United States v. Varani, 20228.

• Decision Date: 04 December 1970
• Docket Number: No. 20228.,20228.
• Citation: 435 F.2d 758
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Reno VARANI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

435 F.2d 758 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Reno VARANI, Defendant-Appellant.

No. 20228.

United States Court of Appeals, Sixth Circuit.

December 4, 1970.

James E. Wells, Detroit, Mich., for appellant.

Ralph B. Guy, Chief Asst. U. S. Atty., Detroit, Mich., James H. Brickley, U. S. Atty., Detroit, Mich., on the brief for appellee.

Before PHILLIPS, Chief Judge, and EDWARDS and BROOKS, Circuit Judges.

EDWARDS, Circuit Judge.

Appellant was named in an indictment wherein the Grand Jury charged:

"That on or about January 10, 1969, in the Eastern District of Michigan, Southern Division, Reno P. Varani, defendant herein, did by threats of force, endeavor to intimidate and impede Samuel M. Ginsberg, sic an officer of the Internal Revenue Service, Department of the Treasury, while the said Samuel M. Ginsberg sic was acting in an official capacity under Title 26, United States Code; in violation of Section 7112(a) 7212(a), Title 26, United States Code."

After a stormy trial before a District Judge and jury in the United States District Court for the Eastern District of Michigan, he was found guilty by jury verdict and sentenced to one year of imprisonment, which sentence was subsequently suspended in favor of two years' probation.

On appeal appellant contends that the letter principally relied upon by the government at trial did not constitute "force or threats of force" within the meaning of the statute; that the appellant was denied a right to his chosen counsel, and, hence, forced to represent himself to his prejudice, and that reversible error occurred during the course of the trial as a result of prejudicial conduct on the part of the trial judge and prejudicial argument by the United States Attorney who tried the case.

Appellant also contends that 26 U.S.C. § 7212(a) (1964), as interpreted by the District Judge in his instructions to the jury, is unconstitutional.

This case has a lengthy record, but on careful examination of same it appears to afford only one arguable appellate issue, which we have stated last in the list above.

Indignant taxpayers are by no means novel in the federal appellate courts, but Mr. Varani's indignation about his tax problems appears to exceed that of any taxpayer in the recent history of this court. The merits of Varani's tax problems, of course, were not before the District Court and are not now before us.

In 1965 appellant filed a blank income tax return. Thereupon Mr. Samuel Ginsburg, a collection officer for the Internal Revenue Service, was assigned to contact appellant to secure a delinquent 1965 income tax return. This apparently was accomplished in January 1967, but the record indicates that appellant filed a similar blank return in 1966 and that Ginsburg was again assigned to contact him. Ginsburg's testimony about his next contact with appellant is as follows:

"Q Will you tell us what transpired during that telephone conversation in December of 1967?

"A Well, on December 18, 1967, I called Mr. Varani and I asked him once again whether he would file his 1966 income tax return with me. And he said — he stated he will not file another return for the year 1966. Then he proceeded to give me a lecture on Americanism and then he made this final statement: If I try to seize his property — I\'m quoting: `I\'m an expert rifleman and I\'ll blow your head off.\'"

Ginsburg meantime had received a taxpayer delinquent account pertaining to appellant for income taxes due for 1963, and after some difficulty, arranged to meet appellant at a bowling alley on January 7, 1969. Pertaining to this meeting, which occurred in the presence of four or five other persons, Ginsburg testified as follows:

"A I told him my mission is only to discuss the payment of the assessment.

"Q Were any gestures made of any sort during that meeting?

"A Yes, sir.

"Q What would that be, sir?

"A He made a fist and he stuck it up right in front of my nose. I\'d say about a half inch or inch from it.

"Q Was there any mention made of —

"A Pardon? I didn\'t hear you.

"Q Was any mention made of weapons of any sort?

"A Oh, yes, sir. He said, `I\'m an expert rifleman and I\'m going to get you.\'"

Thereafter on the next day appellant wrote Ginsburg a letter which was introduced as Government's Exhibit 23, and which recited as follows:

"R. P. Varani 19110 Nadol Southfield, Michigan January 8, 1969 "Infernal Revenue Service 16480 Woodward Avenue Highland Park, Michigan 48203 Attention: Samuel M. Ginsburg Revenue Officer International Agent NEA — GR. No. 6 Refer — Form L-25

"To Whom It May Concern:

"Your perverted and repeated attempts to exort alleged tax liabilities simply proves that you have lost your self-respect and are subjecting American citizens to the treachery and tyranny of communist masters. Yesterday, January 7, 1969, you and your three cohorts showed your true colors. Your inordinate fear of a tape recorder and flat refusal to allow our conversation to be recorded is ample evidence of your inability to face up to the truth.

"My answer to your notice of January 7, 1969, to seize my property or rights to property, including salary, wages, commissions, bank accounts or receivables is NUTS!!!

"Let me quickly say in plain english — any force used to seize my property will be met with a superior force. I have more respect and prefer fighting an honest enemy, such as the Nazis I fought in W.W. II, than treacherous parasites of the I.R.S.

"During W.W. II I was an infantryman with the illustrious 104th. Timberwolf Division, an expert rifleman, who took battalion honors in competitive shooting. Yet, I never killed a Nazi. One time I had a German soldier in my sights, took dead aim, took up the slack of my trigger, held my breath and began squeezing the trigger and stopped just in time to save the taking of a life needlessly. You see this poor soldier was not threatening my life or the life of any of my buddies. He was running in the opposite direction as fast as his legs could carry him.

"I have lost all respect for the I.R.S. and consider you a treacherous enemy worst than the Nazi\'s. I have an itchy trigger finger more deadly than when I was over-seas. By the Grace of God I am in excellent physical shape and I want to fight you so bad — I can taste it! However, I am a Christian and therefore in good conscience I cannot resort of deceit or treachery. It is only a matter of time — I hope — when more of my fellow Americans will join me and we will make quick work of the sniveling traitors and cowards who under false pretenses are perverting the U. S. Constitution.

"The U. S. Constitution is the supreme law of the land and guarantees maximum liberty with a minimum of restraint. It is the finest blue print for government ever conceived by the mind of man. It is worth fighting for and worth dying for.

"Now for your own well being I must insist that you write me a letter before January 15, 1969. You must declare that you, Samuel M. Ginsburg, will not become personally involved, alone or with others in an effort to seize my property. In the event you fail to write such a declaration and members of the I.R.S. attempt to seize my property, I will hold you, Samuel M. Ginsberg, personally responsible. I will swear out a warrant for your arrest and charge you with violating Sections, 243, 371, 1001, 2381, 2382, 2384 and 2385, Title 18, United States Criminal Code, and the Constitution of the United States of America, and Michigan State Statute 28-410. I will then hunt you down and use what ever force necessary to handcuff you and haul you off to jail in accordance with Sections 764.15, 764.16, 764.17, 764.20, 764.21, 764.22, 764.23 and 764.24 of Code of Criminal Procedure (Ch. 4) Statutes of State of Michigan, a copy of which is enclosed. (Emphasis added.)¹

"For God and Country "/s/ R. P. Varani "Encl. RPV/ds"

Enclosed with this letter were the Code sections of the Michigan Statutes dealing with a citizen arrest referred to in the last paragraph of the letter. Subsequent to receipt of this letter Varani was indicted. Pertaining to one of the trial days, Ginsburg testified:

"Q Did Mr. Varani have any conversation with you this morning, sir?

"A Yes, sir, he did.

"Q Who initiated that conversation?

"A Mr. Varani did.

"Q Where were you seated at that time, sir?

"A I was seated in the last row on the side.

"Q Where was Mr. Varani at that point?

"A Mr. Varani was in front of me and he pointed a finger at me.

"Q Did you have any conversation or did Mr. Varani say anything about the letter which has been received as Government Exhibit 23, sir?

"A

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