Summary
This Second Circuit opinion affirms the conviction of Mirsad Kandic for providing material support to ISIS, including conspiracy and substantive counts resulting in death. The court addresses three main challenges: whether the conspiracy count was impermissibly duplicitous, whether the remaining counts were multiplicitous, and whether the district court properly excluded certain hearsay evidence. Finding no reversible error regarding jury unanimity, double jeopardy, adequate notice, or evidentiary discretion, the appellate court upholds the district court's judgment.
Topics
Practice areas
Questions Presented
- Whether the conspiracy count is impermissibly duplicitous because it fails to identify every death resulting from the conspiracy.
- Whether the substantive counts are multiplicitous because the conspiracy count covers the same conduct.
- Whether the district court abused its discretion by excluding certain hearsay evidence.
Holdings
- The court held that the conspiracy count, while technically duplicitous, was not impermissibly duplicitous because the defendant was not prejudiced; the jury received specific instructions and a special verdict sheet ensuring unanimity and adequate notice.
- The court held that the multiplicity argument fails because the conspiracy offense and the substantive offenses are distinct under Pinkerton liability, and the argument was forfeited because it was not raised in the district court.
- The court held that the district court did not abuse its discretion; the affidavits were inadmissible hearsay not covered by the residual exception and were not more probative than the evidence already admitted.
Key quotations
“We review properly preserved challenges to an indictment de novo, including whether an indictment is duplicitous or multiplicitous.”
“We will not consider an argument raised for the first time in a reply brief.”
Factual background
Mirsad Kandic, a legal permanent resident, traveled to Syria to serve ISIS as a recruiter, financier, arms dealer, and foreign fighter. He used social‑media accounts to recruit, arrange travel, provide weapons, smuggle money, forge passports, and supply intelligence. He helped an Australian teenager, Jake Bilardi, travel to Syria, where Bilardi participated in suicide bombings that killed over 30 people. Kandic was arrested in Bosnia in 2017, extradited to the United States, and tried in New York.
Procedural history
Kandic was convicted in the Eastern District of New York on six counts of providing material support to a foreign terrorist organization, including a conspiracy count with a death-results element. He was sentenced to two life terms and four concurrent 20‑year terms. He appealed, arguing duplicitous indictment, multiplicity of counts, and improper exclusion of hearsay evidence.