United States v. Kandic

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23-7146-cr
United States v. Kandic
United States Court of Appeals
for the Second Circuit
August Term 2024
Argued: January 24, 2025
Decided: April 11, 2025
No. 23-7146-cr
UNITED S TATES OF AMERICA,
Appellee,
v.
MIRSAD KANDIC,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of New York
No. 1:17-cr-449-1, Nicholas G. Garaufis, Judge.
Before: C HIN, PÉREZ , and NATHAN, Circuit Judges.

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Defendant-Appellant Mirsad Kandic appeals from a judgment
of the United States District Court for the Eastern District of New York
(Garaufis, J.) convicting him, after a jury trial, of providing material
support to a foreign terrorist organization; providing material
support to a foreign terrorist organization resulting in death; and
conspiring to provide material support to a foreign terrorist
organization resulting in death. On appeal, Kandic argues that the
conspiracy count should be dismissed as impermissibly duplicitous,
the remaining counts should be dismissed as multiplicitous, and the
district court abused its discretion by excluding certain evidence at
trial. We conclude that none of Kandic’s challenges prevail.
Accordingly, we AFFIRM the judgment of the district court.
S ARITHA KOMATIREDDY (Amy
Busa, on the brief), Assistant
United States Attorneys, for
John J. Durham, United States
Attorney for the Eastern
District of New York,
Brooklyn, NY, for Appellee.
B ENJAMIN S ILVERMAN, Law
Office of Benjamin Silverman,
New York, NY, for Defendant-
Appellant.

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NATHAN, Circuit Judge:
Defendant-Appellant Mirsad Kandic spent years working for
the Islamic State of Iraq and al-Sham (ISIS)1 as a recruiter, financier,
arms dealer, foreign fighter, cross-border smuggler, and online
propagandist. Following a jury trial in the United States District
Court for the Eastern District of New York (Garaufis, J.), Kandic was
convicted of four counts of providing material support to a foreign
terrorist organization, one count of providing material support to a
foreign terrorist organization resulting in death, and one count of
conspiracy to provide material support to a foreign terrorist
organization resulting in death, all in violation of 18 U.S.C. § 2339B.
For these crimes, the district court sentenced him to two terms of life
imprisonment, as well as four concurrent terms of 20 years’
imprisonment.
On appeal, Kandic argues that the conspiracy count must be
vacated as impermissibly duplicitous; the remaining counts must be
vacated as multiplicitous; and the district court abused its discretion
by excluding certain hearsay evidence during trial. We reject these
arguments and AFFIRM the judgment of the district court.
1 ISIS, which is designated by the United States as a foreign terrorist organization
under 8 U.S.C. § 1189(a)(1), is also known as the “Islamic State of Iraq and Syria,”
the “Islamic State of Iraq and the Levant,” and simply the Islamic State. See United
States v. Ceasar, 10 F.4th 66, 68 & n.1, 70 (2d Cir. 2021).

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BACKGROUND
I. Factual Background
In 2013, Mirsad Kandic—a legal permanent resident of the
United States—relocated from New York to Syria to serve as a foreign
fighter for ISIS. ISIS leadership later directed him to Turkey, where
he became a prolific recruiter and emir for ISIS media. In this role,
Kandic used more than 120 social media accounts to spread ISIS
propaganda and assist recruits in traveling to ISIS-controlled
territory, including by picking recruits up from the airport, arranging
their stay at local safehouses, and coordinating their travel into ISIS-
controlled territory. As a high-level member of the organization, he
ran an online weapons market, providing firearms and explosives to
ISIS fighters, and he smuggled over $40,000 into Syria for ISIS’s
benefit. He also obtained and created false passports to help ISIS
fighters cross borders undetected, and he provided key intelligence
information to ISIS leadership, distributing maps used by ISIS fighters
and tracking territorial control and road closures.
In 2014, Kandic recruited an Australian teenager named Jake
Bilardi to join ISIS. After Bilardi contacted one of his social media
accounts, Kandic helped him fly to Istanbul, gave advice on what to
bring and what not to bring, promised that an AK-47 would be free
when he got to ISIS territory, arranged him to be picked up from the
airport, and provided instructions on how to meet his ride. He then
helped Bilardi travel to Syria and encouraged him to become a suicide
bomber. On March 11, 2015, Bilardi participated in a highly
coordinated attack that involved eleven suicide bombers throughout
Iraq’s Al-Anbar province. In total, over 30 people were killed in these

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attacks, including Bilardi.
During this time, Kandic’s work for ISIS involved other deaths.
For example, Kandic helped a man—known by his alias “Jason
Borne”—join an ISIS sniper training facility in Syria. On one occasion,
Kandic and Borne suspected that another individual was a spy trying
to reveal the location of an ISIS safehouse. The two men repeatedly
questioned the suspected spy and beat him, resulting in his death.
In 2017, after living for several months in Sarajevo, Kandic was
arrested by Bosnian immigration authorities. Following extradition
proceedings, he was transported to the Eastern District of New York.
II. Procedural Background
A grand jury returned an indictment charging Kandic with six
counts. Count One charged him with conspiracy to provide material
support to ISIS in the form of property, services, and personnel, in
violation of 18 U.S.C. § 2339B. He was also charged with five
substantive violations of 18 U.S.C. § 2339B, including providing
material support to ISIS in the forms of: personnel (himself and
others) (Count Two); services (Count Three); property and equipment
(Count Four); personnel (specifically, Jake Bilardi) (Count Five); and
false documentation and identification (Count Six). Counts One and
Five each included a “death results” element, requiring the
government to prove that “the offense resulted in the death of one or
more persons.” App’x at 38, 41.
Kandic pled not guilty. Before trial, he moved to dismiss Count
One. Although defense counsel conceded that Count Five was “clear
that the only persons whose death the government blames on Mr.
Kandic is Jake Bilardi,” he argued that Count One improperly “le[ft]

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open the possibility that Mr. Kandic can be held responsible for other,
unnamed persons’ deaths.” Dkt. No. 272 at 2; see also Fed. R. Crim. P.
12(b)(3)(B)(i) (allowing a pretrial motion for “a defect in the
indictment,” including “joining two or more offenses in the same
count (duplicity)”). The district court denied Kandic’s motion,
concluding that any prejudicial unfairness could be cured through a
tailored jury instruction.
A three-week trial was held in May 2022. At the charge
conference on May 19, 2022, defense counsel requested that the
government “identify the deaths” relevant to Count One, either by
naming the individuals or “point[ing] to specific episodes or specific
incidents.” App’x at 479. In response, the government agreed to
produce a letter specifying which deaths “we are going to ask the jury
to focus on in our summation . . . that resulted from this conspiracy.”
App’x at 480. Later that day, the government submitted a letter listing
three named individuals (including Jake Bilardi), one unnamed
individual (the suspected spy who died at the safehouse), and four
groups (including the Iraqis killed in Bilardi’s suicide attack).
After summations, the jury was instructed with respect to the
“death results” element. The court stated: “[I]n order to find the
government has proven that the commission of the offense resulted
in a death, . . . you must be unanimous as to the person’s death that
you are considering.” App’x at 538 (“It is not enough for some of you
to find that the government has proven one person’s death and
another of you to find that the government has proven a different
person’s death. In other words, if you find that a death resulted, you
must all agree as to that specific death.”).

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The jury found Kandic guilty on each of the six counts. It also
returned a special verdict sheet, unanimously finding both that the
conspiracy offense “resulted in the death of Jake Bilardi” and that it
“resulted in the death of any other person or persons.” App’x at 545.
In 2023, the district court sentenced Kandic to two terms of life
imprisonment on Counts One and Five, along with 20 years’
imprisonment on Counts Two, Three, Four, and Six, to run
concurrently.
This appeal followed.
DISCUSSION
Kandic raises three challenges to his conviction. He argues that
(1) the conspiracy count must be vacated as impermissibly
duplicitous because it failed to identify every death for which the
government sought to hold him responsible; (2) the remaining counts
must be vacated as multiplicitous because they impose multiple
punishments for the same offense; and (3) the district court abused its
discretion by excluding certain evidence at trial.
“We review properly preserved challenges to an indictment de
novo,” including whether an indictment is duplicitous or
multiplicitous. United States v. Daugerdas, 837 F.3d 212, 225 (2d Cir.
2016); see also United States v. Mejia, 545 F.3d 179, 204 (2d Cir. 2008).
“We review a district court’s evidentiary rulings under a deferential
abuse of discretion standard, and we will disturb an evidentiary
ruling only where the decision to admit or exclude evidence was
manifestly erroneous.” United States v. McGinn, 787 F.3d 116, 127 (2d
Cir. 2015) (quotation marks omitted).

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I. Impermissible Duplicity
In general, “two or more distinct crimes should not be alleged
in a single count of an indictment.” United States v. Murray, 618 F.2d
892, 896 (2d Cir. 1980). An indictment that violates this prohibition is
said to be “duplicitous.” Id.; see also United States v. Sturdivant, 244
F.3d 71, 75 n.3 (2d Cir. 2001). But not all duplicitous indictments are
impermissibly duplicitous.
“[A] single count of an indictment should not be found
impermissibly duplicitous whenever it contains several allegations
that could have been stated as separate offenses[.]” United States v.
Margiotta, 646 F.2d 729, 733 (2d Cir. 1981). Instead, “[a]n indictment
is impermissibly duplicitous where: 1) it combines two or more
distinct crimes into one count in contravention of [the] requirement
that there be a separate count for each offense, and 2) the defendant
is prejudiced thereby.” Sturdivant, 244 F.3d at 75 (quotation marks
omitted). To determine “whether a defendant was actually
prejudiced by a duplicitous indictment,” id., we look to whether the
duplicitous count “risks unfairness to the defendant,” Margiotta, 646
F.2d at 733, in three respects.2
2 This Court has previously broken down impermissible duplicity into five
“underlying policy concerns: (1) avoiding uncertainty of general guilty verdict by
concealing finding of guilty as to one crime and not guilty as to other, (2) avoiding
risk that jurors may not have been unanimous as to any one of the crimes charged,
(3) assuring defendant adequate notice of charged crimes, (4) providing basis for
appropriate sentencing, and (5) providing adequate protection against double
jeopardy in subsequent prosecution.” United States v. Olmeda, 461 F.3d 271, 281
(2d Cir. 2006). We think these policy concerns can be grouped into three broader
categories: unanimity, double jeopardy, and adequate notice. See Sturdivant, 244
F.3d at 77–78.

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First, a duplicitous indictment creates prejudice if it deprives a
defendant of his “right to a unanimous verdict.” Murray, 618 F.2d at
898. If, for example, a guilty verdict does “not reveal whether the jury
found [a] defendant guilty of only one crime and not the other, or
guilty of both,” id. at 896, the duplicitous count “risk[s] that the jurors
may not have been unanimous as to any one of the crimes charged.”
Margiotta, 646 F.2d at 733. This, of course, raises Sixth Amendment
concerns. See Ramos v. Louisiana, 590 U.S. 83, 92 (2020). It also
impermissibly undermines “the basis for appropriate sentencing.”
Margiotta, 646 F.2d at 733; see also Sturdivant, 244 F.3d at 77 (“To the
extent that the court sentenced defendant on the assumption that he
was convicted for conduct for which the jury may not have reached a
unanimous verdict, such sentence constitutes plain error[.]”).
Second, an indictment is impermissibly duplicitous if it
implicates the Double Jeopardy Clause of the Constitution. See U.S.
Const., amend. V. “Under this Clause, once a defendant is placed in
jeopardy for an offense, and jeopardy terminates with respect to that
offense, the defendant may neither be tried nor punished a second
time for the same offense.” United States v. Olmeda, 461 F.3d 271, 278–
79 (2d Cir. 2006) (quotation marks omitted). “In the case of successive
prosecutions, the critical inquiry is whether the [two] offenses are the
same in fact and in law.” United States v. Basciano, 599 F.3d 184, 196
(2d Cir. 2010) (quotation marks omitted). Our bar on impermissible
duplicity helps effectuate this requirement, providing “protection
against double jeopardy” where an indictment might otherwise
create uncertainty about possible “subsequent prosecution[s]” as to
the same conduct. Murray, 618 F.2d at 896.

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Third, a defendant is prejudiced by a duplicitous indictment if
it “implicate[s]” his “right[] to notice of the charge against him.” Id.
An indictment “must be a plain, concise, and definite written
statement of the essential facts constituting the offense charged[.]”
Fed. R. Crim. P. 7(c)(1). It must also, broadly speaking, “inform[] the
defendant of the charges he faces.” United States v. Doe, 297 F.3d 76,
87 (2d Cir. 2002). The purpose of this requirement is “to enable him
to prepare a defense.” United States v. Hernandez, 980 F.2d 868, 871 (2d
Cir. 1992). Accordingly, a duplicitous indictment becomes
impermissibly duplicitous where it fails to “assur[e] the defendant
adequate notice” of the charges that the government seeks to prove.
Margiotta, 646 F.2d at 733.
Here, Count One charged Kandic with conspiring to provide
material support that “resulted in the death of one or more persons,
including Jake Bilardi.” App’x at 38. Kandic argues that the count
must be vacated as impermissibly duplicitous because its “death
results” element “create[d] an omnibus homicide count charging an
unspecified number of homicides at unspecified times and places.”
Appellant’s Br. at 44. He asserts that, although any one death was
sufficient to convict him, the language of Count One created a
limitless set of possible resulting deaths. And, because the indictment
failed to identify any death other than Bilardi’s, Kandic contends that
he was forced to defend against an “ocean of carnage.” Transcript of
Oral Argument at 24:1–2. For example, at trial the jury saw “extensive
video footage of assassinations, decapitations, and other killings,” but
Kandic had “no way to determine which of these deaths the
government sought to pin on [him].” Appellant’s Br. at 45–46. By not

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identifying every death relevant to Count One, he argues, the
government improperly “shifted the burden to the defense to try to
demonstrate [his] lack of responsibility for each of the countless
deaths the government discussed at the trial[.]” Appellant’s Br. at 12.
We agree with the district court that Count One is duplicitous.
It “combines two or more distinct crimes into one count,” Sturdivant,
244 F.3d at 75, and each possible resulting death could have been
separated into its own count. We must therefore examine if Kandic
was prejudiced by the duplicitous indictment. Id.
To start, we reject Kandic’s argument that the duplicitous count
left room for a non-unanimous verdict. To the contrary, “any
possibility” of a non-unanimous verdict was removed by the court’s
“careful charge regarding unanimity” and the special verdict sheet.
United States v. Helmsley, 941 F.2d 71, 91 (2d Cir. 1991). The jurors
were expressly instructed that if they found “that a death resulted,
[they] must all agree as to that specific death.” App’x at 538. And the
special verdict sheet indicated that they must be unanimous in
finding both that the conspiracy “resulted in the death of Jake Bilardi”
and that it “resulted in the death of any other person or persons.”
App’x at 545. With respect to unanimity, this is enough to avoid
prejudice.
Similarly, to the extent Kandic seeks to argue that Count One’s
duplicity creates a double jeopardy problem, we disagree. As the
district court noted, the government conceded before trial that the
conspiracy count provided “a broad double jeopardy bar,” covering
“the entire time span of the defendant’s conspiracy to provide
material support to ISIS, all of the forms of material support that he

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provided, and all of the deaths that resulted.” United States v. Kandic,
No. 17-CR-449, 2022 WL 1406946, at *4 (E.D.N.Y. May 4, 2022).
Moreover, “[p]rinciples of equity prohibit the government from
benefitting from [a] prejudicial ambiguity that the government alone
was responsible for creating.” Sturdivant, 244 F.3d at 77. Because “the
government is estopped from acting on any interpretation of the
jury’s verdict that would prejudice [Kandic’s] double jeopardy
rights,” id. at 78, the conspiracy count cannot be vacated on this basis.
Even if a duplicitous indictment does not implicate unanimity
or double jeopardy concerns, however, it may still be impermissible
if it fails to “assur[e] the defendant adequate notice” of the charges
against him, Margiotta, 646 F.2d at 733, thereby undermining his
ability to prepare an adequate defense, see Hernandez, 980 F.2d at 871.
In this case, the government chose to use a novel, omnibus conspiracy
count that did not specify the set of possible resulting deaths. This is
unusual. And we agree, as a general matter, that this practice puts at
risk a defendant’s ability to prepare for trial and mount an adequate
defense. Indeed, the Federal Rules of Criminal Procedure allow
courts to “direct the government to file a bill of particulars” to remedy
this exact risk. Fed. R. Crim. P. 7(f); see United States v. Davidoff, 845
F.2d 1151, 1154 (2d Cir. 1988) (“A bill [of particulars] is appropriate to
permit a defendant to identify with sufficient particularity the nature
of the charge pending against him, thereby enabling defendant to
prepare for trial [and] to prevent surprise[.]” (quotation marks
omitted)). Thus, if a statute provides for a “death results” element,3
3 See, e.g., 18 U.S.C. §§ 1958(a) (murder for hire), 2113(e) (bank robbery), 2119(3)
(carjacking), 2339B (material support); 21 U.S.C. § 841 (narcotics distribution).

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the government should ordinarily specify the set of possible resulting
deaths, either in the indictment itself or in a subsequent bill of
particulars. The failure to do so renders the indictment impermissibly
duplicitous if inadequate notice results. See Sturdivant, 244 F.3d at 75.
But, here, we find that Count One’s duplicity did not “actually
prejudice[]” Kandic. Id. at 75.
First, as defense counsel conceded at oral argument, Kandic
had adequate notice with respect to Bilardi: Count One expressly
listed Bilardi as a possible resulting death, and the jury unanimously
found that the conspiracy “resulted in the death of Jake Bilardi.” This
finding alone satisfies the statute’s “death results” element. See 18
U.S.C. § 2339B(a)(1) (“. . . if the death of any person results . . .”
(emphasis added)).
Second, although the indictment did not identify other
decedents, Kandic had notice as to the scope of the charged
conspiracy. Count One was limited to the deaths resulting from
Kandic’s own “knowing[] and intentional[]” conspiracy to provide
material support to ISIS. App’x at 37. And, as the district court noted,
evidence adduced at trial did not include “an infinite number of
incidents” but rather “some particularly well-documented” ones.
App’x at 485. Importantly, Kandic does not now argue that there
were any surprises at trial. Nor does he point to any alleged death of
which he was unaware—or for which he was unable to prepare—in
anticipation of trial. Kandic instead argues that “unquantifiable
prejudice” resulted because, in the weeks leading up to trial, defense
counsel “consum[ed] their time running down rabbit holes” to
explore whether their client was involved in various deaths.

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Transcript of Oral Argument at 4:9–16. But these deaths were
disclosed months, if not years, before trial. And Kandic never sought
a bill of particulars, see Fed. R. Crim. P. 7(f), or a continuance under
18 U.S.C. § 3161(h)(7)(A), see United States v. Lynch, 726 F.3d 346, 356
(2d Cir. 2013). We thus hold that Kandic, under these circumstances,
had adequate notice of the charges against him.
In the absence of some of these factors, the government’s failure
to specify the specific resulting deaths in the indictment may have
been prejudicial. Under the circumstances presented, however, we
cannot conclude that Kandic was prejudiced by the duplicitous
indictment.
II. Multiplicity
The multiplicity doctrine prevents the government from
“charging the same offense in more than one count.” Fed. R. Crim. P.
12(b)(3)(B)(ii).4 Like duplicity, multiplicity is grounded in double
jeopardy principles, assuring “that the court does not exceed its
legislative authorization by imposing multiple punishments for the
same offense.” United States v. Nakashian, 820 F.2d 549, 552 (2d Cir.
1987) (quoting Brown v. Ohio, 432 U.S. 161, 165 (1977)). To determine
if two counts are multiplicitous, courts analyze “whether the offenses
charged in the various counts are sufficiently distinguishable from
one another to permit a reasonable inference that Congress intended
to authorize multiple punishments.” United States v. Maldonado-
Rivera, 922 F.2d 934, 969 (2d Cir. 1990) .
4 Multiplicity serves as a foil to duplicity, which is “joining two or more offenses
in the same count.” Fed. R. Crim. P. 12(b)(3)(B)(i).

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In his appellate reply brief, Kandic argues for the first time that
Counts Two, Three, Four, Five, and Six of the indictment should be
dismissed as multiplicitous. He contends that the conspiracy charge,
which encompasses the substantive violations charged by the
remaining counts, renders those counts multiplicitous. Because
Kandic did not bring a multiplicity argument before the district court,
however, he has forfeited this argument on appeal. “We will not
consider an argument raised for the first time in a reply brief.” United
States v. Yousef, 327 F.3d 56, 115 (2d Cir. 2003). Although he seeks to
avoid this outcome by arguing that the government conceded that the
counts are multiplicitous, we are unpersuaded. The government
made no such concession. The language he argues constitutes a
concession was first articulated by the government before trial, see
Gov’t App’x at 91, and yet Kandic nonetheless failed to make a
multiplicity argument below. And, even if this argument were not
forfeited, it is settled law that “the commission of the substantive
offense and a conspiracy to commit it are separate and distinct
offenses.” Pinkerton v. United States, 328 U.S. 640 (1946). We have thus
rejected similar multiplicity arguments because “there is certainly
nothing unusual about treating as distinct crimes a conspiracy and
the substantive offense that is its object.” United States v. DeStafano,
429 F.2d 344, 348 (2d Cir. 1970).
III. Evidentiary Challenge
Lastly, Kandic argues that Counts One and Five should be
vacated because certain hearsay evidence was improperly excluded.
Hearsay is an “out-of-court statement[] offered to prove the
truth of the matter asserted.” Smith v. Arizona, 602 U.S. 779, 785 (2024)

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(quotation marks omitted). In federal court, hearsay evidence is
inadmissible unless it “falls within an enumerated exception” in the
Federal Rules of Evidence. United States v. Cummings, 858 F.3d 763,
772 (2d Cir. 2017) (quotation marks omitted). One such exception is
the residual hearsay exception, which is a catch-all to be invoked
“very rarely, and only in exceptional circumstances.” Parsons v.
Honeywell, Inc., 929 F.2d 901, 907 (2d Cir. 1991) (quotation marks
omitted).
Under the residual hearsay exception, a statement is not
excluded by the rule against hearsay if:
(1) the statement is supported by sufficient
guarantees of trustworthiness—after
considering the totality of circumstances
under which it was made and evidence, if
any, corroborating the statement; and (2) it
is more probative on the point for which it is
offered than any other evidence that the
proponent can obtain through reasonable
efforts.
Fed. R. Evid. 807(a).
At trial, Kandic sought to introduce affidavits by three of Jake
Bilardi’s siblings. The affidavits memorialize statements made by
Bilardi’s siblings to Australian authorities several months before his
death, describing his apparent radicalization prior to meeting Kandic.
Although Kandic endeavored to introduce the affidavits to support
his argument that he was not responsible for Bilardi’s death, the
district court found that they were inadmissible hearsay statements

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and not covered by any exception.
On appeal, Kandic argues that the district court abused its
discretion by declining to admit the affidavits under the residual
hearsay exception. We disagree. Even accepting Kandic’s position
that the affidavits are supported “by sufficient guarantees of
trustworthiness,” Fed. R. Evid. 807(a), he has not shown that they are
“more probative,” id., than the substantial evidence admitted and
developed during trial concerning Bilardi’s radicalization. This
evidence included an 18-minute telephone call between Bilardi and
his brother about his radicalization and an extensive blog post written
by Bilardi discussing the same. The government also authenticated
and made available to the defense the entire contents of Bilardi’s
computer. The district court concluded, “the longer the trial goes on,
and the more evidence [that] comes in, the clearer it becomes that the
sibling affidavits are neither necessary nor the most probative
evidence about Jake Bilardi’s radicalization.” App’x at 332. In so
holding, the district court did not abuse its discretion.
CONCLUSION
The judgment of the United States District Court for the Eastern
District of New York is AFFIRMED.

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