United States of America v. Khaled Miah

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 22-2983
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UNITED STATES OF AMERICA
v.
KHALED MIAH,
Appellant
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On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 2-21-cr-00110-001)
District Judge: Honorable W. Scott Hardy
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Argued June 10, 2024
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BEFORE: CHAGARES, Chief Judge, RESTREPO, and
FREEMAN, Circuit Judges
(Filed: September 20, 2024)
Sufia M. Khalid
Charles D. Swift
Muslim Legal Fund of America
100 N Central Expressway
Suite 1010
Richardson, TX 75080
Allie J. Hallmark [ARGUED]
Hamilton Wingo
325 N St. Paul Street
Suite 3600

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Dallas, TX 75201
Counsel for Appellant
Laura S. Irwin
Direct: 412-894-7374
Office of United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
Jeffrey M. Smith [ARGUED]
United States Department of Justice
National Security Division, 6521
950 Pennsylvania Avenue NW
Washington, DC 20530
Counsel for Appellee
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OPINION OF THE COURT
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RESTREPO, Circuit Judge
Khaled Miah threatened FBI agents over social media,
specifically targeting the agents investigating his online
activities. A jury convicted Miah of issuing interstate threats,
threatening to assault FBI agents, and knowingly deleting
social media accounts and postings with the intent to impede
their investigation. He received a sentence of six years’
imprisonment followed by three years’ supervised release. On
appeal, Miah raises claims of trial court error and contends that
his sentence is illegal. After thoughtful review, we will affirm
the judgment of sentence.
In September 2020, FBI Special Agent Nick Edquist
and an officer from the Joint Terrorism Task force went to
Miah’s apartment to interview him about his comments on
several social media platforms. Miah’s comments drew the
FBI’s attention because they suggested he believed in a
“particular extremist ideology,” consisting of a “vengeful,

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violent form of Islam.” A697, A701.1 Miah was not
cooperative during the initial interview and in fact filed a
complaint against the FBI. He agreed to another interview the
following day but was again uncooperative, refusing to answer
the agents’ questions about his online conduct.
On October 8, 2020, Miah created a Twitter account
named after Agent Edquist’s wife that contained pictures of her
and her personal information, including her approximate age,
place of employment, education, and religion. The next day
agents executed a warrant to search Miah’s home and devices.2
Miah admitted to creating the tweets but claimed they were a
joke and that he would not post such content again. He instead
immediately resumed creating tweets featuring Agent Edquist
and his wife, as well as tweets providing personal details about
Agent Edquist’s supervisor.
In December 2020, Miah created a second Twitter
account with the name “Federal Intelligence Service” and a
profile photo of a mock FBI seal. It was on this account that
Miah posted the statements that underlie the charges for which
he was convicted. On December 27, 2020, Miah tweeted,
“Nick, Dave, Mike, the whole bureau, the deed will be done at
a time which is the most opportunistic for me, chosen by
myself.” A1100. He followed with, “Currently eating pasta and
watching videos of the second plane hit the south tower.”
A1100. The next day, Miah tweeted, “The zero hour is
1 Agent Edquist testified at trial that the tweets included
incendiary language encouraging violence against Christian-
majority countries, an “explicit call to attack Jews,” and the
glorification of the September 11, 2001 terrorist attacks. A698-
70. The FBI’s physical surveillance revealed that Miah
frequently went alone to the local shooting range.
2 The search of the devices revealed that Miah had gone to gun
stores to research different types of weapons, “specifically
weapons that had suppressors on the gun and things like that.”
A1074. The devices contained photographs of assault rifles
and Miah dressed in a manner that appeared to the agents as
emulating ISIS fighters. They also contained multiple pictures
of the Tsarnaev brothers, who committed the 2013 Boston
Marathon terrorist attack.

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approaching.” A1104. On December 29, 2020, Miah tweeted,
“38 53’ 42.7’’ N, 771’ 30’’ W,” which are the coordinates
for the FBI headquarters in Washington, D.C. A1106-07;
A1936. The following day, he posted, “Rasheed, Dave, Nick,
Mike . . . . how’s your investigation going? Things are looking
‘bright’ in 2021. Did you find the Saudi passports?” A1107-
08. Later he tweeted, “2001-2021 is 20 years. An entire
generation, yet men like me still exist and pop up into
existence. Next time you come in cowboy with the crew, the
hardwood will collapse beneath your feet.” A1108-1110.
Finally, on December 31, 2020, Miah tweeted, “Remember
boys, the more eyes on me, the less eyes on others. Regardless,
yellow tapes will flow.” A1112.
Miah was arrested and later indicted on a total of eight
counts by a grand jury in the Western District of Pennsylvania
on March 16, 2021. Counts One through Five alleged interstate
threats in violation of 18 U.S.C. § 875(c), Counts Six and
Seven alleged threats to assault FBI agents in violation of 18
U.S.C. §§ 115(a)(1)(B) and 115(b)(4), and Count Eight alleged
the destruction, alteration, or falsification of records in a
federal investigation in violation 18 U.S.C. § 1519.
Prior to trial, Miah moved to dismiss Counts Two,
Three, Five and Seven of the indictment, claiming that the
December 2020 tweets did not qualify as threats to injure the
agents or as “true threats” under First Amendment
jurisprudence. Miah also argued the statutes he was charged
under were too vague to warn him that his communications
were illegal.
The District Court denied the motion, ruling that the
indictment provided sufficient context for a reasonable jury to
conclude that the tweets expressed an intent to injure the agents
and constituted true threats unprotected by the First
Amendment. It also denied Miah’s vagueness claim, finding
that he had “a reasonable opportunity to understand that the
conduct, as charged in the Indictment, would be prohibited by
the statutes.” A166.
Also prior to trial, the government moved for an in-
limine ruling to admit numerous exhibits of other-acts
evidence. Miah opposed the motion. The District Court granted

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the motion in part and denied it in part, ruling the proffered
evidence was not intrinsic but that some of the exhibits were
admissible under Federal Rule of Criminal Procedure 404(b).
The Court deemed admissible the evidence that provided the
“context and foundational basis” for the FBI’s initial
investigation of Miah, A240, as well as those exhibits that were
“probative of [his] state of mind” when sending the charged
communications. A251.3
The jury convicted Miah of all five interstate threat
counts, one count of threatening to assault FBI agents, and one
count of destroying evidence to obstruct their investigation. At
sentencing, the Court applied enhancements for conduct
evidencing the intent to carry out the threats, U.S.S.G. §
2A6.1(b)(1), and for obstructing justice by deleting threatening
communications for which he was charged, U.S.S.G. § 3C1.1.
The District Court varied downward from the calculated
Guideline range of 78 to 97 months imprisonment to impose a
term of 72 months imprisonment, to be followed by three years
of supervised release. This appeal followed. We have
jurisdiction to review Miah’s claims pursuant to 28 U.S.C. §
1291.
I.
Miah’s first claim is that the District Court erred by
denying his motion to dismiss the threat charges tied to Counts
One, Two, Three, and Five of the indictment. Specifically, he
contends the indictment failed to allege facts establishing that
the tweets threatened to harm people, which is required for a
Section 875(c) conviction. Miah asserts the indictment at most
established that he communicated generalized threats to
commit terroristic attacks, a crime for which he was not
charged. He further alleges the indictment did not sufficiently
establish the tweets were “true threats” that expressed a sincere
intent to commit violence against the agents, which means they
were entitled to First Amendment protection.
3 In its lengthy memorandum opinion, the District Court ruled
to exclude an exhibit demonstrating a prior stalking incident,
A241, and various social media posts that purportedly reflected
Miah’s “violent and hostile mentality.” A256

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Miah’s challenge as to the sufficiency of the indictment
is a legal question over which this Court exercises plenary
review. United States v. Stock, 728 F.3d 287, 291 (3d Cir.
2013). This Court in Stock observed that “whether a statement
constitutes a threat under § 875(c) is based on the context and
totality of the communication,” which means the indictment
must include sufficient context for the District Court “to
determine that a reasonable jury could find that [the charged]
statement expressed an intent to injure in the present or future.”
Id. at 301. Here, the District Court found the indictment
provided sufficient context to present the threat charges to the
jury, both under Section 875(c) and the First Amendment. We
agree.
A person violates Section 875(c) by “transmit[ting] in
interstate or foreign commerce any communication containing
. . . any threat to injure the person of another.” 18 U.S.C. §
875(c). Miah argues the tweets that do not identify a natural
person as their target—such as “the zero hour is approaching”
or the coordinates of the FBI headquarters—cannot be lawfully
charged as threats under Section 875(c). This argument
overlooks that the context and totality of circumstances of the
communications must be considered when assessing whether a
threat has been alleged. The indictment provided both context
and circumstances by describing Miah’s retaliatory targeting
of Agent Edquist’s wife, his inclusion of the names of the
investigating agents in his tweets, the contents of his devices
revealing an “interest in weapons, his fascination with
violence, and his strong animosity toward law enforcement,”
and his recurring surveillance of Agent Edquist’s residence and
the FBI Pittsburgh Field Office. A45.
Thus, the District Court properly ruled Miah’s tweet
“the zero hour is approaching,” which it found indicated “the
occurrence of a significant event,” could be deemed a threat by
a reasonable jury given that it was posted the day after the tweet
referencing the September 11, 2001 terrorist attack. A158.
Similarly, the Court properly concluded the coordinates of the
FBI’s headquarters, when viewed through the lens of Miah’s
conduct and preceding tweets, could be found to “constitute[]
a threat to injure agents at that location.” A158. It was also
correct to conclude that the tweet telling the “boys,” who were
agents named in a prior tweet, that “yellow tapes will flow,”

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which appears to reference crime scene tape, could reasonably
be interpreted as a threat to inflict harm. A158. In sum, we
agree that the charges alleging a violation of Section 875(c)
were properly put to the jury. See United States v. C.S., 968
F.3d 237, 245 (3d Cir. 2020) (holding that context and
circumstances of statements could enable a reasonable person
to view them as serious threats).
We also conclude a reasonable jury could find Miah’s
tweets communicated “a serious expression of an intent to
commit an act of unlawful violence to a particular individual
or group of individuals” and therefore constituted true threats
under First Amendment jurisprudence. United States v.
Davitashvili, 97 F.4th 104, 109 (3d Cir. 2024) (citing Virginia
v. Black, 538 U.S. 343, 359 (2003)). As with violations of
Section 875(c), we look to Miah’s earlier conduct to
“contextualize the meaning” of his tweets. Id. at 110. As
discussed, the conduct outlined in the indictment established
Miah’s antipathy for specific agents, as well as his animosity
towards law enforcement in general. It also demonstrated
Miah’s captivation with weapons and terroristic-style attacks.
We therefore agree with the District Court that a reasonable
jury could find Miah’s contextualized tweets expressed a
serious intent to harm the agents and hold that threats targeting
FBI agents generally are sufficiently particularized to qualify
as true threats. Id. at 111 (citing United States v. Khan, 937
F.3d 1042, 1046 (7th Cir. 2019) (holding that threats to harm
“an entire city region” counted as sufficiently particularized)).
To the extent Miah raises a vagueness challenge
regarding his convictions under Section 875(c), we deny this
claim as well. A conviction under 18 U.S.C. § 875(c) requires
proof of both a subjective and an objective component; the
subjective component is satisfied if the defendant transmitted
a communication for the purpose of issuing a threat or with the
knowledge it would be viewed as one. United States v. Elonis,
841 F.3d 589, 596 (3d Cir. 2016). This subjective component
alleviates concerns that “a defendant will be convicted for an
action that he or she committed by mistake.” United States v.
Fullmer, 584 F.3d 132, 152 (3d Cir. 2009). Here, we agree with
the District Court that Miah’s conduct prior to issuing the
December 2020 threats—which included his refusal to
cooperate with the agents, his social media posts targeting

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Agent Edquist’s wife, his surveillance of Agent Edquist’s
house and the Pittsburgh FBI Field Office, his frequent trips to
gun ranges, and his research into different weapons and past
terroristic attacks—established that he knew his
communications would be viewed by those agents
investigating him as threats. C.S., 968 F.3d at 246.
We will therefore affirm the District Court’s denial of
Miah’s motion to dismiss charges in the indictment.4
II.
Miah next claims that the District Court’s decision to
close the courtroom during voir dire proceedings violated his
Sixth Amendment right to a public trial. Specifically, he
contends the procedure of screening prospective jurors in open
court before questioning the remaining panel members in a
closed courtroom warrants the grant of a new trial. We
conclude that Miah is not entitled to relief.
Firstly, Miah has not provided the notes of the voir dire
proceedings for us to review to decide this claim. Under
Federal Rule of Appellate Procedure 10(b)(1)(A), Miah was
required to “order . . . a transcript of such parts of the
proceedings not already on file as [he] considers necessary.” In
addition, this Court’s Local Appellate Rules require that the
appendix include “[r]elevant portions of a trial transcript,
exhibit, or other parts of the record . . . at such length as may
be necessary to preserve context.” L.A.R. 30.3(a); see also
L.A.R. 11.1 (outlining appellant’s duty to transmit the trial
court transcript). Miah’s failure to provide a transcript of the
voir dire proceedings renders the alleged Sixth Amendment
violation unreviewable and serves as grounds to dismiss the
claim. See Fed. R. App. P. 3(a)(2) (providing that failure to
comply with procedural rules allows the court to act “as it
4 To the extent Miah challenges the charge under 18 U.S.C. §
115(a)(1)(B), which prohibits threatening a federal law
enforcement officer, we hold the indictment was sufficient.
Miah, operating within the context of having contempt for law
enforcement and a fixation with extreme violence, named the
agents investigating him while referencing the September 11,
2001 terroristic attacks.

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considers appropriate, including dismissing the appeal”).
Because we will not reverse a conviction and grant a new trial
without first reviewing the relevant portions of the record, we
deem it appropriate to hold this claim forfeited. See Morisch
v. United States, 653 F.3d 522, 529–30 (7th Cir. 2011) (noting
the inability to conduct “meaningful review” of a claim without
a transcript and the failure to order a transcript can be grounds
for forfeiture).
In any event, the parties agree that the jurors were
screened in open court but were individually questioned about
their potential anti-Muslim bias in private. Miah acknowledges
that he did not object to the District Court’s procedure nor
claim it interfered with his right to a public trial, which means
we would review this issue for plain error. Fed. R. Crim. P.
52(b). Thus, a new trial would only be justified if the District
Court committed an obvious error that affected Miah’s
substantial rights, as well as the “fairness, integrity or public
reputation of judicial proceedings.” United States v. Olano,
507 U.S. 725, 732-36 (1993).
It is well established that a defendant’s Sixth
Amendment right to a public trial “extends to the voir dire of
prospective jurors.” Presley v. Georgia, 558 U.S. 209, 213
(2010). Thus, the closing of a courtroom is an obvious error
that “by [its] very nature, ‘affect[s] substantial rights’ and so
cannot be ‘disregarded.’” United States v. Williams, 974 F.3d
320, 340 (3d Cir. 2020) (citing Fed. R. Crim. P. 52(b)). But,
unlike in Williams, the courtroom was not closed for the entire
voir dire proceeding. Presumably the initial screening of the
prospective jurors took place in open court, followed by the
individual voir dire that took place in private. It is also
presumed that Miah and the attorneys for both sides were
present for the entire voir dire. Miah does not claim that any
member of the public (or press) requested and was denied
access to the private portion of the questioning. Applying plain
error review, we have previously decided that similar
circumstances do not violate the Sixth Amendment right to a
public trial. United States v. Bansal, 663 F.3d 634, 661 (3d Cir.
2011). Thus, even if this claim had not been forfeited, there
was no plain error.

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III.
Miah next challenges the District Court’s decision to
admit “other acts” evidence pursuant to Federal Rule of
Evidence 404(b). He contends the Court abused its discretion
in admitting exhibits relating to four subjects: (1) his comments
on YouTube where he intimated that a terroristic attack was
imminent; (2) exhibits consisting of “firearm and gun-range
evidence” and “[r]esearch and images” of different types of
explosive devices; (3) exhibits relating to the “Tsarnaev
brothers,” who perpetrated the Boston Marathon bombing in
April 2013; and (4) a video where he expressed anti-police
sentiments and sang “about ISIS.” Appellant Br. 36, 38, 40, 43,
45. In addition, Miah alleges the District Court’s curative
instructions were inadequate to cure any undue prejudice
caused by admitting the contested evidence. We conclude no
such prejudice occurred and affirm the evidentiary rulings
made by the District Court.
We review evidentiary rulings for abuse of discretion,
noting that an abuse occurs only if a ruling is “arbitrary,
fanciful, or unreasonable.” United States v. Starnes, 583 F.3d
196, 214 (3d Cir. 2009) (citing Ansell v. Green Acres
Contracting Co., 347 F.3d 515, 519 (3d Cir. 2003)). To the
extent Miah argues the evidence fell outside the scope of Rule
404(b), we exercise plenary review of the Court’s
interpretation of the Federal Rules of Evidence. United States
v. Green, 617 F.3d 233, 239 (3d Cir. 2010) (citing United
States v. Cruz, 326 F.3d 392, 394 (3d Cir. 2003)).
Rule 404(a)(1) states that “[e]vidence of a person's
character or character trait is not admissible to prove that on a
particular occasion the person acted in accordance with the
character or trait.” Fed. R. Evid. 404(a)(1). This prohibition
does not prevent evidence of “other crimes, wrongs or acts”
from being admitted “for another purpose, such as proving
motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident.” Fed. R. Evid.
404(b)(2).
A four-part test governs the admissibility of other-acts
evidence under Rule 404(b). Such evidence must: (1) have a
proper, non-propensity purpose; (2) be relevant to that non-

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propensity purpose; (3) satisfy the requirement under Federal
Rule of Evidence 403 that its probative value is not
substantially outweighed by the risk of unfair prejudice; and
(4) be accompanied by a limiting instruction where requested.
United States v. Repak, 852 F.3d 230, 241 (3d Cir. 2017). The
party seeking admission, here the government, “must do more
than conjure up a proper purpose—they must also establish a
chain of inferences no link of which is based on a propensity
inference.” United States v. Smith, 725 F.3d 340, 345 (3d Cir.
2013).
In its memorandum opinion, the District Court
addressed the admissibility of the proffered evidence,
articulating “those inferential chains when readily apparent and
discernable from the record.” A238 (citing Repak, 852 F.3d at
245). Regarding Miah’s comments on YouTube, the Court
found the evidence provided a “context and foundational basis
for why the FBI agents began investigating [him],” which in
turn “led to [his] subsequent interactions with the agents,
including his charged conduct.” A240.5 Given the evidence’s
relevance, the Court found that any potential for prejudice
“was not substantial enough” to outweigh its probative value.
Id. We agree. In Green, this Court held that other-acts evidence
admitted to provide “helpful background information to the
finder of fact” constitutes a proper purpose under Rule 404(b).
617 F.3d at 250. Evidence of Miah’s comments on YouTube
explained to the jury “why [he] was under investigation,”
which in turn “completed the story of the crime.” Id.
Accordingly, the admission did not constitute an abuse of
discretion.6
5 The District Court also found this evidence demonstrated that
the FBI agents were “engaged in the performance of their
official duties,” a requisite element of 18 U.S.C. § 115
(a)(1)(B) (Counts Six and Seven), while conducting their
investigation under the jurisdiction of a federal agency, a
requisite element of 18 U.S.C. § 1519 (Count Eight), when
Miah issued the charged communications. A240. We agree.
6 Miah takes issue with the District Court conducting the
analysis after finding that the government failed to meet its
burden of establishing the contested exhibits served a non-
propensity purpose. This was not error. In Repak, this Court

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We reach the same conclusion regarding the exhibits
establishing Miah’s connection to firearms, tactical gear, and
types of explosives. The first six exhibits establish Miah’s
familiarity with firearms and wearing tactical gear, which the
Court found were “probative of [the] knowledge and intent”
behind the charged communications. A246. The last four
convey Miah’s “research into weapons and attempts to build
explosives at home,” which provide “contextual and
circumstantial evidence tending to make more probable the
likelihood that a reasonable person would consider [his]
charged communications to be serious expressions of an intent
to inflict serious bodily injury.” A246, A254. We agree with
the District Court that these exhibits were relevant to Miah’s
subjective mental state when he issued the threats and are
therefore “probative of a material issue other than character.”
United States v. Cross, 308 F.3d 308, 321 (3d Cir. 2002) (citing
Huddleston v. United States, 485 U.S. 681, 685 (1988)).
Moreover, the content of the admitted evidence is closely
related to the conduct outlined in the charged
communications—the reasonable inference from the exhibits
is that Miah had the knowledge and means to carry out his
threats of violence.7 Because the exhibits were admitted for
non-propensity purposes, we conclude there was no abuse of
discretion.
conducted a proper Rule 404(b) analysis and deemed the
“other-acts” evidence admissible after concluding both the
District Court’s and the government’s analysis lacking. 852
F.3d at 242, 244. In so doing, the Repak Court assessed the
record, much like the District Court did here, and found the
necessary chain of inferences supporting the exhibits’
admission. Id.
7 Miah argues that evidence of his subjective intent to carry out
the charged threat is not relevant. To support this claim, Miah
cites United States v. Himmelwright, 42 F.3d 777 (3d Cir.
1994). The Himmelwright decision was abrogated by the
Supreme Court in Elonis v. United States, 575 U.S. 723, 737-
40 (2015), which held that the government must prove the
defendant’s subjective intent to establish a violation of Section
875(c).

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Miah next contends the District Court erred in admitting
exhibits relating to the Tsarnaev brothers who committed the
2013 Boston Marathon bombing. The District Court deemed
the exhibits admissible because they tended to make his motive
and intent in making the threats “more probable than without
such evidence.” A248.8 The Court recognized that one of the
exhibits—the July 2018 social media post—was created prior
to the start of the FBI’s investigation but found it relevant
because it illustrated “his emulation of the Tsarnaevs” and “his
intention for instilling terror.” A257. We agree there is a
connection between the charged communications and this post,
especially given that Miah’s defense at trial was that the
December 2020 tweets were not serious expressions of his
intent to inflict harm. The Tsarnaev exhibits show Miah’s
history of mimicking terrorists, which makes them probative
of whether he intended to threaten a similar type of attack.
United States v. Willis, 844 F.3d 155, 170 (3d Cir. 2016)
(holding evidence of past conduct admissible under Rule
404(b) to demonstrate the defendant’s state of mind in
accepting bribes).
Finally, Miah challenges the admission of a video
recorded in February 2018 on his phone, which shows him in
front of a police car expressing an anti-police sentiment and
singing about ISIS. The District Court admitted the video
because it demonstrated Miah’s “animosity toward law
enforcement, thus making it more likely that [he] was
motivated to make true threats against the FBI agents.” A244.
Miah challenges the admission, arguing that it invited the jury
8 There was a total of six Tsarnaev exhibits: five were images
of the Tsarnaev brothers dated between January and August
2020 (A1837, A1836, A1832, A1833); and one was a social
media post from July 2018 with a comment referencing “the 2
brothers in Boston” (A1850). Although the July 2018 post was
addressed separately in the District Court’s memorandum
opinion, the Court cited the same reasons for its admission as
the other exhibits: that it “may tend to make one of Defendant’s
motives (i.e., emulating the Tsarnaev brothers) and his intent
(i.e., the power of instilling terror) for making the charged
threat communications more probable than without such
evidence.” A257.

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to draw conclusions about his character. Appellant Br. 45.
Regardless of whether such conclusions could have been
drawn, the video was probative of Miah’s incentive for
threatening law enforcement with a terroristic attack, and this
probative value was not substantially outweighed by the risk of
unfair prejudice to Miah. Because the exhibit demonstrated
something other than character, the District Court properly
exercised its discretion.
Miah argues that the District Court erred in applying
Federal Rule of Evidence 403 because the cumulative impact
of the other-acts evidence led the jury to improperly infer
propensity, causing the prejudicial effect to outweigh any
probative value. Initially, we note that the District Court’s
balancing pursuant to Federal Rule of Evidence 403 is due
great deference, with reversal justified only if the court’s
conclusion is “arbitrary or irrational.” United States v. Bergin,
682 F.3d 261, 279-80 (3d Cir. 2012) (citing United States v.
Kellogg, 510 F.3d 188, 197 (3d Cir. 2007)). Next, we recognize
that “evidence can be kept out only if its unfairly prejudicial
effect ‘substantially outweigh[s]’ its probative value.” Cross,
308 F.3d at 323 (citing Fed. R. Evid. 403). To establish this
substantial imbalance, Miah needed to identify unfair prejudice
“based on something other than [the evidence’s] persuasive
weight.” Bergin, 682 F.3d at 279. Miah has not met this burden.
Any prejudice did not outweigh the exhibits’ value, especially
given his claim that the government failed to prove the
subjective component of Section 875(c). The exhibits were
persuasive in establishing Miah’s subjective intentions in
sending the charged communications, his personal knowledge
of the subject matter referenced in the tweets, and his
understanding that his posts would be interpreted as threats by
the investigating agents. Given the highly probative value of
the admitted evidence, we will affirm the District Court’s
balancing under Rule 403.
Miah challenges the limiting instructions issued by the
District Court, claiming they suggested to the jury they were
“free to consider [his] potential to commit . . . terrorist
attack[s].” Appellant Br. 48. A limiting instruction, if
requested by the defendant, must “advise[] the jury that the
evidence is admissible for a limited purpose and may not be
considered in another manner.” United States v. Caldwell, 760

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F.3d 267, 277 (3d Cir. 2014). The District Court issued
approximately fifteen limiting instructions over the course of
the trial. Each identified the purpose the “other acts” evidence
served and informed the jury that it may only consider the
evidence for that purpose, not as proof of bad character or a
propensity to commit crimes. These instructions were then
reiterated during the charge to the jury, where the Court again
recited the limited purpose served by each piece of Rule 404(b)
evidence. Miah’s challenge is particularly unpersuasive given
that this Court in Repak determined that substantially identical
instructions were sufficient to mitigate “any concern that the
jury would have used [the other-acts] evidence to draw a
propensity inference.” 852 F.3d at 247. Here, as in Repak, there
is no indication the jury did not follow the oft repeated
instructions in considering the evidence. Accordingly, we will
affirm the District Court’s evidentiary rulings.
IV.
Finally, Miah challenges the sentence imposed by the
District Court. This Court reviews a district court’s
interpretation of the Guidelines de novo and reviews factual
findings relevant to the Guidelines for clear error. United
States v. Ali, 508 F.3d 136, 143 (3d Cir. 2007) (citing United
States v. Grier, 475 F.3d 556, 570 (3d Cir. 2007)). When
assessing the district court’s application of the Guidelines to a
particular set of facts and if “th[ose] facts ‘fit’ within what the
Guidelines prescribe,” we apply the deferential clearly
erroneous standard of review. United States v. Richards, 674
F.3d 215, 219 (3d Cir. 2012).
Miah first argues that the District Court erred in
imposing a six-level increase in his offense-level under
U.S.S.G. § 2A6.1. Such an increase is justified when a
defendant is convicted of issuing threats and “the offense
involved any conduct evidencing an intent to carry out such a
threat.” U.S.S.G. § 2A6.1(b)(1). In applying this enhancement,
courts must consider conduct that occurred during the crime
and any pre-crime conduct that is “substantially and directly
connected to the offense, under the facts of the case taken as a
whole.” Id. at application n.1. The District Court found the
following overt acts were directly and substantially connected
to the threats of conviction:

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The Defendant researching the agents as well as
their families, where their family members for
instance worked, even their pets, traveled to the
vicinity of one of the agent's residences, traveled
to the vicinity of the agents' place of
employment, the Pittsburgh Field Office of the
FBI at various times of the day and night,
researching weapons, explosives and violence,
and then on one instance going to a shooting
range on the day he made an actual threat or post.
A1704-05. In making this finding, the Court recognized that
Miah was convicted of threatening to injure the named agents
as well as those located in the FBI’s headquarters by executing
terroristic attacks. Because the conduct was directly connected
to the threatening communications, the Court did not err in
applying this enhancement.
Next, Miah challenges the grouping of his conviction
under 8 U.S.C. § 1519, which prohibits the destruction of
evidence to obstruct a federal investigation, with his other
convictions. Miah violated Section 1519 by deleting the
threatening communications that gave rise to Counts One and
Two. Application Note 8 of U.S.S.G. § 3C1.1 states that
subsection (c) of § 3D1.2 dictates that a conviction for an
obstruction offense—here, the deletion of his threatening
communications to impede the FBI’s investigation—should be
grouped with the convictions for the underlying offense—here,
the transmitting of the threatening communications. Such
grouping prevents multiple punishments for the same
offending conduct while accounting for the additional crimes
committed. United States v. Bush, 56 F.3d 536, 538 (3d Cir.
1995). Miah claims the grouping was improper because his
obstructive conduct “cover[ed] a wider range of conduct and
time than the threat convictions.” Appellant Br. 58. But this
argument does not undermine the District Court’s finding that
Miah’s obstruction offense was predicated on transmitting
threatening communications. Thus, the District Court properly
applied §§ 3C1.1 and 3D1.2(c) in grouping Diaz’s offenses and
enhancing his total offense level by two levels. See United
States v. Leung, 360 F.3d 62, 68 (2d Cir. 2004) (affirming that
the Guidelines require grouping of passport fraud count with

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obstruction of justice count where convictions were based on
same underlying conduct).
V.
For the foregoing reasons, we will affirm the judgment
of sentence.

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