                          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-
2                      UNITED STATES v. LOVERN
nedge, Jr., Student Counsel, Sara Elizabeth Flannery, Special Assis-
tant 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 Lov-
ern’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, Vir-
ginia 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, refer-
ring him instead to the Richmond office of the Treasury Inspector
General for Tax Administration (TIGTA). Thereafter, Lovern regu-
larly 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
                     UNITED STATES v. LOVERN                         3
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?
4                       UNITED STATES v. LOVERN
        Lovern:   No, because you have no authority. When it
                  comes to my personal taxes, you have no author-
                  ity.

        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 busi-
                  ness 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 Dis-
trict 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 perfor-
mance 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 act-
ing 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 pro-
ceeded on those counts.1
    1
   The 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.
                       UNITED STATES v. LOVERN                          5
   The jury found Lovern not guilty of all counts save one, the count
charging him with a § 7212(a) violation in connection with the con-
versation 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 indict-
ment 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 dis-
trict 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
  2
     Lovern was released on bond after being indicted initially, but vio-
lated the terms of his bond by calling TIGTA. The district court thereaf-
ter ordered him detained until trial.
   3
     Lovern 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 con-
clusion 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.
6                      UNITED STATES v. LOVERN
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 inves-
tigate 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 dur-
ing 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 Rich-
mond office from Lovern’s apparently threatening phone calls to
them, he was also providing Lovern an opportunity to register com-
plaints 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 relat-
ing 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 com-
plaints may be simultaneously protecting IRS employees from threats
                        UNITED STATES v. LOVERN                          7
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 indict-
ment." 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 ele-
  4
   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 designa-
tion of Venini as the receiver of those calls, and Venini was performing
the responsibilities of an IRS employee when he took them.
8                      UNITED STATES v. LOVERN
ments of the offense is usually dispositive." McMillan v. Pennsylva-
nia, 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 evi-
dence, thus depriving the jury of the opportunity to make this find-
ing." 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 fed-
eral 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.
    5
    There 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 Gov-
ernment does not argue that the evidence adduced at trial was sufficient
to convict Lovern under the "omnibus clause" of § 7212(a); the Govern-
ment thus rests on the proposition that Lovern was properly convicted
under the "intimidating or impeding an officer" clause of § 7212(a).
                        UNITED STATES v. LOVERN                           9
   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 con-
stitutional errors that "defy analysis by ‘harmless error’ standards."
Arizona v. Fulminante, 499 U.S. 279, 309 (1991). For all other consti-
tutional 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 fundamen-
tally unfair or an unreliable vehicle for determining guilt or inno-
cence" (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 com-
plained of did not contribute to the verdict obtained.’" Id. at 15 (quot-
ing 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 Govern-
ment argues here that the unrebutted evidence adduced at trial demon-
strated 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
  6
    Lovern 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.
  7
    The 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.
10                     UNITED STATES v. LOVERN
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 vic-
tim of tax fraud . . . so far as my tax lien"). Although Lovern con-
tested 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 ver-
dict obtained.

                                   III.

   For the reasons set forth above, the judgment of the district court
is affirmed.

                                                             AFFIRMED
