PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 01-4728

WILLIAM MICHAEL LOVERN, a/k/a

Michael Lovern, Sr.,

Defendant-Appellant. 

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: April 5, 2002

Decided: June 14, 2002

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. 

COUNSEL

ARGUED: Robert James Wagner, Assistant Federal Public

Defender, Richmond, Virginia, for Appellant. Kenneth Lee West-
nedge, 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. 

OPINION

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. 

I.

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

2 UNITED STATES v. LOVERN
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? 

UNITED STATES v. LOVERN 3
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.1

1The Government subsequently superseded the remaining (non-

§ 7212(a)) charges in the nine-count indictment with an eighteen-count

indictment, which included charges of bank fraud, conspiracy to commit

bank fraud, wire fraud, and money laundering. All of these counts were

eventually dismissed. 

4 UNITED STATES v. LOVERN
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 served2

 and

a special assessment of $25. He timely noted this appeal. 

II.

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.3 We

address these arguments in turn. 

A.

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

2Lovern was released on bond after being indicted initially, but violated the terms of his bond by calling TIGTA. The district court thereafter ordered him detained until trial. 

3Lovern also argues that his conviction should be reversed because he

did not attempt to impede, intimidate, or obstruct Venini within the

meaning of § 7212(a). Any "threats" he made during the conversation in

question were, he asserts, not "true threats," but rather hyperbole not

amounting to an attempt to intimidate Venini. In light of the jury’s conclusion that Lovern did attempt to intimidate or impede Venini in the

performance of his official duties, and given that several of Lovern’s

statements were plainly threatening (e.g., "if you tortuously interfere

with my personal business again I’m going to forget you’re wearing a

badge," J.A. at 314), we conclude that this contention has no merit. 

UNITED STATES v. LOVERN 5
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 and maintain a toll-free telephone number for

taxpayers to use to confidentially register complaints of misconduct

by Internal Revenue Service employees . . . ." 26 U.S.C.A.

§ 7803(d)(3)(B) (West Supp. 2001). This section plainly authorizes

TIGTA agents to receive complaints, via telephone, from taxpayers

regarding wrongful conduct by IRS employees. It is beyond question

that Agent Venini was receiving complaints registered by Lovern during the conversation on July 15. See J.A. at 311 (statement by Lovern

that "I’m a victim of tax fraud . . . so far as my tax lien."). Lovern

himself stated that the conversation was "all about my personal

taxes." J.A. at 314. 

While it is no doubt true that Venini was talking to Lovern during

the July 15 conversation to protect the employees of the IRS’s Richmond office from Lovern’s apparently threatening phone calls to

them, he was also providing Lovern an opportunity to register complaints of IRS misconduct. It is apparent that Congress was aware that

perceived misconduct by the IRS will in some cases be a source of

significant agitation and distress to the complaining party. TIGTA, as

the organization with the responsibility for investigating fraud, abuse,

and misconduct within the IRS, see 5 U.S.C.A. app. 3 § 8D(h)

(requiring TIGTA to "exercise all duties and responsibilities of an

Inspector General of an establishment with respect to the Department

of the Treasury and the Secretary of the Treasury on all matters relating to the Internal Revenue Service"), has been designated as the

proper recipient of such complaints under 26 U.S.C.A.

§ 7803(d)(3)(B). That an employee of TIGTA listening to such complaints may be simultaneously protecting IRS employees from threats

6 UNITED STATES v. LOVERN
under Title 5 does not mean the employee is not acting under Title

26. Accordingly, we conclude that during the July 15 conversation

Venini was acting within the scope of the authority granted TIGTA

under Title 26, specifically § 7803(d)(3)(B).4

B.

Lovern next argues that the district court erred in instructing the

jury that Venini was acting in the scope of his official duties under

Title 26 during the July 15 conversation with Lovern because official

action under Title 26 is an element of the charged offense, and

accordingly it had to be proven to the jury beyond a reasonable doubt.

Count Six of the indictment, on which Lovern was found guilty,

alleged that Lovern "did by threats of force endeavor to intimidate

and impede Special Agent Charles Venini of the Treasury Inspector

General for Tax Administration, Washington Field Division, while

acting in his official capacity under Title 26, United States Code . . . ."

J.A. at 42-43. In its charge to the jury, the district court said "you are

instructed as a matter of law that . . . Charles Venini [was] acting in

[his] official capacity under Title 26 at the times alleged in this indictment." Supp. J.A. at 32. 

"The Constitution gives a criminal defendant the right to have a

jury determine, beyond a reasonable doubt, his guilt of every element

of the crime with which he is charged." United States v. Gaudin, 515

U.S. 506, 522-23 (1995). "[I]n determining what facts must be proved

beyond a reasonable doubt the . . . legislature’s definition of the ele4

Judge Stapleton also concludes that the undisputed evidence indicates

that Venini was exercising authority conferred by Title 26 as well as

authority conferred by Title 5. Lovern repeatedly called numerous IRS

employees to argue and complain about the position the IRS was taking

with respect to his own taxes and those of others. He called so frequently

and talked so long that it interfered with the IRS employees’ ability to

do their jobs. As a result, Venini was assigned to take calls that would

otherwise have gone to these employees and to advise Lovern that all

future communication between himself and the IRS would have to be in

writing. The purpose of Lovern’s calls was no different after the designation of Venini as the receiver of those calls, and Venini was performing

the responsibilities of an IRS employee when he took them. 

UNITED STATES v. LOVERN 7
ments of the offense is usually dispositive." McMillan v. Pennsylvania, 477 U.S. 79, 85 (1986). A trial judge therefore "commits error

of constitutional magnitude when he instructs the jury as a matter of

law that a fact essential to conviction has been established by the evidence, thus depriving the jury of the opportunity to make this finding." United States v. Johnson, 71 F.3d 139, 142-43 (4th Cir. 1995)

(concluding that a district court’s charge to the jury that a credit union

robbed by the defendant was a federal credit union, as required by the

statute of conviction, constituted error of constitutional dimension

because that fact was an element of the offense that the defendant was

entitled to have the jury find). 

Section 7212(a) states that a person must "endeavor[ ] to intimidate

or impede an[ ] officer or employee of the United States acting in an

official capacity under [Title 26] . . . ." 26 U.S.C.A. § 7212(a). With

this language, Congress has made the victim’s status as an officer or

employee acting in an official capacity under Title 26 an element of

at least some § 7212(a) offenses.5 Cf., e.g., United States v. Linn, 438

F.2d 456, 458 (10th Cir. 1971) (noting that "[o]ne of the elements of

the offense proscribed by [18 U.S.C.A.] § 111 [criminalizing assault

of federal employees while engaged in official duties] is that the federal officer assaulted be engaged in the performance of his official

duties and not on a frolic of his own"). As in Johnson, the court here

took from the jury the responsibility of determining an element of the

offense in question. See Johnson, 71 F.3d at 141. The district court

thus erred in instructing the jury as a matter of law that Venini was

acting in the scope of his official duties under Title 26. See Gaudin,

515 U.S. at 522-23. 

5There is an offense defined under § 7212(a) that does not require that

the victim of the threat be an officer or employee of the United States or

that he be acting in an official capacity, but Lovern was not charged in

the count of conviction with that offense. See 26 U.S.C.A. § 7212(a)

(stating, in the "omnibus clause" that one who "by force or threats of

force . . . obstructs or impedes, or endeavors to obstruct or impede, the

due administration of [Title 26]" shall be guilty of an offense). The Government does not argue that the evidence adduced at trial was sufficient

to convict Lovern under the "omnibus clause" of § 7212(a); the Government thus rests on the proposition that Lovern was properly convicted

under the "intimidating or impeding an officer" clause of § 7212(a). 

8 UNITED STATES v. LOVERN
The conclusion that the district court erred, however, does not end

our inquiry. Rule 52(a) of the Federal Rules of Criminal Procedure

provides that "[a]ny error, defect, irregularity or variance which does

not affect substantial rights shall be disregarded." While this Rule by

its terms applies to all errors where a proper objection is made at trial,

the Supreme Court has recognized a limited class of fundamental constitutional errors that "defy analysis by ‘harmless error’ standards."

Arizona v. Fulminante, 499 U.S. 279, 309 (1991). For all other constitutional errors, however, "reviewing courts must apply Rule 52(a)’s

harmless-error analysis and must disregar[d] errors that are harmless

beyond a reasonable doubt."6 Neder v. United States, 527 U.S. 1, 7

(1999) (internal quotation marks omitted). 

The Supreme Court held in Neder that failure to instruct the jury

on an element of the charged offense is an error subject to harmless

error review. Id. at 9 (noting that "an instruction that omits an element

of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence" (emphasis in original)). We thus consider below whether the

error affected Lovern’s substantial rights. 

In conducting our review under the harmless error standard, we ask

"whether it appears ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’" Id. at 15 (quoting Chapman v. California, 386 U.S. 18, 24 (1967)). The government

bears the burden of demonstrating that the error was harmless. United

States v. General, 278 F.3d 389, 395 n.2 (4th Cir. 2002). The Government argues here that the unrebutted evidence adduced at trial demonstrated that Venini was performing an official duty under Title 26

when Lovern threatened him.7 In light of our conclusion in Part II.A,

supra, and the evidence at trial, we conclude that this contention is

correct. Venini plainly was acting within the scope of 26 U.S.C.A.

§ 7803(d)(3)(B) when he spoke to Lovern on July 15; Lovern was

6Lovern properly objected at trial to the district court’s instruction to

the jury on the issue of whether Venini was acting in an official capacity

under Title 26 during the July 15 phone conversation. 

7The Government argued in its brief that the district court’s jury

instruction was not error, but it noted at oral argument that harmless error

review would apply to any error that occurred. 

UNITED STATES v. LOVERN 9
voicing complaints about the conduct of IRS officials, and Venini was

receiving them. Cf. J.A. at 311 (statement by Lovern that "I’m a victim of tax fraud . . . so far as my tax lien"). Although Lovern contested the element’s not being submitted to the jury, he did not

"raise[ ] evidence sufficient to support a contrary finding . . ." to that

reached by the judge. Neder, 527 U.S. at 19. Indeed, Lovern’s entire

argument at trial on this element was premised on the erroneous legal

supposition that nothing in Title 26 granted Venini authority to act in

any capacity. Thus, the error in this case did not contribute to the verdict obtained. 

III.

For the reasons set forth above, the judgment of the district court

is affirmed.

AFFIRMED

10 UNITED STATES v. LOVERN