United States v. Haas

37 F.4th 1256

UNITED STATES of America, Plaintiff-Appellee,

v.Robert A. HAAS, Defendant-Appellant.

No. 20-3269

United States Court of Appeals, Seventh Circuit.

Argued January 5, 2022

Decided June 21, 2022

Erin Elaine Kelly, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Peter W. Henderson, Attorney, Office of the Federal Public Defender, Urbana, IL, Thomas W. Patton, Attorney, Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.

Before Kanne,¹ Wood, and Brennan, Circuit Judges.

Wood, Circuit Judge.

After posting death threats against former U.N. Ambassador Nikki Haley on her Instagram page, Robert Haas was (not surprisingly) visited by diplomatic security officers. He reiterated his violent message during that conversation, and then escalated matters by posting vile, anti-Semitic statements on a Russian social-media website called VK.com. An FBI agent questioned him about the new round of threats, but Haas just doubled down with additional threats via texts and voicemails, this time against the agent. Criminal charges for transmitting threats in interstate commerce and for the threats against the FBI agent followed. A jury convicted him on all counts, and the district court sentenced him to 51 months in prison.

Haas now appeals, raising four issues. Only one of those points, however—a multiplicity challenge to the indictment—was properly preserved in the district court. His contentions that the government's evidence was insufficient to support the verdict, that the indictment was constructively amended, and that some counts were improperly grouped for sentencing, were all forfeited. We therefore review them only for plain error. Because we conclude that Haas failed to support his multiplicity argument and his other arguments do not undermine the district court's judgment, we affirm.

I

Robert Haas believes that Jews are responsible for crimes against humanity, that Israel is "the biggest racist organization on the planet," and that anyone who supports Israel or Jews is a traitor to the United States who deserves to die. In 2018 Haas posted a threatening comment along these lines on the public Instagram page of Ambassador Haley. The comment drew the attention of federal authorities, who visited Haas in his home to speak with him about it. Displeased with the visit and believing that federal authorities were in cahoots with the Jews, Haas turned to VK.com, a Russian social-media site, where he made several posts vowing to kill Jews and the officials that protect them.

These posts caught the attention of FBI Task Force Officer Joseph Kostuchowski, who arranged to meet with Haas at his job site to discuss the posts. When Kostuchowski arrived, Haas refused to speak with him. After Kostuchowski gave up and left, he began receiving phone calls, text messages, and voicemails from Haas. In many of these communications, Haas conveyed his belief that Kostuchowski deserved to die for supporting Israel.

In 2019, Haas was arrested. For the VK.com posts, Haas was charged with eight counts of transmitting threats in interstate commerce in violation of 18 U.S.C. § 875(c). For the direct threats against Kostuchowski, Haas was charged initially with four counts of threatening a federal official under 18 U.S.C. § 115(a)(1)(B). A fifth count was added later, based on Haas's tirade to an Illinois State Police patrol sergeant who was transporting him from Ottawa (Illinois) to Chicago; Haas's general message was that Kostuchowski should die for protecting Jews.

Haas proceeded pro se during pretrial and trial proceedings, though he was represented by appointed counsel for certain posttrial motions. He moved to dismiss the first three section 115 counts as multiplicitous, but the district court denied the motion. At the close of the government's evidence, Haas moved for judgment of acquittal on all counts, see FED. R. CRIM. P. 29, arguing that the government had not met its burden of proof. Although Haas's oral motion focused specifically on the element of intent, the court construed his motion as addressing all the elements of both section 115 and section 875(c). It denied this motion.

The case proceeded to a jury, which convicted Haas on all 13 counts. The district court sentenced Haas to 51 months in prison. After the verdict, Haas again moved for judgment of acquittal, this time with the assistance of appointed counsel, but the court again denied the motion. Haas now appeals.

II

Haas has raised four issues for our consideration. First, he reiterates his multiplicity argument regarding Counts 1–3. Second, he challenges the sufficiency of the government's evidence on the interstate-commerce element of his section 875(c) convictions. Third, he argues that the government's evidence and the court's jury instructions constructively amended the indictment, in violation of the Grand Jury Clause of the Fifth Amendment. Finally, he challenges the district court's separation of Counts 6–13 into two groups for purposes of the Sentencing Guidelines, ch. 3, Part D. We begin with the multiplicity assertion, which Haas properly raised in the district court. The other three points were forfeited, but we will examine them for plain error.

A

Counts 1–3 involve the direct threats against Kostuchowski. Haas asserts that the use of three separate counts was improper. An indictment is multiplicitous when it charges a single offense as separate counts. At one time, there was a worry that multiplicity raised concerns under the Double Jeopardy Clause of the Fifth Amendment, but the Supreme Court put that to rest when it held that "[t]he Clause protects only against the imposition of multiple criminal punishments for the same offense, and then only when such occurs in successive proceedings." Hudson v. United States , 522 U.S. 93, 99, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997) (emphasis and citations omitted). Nonetheless, Federal Rule of Criminal Procedure 12(b)(3)(B)(ii) recognizes the prohibition against multiplicity and permits a timely objection to such an indictment. Haas complied with this rule, and so we may assess this argument. Our review in this respect is de novo.

To determine whether an indictment is multiplicitous, "we look to the applicable criminal statute to see what the allowable ‘unit’ of prosecution is—the minimum amount of activity for which criminal liability attaches." United States v. Allender , 62 F.3d 909, 912 (7th Cir. 1995). The applicable statute here reads as follows:

Whoever[ ] ... threatens to assault, kidnap, or murder, a United States official, a United States judge, a Federal law enforcement officer, or an official whose killing would be a crime under such section, with intent to impede, intimidate, or interfere with such official, judge, or law enforcement officer while engaged in the performance of official duties, or with intent to retaliate against such official, judge, or law enforcement officer on account of the performance of official duties, shall be punished as provided in subsection (b).

18 U.S.C. § 115(a)(1)(B). It further states: "A threat made in violation of this section shall be punished by a fine under this title or imprisonment for a term of not more than 10 years, or both, except that imprisonment for a threatened assault shall not exceed 6 years." 18 U.S.C. § 115(b)(4).

The parties offer competing theories on the key question of the unit of prosecution. Haas focuses on the first quoted subsection, section 115(a)(1)(B), while the government emphasizes the statute as a whole, including section 115(b)(4). Haas points out that section 115(a)(1)(B) identifies the possible victims, not individual threats. This suggests, he argues, that the unit of prosecution is the broader scheme of threatening one of the designated federal officials, not any particular threat or communication that was issued. Since the indictment separately charged three threats directed at only one victim, Kostuchowski, Haas concludes that it was multiplicitous.

The government responds by urging us to take a broader look at the statute, and it suggests that when one does so, it readily appears that each threat is individually indictable. We agree with this approach. Section 115(b)(4) states that "[a] threat made in violation of this section shall be punished by a fine ... or imprisonment ... or both." (Emphasis added.) "A threat" means just that: an individual threat.

Haas retorts that the reference to "[a] threat" in section 115(b)(4) at best makes the statute ambiguous given the focus on the victim found in section 115(a)(1)(B). At a minimum, then, he urges that the rule of lenity demands that we adopt his interpretation. See Bell v. United States , 349 U.S. 81, 83, 75 S.Ct. 620, 99 L.Ed. 905 (1955). We do not buy his premise: section 115(b)(4) does not introduce ambiguity; it fills in useful information.

The clarity offered by section 115(b)(4) also undermines the remainder of Haas's arguments. For instance, Haas compares and contrasts section 115 to three other federal statutes. According to Haas, section 115(a)(1)(B) is like the bank-fraud statute, under which the unit of prosecution is the broad scheme of fraud. See 18 U.S.C. § 1344 ; United States v. Ajayi , 808 F.3d 1113, 1123 (7th Cir. 2015). Section 115(a)(1)(B) differs, he suggests, from the mail- and wire-fraud statutes, which make each individual communication a proper unit of prosecution. See Badders v. United States , 240 U.S. 391, 393–94, 36 S.Ct. 367, 60 L.Ed. 706 (1916) ; Ashland Oil v. Arnett , 875 F.2d 1271, 1278 (7th Cir. 1989).

We are not persuaded. Unlike section 115, the bank-fraud statute explicitly refers to "a scheme or artifice" as the basis for liability. See 18 U.S.C. § 1344. Nothing indicates that a single fraudulent transaction is properly described as a "scheme or artifice." Compare 18 U.S.C. § 115(b)(4) ("[a] threat ... shall be punished") with 18 U.S.C. § 1341 and 18 U.S.C. § 1343 (containing no explicit reference to "a...