U.S. v. Streich
| Decision Date | 08 May 1985 |
| Docket Number | No. 84-1228,84-1228 |
| Citation | 759 F.2d 579 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Charles P. STREICH, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Ted S. Helwig, Asst. U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, Ill., for plaintiff-appellee.
Andrew B. Spiegel, Chicago, Ill., for defendant-appellant.
Before CUMMINGS, Chief Judge, and WOOD and ESCHBACH, Circuit Judges.
Charles P. Streich appeals his convictions for assaulting two IRS revenue officers and three IRS special agents with a dangerous weapon in violation of 18 U.S.C. Sec. 111 and for possessing an unregistered firearm in violation of 26 U.S.C. Sec. 5861(d).
In January, 1983 IRS Revenue Officer Mary Janic received the assignment of collecting a $500 penalty assessed against Charles P. Streich for filing an allegedly false W-4 Form. On January 28, 1983, she went to Streich's residence in Elwood, Illinois and spoke with him about the money owed. Streich said he did not owe any money and refused to pay.
Janic proceeded to investigate Streich's assets and to file a federal tax lien on one of his two motor vehicles, a Ford Cherokee jeep. On May 9, 1983, Janic mailed Streich a "10-day-letter" informing him that if he did not pay the $500 penalty within ten days Janic would enforce the tax lien.
Streich received the letter on May 11 and responded on May 21 or 22 with a letter to Janic from one Paul Bell, leader of the Belanco Religious Order, a tax protesting group of which Streich was a member. The letter stated that Streich did not have enough income to be required to file a tax return and that further action by Janic to recover the $500 could be considered a violation of Illinois state extortion and grand theft laws as well as federal law prohibiting a federal officer from using his office to extort from or willfully oppress another under color of law, knowingly demanding other or greater sums than authorized by law, or making fraudulent statements, 26 U.S.C. Sec. 7214(a)(1), (2), (7) (1982). The letter also requested a letter of apology from Janic and urged her to repent of her sinful ways by turning to Christ and giving up her job as Matthew did, and by restoring fourfold any monies she had taken under false pretenses as Zacchaeus is reported to have done in Luke 19:8. Enclosed with the letter were several printed Belanco articles written by Paul Bell espousing a belief in the unconstitutionality of federal and state income tax laws.
On the 11th day following the date of the "10-day-letter," Janic, accompanied by several other IRS agents, went to Streich's home to ask him to consent to their taking the Cherokee jeep to satisfy the penalty. No one answered the door and the agents left. Janic then obtained an order, dated June 10, 1983, to enter the premises for the purpose of seizing the levied jeep.
On June 14, 1983, around 1:45 P.M., Janic, her manager, three IRS special agents, and a private towing truck operator went to Streich's home to seize the jeep. There were two vehicles in Streich's driveway and the agents parked behind the 1979 Cherokee jeep which was to be seized.
As they arrived, Mrs. Streich was loading puppies into the jeep. Janic identified herself and showed Mrs. Streich her credentials. Mrs. Streich began removing the puppies from the jeep and one of the Streich children went inside the house to get Mr. Streich.
Mr. Streich came out of the house. He asked Janic if she had received his letter. Janic identified herself, showed Streich her credentials, and told him that if he did not pay the $500 his Cherokee would be seized. Janic then attempted to hand Streich copies of the papers showing her authority to seize the jeep. After initially refusing, Streich took the papers and went inside. Streich returned from the house with a camera and took fifteen or twenty pictures. Janic put a seizure sticker on the back window of the jeep. Streich told his wife that he had called the Posse Commitatus and that "Sam," apparently a reference to Santos Flores, was on his way.
Streich retreated into his home once again and came back out to tear the seizure sticker off the Cherokee and to tell the agents that they were not going to take his property. Streich went back inside the house and the tow truck began hooking up to the Cherokee. Streich emerged from the house again, this time brandishing a gun. There is conflicting testimony as to whether Streich pointed the gun directly at the IRS officers. In any event, Streich "swept the field" with his gun, as he explained, pointed toward the ground as he had been trained to do in the Navy to control riots. Streich told the agents to back off and that they were not going to take his jeep. The agents then waved the tow truck away and returned to their car. Streich followed them to the street with his gun about eight feet away from them. The agents left the premises without the Cherokee.
At some point after the agents arrived and before they left, Streich's four-year-old son, John, developed a bloody nose. John had a history of bloody noses and neither Mr. nor Mrs. Streich knew exactly when or how he got this one.
That same day, after the IRS agents left, four Will County deputy sheriffs came to Streich's house in response to calls by some of Streich's neighbors who noticed the incident in front of Streich's home. Streich first told the deputy sheriffs that there had been no disturbance; then he told the deputies that some repossessors from a Ford dealership had tried to repossess his car and that he had run them off with a gun.
The deputies asked to see the gun Streich had used and a firearms owner's identification card. Streich refused to bring the gun outside but did show the gun to the deputies through the front-door window. One of the deputies copied down the serial number of the gun, but Streich never allowed any of the deputies to touch the gun. Streich had a firearms owner's identification card and the deputies determined that the gun was not stolen, so they let Streich keep the gun.
The next day, June 15, 1983, two federal warrants issued concerning Streich: one for his arrest and the other to search his home for the gun he had used the day before. Streich was arrested on June 16 outside his home without incident. The search warrant was never executed because one of Streich's friends, a Mrs. Flores, returned the gun to Streich's house and gave it to an IRS investigator. Streich had given the gun to Mrs. Flores's husband, Sam, on June 14, 1983, the day of his altercation with the IRS agents.
The gun Flores turned over is an AR-15 rifle, a civilian model of a military M-16 rifle. An AR-15 can fire in a semi-automatic mode. An M-16 can fire in a fully automatic mode, meaning that with one pull of the trigger multiple shots are fired until the trigger is released. There are numerous ways of converting an AR-15 to an M-16 and the parts for doing so are readily available to the public. At trial Streich testified that he was a member of a gun club, had seen manuals on how to convert an AR-15 to an M-16, and knew where to get the parts to complete a conversion.
On June 21, IRS Investigator Niezgoda took the gun to the local Bureau of Alcohol Tobacco and Firearms ("BATF") office for testing. BATF Special Agent Douglas Moore was the first person to examine the weapon. Niezgoda dictated a memo on June 21, 1983 which states that Moore's examination of the gun indicated that the gun needed two additional parts, an M-16 bolt and either an M-16 sear or a drop-in auto sear to be capable of fully automatic fire. It is unclear from the record what kind of test or examination Agent Moore performed. 1
On the same day a second local BATF official, Michael VanAmburgh, a BATF criminal investigator, examined the gun after Moore. VanAmburgh did a "standard undercover field test" to determine if the gun could function in a fully automatic mode. VanAmburgh uses the "standard undercover field test" when he works undercover and is attempting to determine if someone is trying to sell him an automatic weapon. From that test he determined that the "weapon very possibly would operate in a fully automatic mode."
The next day, June 22, Niezgoda and VanAmburgh went to the Bolingbrook, Illinois Police Department where VanAmburgh test-fired the gun on the police range. The gun fired more than one round with a single pull of the trigger. After this test-firing, VanAmburgh told Niezgoda that he thought the gun was firing in a fully automatic mode.
VanAmburgh then telephoned James Cain, a gun expert at the National Laboratories of the United States Treasury BATF in Washington to discuss the gun and the testing. In accordance with Cain's suggestion, VanAmburgh performed another test on the gun on June 23. This test-firing was videotaped and shown to the jury at trial. In this test the gun fired several rounds with one pull of the trigger on several occasions. Following this test by VanAmburgh, Niezgoda sent the gun to James Cain for further testing. Agent Cain tested the gun and filed a report stating that it was capable of firing in an automatic mode.
On this appeal, Streich raises several challenges to his convictions for assault on a federal officer with a dangerous weapon and possession of an unregistered fully automatic weapon. He challenges his assault conviction on grounds that the IRS officers and special agents were not engaged in the performance of their official duty when they attempted to seize his jeep; that the trial judge committed reversible error in refusing to allow Mrs. Streich to answer two questions about incidents in the neighborhood prior to the alleged assault; and that the judge committed reversible error in refusing to define willful in his jury instruction. Streich challenges his conviction for possession of an unregistered firearm on grounds...
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