United States v. Robert Haas ( 2022 )


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  •                                   In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________________
    No. 20-3269
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.
    ROBERT A. HAAS,
    Defendant-Appellant.
    ____________________
    Appeal from the United States District Court for the
    Northern District of Illinois, Eastern Division.
    No. 19 CR 00486 — Edmond E. Chang, Judge.
    ____________________
    ARGUED JANUARY 5, 2022 — DECIDED JUNE 21, 2022
    ____________________
    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 se-
    curity officers. He reiterated his violent message during that
    1 Circuit Judge Kanne died on June 16, 2022, and did not participate
    in the decision of this case, which is being resolved under 
    28 U.S.C. §46
    (d)
    by a quorum of the panel.
    2                                                  No. 20-3269
    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 com-
    merce and for the threats against the FBI agent followed. A
    jury convicted him on all counts, and the district court sen-
    tenced 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 sentenc-
    ing, 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 un-
    dermine 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 organiza-
    tion 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 com-
    ment 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
    No. 20-3269                                                    3
    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 inter-
    state 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 proceed-
    ings, though he was represented by appointed counsel for cer-
    tain posttrial motions. He moved to dismiss the first three sec-
    tion 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 bur-
    den of proof. Although Haas’s oral motion focused specifi-
    cally 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.
    4                                                  No. 20-3269
    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 ev-
    idence on the interstate-commerce element of his sec-
    tion 875(c) convictions. Third, he argues that the govern-
    ment’s evidence and the court’s jury instructions construc-
    tively amended the indictment, in violation of the Grand Jury
    Clause of the Fifth Amendment. Finally, he challenges the dis-
    trict 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 Kostu-
    chowski. 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 Dou-
    ble Jeopardy Clause of the Fifth Amendment, but the Su-
    preme Court put that to rest when it held that “[t]he Clause
    protects only against the imposition of multiple criminal pun-
    ishments for the same offense, and then only when such oc-
    curs in successive proceedings.” Hudson v. United States, 522
    No. 20-3269                                                      
    5 U.S. 93
    , 99 (1997) (emphasis and citations omitted). Nonethe-
    less, Federal Rule of Criminal Procedure 12(b)(3)(B)(ii) recog-
    nizes 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 re-
    spect is de novo.
    To determine whether an indictment is multiplicitous,
    “we look to the applicable criminal statute to see what the al-
    lowable ‘unit’ of prosecution is—the minimum amount of ac-
    tivity for which criminal liability attaches.” United States v. Al-
    lender, 
    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 im-
    pede, intimidate, or interfere with such official, judge,
    or law enforcement officer while engaged in the perfor-
    mance 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 vi-
    olation 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
    6                                                   No. 20-3269
    emphasizes the statute as a whole, including section 115(b)(4).
    Haas points out that section 115(a)(1)(B) identifies the possi-
    ble victims, not individual threats. This suggests, he argues,
    that the unit of prosecution is the broader scheme of threaten-
    ing one of the designated federal officials, not any particular
    threat or communication that was issued. Since the indict-
    ment separately charged three threats directed at only one
    victim, Kostuchowski, Haas concludes that it was multiplic-
    itous.
    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 sec-
    tion 115(b)(4) at best makes the statute ambiguous given the
    focus on the victim found in section 115(a)(1)(B). At a mini-
    mum, then, he urges that the rule of lenity demands that we
    adopt his interpretation. See Bell v. United States, 
    349 U.S. 81
    ,
    83 (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 com-
    pares 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
    No. 20-3269                                                     7
    make each individual communication a proper unit of prose-
    cution. See Badders v. United States, 
    240 U.S. 391
    , 393–94 (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 sin-
    gle 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
     (con-
    taining no explicit reference to “a fraudulent mailing” or “a
    fraudulent wire” as the basis for prosecution).
    Haas next argues that the government’s interpretation is
    inconsistent with the penalty structure of section 115, because
    it purportedly would lead to absurd results: a person who
    merely threatens a federal official (but does so numerous
    times) could serve more time in prison than a person who
    physically assaults a federal official (but does so only once).
    See 
    18 U.S.C. §§ 115
    (b)(1), (b)(4). For support, Haas turns to a
    First Circuit decision that rested on this concern in the context
    of the federal murder-for-hire statute, 
    18 U.S.C. § 1958
    (a),
    which Haas argues has a similar penalty structure.
    In United States v. Gordon, the court concluded that the
    murder-for-hire statute’s “graduated sentencing scheme …
    conveys … Congress’s apparent belief that the greater the
    harm to the victim, the harsher the punishment should be for
    the offender.” 
    875 F.3d 26
    , 33 (1st Cir. 2017). Accordingly, the
    First Circuit reasoned that “[t]he government’s proposed unit
    of prosecution,” which would have defined each individual
    act in furtherance of a murder plot as a separate unit, not the
    broader plot, “would frustrate this congressional aim.” 
    Id.
    “[A] person who made ten telephone calls in service of a
    8                                                     No. 20-3269
    failed plot that caused no injury to anyone [would be ex-
    posed] to a much steeper maximum sentence than a person
    who, as a result of a single telephone call, caused substantial
    personal injury to a victim.” 
    Id.
     Because it believed this would
    be an irrational result, the First Circuit held that “[t]he unit of
    prosecution advocated by the defendant (which focuses on
    the number of plots) is much more consistent with the victim-
    centric sentencing scheme formulated by Congress.” 
    Id.
    Haas’s penalty-structure argument ignores a key differ-
    ence between section 115 and the murder-for-hire statute at
    issue in Gordon: the murder-for-hire statute contains no pro-
    vision analogous to section 115(b)(4), which clarifies the unit
    of prosecution. In the absence of such a provision, the First
    Circuit’s reasoning may have been tenable. Here, that reason-
    ing is foreclosed by the plain text of the statute. The risk of
    absurd outcomes is also not inevitable. Defendants charged
    under section 115 enjoy several protections against counterin-
    tuitive and disproportionate sentences, including the option
    of concurrent sentences and the rules calling for grouping of
    multiple counts.
    Finally, Haas argues that “[t]he only federal court of ap-
    peals to have considered the issue,” the D.C. Circuit, “sup-
    ports [his] interpretation of the unit of prosecution under 
    18 U.S.C. § 115
    (a)(1)(B).” See United States v. Klat, 
    156 F.3d 1258
    (D.C. Cir. 1998). But Klat did not deal with multiplicity; it
    dealt with its converse, duplicity. 
    Id. at 1266
    ; see U.S. Dep’t of
    Justice Archives, Criminal Resource Manual, § 812, Duplicity
    and Multiplicity Issues (“Duplicity occurs when more than
    one offense is alleged in the same charge ... [c]onversely, mul-
    tiplicity occurs when two charges allege the same offense.”).
    The Klat decision states that multiple threats may be charged
    No. 20-3269                                                    9
    in the same count (if they effectively make up a single scheme)
    without risking duplicity. Klat, 
    156 F.3d at 1266
    . It does not
    hold that (or even consider whether) they must be charged in
    the same count to avoid multiplicity. Klat is therefore unillu-
    minating.
    In sum, we are convinced that the allowable unit of prose-
    cution under 
    18 U.S.C. § 115
     is the individual threat, not some
    broader scheme or plot to threaten. Section 115(b)(4) says as
    much. This leaves the question whether an individual threat
    occurs in every separate text or email, or if a single threat
    might be communicated in a couple of steps. If a defendant
    sends six threatening texts in quick succession, may or must
    each text be charged as a separate count, or should all six texts
    be treated as a single, ongoing threat? Context will govern the
    answer to that question. As we now explain, the indictment
    here draws reasonable lines.
    This indictment stated that Haas’s relevant communica-
    tions conveyed three separate threats. The threat described in
    Count 1 read as follows: “[t]ake off the gun and badge like
    you said you would pussy. Come meet true evil. � I got
    something for you terrorists.” It was sent on May 8, 2019,
    while the texts that form the bases for Counts 2 and 3 were
    sent the following day, May 9. While we do not rule out the
    possibility that messages sent on separate dates may consti-
    tute a single threat, we are satisfied that is not the case here.
    Besides being separated by date from the other two, the threat
    contained in the May 8 text in no way depended on additional
    information or communications for its completion. Thus, it
    was properly charged as a discrete threat.
    Counts 2 and 3 rest on texts that were closer in time, but
    we are satisfied that they, too, were separate threats. Count 2
    10                                                    No. 20-3269
    was based on a text that Kostuchowski received on May 9 at
    10:37 a.m. It said: “I thought you wanted to chat you monkey
    jew. You coward old man. You know I get what I want and I
    think you deserve death.” Count 3 stemmed from an 11:04
    a.m. text that said: “I’m not afraid to walk out of my door in
    the morning. You should be, however, considering you sup-
    port Jewish terrorism, and your anti-American bullshit is go-
    ing to get you killed.”
    Haas argues that because the texts are similar in content
    and were sent only 27 minutes apart with no intervening com-
    munication, they constitute a single, ongoing threat. But there
    is little other than offensive content to link them. While they
    were closer in time to each other than to the first text, they still
    were separated by nearly half an hour—we can hardly char-
    acterize them as a string of successive texts. And while their
    content may have been similar, neither text was dependent on
    the other, in the sense of finishing a sentence or completing a
    thought. As before, each is a completed threat in its own right.
    We thus conclude that they were appropriately charged as
    separate counts.
    We emphasize that this is a fact-intensive inquiry. We are
    not saying that any time threatening communications are sep-
    arated by at least 27 minutes, they may appropriately be
    charged as separate threats. In some cases, communications
    separated by longer periods may best be understood as a sin-
    gle, ongoing threat. But on the record before us, we are satis-
    fied that the May 9 texts were properly charged separately.
    B
    Haas’s next challenge is to the sufficiency of the govern-
    ment’s evidence. He argues that the government failed to
    No. 20-3269                                                     11
    prove that his threats were transmitted “in interstate com-
    merce,” as required by 
    18 U.S.C. § 875
    (c), which underlies the
    charges in Counts 6–13. Given the cross-border nature of the
    Internet, the government contends that it proved the inter-
    state-commerce element of the section 875(c) charges simply
    by showing that Haas transmitted his threats over the Internet
    (specifically, to VK.com). Haas contests the notion that use of
    the Internet alone can satisfy the interstate-commerce element
    of a federal statute worded as section 875(c) is.
    As a threshold matter, the parties dispute whether Haas
    properly preserved this issue for our review. We agree with
    the government that he did not. Haas moved for judgment of
    acquittal twice, once at trial and once in a posttrial motion.
    Both times, Haas made no mention of the interstate-com-
    merce element even as he explicitly argued about others, such
    as intent. When he first moved for judgment of acquittal orally
    at trial, Haas was pro se, which might entitle him to some lati-
    tude. See United States v. Lewis, 
    817 F.3d 1054
    , 1055 (7th Cir.
    2016). But when he moved for judgment of acquittal in a
    posttrial motion, he was represented by counsel. And while
    the written posttrial motion carefully argued the sufficiency
    of the evidence for other elements, counsel either neglected or
    chose not to address interstate commerce.
    Since Haas failed to raise the argument despite multiple
    opportunities to do so, including while represented by coun-
    sel, he forfeited the issue, and we review only for plain error.
    See United States v. Flores, 
    929 F.3d 443
    , 447 (7th Cir. 2019).
    Plain-error review requires that the defendant show (1) an er-
    ror, (2) that is plain, (3) that affects substantial rights, and (4)
    that “had a serious effect on ‘the fairness, integrity, or public
    12                                                  No. 20-3269
    reputation of judicial proceedings.’” Greer v. United States, 
    141 S. Ct. 2090
    , 2096–97 (2021). This is a tall order.
    Haas begins with a truism: the particular wording of the
    interstate-commerce element of a statute establishes what the
    government must prove. Statutes that contain language such
    as “in interstate commerce” require proof that state lines were
    crossed; by contrast, statutes with language such as “affecting
    commerce” or “any facility of interstate commerce” require
    proof only that the criminal activity involved an instrumen-
    tality or channel of interstate commerce. See Circuit City
    Stores, Inc. v. Adams, 
    532 U.S. 105
    , 115 (2001); United States v.
    Schaefer, 
    501 F.3d 1197
    , 1201 (10th Cir. 2007), overruled on
    other grounds by United States v. Sturm, 
    672 F.3d 891
     (10th Cir.
    2012). Finally, Congress sometimes exercises its broad power
    to regulate even local activities that have a substantial effect
    on interstate commerce. See Gonzales v. Raich, 
    545 U.S. 1
    , 17
    (2005).
    Congress’s choice of language in any given statute is thus
    critical. How it articulates the interstate-commerce element of
    a statute tells us what that statute will reach. See Circuit City
    Stores, Inc., 
    532 U.S. at 115
     (“Congress uses different modifiers
    to the word ‘commerce’ in the design and enactment of its
    statutes. The phrase ‘affecting commerce’ indicates Congress’
    intent to regulate to the outer limits of its authority under the
    Commerce Clause. … Unlike those phrases, however, the gen-
    eral words ‘in commerce’ … are understood to have a more
    limited reach.”).
    None of this is controversial or even novel. The question
    is how we are to apply these established principles to the In-
    ternet. Haas argues that the phrase “in interstate commerce”
    requires a showing that the relevant communication
    No. 20-3269                                                   13
    physically traveled from a server in one state to a server in
    another. The government argues that such a showing is not
    necessary. Given the inherently interstate nature of the Inter-
    net, the government believes it needed to show only that the
    Internet was used.
    A circuit split has developed around this point. The First,
    Second, Third, and Fifth Circuits have taken the position that
    the government asks us to adopt here, that is, that the govern-
    ment can satisfy the “in interstate commerce” element of a
    statute simply by showing that the Internet was used. See
    United States v. Lewis, 
    554 F.3d 208
    , 214–15 (1st Cir. 2009) (ad-
    dressing 
    18 U.S.C. § 2252
    (a)(2), which at the time contained
    the language “in interstate … commerce” but has since been
    amended to say “in or affecting … commerce” and “any
    means or facility of … commerce”); United States v. Harris, 548
    F. App’x 679, 682 (2d Cir. 2013) (same); United States v. MacE-
    wan, 
    445 F.3d 237
    , 243 (3d Cir. 2006) (same but with respect to
    18 U.S.C. § 2252A(a)(2)(B)); United States v. Runyan, 
    290 F.3d 223
    , 239 (5th Cir. 2002) (same but with respect to 
    18 U.S.C. § 2251
    ).
    The Ninth and Tenth Circuits, on the other hand, have
    sided with Haas: they hold that the government must prove
    that the online communication crossed state lines, not simply
    that it was made on the Internet. See United States v. Wright,
    
    625 F.3d 583
    , 590–95 (9th Cir. 2010) (addressing 18 U.S.C. §
    2252A(1), which at the time contained the language “in inter-
    state … commerce” but has also been amended since then);
    Schaefer, 
    501 F.3d at
    1200–02 (same but with respect to 
    18 U.S.C. §§ 2252
    (a)(2), (a)(4)(B)).
    How the established paradigm applies to the Internet is
    certainly an interesting question, but this case does not
    14                                                    No. 20-3269
    require us to choose sides. Because we are reviewing only for
    plain error, we need not adopt a holding as sweeping as the
    one prevailing in the majority of circuits to have considered
    the issue. Nor need we insist on something as technologically
    reductive as proof that a communication traveled from a
    server in one state to a server in another, a dubious require-
    ment that fails to take full account of the realities of the Inter-
    net and its functioning. 2 Under a plain-error standard of re-
    view, the government’s convictions survive either way.
    The existence of a circuit split is some evidence that the
    court would not have “plainly” erred if it had concluded that
    the government needed to show only that the Internet was
    used. And under that understanding, the government’s evi-
    dence that Haas used the Internet to transmit a post from Illi-
    nois to Russia would be more than sufficient to uphold the
    jury’s verdict. In addition, while it is true that in proving in-
    terstate commerce the government focused mostly on the
    transmission to Russia, the record also contained evidence
    that Haas’s posts were viewed by a human-rights organiza-
    tion in Los Angeles, California. Based on this evidence, a jury
    could have concluded that Haas’s threats crossed not only in-
    ternational, but also interstate lines, if that is in fact what the
    government needed to prove.
    Haas protests that the California evidence should be dis-
    counted because the California organization did not view the
    posts until months after they were posted, and so he could not
    have “knowingly transmit[ted] a threat to [California] on the
    2 See “How Does the Internet Work?”, https://web.stan-
    ford.edu/class/msande91si/www-spr04/readings/week1/InternetWhite-
    paper.htm.
    No. 20-3269                                                 15
    dates alleged in the indictment.” “[A] threat communicated
    on a particular date,” he argues, does not “establish[] endless
    liability if it is subsequently viewed by a third party months
    later.”
    Haas’s point might be better taken if the California organ-
    ization had viewed only later re-posts by a different user. In
    that case, whether Haas himself transmitted the posts to Cal-
    ifornia on the dates in question might be relevant. But the ev-
    idence here was that the California organization viewed
    Haas’s original posts on the platform on which they were orig-
    inally posted. Regardless of when this viewing occurred, the
    jury could have concluded that the posts crossed state lines
    the day that Haas posted them and remained available in Cal-
    ifornia until they were seen.
    The evidence was also sufficient to support a finding that
    Haas knew about the interstate and international dimensions
    of his posts. The fact that he used a Russian platform did not
    require the jury to find that he knowingly transmitted his
    posts only to Russia. Haas wrote his posts in English, not Rus-
    sian. And although VK.com is based in Russia, the jury heard
    evidence that it is like Facebook, which is based in the United
    States yet used around the world. Finally, Haas himself testi-
    fied that his intended audience was U.S. law enforcement of-
    ficials, whom he wished to discourage from investigating
    him—it was not Russians. Based on this evidence, the jury
    could have concluded that by posting on VK.com, Haas
    knowingly transmitted his posts not only to Russia but also to
    other states, including California, where they were in fact
    viewed. At minimum, the district court did not plainly err
    when it left the jury’s verdict undisturbed on that basis.
    16                                                    No. 20-3269
    At oral argument, counsel for Haas offered a slight varia-
    tion of the argument against the California evidence. Counsel
    suggested that, as a technical matter, Haas transmitted his
    posts only to the website in Russia, which in turn (counsel
    postulated) retransmitted them to other locations, such as Cal-
    ifornia. In other words, even though the California organiza-
    tion viewed Haas’s original posts on their original platform,
    it technically only viewed re-posts, because the foreign plat-
    form had to retransmit them from Russia to the rest of the
    world.
    We are skeptical of the technical and legal soundness of
    this claim. But even accepting it as technically accurate, it does
    nothing for Haas. First, the jury heard no evidence to that ef-
    fect. Second, even if it had, it remained at liberty to con-
    clude—based on the language of choice, the seemingly global
    nature of the platform, and the intended audience—that Haas
    knowingly used VK.com to facilitate an interstate transmis-
    sion, just as one would use the Post Office, UPS, or FedEx to
    mail a letter rather than personally driving it across state lines.
    In short, Haas’s argument cannot survive plain-error review.
    C
    Haas’s next argument is that the district court and the gov-
    ernment constructively amended the indictment, meaning
    that he was tried and convicted of a charge different from the
    charge brought by the grand jury. A constructive amendment
    violates the Fifth Amendment’s guarantee that “[n]o person
    shall be held to answer for a … crime, unless on a presentment
    or indictment of a Grand Jury.” U.S. Const. amend. V; see also
    United States v. Turner, 
    836 F.3d 849
    , 863 (7th Cir. 2016). Haas
    concedes that he forfeited this argument, and so we again re-
    view only for plain error.
    No. 20-3269                                                   17
    “A constructive amendment to an indictment occurs when
    either the government (usually during its presentation of evi-
    dence and/or its argument), the court (usually through its in-
    structions to the jury), or both, broadens the possible bases for
    conviction beyond those presented by the grand jury.” United
    States v. Cusimano, 
    148 F.3d 824
    , 829 (7th Cir. 1998) (internal
    quotation marks omitted). That said, “not all variations in
    proof that contradict or supplement verbiage in the indict-
    ment,” Turner, 836 F.3d at 863, or “variations between an in-
    dictment and the jury instructions,” United States v. Johnson,
    827 F. App’x 586, 590 (7th Cir. 2020), amount to a constructive
    amendment. “Rather, the offense ‘charged in the indictment
    must be materially different or substantially altered at trial,
    [so that] it is impossible to know whether the grand jury
    would have indicted for the crime actually proved.’” Turner,
    836 F.3d at 863.
    Haas argues that both the court (through its jury instruc-
    tions) and the government (through its presentation of evi-
    dence) constructively amended the indictment. As to the for-
    mer, he argues that while “he was charged only with threats
    in interstate commerce … the jury instructions permitted a
    finding of guilt based on evidence of threats in foreign com-
    merce.” As to the latter, he argues that the government’s evi-
    dence only proved foreign commerce, not interstate com-
    merce. Thus, the indictment was constructively amended to
    allow the jury to convict him based on evidence of foreign
    commerce, even though he was charged only with transmit-
    ting threats in interstate commerce.
    Haas’s contention that the jury instructions and the gov-
    ernment’s evidence diverged from the precise charge in the
    indictment is not wholly without support. The jury was
    18                                                 No. 20-3269
    instructed that the interstate-commerce element was met if
    the jury found that Haas’s threats crossed “from inside a State
    to outside a State.” While the government insists that this lan-
    guage defines “interstate commerce,” we agree with Haas
    that the instruction is most reasonably understood as defining
    the phrase “interstate or foreign commerce.” A direct flight
    from Michigan to Russia can avoid crossing state lines, but it
    would satisfy the jury instructions. Thus, the instructions per-
    mitted the jury to convict Haas based on evidence of foreign
    commerce, even though the indictment charged him only
    with transmitting threats in interstate commerce. And as pre-
    viously discussed, to prove the interstate-commerce element,
    the government rested heavily on the fact that Haas’s commu-
    nications were transmitted from Illinois to Russia (although,
    as discussed, the record did contain some evidence support-
    ive of interstate transmission between Illinois and California).
    In any event, while the court’s instructions and the gov-
    ernment’s evidence may have diverged from the strict lan-
    guage of the indictment, the standard of review is critical
    here. The Internet is an instrumentality of interstate com-
    merce. For the reasons we already have reviewed, we are sat-
    isfied that this jury could have found movement of these mes-
    sages from or through one state to another. Illinois does not
    share a common border with Canada (or any other foreign
    country), and so on the most mechanistic understanding of
    activities “in” commerce (think of the Pony Express model),
    some interstate movement is necessary before a message orig-
    inating in Illinois could wind up in any foreign country, Rus-
    sia included. Even a transmission bounced from Illinois to a
    geostationary satellite and down to a server in Russia might
    cross the airspace of a different U.S. state. But on plain-error
    review, that kind of speculation cannot carry the day. We
    No. 20-3269                                                   19
    have no doubt that if Haas had raised this point in the district
    court, the government easily could have either supplemented
    its evidence of interstate commerce or obtained a superseding
    indictment charging foreign commerce. Thus, even if we were
    to find that Haas satisfies the first three elements of plain-er-
    ror review (and we have not said that, to be clear), leaving this
    result alone does not impugn the integrity of the judicial pro-
    cess.
    D
    Haas’s final challenge is to the way the court grouped the
    counts related to the VK.com posts for sentencing purposes.
    He again concedes that he has forfeited this issue and that our
    review is for plain error.
    The sentencing guidelines provide that “[w]hen a defend-
    ant has been convicted of more than one count, the court shall
    … [g]roup the counts resulting in conviction into distinct
    Groups of Closely Related Counts (“Groups”) by applying
    the rules specified in § 3D1.2.” U.S.S.G. § 3D1.1. Section 3D1.2
    states that “[a]ll counts involving substantially the same harm
    shall be grouped together into a single Group.” U.S.S.G. §
    3D1.2. It then itemizes the situations where “[c]ounts involve
    substantially the same harm within the meaning of this rule.”
    U.S.S.G. § 3D1.2(a)–(d). For purposes of Haas’s argument, it
    suffices to note that “multiple counts involving making a
    threatening or harassing communication to the same victim are
    grouped together” while multiple counts involving different
    victims are not. U.S.S.G. § 2A6.1 cmt. n.3 (emphasis added).
    The district court separated Haas’s 13 counts into three
    groups for purposes of calculating the advisory guidelines
    range. The first group captured Counts 1–5, which involved
    20                                                   No. 20-3269
    the threats that Haas made directly to Kostuchowski. It di-
    vided the threats that Haas posted on VK.com, which made
    up Counts 6–13, into two groups. Haas does not challenge the
    Kostuchowski group, but he argues that the district court
    erred in separating Counts 6–13 into two groups. In his view,
    they effectively involved the same victim (society as a whole)
    and thus should have been grouped together under U.S.S.G.
    § 3D1.2.
    The district court, accepting the grouping proposed in the
    Presentence Investigation Report, grouped Counts 7, 8, 10, 11,
    and 13 as counts involving federal employees, whom it re-
    garded in the aggregate as one victim. It grouped the remain-
    ing Counts—6, 9, and 12—as relating to society in general as
    the victim. Haas argues that the federal employees and “soci-
    ety” should have been treated as one victim. He relies on ap-
    plication note two of section 3D1.2, which defines “victim” as:
    Generally, the[] … one person who is directly and most
    seriously affected by the offense and is therefore identi-
    fiable as the victim. For offenses in which there are no
    identifiable victims (e.g., drug or immigration offenses,
    where society at large is the victim), the “victim” for
    purposes of subsections (a) and (b) is the societal inter-
    est that is harmed. In such cases, the counts are grouped
    together when the societal interests that are harmed are
    closely related.
    U.S.S.G. § 3D1.2 cmt. n.2.
    Haas argues that all of Counts 6–13 (not just Counts 6, 9,
    and 12) involved nonspecific threats directed to no identifia-
    ble victim (other than society itself) and, therefore, they
    should have been grouped together per application note two.
    No. 20-3269                                                      21
    Haas’s argument is not without merit. We grant that it is dif-
    ficult to draw a neat line between those threats classified as
    threats against “federal employees” (e.g., “Lots of #Feds #Fed-
    eralOfficers #StateDepartment #Aipac #JEWS will be killed
    when Americans see this Jewish trash plan.”) and the rest
    (e.g., “I don’t care if it’s a cop, prosecutor, judge, politician or
    elite. You try to stop me from telling the truth I will cut every
    throat in your home. Try me!”).
    On the other hand, note two calls for the careful exercise
    of discretion by the district judge, who has the unenviable
    task of discerning the societal interests at issue and their rela-
    tion to the harms. In that setting, we are loathe to find plain
    error.
    The note offers some guidance at the extremes: on the one
    hand, there is the typical case in which a single victim is iden-
    tifiable, while on the other, there are cases involving “drug or
    immigration offenses, where society at large is the victim.”
    U.S.S.G. § 3D1.2 cmt. n.2. It leaves room for the atypical case,
    such as this one, where the victim is neither society at large
    nor a single identifiable individual, but rather a victim cate-
    gory such as “federal employees.” Indeed, the examples that
    the application note lists when discussing the “offenses in
    which there are no identifiable victims”—drug and immigra-
    tion offenses—suggest that it has in mind something qualita-
    tively different from the situation presented by Haas’s
    charges. After all, drug and immigration offenses by their
    very nature and design target society at large, even if the un-
    derlying conduct also has a serious effect on drug users, busi-
    nesses, and particular communities. In this context-depend-
    ent situation, we find no plain error in the district court’s
    grouping decisions.
    22                                                No. 20-3269
    III
    We AFFIRM Haas’s convictions and sentence.