or around, the "militias," I was contacted in mid-1995 by Yorie Kahl, the son of farmer-activist Gordon Kahl. On June 3,1983, Gordon was assassinated by agencies of the U.S. government. The following "statement of facts" of the Kahl case, father and son, was filed by me before the U.S. District Court in North Dakota on April 16, 1996. It is based, in part, on the never-before released affidavit which Gordon Kahl prepared about the infamous shoot-out in Medina, North Dakota, on Feb. 13, 1983, in which Yorie Kahl was gravely wounded, and which set into motion the train of events that led to Gordon Kahl's own murder four months later. Gordon Kahl prepared the affidavit with the conviction that federal law enforcement would kill him, rather than capture him alive, if they ever found him -- which is exactly what happened. Yorie Kahl released the following affidavit to me in preparation for his trial. I believe it is the most complete account ever of this chilling story. *** UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NORTH DAKOTA UNITED STATES OF
AMERICA, STATEMENT OF FACTS
TO
SUPPLEMENT MOTION
UNDER 28 U.S.C. § 2255 TO
VACATE, SET ASIDE, OR
CORRECT SENTENCE I. INTRODUCTION 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 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, February 14 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 decorated veteran of World War II. Gordon Kahl held strong religious and political convictions. Gordon Kahl came to the conclusion in the 1970's that America was headed politically and morally in the wrong direction. This distressed Gordon Kahl. 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 that Kahl believed was occurring in America. So prolific were Gordon Kahl' s written and verbal attacks on what he sincerely believed to be unconstitutional applications of laws (Income Tax, Federal Reserve System), that he eventually became a well-known political dissident among those who generally shared his concerns. Among what today is known as the "Patriot Community," Gordon Kahl might properly be termed an American "Refusenik." In the mid-1970's, 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, with the claim that the non compliance could be done with impunity. Such public disdain for the 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. B. PROSECUTION To stem the feared spreading noncompliance with the tax system, the IRS in 1977 targeted Gordon Kahl officially 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 dollars. 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, Gordon Kahl's 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. Section § 3651 provides that the probation period can not 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 not that Kahl divorce himself 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 Gordon Kahl was found competent to engage in further proceedings. He was then released on bond pending appeal. C. PRISON 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 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. Gordon Kahl refused, preferring to serve his time and be free when released. D. PROBATION 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 going home to the farm in North Dakota, Kahl's probation officer went out to the farm to see Kahl. Gordon Kahl told the probation officer that if it would make the probation officer happy Kahl would sign the papers. That was the only visit the Probation Officer made to Gordon Kahl' s house. Subsequently, for a few months, the Probation Officer left the Probation Report papers in the Kahl mailbox. Then, the Probation Officer even quit doing that. For a substantial time following Gordon Kahl's release from prison, Gordon Kahl maintained a low profile and specifically declined invitations to attend and speak at public meetings. Consistent with the character of a dissident though, Gordon Kahl 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. They, consequently, took Kahl's vitriolic criticism as a personal affront, but, even more important, an affront to their judicial authority and the prestige of the position of federal judicial officers E. SUMMONS 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. August 6, 1980, twelve months after Kahl's release from Leavenworth Prison Camp, Gordon Kahl was allegedly served the summons. It was further alleged that Gordon Kahl had advised the Deputy U.S. Marshal who had served the summons, that 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, 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, a 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 lawful1y be enforced. 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 grounds on the petition requesting the warrant this time were, "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 upon Gordon Kahl was illegal and therefore void. Any legal probation would have necessarily expired at the latest on August 19, 1980. Therefore, for any one of at least three reasons, the action by Federal Marshals, led by United States Marshal for North Dakota, Ken Muir, on Feb. 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 Sept. 23, 1980, more than 2 years before the Shoot-out" at Medina; (3) The supporting grounds for issuing the "Alleged" warrant under which U.S. Marshal Muir was operating on 13 Feb. 1983, were themselves defective legal grounds. Why? Because the Probation conditions imposed ordered Gordon Kahl to perform acts which the courts are constitutionally forbidden to order; namely, (1) First Amendment violation by prohibiting Gordon Kahl from "Associating" with groups "advocating willful disobedience. ..." (2) Requiring Gordon Kahl to furnish copies of Kahl' s 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 30th, 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 Warren was advised Gordon Kahl might be located. Based on information from federal officials he had dealt with, Warren went there expecting to find a fugitive in hiding. What Warren by his own admission found was a friendly, smiling farmer leaning against the front of a church. Gordon Kahl had attended church and was waiting for Joan Kahl, his wife, to join him. A few days later, Marshal Warren made arrangements to meet personally with Gordon Kahl. He wanted to discuss the "Misdemeanor Warrant" and resolve the situation. Warren went unarmed, as was Gordon Kahl. Warren advised Gordon Kahl of the existence of the warrant and gave Gordon Kahl thirty days to try and straighten out the situation with the warrant. Marshal Warren told Mr. Kahl, after thirty days he, Warren, would have to take action to arrest him, Kahl. During the 30 day moratorium Marshal Warren 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 king-makers in North Dakota politics by 1981. His decision to accommodate Gordon Kahl and attempt to amicably 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. Gordon Kahl was loud and outspoken in his criticism of the political power structure. He blamed the same political and economic power structure for an almost total collapse of the agricultural economy in North Dakota which was occurring in the early 1980's 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. The 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. In the person of U.S. Deputy Marshal Ken Muir, was the culmination of all their desires. At the request and behest of Judges Benson and VanSickle, Senator Mark Andrews of North Dakota was induced to recommend to President Reagan that Deputy Marshal Ken Muir be given the appointment as U.S. Marshal for North Dakota and that U.S. Marshal "Bud" Warren be removed from his position as U.S. Marshal. As is the custom, President Ronald Reagan then nominated Deputy U.S. Marshal, Ken Muir, for the position of U.S. Marshal for North Dakota and the U.S. Senate routinely approved the nomination. With the transfer of office from Warren to Muir, new U.S. Marshal Ken Muir specifically refused former Marshal Warren' s offer of information and guidance and assistance in resolving the Gordon Kahl affair. Ken Muir specifically told outgoing Marshal Warren "When you were Marshal you did it your way, (handling Kahl) 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 -- now Deputy U.S. Marshal Warren again contacted U.S. Marshal Muir. Deputy Marshal Warren offered to give Marshal Muir what information Warren had learned about Gordon Kahl. Muir responded to Warren's contact and offer by advising Warren that, "No need existed any more for assistance from Warren or concern about Gordon Kahl because Muir had been advised by U.S. Marshals' Service Deputy Director Toomey in Washington D.C., '... to file the Gordon Kahl warrant away and not spend anymore time or manpower on it.'" That was in 1981. I. LIVING IN THE OPEN In 1982 the 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 Kahl's belief about excessive Masonic influence. Contrary to claims made by the Federal Government Gordon Kahl went about his business in the light of day. In the summer of 1982 Gordon Kahl's wife, Joan, and a neighbor friend named Herman Widiker went to the IRS office in Fargo, North Dakota, and offered to pay Gordon's Kahl's bill. The IRS told Joan Kahl and Herman Widiker that the IRS couldn't tell Mrs. Kahl and Mr. Widiker how much Gordon Kahl owed because the IRS didn't know. Gordon Kahl attempted to file a Temporary Restraining Order in the Bismarck Federal District Court to halt the sale of his farmland by the IRS. The Clerk of the Federal District Court actually accepted the restraining order documents, but, unknown to Kahl, actually refused to file Gordon Kahl's petition and complaint for a temporary restraining order. This refusal to file was unknown to Gordon Kahl. Instead of advising Kahl of the refusal, the court clerk personally turned Kahl's paperwork over to U.S. District Court Judge Bruce Van Sickle and notified the U.S. Marshals Service. Judge Van Sickle was then personally contacted by Deputy U.S. Marshal Bob Cheshire, who would later be killed at the shoot-out February 13, 1983 at Medina, North Dakota. Deputy Marshal Cheshire advised Judge Van Sickle in the fall of 1982, many months before the 1983 shoot out, that Gordon Kahl was a fugitive and the Marshal apparently suggested therefore that the Clerk should not file the motion. One thing is for sure: That is, Gordon Kahl sure did not know he was a fugitive in 1982. For whatever reasons, apparently based on instructions from U.S. District Judge Van Sickle, Gordon Kahl's complaint and petition for temporary restraining order were never filed. This was never known to Gordon Kahl nor was he ever informed of this refusal action. In November of 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 1980's, was the problem farmers had remaining solvent. So did 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 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 speak out against the government. The typical farmer-patriot was also a hunter. But, bottom-line, 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 APB's contents were factually inaccurate. The APB originated from a confidential source in Carrington, North Dakota. It described Gordon Kahl and another man as carrying machine guns and driving to Fessenden, North Dakota to kill the Sheriff. The car 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. By eliminating Gordon Kahl it was hoped to quash the emerging tax rebellion. This picture only emerges looking backwards with new factual data and documentation available now and not available in the heat of the 1983 Medina shoot-out and the emotionally and 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. Scott Faul suggested that Yorie Kahl bring Yorie's rifle in case they saw some rabbits. Yorie Kahl ran back in 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 Feb. 13, 1983, Bradley Kapp, the Deputy Sheriff of Stutzman County, North Dakota, contacted State Radio (law enforcement network). Deputy Kapp 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. U.S. Marshal Muir and Deputy U.S. Marshal Carl Wigglesworth immediately left Fargo headed for Medina. At Medina, Muir and Wigglesworth met up with Deputy U.S. Marshals Cheshire and Hopson who had come from Bismarck, North Dakota. At Medina Muir, Wigglesworth, Cheshire and Hopson enlisted the help of another local law enforcement officer, Medina City Policeman, Steven Schnabel. Under the pretense of executing the very warrant that Marshal Muir had specifically been instructed from 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 Police Chief 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 & the others with him to move their road-block 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 the meeting goers were walking out they noticed someone watching the clinic. Dr. Martin, the operator of the clinic said, "That's just Brad Kapp (Stutzman Co. Deputy Sheriff) being Brad. He does stuff like that." David Broer decided to call Darrell Graf, the Medina Police Chief about it. Chief Graf told David Broer about the APB that had been issued a few days before, previously described above. The car in the APB matched Scott Faul' s. This troubled Scott Faul because the day the APB was supposedly generated, his wife Shauna had driven the car to Harvey to do laundry. None of the Kahl or Faul groups present 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 Kahl, but Gordon Kahl reassured her that nothing was going on that he knew of. Not knowing what to think about the APB, and the anonymous comment about a setup, Yorie Kahl suggested and then insisted that Yorie Kahl and his Father Gordon Kahl, trade coats and hats. Yorie Kahl and Joan Kahl accompanied by Vern Wegner and Scott Faul, got in Gordon Kahl's Chrysler station wagon. Gordon Kahl and David Broer got in David Broer's car so they could talk on the way to Gordon Kahl's home. The two vehicles left the Medina Clinic and headed north for the Kahl home. They were totally unaware of the presence of the Marshals or the ambush the Marshals had planned for them. B. PUBLIC SAFETY Based on discussion and information between himself and the Marshals that afternoon of Feb. 13, 1983, Chief Graf was convinced that the Marshals planned a violent ambush and confrontation. He was certain of the upcoming violence planned by the Marshals. So certain was GRAF of the impending danger and a certain shoot out or execution of the Dissident Kahl and Kahl's party by the Marshals, that he, GRAF, took extraordinary measures to minimize the damage to the town of Medina and its citizens. Chief Graf called out the Medina rescue unit just before 5:00 p.m., a full hour before the planned shoot out. Graf then prepared to set up road-blocks of his own to keep citizens out of the Marshals' planned ambush and fire zone. After observing the two Kahl vehicles and Marshal Cheshire's Ramcharger depart North out of town GRAF stopped citizens Mark and Carol Lanenga. The Lanengas were about to unknowingly drive north out of town into the planned ambush zone unaware of the danger. From the vantage point of where Chief Graf stopped them, the Lanengas could see the Marshals standing outside of the Ramcharger, aiming their weapons at the Kahl vehicles. The Lanengas later testified at the trial of Yorie Kahl. They recounted that Chief Graf told them "there was going to be a shoot out and this time the police were in the wrong." Two other citizens who had attended the meeting at the Medina Clinic where Gordon Kahl was present were also prevented by Chief Graf from entering the ambush fire zone. Chief Graf told them, "We are going to try to save at least Dave's [Broer] 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." The Kahl 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 road block they pulled into the first driveway they could to turn around. Immediately, the Kahl's exit route from the areas was blocked by a Dodge Ramcharger which had followed the Kahl vehicles out of Medina. In the Ramcharger were Deputy U.S. Marshals Cheshire and Hopson, and Stutsman County Deputy Sheriff Brad Kapp. In the roadblock ahead of the Kahls' vehicles 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 Kahl vehicles' retreat routes from the planned ambush zone, the Marshals jumped out of their unmarked vehicles and aimed their weapons at the Kahl group. None of the law enforcement officers at the scene were in uniform. Deputy Marshal Cheshire even told Deputy Marshal Hopson to take off his badge. Once out of their cars and with their weapons aimed directly at the Kahl group, the Marshals began yelling "... we're going to blow your (Kahl group) goddamn heads off," and "you are going to die." Gordon Kahl, Yorie Kahl and Scott Faul then got out of their cars and began to separate from each other. None of the Marshals knew who Gordon Kahl was in the group or what Gordon Kahl looked like. Relying ONLY on the description provided by Deputy Kapp who had seen Gordon Kahl attending the meeting in Medina, the Marshals directed their shouts, their attentions, their weapons DIRECTLY AT YORIE KAHL WHO, AS YOU WILL RECALL, WAS WEARING HIS FATHER GORDON'S COAT AND HAT. This stand-off continued for a period of time that is still disputed ranging from a minute to as many 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 Marshal Muir hit YORIE KARL in the grip of the pistol Yorie was wearing in his shoulder holster. As Yorie Kahl fell backwards from being hit the "Ruger mini-14 ranch rifle" Yorie Kahl was carrying discharged twice. Yorie Kahl was then shot in the abdominal region by Deputy Brad Kapp with two shotgun blasts. Marshal Muir himself -- rated as one of the top ten pistol shots in the United States of America -- then fired three more times hitting Yorie Kahl repeatedly with his fire. During the balance of the gun battle, Victim Yorie Kahl lay on the ground with his near fatal wounds. Kahl friend and traveling companion Scott Faul attempted to retreat from the fire zone but Faul's escape was cut off by an unknown but armed assailant who turned out to be U.S. Deputy Marshal Wigglesworth. With his escape cut off, Scott Paul retreated and headed back towards where Yorie Kahl lay wounded on the ground. At this time, Scott Paul also came under fire from the Marshals. In response to being fired upon, Scott Faul returned fire in the direction of the Ramcharger. Seeing his son Yorie repeatedly shot and believing Yorie 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 Cheshire. By the time Scott Faul reached the wounded Yorie Kahl, the shooting had stopped. Scott Paul then assisted Yorie Kahl 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 arriving. 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 would recover 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 prosecuted by Assistant U.S. Attorneys Lynn Crooks and Dennis Fisher. The details of the trial and the issues there under attack are presented in more detail in the Motion to Vacate, Set Aside, or Correct Sentence. It suffices here to generally 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 Von 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. Petitioner was tried by a jury that was "Presumably Biased" and "Actually Biased." G. Was prejudiced by prosecutorial misconduct. H. Potential defense witnesses were hindered or prevented from testifying as a result of threats, intimidation and subterfuge by government officials. I. There was improper contact with the jury by U.S. Deputy Marshal Carl Wigglesworth, a victim in the shooting incident. J. On February 14, 1983, U.S. Marshals traveled to Medina, North Dakota, for the purpose of killing Gordon Kahl. 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. For sure, the cumulative effects 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 any 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 their handling of the Leonard Peltier case. From the start the push was on to rush the trial and 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 proven after trial 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 U.S. Marshals service who were the victims and clearly viewed themselves as a whole as the victims of the shoot-out with the Defendants. Marshal Wigglesworth, himself a participant in the Medina Shoot-out and one of the assault victims of the shoot-out, engaged with the other Marshals guarding the Jury in recreational activities with the jury members. When such conduct was reported to Presiding Judge Benson, the Judge responded by simply brushing aside the incidents, refusing to hold a hearing on the matter, and insuring that the event was not recorded when Judge Benson met in chambers to discuss Wigglesworth's jury contact incidents with a select portion of the attorneys defending in the case. The Petitioner was denied effective assistance of counsel. U.S. Magistrate Hill appointed an inexperienced civil attorney named Warren Sogard to defend [in] 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 his, Sogard's, appointment. Even more shocking, Sogard spent almost all of his time between appointment as the attorney for Yorie Kahl until the time trial began OUT OF TOWN AND OUT OF TOUCH WITH HIS CLIENT THE DEFENDANT, APPARENTLY BELIEVING AS WELL AS ASSURING YORIE KAHL THAT THE TRIAL WOULD NOT OCCUR IN LESS THAN A YEAR. This was simply one more example of Sogard's advocacy deficiency. Besides 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 counselor contacting anyone, including Jerry LaFountain, that 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 Montana they were harassed, intimidated and threatened by federal and local law enforcement officers. The motel room and car of the attorney and investigator were bugged. Everywhere LaFountain and Fredricks went they were followed by a detachment of law enforcement. LaFountain and Fredricks were not allowed in the area of the shooting incident to investigate. They went to interview Dave Broer's Wife, Joanne Broer, and the marshals followed them there. The legal team then departed the Broer residence to see Shauna Faul, wife of Defendant Scott Faul. While LaFountain and Fredricks 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. LaFountain and Fredricks went to the Ramada Inn in Jamestown one night for entertainment. The place was full of U.S. Marshals. The Marshals dragged a young woman outside and stripped half of her clothes off. This happened within the view of LaFountain and Fredricks who were standing inside the lobby of the hotel watching through the window. LaFountain and Fredricks did not go out to help the woman fearing the incident was a set up to charge LaFountain and Fredricks with rape and assault. The half nude woman the Marshals were assaulting came in screaming at the Marshals. Jerry LaFountain went to the front desk to call the police and the female desk clerk was herself, a U.S. Marshal. JerryLaFountain then called a Federal judge to advise him of what was happening to insure the safety of LaFountain and Fredricks. The Marshals later harassed LaFountain and Fredricks about it. The Marshals told LaFountain and Fredricks the U.S. 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 they were so scared at one point they couldn't sleep for 50 hours. LaFountain and Fredricks ultimately got so scared they decided to go back home. LaFountain and Fredricks agreed together not to do or say anything because they feared for their own lives and those of their family. The first testimony in the Government's case was not from witnesses with actual knowledge relevant to the case or from experts. The first testimony was from the grieving widows of the dead marshals presenting studio photos of their husbands and telling of their children. There was no probative value to their testimony whatever. 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 that 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 based on false information provided by a confidential informant in Carrington, North Dakota, whose name was withheld from 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 orchestrate the Shoot Out, was concealed from the Defendants at the trial stage. The existence of the Carrington informant who generated the suspicious APB was also improperly concealed from 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 defense. Especially interesting is the case of Defense witnesses Mark and Carol Lanenga. After the Lanengas finished testifying at trial and had been excused by the Court an FBI agent came up to Carol Lenenga and said "We're not done with you yet." This upset Mrs. Lanenga as well it should have. A few months after trial the Lanengas heard from the IRS that they were being audited. The Lanengas thought it was an unusual coincidence though IRS said it was routine. When the Lanengas were audited again within a few months, it was no coincidence. Another witness called by the defense was U.S. Deputy Marshal Bud Warren. Deputy Warren was also dunned by IRS after testifying too truthfully for the defense. After going through the audit he also 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 this action. 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. "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 cross examination. On Appeal the majority opinion did not address some of the issues appealed. 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 that were actually questioned were removed for cause arising from partiality. Judge Lay in a footnote to his dissent stated, "The Majorities statement that only 27% of the jurors attributed their partiality to media coverage is misleading." United States v. Paul, et al., 748 P.2d at 1231 fu. 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. EXECUTION IN ARKANSAS On February 17, 1983 Leonard and Norma Ginter of Walnut Ridge, Arkansas, were introduced to Gordon Wendall Kahl by an acquaintance of theirs, Bill Wade. Gordon Kahl requested the Ginters house him after Gordon advised them that he was wanted by federal authorities. On February 25, 1983, Gordon Kahl wrote out an affidavit witnessed by Leonard Ginter recounting the events of the shooting incident in Medina, North Dakota on February 13, 1983. Gordon 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, Gordon Kahl wrote out 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. 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 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. Gordon Kahl stayed at the Russell house until Leonard Ginter brought him back to the Ginter's house the last part of May, 1983. On June 2, 1983 Gordon Kahl learned of the conviction of his son Yorie Von Kahl. Gordon Kahl expressed to Leonard Ginter his desire to surrender to federal authorities to help his son. The next day, June 3, 1983, Leonard Ginter 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 Ginter left. At 5:30 p.m. the news was just coming on and Gordon was eating dinner and watching for news of his son Yorie Kahl. Norma Ginter heard a noise outside the house and went to look out the door. She was grabbed by Sheriff Gene Mathews. Norma Ginter was told to be quiet, handcuffed and taken around the corner of the house next to her husband Leonard Ginter. Sheriff Mathews left Leonard and Norma Ginter with Special Agent Blassingame while Sheriff Mathews and Deputy U.S. Marshal Hall entered the house armed with pistols. State Police Investigator Ed Fitzpatrick stayed outside armed with a shotgun. Sheriff Mathews stepped through the kitchen doorway undetected by Gordon Kahl. Sheriff Mathews then shot Gordon Kahl in the back of the head with Mathews's .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. Sheriff Mathews was hit by the shotgun pellets fired by Fitzpatrick while he was standing outside on the patio. This all transpired in less than a few minutes. Sheriff Mathews remained in the house twenty to forty minutes after that. 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, "I'm going to kill you, son of a bitch," several times. About ten minutes later the Ginters were taken a little bit further west to where Leonard had previously removed a large rock. The various law enforcement personnel were continuously shooting into the house this whole time. Leonard and Norma Ginter were then moved to the road up the hill and handcuffed to a police car about 250 feet from the house. Immediately after the initial shots were fired, Special Agent Blassingame went to Leonard Ginter and asked him "was Gordon Kahl clean shaven?" Leonard Ginter answered "the man at my house was clean shaven." Agent Blassingame then immediately went back to the house. At about 6:00 PM an unidentified law enforcement officer positioned up the hill southwest of the house started shooting. Leonard Ginter said 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 different people started hollering that Sheriff Gene Mathews had been shot. Dero Downing, an FBI agent that was at the scene testified at trial that the wounded Sheriff Mathews came out of the house and was subsequently mortally shot in his side by the corner of the house as Leonard Ginter had described. The autopsy investigation would later find glass and shotgun pellets in Sheriff Mathews's bullet-proof vest. This was from Mathews being shot while Mathews was inside the house. This shot was from a shotgun fired by State Police Investigator Fitzpatrick through the glass of the kitchen window. In response to Sheriff Mathews being shot a police car then came down the hill on the driveway to assist him. The car was driven to the corner of the house where Mathews had been shot. Within only a minute or two the police car came back up the road past where Norma and Leonard Ginter were now handcuffed to a police car. The car went right by Leonard Ginter and Ginter could see Sheriff Gene Mathews alone in the back seat. Mathews appeared to be dead and was receiving no attention. This was about ten or fifteen minutes after six o'clock p.m., forty minutes after Gordon Kahl had been shot and killed. Immediately after Leonard Ginter saw Sheriff Mathews being taken away, Ginter heard a radio transmission from the police car he was handcuffed to. 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 broadcast confirmed the man in the house was dead. Bill Wade's family was called by people listening to police scanners to see if Bill Wade was dead. Bill Wade answered the phone and advised the caller he, Wade, had not been shot. Around eight o'clock p.m. Leonard and Norma Ginter saw Tom Lee, the City of Ravenden Marshal, with two five gallon cans of fuel. Lee stopped right behind the police car the Ginters were still handcuffed to and began stirring the contents of the cans. Lee then went on to 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. Walking up the hill to the police car in which they would be transported, the Ginters could see 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 fire was set. Gordon Kahl's body was found in front of a large picture window, easily visible to the SWAT Team from outside of the house. Later independent investigation would show accelerant pour points were found all over the house, in corners, 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 the body was or burn the body to the extent it was. Considering the accelerants found on the corpse at autopsy, fuel practically had to have been poured directly on the body. The feet and one hand of Kahl's body were either completely burned off or cut off. Part of a foot was later found suggesting that the hand and feet had been cut off. Whichever the case, the fire was hot, it was deliberately set, and it destroyed a lot of evidence. CONCLUSION As stated in the foreword of this paper this case is one of an unfortunate chain of events complicated by compounding 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 Gordon Kahl, the Man whom the Media and Government described as paranoid fanatic, this treatment confirmed Gordon Kahl's belief that the courts were corrupt and 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 contact and influence with the jury by the Marshal's 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 to unfairly 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 Arkansas chapter of this saga is bizarre to say the least. Gordon Kahl was never given a chance to surrender and the officers involved did not make any attempt to subdue Kahl when they had the chance to. The cloud of suspicion that hangs over the true identity of the burned corpse found in the Ginter 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 and Scott Paul have been model prisoners demonstrating every day 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 events leading up to Medina and following 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 by the answers received by members of the United States Senate Judiciary Committee hearings on 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, angrily replied. "Because that is the height of defiance of the government." 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. *** The case of Yorie and Gordon Kahl, as well as the broader militia movement, were subjects I frequently discussed with Bill Colby. In fact, I was surprised by his intense interest in the whole matter. Just two weeks before he died, Bill gave me some very pointed advice on the matter.
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