Clarifying “Death Results” in Material Support Conspiracy: Notice, Unanimity, and Duplicity Safeguards

Introduction

The Second Circuit’s decision in United States v. Kandic (23-7146-cr), decided April 11, 2025, addresses key procedural safeguards in terrorism prosecutions under 18 U.S.C. § 2339B. Mirsad Kandic was indicted for conspiring to provide material support to the Islamic State of Iraq and al-Sham (ISIS), including counts with a “death results” aggravator. On appeal, Kandic challenged:

Whether the conspiracy count was impermissibly duplicitous (i.e., lumped multiple “death results” into one count without adequate notice);
Whether the substantive material‐support counts were multiplicitous of the conspiracy;
Whether the district court abused its discretion by excluding hearsay affidavits under the residual hearsay exception.

The panel (Judges Chin, Pérez, and Nathan) affirmed the convictions, refining the law on how “death results” elements must be charged and proven, and clarifying the interplay of unanimity, notice, and sentencing in multi‐count terrorism indictments.

Summary of the Judgment

The Second Circuit held that:

The conspiracy count, though technically duplicitous by charging “death results” generically, did not prejudice Kandic because the jury was instructed to be unanimous on the specific resulting death and returned a special verdict pinpointing Jake Bilardi (and others).
The substantive counts did not violate the Double Jeopardy Clause as multiplicitous of the conspiracy, given that conspiracy and the substantive offense are distinct under Pinkerton.
The district court did not abuse its discretion in excluding three sibling affidavits under the residual hearsay exception (Fed. R. Evid. 807), because far more probative direct evidence of Bilardi’s radicalization was presented at trial.

Accordingly, Kandic’s convictions on all counts under 18 U.S.C. § 2339B were affirmed.

Analysis

Precedents Cited

United States v. Murray, 618 F.2d 892 (2d Cir. 1980): Established that indictments should not combine distinct crimes in one count (duplicitous counts) unless no actual prejudice results.
United States v. Margiotta, 646 F.2d 729 (2d Cir. 1981): Articulated the two‐step test for duplicitous indictments—distinct offenses combined and resulting prejudice—and identified key policy concerns (unanimity, notice, double jeopardy).
United States v. Sturdivant, 244 F.3d 71 (2d Cir. 2001): Emphasized jury unanimity safeguards and equitable estoppel against the government on double jeopardy grounds when it created ambiguous charges.
Pinkerton v. United States, 328 U.S. 640 (1946): Confirmed that conspiracy and the substantive offense are separate crimes, foreclosing multiplicity challenges between them.
Fed. R. Evid. 807 (Residual Hearsay Exception): Strictly “rare” and “exceptional,” requiring trustworthiness and greater probative value than other available evidence.

Legal Reasoning

The Court’s reasoning can be distilled into three pillars:

Duplicitous “Death Results” Counts:
Although Count One generically alleged “death results” without enumerating every victim, the Court found no Sixth Amendment violation because:
- The jury instruction required unanimity as to the specific death, and the special verdict sheet recorded unanimous findings for Jake Bilardi and “any other person.”
- The government had bound itself pre‐trial to the full scope of the conspiracy, estopping it from later breaching double jeopardy protections.
- Kandic suffered no surprise or inability to defend, having been on notice of the factual scope and never seeking a bill of particulars or continuance.
Multiplicity vs. Conspiracy:
Citing Pinkerton and longstanding circuit practice, the Court rejected Kandic’s forfeited argument that substantive support counts were multiplicitous of the conspiracy. Conspiracy and its objects remain distinct offenses meriting separate counts.
Residual Hearsay Exception:
The district court properly excluded sibling affidavits under Rule 807. The trial record included direct, admitted evidence—Bilardi’s own writings and phone calls—rendering the hearsay neither necessary nor sufficiently more probative.

Impact

This decision establishes important guidance for future terrorism prosecutions and multi‐count indictments:

“Death results” elements should ordinarily be specified in the indictment or by bill of particulars to ensure notice and defense preparation.
When a duplicitous count is used, careful jury instructions and special verdict forms can cure unanimity concerns.
Courts will estop the government from invoking broad conspiracy language to punish defendants beyond the specific charges it actually pursued.
Multiplicity challenges to conspiracy versus substantive counts remain unavailing under Pinkerton.
The residual hearsay exception remains tightly cabined; direct, offered evidence usually precludes its use.

Complex Concepts Simplified

Duplicitous Indictment: Charging more than one distinct offense in the same count. Not automatically invalid—it becomes “impermissibly duplicitous” only if it prejudices the defendant (by confusing the jury, violating double jeopardy, or hindering notice).
Multiplicity: Charging the same offense in multiple counts. Disallowed when it results in multiple punishments for the same crime, unless Congress intended separate penalties.
“Death Results” Aggravator: A statutory enhancement requiring proof that an underlying offense led to at least one death. Only one qualifying death need be proven, but defendants must know which death(s) are at issue.
Residual Hearsay Exception (Rule 807): A last‐resort exception allowing otherwise inadmissible out-of-court statements if they are highly trustworthy and more probative than any available non-hearsay evidence.

Conclusion

United States v. Kandic reaffirms procedural safeguards in complex terrorism trials. While it permits a “death results” allegation in broad terms, it underscores the critical role of unanimity instructions, special verdict forms, and pre-trial estoppel in preventing unfair surprise or double jeopardy. It also confirms that conspiracy and substantive counts remain discrete charges, and that hearsay exceptions must meet stringent criteria. Taken together, Kandic strengthens the balance between robust terrorism enforcement and fundamental fair-trial rights.