37 F.4th 1256
7th Cir.2022Background
- Robert Haas posted death threats and anti‑Semitic messages online (Instagram post targeting Nikki Haley; multiple posts on Russian site VK.com) and later sent threatening texts/voicemails to FBI Task Force Officer Joseph Kostuchowski.
- Federal authorities arrested Haas and charged him with 13 counts: eight counts under 18 U.S.C. § 875(c) (threats via interstate commerce based on VK.com posts) and five counts under 18 U.S.C. § 115(a)(1)(B) (threats to a federal official based on texts/voicemails).
- Haas proceeded pro se at trial (counsel later appointed for some posttrial motions), moved to dismiss Counts 1–3 as multiplicitous, and moved for acquittal at trial on various grounds; the district court denied those motions.
- A jury convicted Haas on all 13 counts; the district court sentenced him to 51 months’ imprisonment.
- On appeal Haas raised four issues (multiplicity, sufficiency as to interstate‑commerce element, constructive amendment, and sentencing grouping); only the multiplicity claim was preserved; the others were forfeited and reviewed for plain error.
Issues
| Issue | Haas's Argument | Government's Argument | Held |
|---|---|---|---|
| Multiplicity of Counts 1–3 under §115(a)(1)(B) | Counts 1–3 charge the same offense because §115(a)(1)(B) focuses on the victim (not individual communications), so multiple counts against one victim are multiplicitous | Read statute as whole (including §115(b)(4)): unit of prosecution is an individual "threat"; separate communications can be separate counts | Held: de novo review—unit of prosecution is an individual threat under §115; the three texts were discrete threats and not multiplicitous. |
| Sufficiency of evidence that §875(c) threats were "in interstate commerce" (Counts 6–13) | Internet use alone insufficient; government must prove messages crossed state lines (e.g., server‑to‑server interstate transmission) | Internet is inherently interstate; showing Haas posted on VK.com (viewed in other states and internationally) suffices to prove interstate commerce | Forfeited; plain‑error review—court finds no plain error: evidence (VK.com posting, viewing in California, international transmission) sufficed, and jury could infer Haas knowingly used platform to reach U.S. audience. |
| Constructive amendment of the indictment | Jury instructions and government evidence permitted conviction based on foreign commerce though indictment alleged interstate commerce only, so indictment was constructively amended | Any variance did not materially alter the charge; Internet transmissions can be interstate and court could have cured by supplemental evidence or superseder | Forfeited; plain‑error review—no plain error: variations did not materially alter the offense charged and did not undermine integrity of proceedings. |
| Sentencing grouping under U.S.S.G. §3D1.2 for Counts 6–13 | All VK.com counts involved non‑identifiable victims (society) and therefore should be grouped together for guidelines purposes | District court reasonably split counts into groups (federal employees vs. society) based on distinct societal interests and presentence report | Forfeited; plain‑error review—no plain error: district court’s factual discretion in grouping was reasonable and not plainly erroneous. |
Key Cases Cited
- Hudson v. United States, 522 U.S. 93 (Double Jeopardy protects only multiple punishments in successive proceedings; multiplicity is procedural)
- Bell v. United States, 349 U.S. 81 (rule of lenity applies when statute ambiguous)
- United States v. Allender, 62 F.3d 909 (7th Cir.) (unit‑of‑prosecution inquiry)
- United States v. Klat, 156 F.3d 1258 (D.C. Cir.) (duplicity vs. multiplicity; multiple threats may be charged together if part of one scheme)
- United States v. Gordon, 875 F.3d 26 (1st Cir.) (penalty‑structure concerns can inform unit‑of‑prosecution analysis)
- United States v. Lewis, 554 F.3d 208 (1st Cir.) (Internet use can satisfy interstate‑commerce element)
- United States v. Wright, 625 F.3d 583 (9th Cir.) (requires proof that online communication crossed state lines)
- Schaefer v. United States, 501 F.3d 1197 (10th Cir.) (statutory phrasing governs interstate‑commerce proof)
- Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (statutory modifiers to "commerce" have different reaches)
- Gonzales v. Raich, 545 U.S. 1 (Commerce Clause can reach local activity with substantial interstate effects)