U.S. v. Faul
| Decision Date | 03 January 1985 |
| Docket Number | Nos. 83-1912,s. 83-1912 |
| Citation | 748 F.2d 1204 |
| Parties | 16 Fed. R. Evid. Serv. 855 UNITED STATES of America, Appellee, v. Scott FAUL, Appellant. UNITED STATES of America, Appellee, v. Yorie Von KAHL, Appellant. UNITED STATES of America, Appellee, v. David Ronald BROER a/k/a David Ronald Brewer, Appellant. to 83-1914. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Warren C. Sogard, Fargo, N.D., Irvin B. Nodland and Ralph A. Vinje, Bismarck, N.D., for appellant.
Lynn E. Crooks, Asst. U.S. Atty., Fargo, N.D., for appellee.
Before LAY, Chief Judge, ROSS and FAGG, Circuit Judges.
The appellants, Scott Faul, Yorie Kahl and David Broer were indicted by a grand jury for their involvement in a shootout that occurred on February 13, 1983, on the outskirts of Medina, North Dakota. Two U.S. Marshals were killed during the incident, and one injured. One county sheriff and one city police officer were also injured.
Faul and Kahl were each charged with two counts of first degree murder; four counts of assaulting United States Marshals and other law enforcement officers assisting them; one count of conspiring to assault; and one count of harboring and concealing a fugitive. The jury found them not guilty of first degree murder, but guilty of the lesser included offense of second degree murder, and guilty of the remaining charges.
Broer was not indicted for murder, but was indicted on the assault, conspiracy, and harboring charges. He was acquitted of the substantive assault charges, but was convicted on the conspiracy and harboring counts.
The district court 1 imposed identical sentences on Faul and Kahl; two concurrent life terms for the second degree murder convictions, and concurrent ten year sentences on each of the four assault charges to run consecutively with the life terms. Both appellants were also given a five year consecutive sentence for the harboring offense, and a five year term, to run concurrently with all other terms, on the conspiracy charge. Broer was given two consecutive five year terms for the harboring and conspiracy offenses. The defendants appeal their convictions pursuant to 28 U.S.C. Sec. 1291 (West Supp.1984). For the reasons stated herein we affirm the convictions.
The events that led to the convictions of the appellants are essentially as follows: In 1977 Gordon Kahl was convicted on two counts of failing to file income tax returns. After a period of incarceration he was placed on probation. In July of 1980 he was summoned to appear in federal court on a probation violation charge, but refused to do so. A warrant was subsequently issued, followed by several unsuccessful attempts to arrest Kahl.
On February 10, 1983, an all points police bulletin was issued throughout North Dakota based upon information that Gordon Kahl was headed toward Minot, North Dakota. The bulletin described a vehicle which belonged to Scott Faul, although he was not specifically named. The essence of the bulletin was that a federal warrant was outstanding for Kahl's arrest, and that he was wanted by the United States Marshals Service.
On Sunday, February 13, 1983, Gordon Kahl, Scott Faul, Yorie Kahl, David Broer and others assembled at the Medina Medical Clinic in Medina, North Dakota. Shortly before 3:00 p.m., Stutsman County Deputy Sheriff Bradley Kapp, who was aware of the all points bulletin and knew Kahl's identity, observed a vehicle at the clinic which he believed to be associated with Kahl. Kapp informed the Deputy United States Marshal of his belief that Kahl was attending a meeting at the clinic. Kapp was requested by the Deputy Marshal to keep the clinic under surveillance. Arrangements were made for Deputy Marshals Robert Cheshire and James Hopson, from Bismarck, to meet with Marshal Kenneth Muir and Deputy Marshal Carl Wigglesworth, from Fargo, at Medina.
While waiting for the teams of marshals to arrive, Kapp kept the clinic under surveillance. Late in the afternoon Gordon Kahl, Scott Faul, Yorie Kahl and Joan Kahl left the clinic. Kapp observed them come out the north door and enter the Kahls' Chrysler station wagon, which was parked on the north side of the clinic. At that time Gordon Kahl was wearing a blue baseball cap and a bright blue windbreaker. The three men in the group all had weapons which Kapp believed to be Ruger mini-14s, which are .223 caliber rifles. Yorie Kahl pointed in Kapp's direction so as to give the impression that the surveillance had been detected. After a short time Faul and the Kahls went back into the clinic. Shortly thereafter, they came out of the clinic and moved the Kahl vehicle out of Kapp's view.
A discussion took place in the clinic involving Gordon Kahl, Scott Faul, Yorie Kahl, David Broer and others as to what should be done. David Broer decided to call Police Chief Graf and make inquiries of him concerning the all points bulletin which he had learned of from Graf two days earlier. Two separate phone calls were made by Broer to Graf, and the contents of the all points bulletin were confirmed. Someone then suggested that the surveillance of the clinic should be tested. It was decided that Yorie Kahl and his father, Gordon, should change clothing. Yorie put on his father's blue windbreaker and Gordon put on his son's brown ski jacket. When the group was ready to leave, David Broer suggested that Gordon Kahl should leave in Broer's vehicle. Vernon Wegner, who had come to the meeting with Broer, was instructed by Broer to ride in the Kahl Chrysler station wagon.
Shortly before the vehicles left the clinic the marshals from Bismarck and Fargo met in Medina. It was decided that Marshal Muir and Deputy Marshal Wigglesworth would go north of town to set up a roadblock, and that Deputy Marshals Cheshire and Hopson would meet up with Kapp.
The Broer vehicle left the clinic first with Broer driving and Gordon Kahl as a passenger. The Kahl vehicle followed with Yorie Kahl driving, Joan Kahl in the front seat, Scott Faul and Vernon Wegner in the rear. Both vehicles proceeded in a westerly direction through town and turned north toward where the marshals had set up their roadblock.
As the vehicles crested a small hill immediately outside of Medina, they observed the marshals' roadblock. Officer Schnable, a local law enforcement officer, had already activated the red light on top of his vehicle. Both subject vehicles pulled into a driveway. Marshal Muir saw the vehicles pull into the driveway and by radio alerted Deputy Marshal Cheshire, who had not yet crested the top of the hill. Muir and Schnable began moving their vehicles toward the defendants' vehicles. At about the same time Cheshire activated a flashing red light on the dash of his car. Broer attempted to back out of the driveway and return south, but was cut off by Cheshire.
Yorie Kahl and Scott Faul immediately got out of their car with mini-14 rifles and pointed them at the marshals. Yorie Kahl ran to a utility pole fifty to sixty feet away. Gordon Kahl likewise immediately got out of Broer's vehicle with his mini-14 rifle and pointed it at the officers. Almost simultaneously Deputies Cheshire and Hopson got out of their car and told the defendants to lay down their guns. Shortly after the initial stop the marshals announced that they were there to arrest Gordon Kahl.
After remaining beside the Kahl station wagon for two or three minutes, Scott Faul ran toward a mobile home, approximately 150 feet away. Marshal Hopson radioed to Muir that Faul was running toward the mobile home. Marshal Wigglesworth then left the Muir vehicle and ran into the pasture in an attempt to head off Faul.
Marshal Hopson again announced that they were there to arrest Gordon Kahl. Someone shouted "Look out behind you" and seconds later the shooting started. Kapp and others testified that the first shot came from the direction of Yorie Kahl by the utility pole. Kapp stated that this shot hit Cheshire; he could see blood on Cheshire's chest. Kapp actually saw Yorie Kahl fire the second shot. Kapp immediately returned fire at Yorie Kahl with his shotgun. He believed he missed him on the first shot but hit him on a later shot. Before Marshal Muir was killed he also fired at and hit Yorie Kahl. Kapp testified that he was turning in the direction of Gordon Kahl when he himself was shot.
Shortly before the shooting started, Deputy Marshal Wigglesworth confronted Faul at a distance of approximately 100 yards behind the mobile home, announced he was a United States Marshal, and ordered Faul to throw down his rifle. Instead, Faul returned to the corner of the mobile home and began firing. Six shell casings were found at the corner of the mobile home which matched Scott Faul's rifle.
During a momentary lull in the firing three people in the mobile home looked out the window and saw Scott Faul run from the mobile home to the utility pole where Yorie Kahl was lying injured. These witnesses observed both Scott Faul and Gordon Kahl aim their rifles at the fleeing Bradley Kapp. They saw Scott Faul assisting Yorie Kahl back toward the vehicles. They then observed a man approach Cheshire and fire two shots at him at point-blank range. Although the witnesses initially identified Faul as the executioner, it was subsequently determined that he had not fired the shots, and that in all likelihood, Gordon Kahl had executed Marshal Cheshire.
Meanwhile, Scott Faul assisted in loading Yorie Kahl into Officer Schnable's police car. Faul left the scene in the police car, followed by Gordon Kahl and his wife in the Kahl Chrysler station wagon, and Broer and Wegner in Broer's vehicle. The evidence showed that Broer did not participate in the shootout. The confrontation lasted approximately ten minutes; the total time of the shooting was estimated as taking less than one minute.
Scott Faul and Gordon Kahl returned to the clinic to seek medical attention for ...
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