                    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.




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

                                           -2-
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-one-
page “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.

                                           -3-
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-of-
time 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).


                                           -4-
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.


                                             -5-
        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



      2
      We note the government presented testimony at the suppression hearing that
Kahl was visited by his sister and received daily visits from a minister.

                                           -6-
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).


                                          -7-
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


                                           -8-
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 ineffective-
assistance 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

                                           -9-
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


                                          -10-
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

                                          -11-
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.

                                           -12-
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

                                           -13-
       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.




                                          -14-
