United States v. Haas

• Decision Date: 27 January 2021
• Docket Number: No. 19-4077,19-4077
• Citation: 986 F.3d 467
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Richard Todd HAAS, Defendant - Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

986 F.3d 467

UNITED STATES of America, Plaintiff - Appellee,

v.Richard Todd HAAS, Defendant - Appellant.

No. 19-4077

United States Court of Appeals, Fourth Circuit.

Argued: October 29, 2020

Decided: January 27, 2021

ARGUED: William Jeffrey Dinkin, WILLIAM J. DINKIN, PLC, Richmond, Virginia, for Appellant. Heather Hart Mansfield, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: G. Zachary Terwilliger, United States Attorney, Alexandria, Virginia, Brian R. Hood, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

Before WILKINSON, HARRIS, and RICHARDSON, Circuit Judges.

Affirmed in part, vacated in part, and remanded by published opinion. Judge Richardson wrote the opinion, in which Judge Wilkinson and Judge Harris concurred.

RICHARDSON, Circuit Judge:

Richard Haas was convicted of attempted sex trafficking of a minor and three child-pornography offenses. He argues on appeal that the district court erred in denying a Franks hearing to challenge the veracity of law enforcement's declarations in two warrant affidavits. See Franks v. Delaware , 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). He also contends that the district court wrongly permitted the attempted-trafficking count to go to the jury and incorrectly applied two Guideline enhancements during his sentencing. We affirm Haas's convictions. But we vacate his sentence because one of those enhancements, a four-level increase under § 2G2.1, should not have applied.

I. Background

A. The sex-crimes investigation

In 2016, Haas arranged a sexual encounter with Sarah¹ at his home after seeing her Backpage.com advertisement. This was not the first time that Haas had met Sarah. More than four years earlier, Haas had paid Sarah for sex several times, but the two had lost touch. The last time Haas had seen Sarah, he told her that he liked younger women and he "wanted to talk more about it and see if [Sarah] was interested in that the next time [they] m[ ]et." J.A. 622.

So when Haas met up with Sarah in 2016, he asked if she remembered their last conversation and was interested in "what he was talking about last time." J.A. 625. Sarah told Haas that she was interested. But little did Haas know, Sarah had agreed because she intended to report Haas to law enforcement. Haas then opened his laptop and showed her photos of young children performing sexual acts in various stages of undress. Sarah testified that she saw "probably like 1,500" photos and that the children in the photos appeared to range from age 4 to 12. J.A. 627.

After meeting with Haas, Sarah reached out to the FBI and was put in contact with Special Agent Gonzalez. The agent met with Sarah, and she told him about her encounters with Haas. To corroborate her statement, the FBI asked her to identify a photograph of Haas and of his residence. The agents also verified that the phone number Sarah provided was linked to Haas and that he had owned the house that Sarah identified until it was later sold. Sarah told Agent Gonzalez of her prior prostitution-related conviction, and Agent Gonzalez knew that she was on probation, although he did not know for what offense.

After meeting with the FBI, Sarah told Haas a made-up "story about a woman [she] knew in Baltimore" who "had children that she could bring down from Baltimore for [Haas] to photograph and ... engage in sexual things with." J.A. 634. After hearing this story, Haas texted and called Sarah several times to ask about procuring the young girls to create child pornography.

Sarah then arranged to meet Haas in person so that he could give her $100 to obtain nude pictures of the children from Baltimore. But on her way to that meeting, Sarah was pulled over by Henrico County police officers. When she saw the police car's flashing lights, she pulled into the grocery store parking lot where she had planned to meet Haas, jumped out of her car, and ran to his car. Haas gave her $100, and she promised that she would get the photos soon.

Upon returning to her car, Sarah was met by the police, who asked for her driver's license. Sarah's license had been suspended so she gave the officer her sister's name instead of her own. She received three tickets in her sister's name. A week later, Sarah met with the FBI agent again. During this meeting, she admitted that she had lied to the Henrico County police about her identity and "that she wanted to take care of it." J.A. 143–44. The agent reached out to the Henrico County Police Department and arranged to drive Sarah to her hearing a few days later so that she could resolve the false-identity issue. At that hearing, Sarah was charged with providing false information to a law-enforcement officer and held in jail without bail.

When Sarah was released two weeks later, the FBI gave her a recording device to record her phone calls with Haas. She recorded two phone calls. During the second call, the two discussed getting the two young girls from Sarah's "friend" from Baltimore:

HAAS: You need to f****** hook it up, girl.

[Sarah]: Alright, awesome, we can do that.

HAAS: Need to hook it up, man.

[Sarah]: What's the um, what's the range that you like?

HAAS: Um, it ain't so much me as it is like other, but you know, around like exactly what you were saying before, you know, give or take a little bit, you remember what you were talking about before? That is, that is like the most.

[Sarah]: I remember I said I had a 12 and a 8[.]

HAAS: Yeah that's, the lower side of that is definitely better.

J.A. 371. Shortly after this phone call, the FBI learned that Haas had been accused of molesting an eleven-year-old girl. The investigation was cut short, and Agent Gonzalez prepared an application for a search warrant seeking evidence of child-pornography offenses.

B. The search warrant, search, and proceedings below

The search warrant for Haas's residence and personal vehicle was approved by a federal magistrate judge. And the agents executed the warrant at Haas's home the next day, seizing two laptops. Haas had left for work, so the agents traveled to his workplace and found him sitting in his work truck. Haas was arrested on a state warrant for the sexual battery of the eleven-year-old, and during a protective sweep of the truck, an agent saw a laptop bag containing a third laptop. Agent Gonzalez then obtained a second search warrant for the truck and seized the laptop. Neither warrant affidavit included information about Sarah's criminal history or recent encounter with the Henrico County police.

After Haas was indicted, he sought to suppress the evidence seized from the truck. He argued that the second search warrant lacked probable cause and requested a Franks hearing. The district court held a probable-cause hearing, during which Agent Gonzalez testified. Based on this hearing, the district court issued an opinion denying both the suppression motion and the request for a Franks hearing. See United States v. Haas , No. 3:16CR139, 2017 WL 1712521, at *1 (E.D. Va. May 2, 2017). Although the district court found that the warrant lacked probable cause of a nexus between Haas's home laptop, on which Sarah had seen child pornography, and Haas's work laptop found in the truck, it held that the evidence collected under the warrant should not be suppressed under Leon ’s good-faith exception. Id. at *10.

More than a year later, Haas filed a second motion to suppress and request for a Franks hearing, this time challenging the first search warrant for his residence and personal vehicle. The two warrant affidavits were identical, except that the second mentioned the laptop seen in the truck during Haas's arrest. Compare J.A. 45–81 (second warrant affidavit), with J.A. 273–309 (first warrant affidavit). The district court held another hearing and issued an opinion that again denied suppression and a Franks hearing. United States v. Haas , No. 3:16CR139, 2018 WL 4040171, at *1 (E.D. Va. Aug. 23, 2018).

After a trial, the jury convicted Haas of attempted sex trafficking of a minor, receipt of child pornography, and possession of child pornography. Considering Haas's Guidelines range, the district court imposed a life sentence. Haas timely appealed, and we have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(2).

II. Discussion

A. Franks hearing

Haas twice moved for a Franks hearing to determine whether facts about Sarah's credibility were intentionally or recklessly omitted from the first and second warrant affidavits. The district court denied both motions, relying on the same analysis for both warrants. See, e.g. , Haas , 2018 WL 4040171, at *1–2 (written denial of second motion). We assess de novo whether Haas provided enough evidence to be entitled to a Franks hearing. United States v. Tate , 524 F.3d 449, 455 (4th Cir. 2008).

"A Franks hearing provides a criminal defendant with a narrow way to attack the validity" of a search-warrant affidavit. United States v. Moody , 931 F.3d 366, 370 (4th Cir. 2019). Along with affirmative false statements, " Franks protects against omissions that are designed to mislead, or that are made in reckless disregard of whether they would mislead, the magistrate." United States v. Colkley , 899 F.2d 297, 301 (4th Cir. 1990) (emphasis omitted).

To obtain a Franks hearing, a defendant must make a "substantial preliminary showing" to overcome the "presumption of validity with respect to the affidavit supporting the search warrant." Moody , 931 F.3d at 370 (citations and quotation marks omitted); see also Franks , 438 U.S. at 171, 98 S.Ct. 2674 (defendant's "attack must be more than conclusory and must be supported by more than a mere desire to cross-examine").² When a defendant relies on an omission, this heavy burden is even harder to meet. Tate , 524 F.3d at 454–55. In that situation, a defendant must provide a substantial preliminary showing that (1) law enforcement made an omission; (2) law enforcement made the omission "knowingly and...