U.S. v. Lovern, 061402 FED4, 01-4728

Docket Nº:01-4728
Party Name:U.S. v. Lovern
Case Date:April 05, 2002
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit




No. 01-4728


Argued: April 5, 2002

June 14, 2002

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Claude M. Hilton, Chief District Judge; Robert E. Payne, District Judge. (CR-00-75)

Argued: Robert James Wagner, Assistant Federal Public Defender, Richmond, Virginia, for Appellant.

Kenneth Lee Westnedge, Jr., Student Counsel, Sara Elizabeth Flannery, Special Assistant United States Attorney, Richmond, Virginia, for Appellee.

ON Brief: Frank W. Dunham, Federal Public Defender, Richmond, Virginia, for Appellant. Paul J. McNulty, United States Attorney, Richmond, Virginia, for Appellee.

Before Widener and Williams, Circuit Judges, and Walter K. Stapleton, Senior Circuit Judge of the United States Court of Appeals for the Third Circuit, sitting by designation.

Affirmed by published opinion. Judge Williams wrote the opinion, in which Judge Widener and Senior Judge Stapleton joined.


Williams, Circuit Judge

William Lovern appeals his conviction under 26 U.S.C.A. § 7212(a) (West 1989), for impeding, intimidating, or obstructing an employee of the United States acting in an official capacity under Title 26 of the United States Code. Lovern claims that he did not make a "threat" satisfying § 7212's requirements and that the employee he was charged with threatening was not acting pursuant to any authority granted under Title 26. Because we conclude that Lovern's statements were attempts to intimidate a United States employee within the scope of § 7212(a) and that the employee in question was performing a duty under Title 26, we affirm.


Beginning in 1998, Lovern repeatedly called the Richmond, Virginia office of the Internal Revenue Service (IRS) to complain about his taxes. Lovern voiced a variety of complaints in his calls, including his belief that a tax levy of over $300,000 had been wrongly placed by the IRS on certain of his assets. Eventually, IRS officials in the Richmond office instructed Lovern not to call there anymore, referring him instead to the Richmond office of the Treasury Inspector General for Tax Administration (TIGTA). Thereafter, Lovern regularly called TIGTA. Because of the perceived threatening nature of some of Lovern's calls, TIGTA made the decision in June of 1999 to record incoming calls from him.

During a call Lovern made to the Richmond office of TIGTA on July 15, 1999, Lovern spoke to Special Agent Charles Venini of TIGTA. The Government entered a recording of the call into evidence at trial and played the call for the jury. The following exchanges occurred during the conversation between Lovern and Venini:

Venini: You are to write a letter to [the Deputy Director of the IRS for Virginia] in reference to all IRS tax issues that you have. The IRS will not accept any phone calls from you.

Lovern: Oh, you don't have a choice, because I'm going to shove it right up you [sic] ass.

Venini: Ok.

Lovern: And the day you lay down your badge, I'm going to be standing there.

Venini: Ok.

Lovern: Thank God you have a badge, son.

Lovern: Now, Chuck, you take your quote instructions and stick 'em where the sun don't shine.

Venini: Ok.

Lovern: Because you have no authority.

Venini: All right. You are aware of what I just told you, right.

Lovern: No, I am aware of nothing.

Venini: Ok.

Lovern: I am aware of nothing, because you have no authority.

Venini: Would you like for me to repeat it again?

Lovern: No, because you have no authority. When it comes to my personal taxes, you have no authority.

Venini: I didn't say anything about your personal taxes.

Lovern: That's exactly what this is all about my personal taxes.

Venini: Ok.

Lovern: That's the only [thing] about [it] Chuck and if you tortuously interfere with my personal business again I am going to forget you are wearing a badge. J.A. at 312-14.

Lovern was first indicted on February 23, 2000 in the Eastern District of Virginia. He was charged initially with three misdemeanor counts of violating § 7212(a), which generally prohibits impeding, intimidating, or obstructing a United States employee in the performance of official duties under Title 26. The Government subsequently filed three superseding indictments, the last of which charged nine counts, including bank fraud, conspiracy to commit bank fraud and wire fraud in addition to the § 7212(a) violations. Lovern moved to dismiss the counts charging § 7212(a) violations on the ground that the government employees identified in the indictment were not acting in an official capacity under Title 26, as § 7212(a) requires. The trial court denied Lovern's motion but severed the counts charging § 7212(a) violations from the remainder of the indictment. A trial proceeded on those counts.(FN1)

The jury found Lovern not guilty of all counts save one, the count charging him with a § 7212(a) violation in connection with the conversation referenced above. Lovern was sentenced to time served(FN2) and a special assessment of $25. He timely noted this appeal.


Lovern raises two principal arguments on appeal. First, he claims the district court erred in denying his motions to dismiss the indictment and at the close of trial for a directed verdict in his favor on the ground that Venini was not acting in an official capacity under Title 26 at the time of the exchange in question. Second, he claims the district court erred in instructing the jury that Venini was acting in an official capacity under Title 26 because that is an element of a § 7212(a) offense, and therefore, is to be found by the jury.(FN3) We address these arguments in turn.


Section 7212(a) states that "[w]hoever corruptly or by force or threat of force (including any threatening letter or communication) endeavors to intimidate or impede any officer or employee of the United States acting in an official capacity under this title . . ." shall be guilty of a crime. 26 U.S.C.A. § 7212(a) (West 1989). Lovern asserts that Venini, a Special Agent in TIGTA's Richmond office, was not and indeed could not have been "acting in an official capacity under [Title 26]" when Lovern threatened him. He points out that the primary source of TIGTA's authority is Title 5, which gives TIGTA agents the authority to protect IRS employees from threats and investigate any such threats. See 5 U.S.C.A. app. 3 § 8D(k)(1)(C) (West Supp. 2001) (stating that TIGTA "shall be responsible for protecting the Internal Revenue Service against external attempts to corrupt or threaten employees of the Internal Revenue Service"). Thus, Lovern contends, Venini was acting in an official capacity during the July 15 conversation, but not an official capacity under Title 26.

Lovern is correct that much of TIGTA's authority is derived from Title 5. Under 26 U.S.C.A. § 7803(d)(3)(B), however, TIGTA is required to "establish...

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