1The Honorable John B. Jones, United States District Judge for the District of

North Dakota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 00-1322

___________

Yorie Von Kahl, *

*

 Appellant, *

* Appeal from the United States

v. * District Court for the

* District of North Dakota.

United States of America, *

*

 Appellee. *

___________

Submitted: December 11, 2000

Filed: March 9, 2001

___________

Before LOKEN, HEANEY and FAGG, Circuit Judges.

___________

HEANEY, Circuit Judge.

Yorie Von Kahl appeals the district court’s1 denial of his 28 U.S.C. § 2255

motion without conducting an evidentiary hearing. We affirm.
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I. BACKGROUND

The facts giving rise to this appeal are set forth in some detail in our opinion in

Kahl’s direct appeal. See United States v. Faul, 748 F.2d 1204, 1208-1210 (8th Cir.

1984). Briefly, in February 1983, a shoot-out erupted in Medina, North Dakota when

United States Marshals attempted to execute a warrant for the arrest of Kahl’s father

Gordon Kahl for a probation violation. Two marshals were killed, and Kahl was

seriously injured. Kahl was later convicted by a jury of two counts of second-degree

murder and lesser charges, and sentenced to life imprisonment. On direct appeal, we

affirmed Kahl’s convictions. See id. at 1223.

In April 1996, Kahl filed a § 2255 motion challenging his conviction. In a

subsequent amended motion, Kahl claimed (1) he was denied counsel while in custody,

in violation of his Sixth Amendment rights; (2) he was denied effective assistance of

counsel; (3) the trial judge was biased against him; (4) he was prejudiced by a juror’s

failure to disclose a personal relationship with a prosecutor; (5) the jury as a whole was

biased; (6) he was prejudiced by prosecutorial misconduct; (7) a deputy United States

Marshal that was a victim of the Kahl shoot-out had improper contact with the jury; and

(8) newly-discovered evidence called into question the outcome of his trial. With

respect to his ineffective-assistance claim, Kahl asserted, inter alia, that counsel failed

to object to prosecutorial misconduct and inadmissible evidence, conduct an adequate

pretrial investigation, present certain evidence and arguments at a suppression hearing,

challenge the validity of the warrant for Kahl’s father’s arrest, pursue disqualification

of the trial judge, and preserve several issues for appeal.

After an initial review pursuant to Rule 4 of the Rules Governing Section 2255

Proceedings, the district court on March 31, 1997, summarily dismissed all of Kahl’s

claims except his claims of ineffective assistance and trial judge bias. After the

government responded to the remaining claims, the district court issued an order on

October 12, 1999 rejecting those claims and dismissing Kahl’s motion. On November
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11, 1999, Kahl filed a notice of appeal. Two days later, through a new attorney, Kahl

filed a motion for leave to file out-of-time a motion for reconsideration and for an

extension of time in which to file such a motion for reconsideration. On November 19,

Kahl filed a motion to withdraw his November 11 notice of appeal, stating that the

notice of appeal had been filed by his earlier attorney without his permission. Kahl

supported his motion with a lengthy declaration recounting the difficulties he had had

with his post-trial representation.

On December 8, Kahl filed a fifty-page document styled a “Motion for

Rehearing of Court’s Memorandum, Opinion and Order Filed March 31, 1997,” which

contained extensive argument and cited new evidence in support of the claims the

district court had summarily dismissed. Also on December 8, Kahl filed a thirty-onepage “Motion for Reconsideration of Court’s October 12, 1999 Order Denying Yorie

Kahl’s § 2255 Motion,” in which he argued the claims the district court had rejected

in its October 1999 order, and requested that the court consider two new issues: (1)

counsel’s failure to object to a jury instruction, and (2) the government’s failure to

disclose the existence of two additional All Points Bulletins (APBs) issued on the day

of the shoot-out that would have corroborated Kahl’s self-defense theory.

On December 13, Kahl filed a second notice of appeal. In a December 23 order,

the district court denied Kahl’s pending motions. The court observed that Kahl’s initial

notice of appeal divested the lower court of jurisdiction, and it thus lacked jurisdiction

to reconsider its earlier rulings. Nevertheless, the court added that even if it had the

power to do so, it would not grant Kahl’s motions for reconsideration, as Kahl’s § 2255

motion had been pending for some three years, giving him ample time to muster his

evidence and arguments. 

Kahl appeals. He has briefed a number of the issues he attempted to present to

the district court by motions for reconsideration, and has abandoned several of the

issues contained in his amended § 2255 motion.
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II. DISCUSSION

We review de novo the district court’s denial of a § 2255 motion without an

evidentiary hearing and will affirm only if the motion, files, and record conclusively

show the movant is not entitled to relief. See Latorre v. United States, 193 F.3d 1035,

1038 (8th Cir. 1999).

As an initial matter, we consider the claims that first appeared in Kahl’s out-oftime motion for reconsideration--filed after his notice of appeal--to be dead on arrival.

See Liddell v. Board of Educ., 73 F.3d 819, 822-23 (8th Cir. 1996) (as general rule,

once notice of appeal is filed, district court has no jurisdiction to reconsider prior

decision); Hagerman v. Yukon Energy Corp., 839 F.2d 407, 414 (8th Cir. 1988) (“A

motion to alter or amend judgment cannot be used to raise arguments which could have

been raised prior to the issuance of judgment.”).

We also reject Kahl’s effort to supplement the record on appeal with some 177

pages of evidence. This court recognizes a “rarely exercised . . . narrow exception” to

the general rule that the appellate record is limited to the record made below. See

Dakota Indus., Inc. v. Dakota Sportswear, Inc., 988 F.2d 61, 63-64 (8th Cir.1993).

However, both the ample time Kahl has had to develop a record since filing his § 2255

motion in April 1996 and the sheer volume of the material that Kahl now seeks to

present suggest that any gaps in the record are due to a lack of diligence on Kahl’s part.

Moreover, our review of Kahl’s Supplemental Appendix does not reveal any material

that we must consider in the interests of justice. Cf. Miller v. Benson, 51 F.3d 166, 168

(8th Cir.1995) (permitting pro se appellant to expand record where appellant did not

learn that district court had not received his motion until after court dismissed

appellant’s case); Dakota Indus., 988 F.2d at 63-64 (permitting supplementation of

district court record where parties had not completed discovery and one party’s

misrepresentation left district court with incomplete record).
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A. Kahl’s statements

Kahl was injured in the February 13 shoot-out when he was shot in the abdomen

with a shotgun. He underwent surgery that day, and woke the following day. Though

he was sedated, he spoke to Special Deputy Sheriff Ronald Perleberg. At 6:00 a.m. on

February 14, Kahl asked to speak to Perleberg in order to tell his story. He was

informed that he did not have to speak, but elected to do so nevertheless. At 9:00 a.m.,

FBI agents read Kahl his Miranda rights, and listened to Kahl’s story. On the morning

of February 21, Kahl again asked to speak to the agents. The agents read Kahl his

Miranda rights a second time, and Kahl again spoke. 

After a hearing that included testimony from Kahl’s physician and two assistant

professors of pharmacy, the district court suppressed Kahl’s February 14 statements,

but declined to suppress his statements of February 16 and 21. The court concluded

the later statements were voluntarily and knowingly initiated and uninfluenced by

coercion or medication. On direct appeal, we affirmed, concluding that Kahl had failed

to show the district court’s factual findings were clearly erroneous, and that “the

totality of the circumstances indicate[d] that the statements were a product of a rational

intellect and a free will.” Faul, 748 F.2d at 1220 (internal quotation omitted).

In denying Kahl’s § 2255 motion, the district court rejected Kahl’s argument that

counsel was ineffective for failing to present his testimony at the suppression hearing,

noting that Kahl had testified at trial, and that his testimony there failed to establish that

his statements were coerced. On appeal, Kahl urges his statements resulted from being

held incommunicado and being denied the opportunity to speak with an attorney, in

addition to other “psychological factors.” He asserts not only that counsel was

ineffective for failing to present his testimony at the suppression hearing, but that we

may not fairly judge the prejudice of that failure by examining his trial testimony on the

issue, as his trial attorney also failed to competently question him on the issue. 
2We note the government presented testimony at the suppression hearing that

Kahl was visited by his sister and received daily visits from a minister.

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Kahl has submitted a supporting declaration in which he presents facts that he

claims his testimony--at trial and at the suppression hearing--should have brought out;

little of it is relevant to the voluntariness of his statements. Much of Kahl’s declaration

consists of his theories regarding the validity of the warrant for his father’s arrest and

allegations that law enforcement officers interfered with his medical care. Kahl also

recounts that he repeatedly asked to use a telephone to contact his family to secure

legal assistance, and repeatedly asked for information about proceedings against him.

Kahl states, however, that he was told that he was not allowed to call, write, watch

television, or read newspapers, and that his only contact could be with the FBI. Kahl

adds that as a result of the powerful pain-killing drugs he was prescribed while

hospitalized, he was physically and mentally exhausted and experienced difficulty

concentrating, and was therefore unable to voluntarily and knowingly waive any rights

or sign any statements.

For Kahl’s ineffective-assistance claim to succeed, he must demonstrate both

that counsel’s representation fell below an objective standard of reasonableness and

that he was thereby prejudiced. See Strickland v. Washington, 466 U.S. 668, 687-88

(1984). Assuming for the sake of argument that counsel’s decision not to present

Kahl’s testimony at the suppression hearing could be characterized as deficient

performance, we believe Kahl’s declaration fails to demonstrate that he was thereby

prejudiced. Even if Kahl had invoked his right to the presence of an attorney, there is

nothing in his declaration that calls into question the district court’s conclusion--upheld

by this court on appeal--that the February 14 and 21 contacts were initiated by the

defendant. Simply stated, Kahl’s isolated hospital stay2 hardly presents the sort of

police-dominated coercive atmosphere that would cause us to doubt the intelligence or

voluntariness of his waiver of his Miranda rights, and our review of the suppression
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hearing record indicates that the issue of Kahl’s physical and mental states was

thoroughly developed through medical testimony. 

Kahl asserts that he was denied his Sixth Amendment right to counsel while in

the hospital because he was not allowed to contact an attorney from the hospital and

because authorities did not permit Gerald LaFountain, a Montana attorney hired by

friends to represent Kahl, to see him in the hospital. In a supporting affidavit,

LaFountain attests that he was hired by M.J. “Red” Beckman to represent Kahl and

codefendant Faul, and that he traveled to North Dakota for this purpose. According to

LaFountain, however, between February 17 and 20, he was twice denied access to Kahl

in the hospital despite presenting himself as Kahl’s attorney. Further, LaFountain

attests that he and an investigator were “constantly followed and harassed by local and

federal law enforcement officials.” (Appellant’s App. at 57.)

We are, from the outset, highly skeptical of Kahl’s claim that his rights were

somehow violated when LaFountain was denied access. Although LaFountain attests

that he considered Kahl to be his client at the time, the record strongly suggests that

LaFountain’s visit was more in the nature of an attempt to solicit Kahl as a client.

Moreover, the Sixth Amendment right to counsel “does not attach until a prosecution

is commenced, that is, at or after the initiation of adversary judicial criminal

proceedings--whether by way of formal charge, preliminary hearing, indictment,

information, or arraignment.” McNeil v. Wisconsin, 501 U.S. 171, 175 (1991) (internal

quotations omitted). The filing of a criminal complaint and the issuance of an arrest

warrant do not constitute the initiation of an adverse judicial proceeding for purposes

of McNeil. See United States v. Moore, 122 F.3d 1154, 1155-56 (8th Cir. 1997). Not

until his preliminary hearing on March 9, 1983 did Kahl’s Sixth Amendment right to

counsel attach; accordingly, his Sixth Amendment claim must fail. See Moran v.

Burbine, 475 U.S. 412, 429-31 (1986) (rejecting Sixth Amendment challenge to

alleged police interference with attorney’s attempts to contact defendant).
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B. Validity of warrant

Kahl argues his attorney rendered deficient performance because he failed to

challenge the validity of the warrant for Gordon Kahl’s arrest. According to Kahl, the

warrant was void on its face because (1) the section of the preprinted form specifying

the officer authorized to execute the warrant was left blank; (2) the warrant was issued

by a clerk of the district court; (3) the complaint accompanying the warrant was not

sworn to; and (4) the warrant had sat idle and unattended for nearly two years before

the attempt to execute it. 

Kahl attacks the validity of the warrant in order to advance his theory that he was

entitled to forcibly resist an unlawful arrest. Assuming for the sake of argument that

the warrant for Kahl’s father was defective, we unequivocally reject Kahl’s contention

that he was therefore entitled to fire upon the officers. 

At common law, a person was permitted to forcibly resist an unlawful arrest, and

third parties were permitted to aid such resistance. See John Bad Elk v. United States,

177 U.S. 529, 534-37 (1900); West v. Cabell, 153 U.S. 78, 86 (1894). However, in

Hodgdon v. United States, we indicated--albeit in dicta--that the common law rule was

no longer good law: “[N]o person should be entitled to resist with deadly force a

marshal operating under color of authority, even though it is later found that no actual

authority existed. Adequate legal protection exists against unlawful searches and

arrests.” 365 F.2d 679, 685 (8th Cir. 1966) (citations omitted). This statement is

consistent with the widespread criticism of the rule and the trend toward its abrogation.

See United States v. Johnson, 542 F.2d 230, 232-33 (5th Cir. 1976) (“We do not need

citizen avengers who are authorized to respond to unlawful police conduct by gunning

down the offending officers.”); see generally State v. Hobson, 577 N.W.2d 825, 834

(Wis. 1998) (noting trend toward abrogation and rule’s elimination from Model Penal

Code); Andrew P. Wright, Resisting Unlawful Arrests: Inviting Anarchy or Protecting
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Individual Freedom?, 46 Drake L. Rev. 383, 388 n.49 (1997) (noting thirty-six states

in which right to resist unlawful arrest has been eliminated).

We find it unnecessary, however, to sort out the rule’s continued vitality in this

circuit, as we are wholly unconvinced that there is a reasonable probability that, but for

the alleged error, the result of Kahl’s trial would have been different. See DeRoo v.

United States, 223 F.3d 919, 925 (8th Cir. 2000) (defining prejudice in ineffectiveassistance context). The common law right to forcibly resist an unlawful arrest permits

only such force as is “absolutely necessary,” Bad Elk, 177 U.S. at 534, and the force

that Kahl seeks to justify plainly exceeds that which was absolutely necessary. Cf.

Government of the Virgin Islands v. Duvergee, 456 F.2d 1271, 1273 (3d Cir. 1972)

(“Bad Elk is not authority for the proposition that unreasonable force may be used in

resisting an unlawful arrest.”); United States v. Angelet, 231 F.2d 190, 193 (2d Cir.

1956) (“[T]he use of ‘reasonable force’ only would have been open to defendants.”).

C. Jury bias

Kahl argues he was denied a fair trial, asserting that a particular juror lied

concerning his relationship to a prosecutor and concealed his existing bias against Kahl.

At voir dire, the juror was asked whether he knew or was related to any of the

attorneys at trial. The juror indicated that he and Assistant United States Attorney

Lynn Crooks had lived in the same small town as children. When questioned further,

the juror denied any social or business relationship, stating that he “just kn[e]w who

[Crooks] is” (Appellee’s App. at 257-58), and that nothing about his relationship with

Crooks would interfere with his ability to be a fair and impartial juror.

Kahl has produced an interview in which another juror in the case states that the

first juror indicated either that Crooks was a friend or that they went to school together.

It is unclear whether this statement refers to statements at voir dire or a subsequent
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statement in some other context. Regardless, this statement is insufficient to establish

that the juror was biased. 

A concealed bias claim based on a juror’s voir dire responses requires a showing

that the challenged juror answered dishonestly, not just inaccurately; that the juror was

motivated by partiality; and that the true facts, if known, would have supported striking

that juror for cause. United States v. Tucker, 137 F.3d 1016, 1026 (8th Cir. 1998).

Even accepting for the sake of argument the tortured inferences Kahl would have us

draw from snippets of comments made long after the actual trial, nothing Kahl has

provided suggests that the juror’s responses at voir dire were dishonest or motivated

by partiality.

Kahl contends that the jury as a whole was biased against him because the voir

dire conducted by the district court was insufficient to counter the pervasive negative

media coverage accorded the Medina incident. On direct appeal, we rejected a similar

challenge to the district court’s denial of a change of venue based on the extensive

publicity given to the incident. After reviewing the voir dire transcript, we concluded

that Kahl had failed to show that the trial setting was inherently prejudicial or that the

jury-selection process permitted an inference of actual prejudice. See Faul, 748 F.2d

at 1213-16.

In his amended § 2255 motion, Kahl argued that subsequent juror interviews

showed that a number of jurors had made up their minds as to his guilt prior to trial.

He also maintained that he had been prejudiced by the district court’s decision to

conduct all voir dire questioning, and to do so in the presence of all prospective jurors.

Kahl cited transcriptions of interviews of two jurors conducted in 1987 and 1990. The

district court concluded that issues concerning pre-trial publicity and voir dire had been

conclusively decided on direct appeal. Moreover, the court rejected Kahl’s effort to

stake an actual bias claim upon the interview statements as barred by Federal Rule of
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Evidence 606(b) (upon inquiry into validity of verdict, juror may testify only on issue

of outside influences or extraneous information).

Although we disagree with the district court that Rule 606(b) necessarily bars

Kahl from using juror testimony to establish juror bias from pretrial media exposure,

cf. Brofford v. Marshall, 751 F.2d 845, 853-54 (6th Cir. 1985), we nevertheless reject

Kahl’s effort to piece together a showing of juror bias using fragments of double

hearsay. At best, Kahl’s submissions present stale innuendo insufficient to persuade

us that the district court abused its discretion in denying Kahl’s motion without

conducting an evidentiary hearing.

D. Improper Juror Contact

Kahl contends his due process rights were violated by improper contact between

the jury and a deputy marshal who was both a victim and a trial witness. Kahl also

argues that counsel was ineffective for failing to raise the issue on appeal. During the

trial, the jury was sequestered in the care of the United States Marshals Service. In

1993, Shauna Faul, the wife of codefendant Scott Faul, signed an affidavit in which she

attested to seeing Wigglesworth “with members of the jury sitting on [the Kahl trial]

getting into a van with softball equipment.” (Appellant’s App. at 61.) Kahl further

complains that the district court, upon being apprized of the contact, resolved the issue

without calling witnesses and without transcribing the in-chambers proceedings.

In a criminal case, contact or communication with a juror during a trial about the

matter pending before the jury is presumptively prejudicial. See Remmer v. United

States, 347 U.S. 227, 229 (1954). “The presumption is not conclusive, but the burden

rests heavily upon the Government to establish, after notice to and hearing of the

defendant, that such contact with the juror was harmless to the defendant.” Id.

According to the affidavit of Ralph A. Vinje, trial counsel for codefendant David Broer,

the defense raised the issue before the district court in chambers. Although Vinje did
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not recall how the defense approached the matter, he attested that in his recollection

Wigglesworth denied having been involved, and the district court resolved the issue in

the government’s favor.

As an initial matter, we disagree with Kahl that the in-chambers discussion was

required to be transcribed under 28 U.S.C. § 753(b). Recording of criminal

proceedings not held in open court is left by § 753 to the discretion of the district court.

See United States v. Hein, 769 F.2d 609, 610 (9th Cir. 1985). Where an untranscribed

proceeding is to be at issue on appeal, Federal Rule of Appellate Procedure 10(c)

provides a mechanism by which an appellant can attempt to reconstruct a record.

Despite waiting more than ten years after his conviction became final to file his § 2255

motion, Kahl has made no effort to follow the Rule 10(c) procedure, and Vinje’s

affidavit--signed nearly ten years after the trial--provides only the barest sketch of the

district court’s resolution of the issue. Accordingly, our review of the issue is severely

circumscribed.

What we know about the district court’s handling of the issue is that the parties

were given an opportunity to be heard on the alleged contact, that the district court

apparently heard testimony from Wigglesworth, and that it resolved the issue in the

government’s favor. All this is wholly consistent with Remmer. On this record, we

find it impossible to conclude that trial counsel’s failure to appeal the issue was an

unprofessional error, much less that Kahl was thereby prejudiced. While we are

certainly troubled by the evidence suggesting that Wigglesworth engaged in a game of

softball with the jurors, we disagree that this necessarily rose to the level of a violation

of Kahl’s due process rights. There is no evidence of “a continuous and intimate

association” on the order of that in Turner v. Louisiana, 379 U.S. 466, 473 (1965), and

no evidence that would lead us to believe that the government could not have met its

burden under Remmer to show that the contact was harmless. Simply put, the record

is insufficient to determine whether the district court’s handling of the issue was

improper, and we decline to engage in a presumption to that effect.
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E. Kahl’s Gun

Kahl raises a number of claims for relief based on alleged prosecutorial

misconduct, all of which the district court rejected. Only one of these issues merits

discussion. Kahl asserts the government purposefully withheld Kahl’s gun until the

trial was nearly concluded. In the same vein, Kahl contends the district court’s

handling of the issue was improper. Shortly before the end of Kahl’s closing argument,

FBI agents acting on an anonymous tip found Kahl’s pistol in a parking lot in Fargo.

The district court refused to declare a mistrial, and, with the consent of Kahl’s

attorney, the government introduced the pistol into evidence along with an explanation

as to its sudden appearance. The government stipulated that a bullet lodged in the

pistol’s handle was not of the caliber fired by Gordon Kahl and his associates during

the shootout. The district court did not allow Kahl to reopen his case or to give

additional argument on the matter, but permitted counsel for codefendant Joan Kahl to

argue on Kahl’s behalf that the gun corroborated Kahl’s testimony. 

On direct appeal, Kahl challenged the admission of the gun, but on other

grounds. We concluded that the gun had served only to corroborate the defendants’

testimony, and that the district court had acted properly in the face of “an obvious

attempt at trial manipulation.” Faul, 748 F.2d at 1218. 

Kahl’s present arguments about the gun add little to the issue, given the absence

of any evidence in the record to support his accusation that the government withheld

the gun. Moreover, the district court’s response to the discovery of the gun was well

within its discretion, and Kahl’s attempts to construct constitutional errors around it are

meritless. Cf. Birt v. Montgomery, 725 F.2d 587, 593 (11th Cir. 1984) (“At some

point, [the right to counsel of choice] must bend before countervailing interests

involving effective administration of the courts.”)

F. Judicial bias/misconduct
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Kahl raises several claims directed at the conduct of the district judge who

presided over Kahl’s trial, many of which are recycled from elsewhere in his brief and

do not require additional discussion. With respect to his claim of judicial bias, the

Supreme Court has made clear that “opinions formed by the judge on the basis of facts

introduced or events occurring in the course of the current proceedings, or of prior

proceedings, do not constitute a basis for a bias or partiality motion unless they display

a deep-seated favoritism or antagonism that would make fair judgment impossible.”

Liteky v. United States, 510 U.S. 540, 555 (1994). Suffice it to say that Kahl’s

arguments for disqualification neither constitute reasonable bases to question the

district judge’s impartiality, see 28 U.S.C. § 455(a), nor meet the Liteky standard.

III. CONCLUSION

For the forgoing reasons, we affirm the judgment of the district court denying

Kahl’s § 2255 motion. Kahl’s motion to supplement the record is denied.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.