Designation Is for the Judge, Not the Jury, and Combatant Immunity Stops at War Crimes: Commentary on United States v. Wadi (5th Cir. 2025)

Introduction

In United States v. Wadi, the Fifth Circuit affirmed the conviction of a U.S. citizen for conspiracy to murder and maim persons abroad (18 U.S.C. § 956), conspiracy to provide and attempt to provide material support to a foreign terrorist organization (18 U.S.C. § 2339B), and conspiracy to provide and attempt to provide material support to terrorists (18 U.S.C. § 2339A). The case arises from an FBI undercover operation in which a purported Kuwaiti financier conditioned a $9 million investment in a Colombian slaughterhouse on the defendants sending at least 5% to Jabhat al-Nusra (a/k/a al-Nusra/HTS), then designated a foreign terrorist organization (FTO). The Government’s evidence showed eager agreement to the condition, knowledge of al-Nusra’s violent activities, coded communications, shell companies, foreign bank accounts, outreach to arms dealers, and repeated efforts to expedite funding to meet the group’s “desperate need of weapons.”

On appeal, Wadi raised six issues: (A) exclusion of his son’s testimony; (B) alleged limits on cross-examination of the confidential source; (C) sufficiency of the evidence under § 956; (D) refusal to instruct on combatant immunity; (E) jury instruction stating al-Nusra was a designated FTO; and (F) refusal to sanction the Government for a witness’s failure to preserve cellphone data. The Fifth Circuit (Judge Cory T. Wilson) affirmed on all grounds.

Summary of the Judgment

The Fifth Circuit held:

• Right to present a defense / Rule 403 (A): No abuse of discretion in excluding the son’s testimony as irrelevant or more prejudicial than probative. Constitutional right to present a defense does not override neutral evidentiary rules like Rules 401 and 403.
• Confrontation / Cross-examination (B): Argument forfeited for failure to cite the record; in any event, no showing that the limits (if any) would have significantly altered the jury’s view of the witness’s credibility.
• Sufficiency under § 956 (C): Not preserved with specificity; reviewed only for manifest miscarriage of justice. Record contained ample evidence of agreement and intent to further murder and maiming abroad, including knowledge that funds were for weapons and violent operations.
• Combatant immunity instruction (D): Even assuming preservation, no abuse of discretion in refusing the instruction because unrebutted evidence showed al-Nusra committed acts violating the laws of war (e.g., killing women and children). Combatant immunity does not cover war crimes.
• FTO-designation instruction under § 2339B (E): Proper for the court to instruct as a matter of law that al-Nusra was designated an FTO; the designation is a legal fact, consistent with Fifth Circuit pattern instruction 2.92B and 8th Circuit precedent. The jury still had to find Wadi’s knowledge element.
• Spoliation / Sanctions (F): No due process violation or abuse of discretion. Absent bad faith, the failure to preserve potentially useful evidence does not merit dismissal or an adverse-inference instruction.

Analysis

Precedents Cited and Their Influence

• Right to present a defense, and evidentiary limits:
  • Crane v. Kentucky, 476 U.S. 683 (1986), and California v. Trombetta, 467 U.S. 479 (1984): guarantee a meaningful opportunity to present a complete defense.
  • United States v. Scheffer, 523 U.S. 303 (1998), and Rock v. Arkansas, 483 U.S. 44 (1987): evidentiary rules like 401 and 403 are permissible, non-arbitrary constraints that further trial integrity and do not offend the Sixth Amendment.
  • United States v. Lim, 897 F.3d 673 (5th Cir. 2018); United States v. Skelton, 514 F.3d 433 (5th Cir. 2008): abuse-of-discretion review for evidentiary rulings; de novo for alleged constitutional violations, subject to harmless error.
  These authorities anchored the court’s conclusion that excluding the son’s testimony under Rules 401/403 did not violate the Sixth Amendment and was well within the trial court’s discretion.
• Confrontation and record presentation:
  • United States v. Davis, 393 F.3d 540 (5th Cir. 2004): a Confrontation Clause claim fails absent a showing that additional cross-examination would have significantly altered the jury’s impression of the witness.
  • Arredono v. Univ. of Tex. Med. Branch, 950 F.3d 294 (5th Cir. 2020) and Murthy v. Missouri, 603 U.S. 43 (2024): the court will not scour the record; parties must cite it.
  • United States v. Stalnaker, 571 F.3d 428 (5th Cir. 2009): issues inadequately developed or documented in briefing are forfeited.
  Collectively, these cases justified the forfeiture finding and underscored that, even on the merits, Wadi did not demonstrate the requisite prejudice.
• Section 956 elements and preservation for sufficiency challenges:
  • United States v. Diaz, 90 F.4th 335 (5th Cir. 2024); United States v. Wharton, 320 F.3d 526 (5th Cir. 2003): elements of § 956 conspiracy (agreement, intent, overt act, at least one conspirator within U.S. jurisdiction at agreement).
  • United States v. Obregon-Reyes, 507 F. App’x 413 (5th Cir. 2013): § 956 separately punishes conspiracies to murder, kidnap, or maim; the Government need not prove all three.
  • United States v. McDowell, 498 F.3d 308 (5th Cir. 2007); United States v. Knezek, 964 F.2d 394 (5th Cir. 1992): specificity is required in Rule 29 motions to preserve sufficiency arguments for de novo review; otherwise, review is only for manifest miscarriage of justice.
  The court leaned on this framework to impose the demanding miscarriage-of-justice standard and to emphasize that Wadi needed to negate both the murder and maim theories to prevail.
• Combatant immunity and the laws of war:
  • United States v. Hamidullin, 888 F.3d 62 (4th Cir. 2018): recognizes that lawful conduct of war can preclude ordinary criminal liability (e.g., for murder) but is tightly constrained.
  • Wharton’s Criminal Law (Ohlin, 16th ed.) § 47:19: even privileged belligerents lack combatant immunity for actions that violate the laws of war (e.g., targeting civilians).
  The Fifth Circuit adopted the core limit: where the record shows violations of the laws of war, a combatant-immunity instruction is unwarranted.
• Material support and FTO designation as a legal fact:
  • 18 U.S.C. § 2339B; 8 U.S.C. § 1189; Fifth Circuit Pattern Jury Instruction 2.92B: the “designation” status is supplied by the Secretary of State and is addressed as a matter of law to the jury.
  • United States v. Ali, 799 F.3d 1008 (8th Cir. 2015): the fact of designation is properly treated as a statement of law in jury instructions.
  • United States v. Fidse, 862 F.3d 516 (5th Cir. 2017): describes § 1189 designation criteria.
  These authorities underpinned the holding that the district court correctly instructed that al-Nusra was designated, leaving the mens rea element (knowledge) for the jury.
• Spoliation and due process in criminal cases:
  • Arizona v. Youngblood, 488 U.S. 51 (1988): no due process violation for failure to preserve potentially useful evidence absent bad faith.
  • United States v. Martinez, 131 F.4th 294 (5th Cir. 2025): trial courts’ decisions on spoliation sanctions and instructions are reviewed for abuse of discretion; “bad faith” entails destruction to hide adverse evidence.
  • United States v. Wise, 221 F.3d 140 (5th Cir. 2000): supports denial of spoliation relief where the Government did not destroy evidence.
  The court applied these cases to affirm the denial of sanctions and to emphasize the high bar for spoliation remedies in criminal proceedings.

Legal Reasoning

• Rules 401/403 and the Sixth Amendment: The court reaffirmed that the right to present a defense does not entitle a defendant to introduce marginal or unfairly prejudicial evidence. Here, the district court concluded that the son’s proposed testimony about financial hardship was either irrelevant or cumulative and risked inviting impermissible sympathy. Importantly, the defense still argued entrapment and introduced other evidence on susceptibility; therefore, exclusion did not cripple a core defense.
• Forfeiture and confrontation: The appellant failed to cite instances in the record where cross-examination was restricted, forfeiting the issue. Substantively, without a showing that additional questioning would have meaningfully shifted the jury’s credibility assessment of the confidential source, no Confrontation Clause violation occurred.
• Section 956 sufficiency under a heightened standard: Because defense counsel did not specify in the Rule 29 motion why evidence was insufficient (and did not address the independent “maim” theory), only the manifest-miscarriage-of-justice standard applied. The evidence—knowledge of al-Nusra’s violent campaign, intent to fund weapons and operations, formation of shell entities, foreign accounts, and outreach to arms dealers—surpassed that threshold. The panel also emphasized the structural point that § 956 sets out independent conspiracies (murder and maim), so an appellant must defeat both theories if both were submitted to and found by the jury.
• Combatant immunity’s limits: Even assuming the concept could apply in this context, the record showed killings of civilians, including women and children—conduct violating the laws of war. Combatant immunity shields lawful acts of war by lawful combatants; it does not immunize war crimes. Absent any defense evidence that the killings were lawful incidents of war, the district court acted within its discretion in refusing the instruction.
• The “designation” element under § 2339B is a legal fact for the court: The panel confirmed the propriety of instructing the jury that al-Nusra was designated an FTO as a matter of law, aligning with the Fifth Circuit’s pattern instruction and the Eighth Circuit’s view in Ali. The jury retained its role on the knowledge element—whether the defendant knew of the designation or the organization’s terrorist activity. The court noted that al-Nusra’s designation existed at the relevant times; the State Department’s subsequent revocation (effective July 8, 2025) did not render the trial instruction erroneous.
• Spoliation and sanctions: The defense sought dismissal or, alternatively, an adverse-inference instruction due to a witness’s failure to preserve data from an old personal cellphone. Because there was no evidence of Government bad faith—indeed, the data was migrated to a new phone and made available—the district court did not abuse its discretion in denying sanctions and, had it been requested at trial, would have acted within its discretion in refusing a spoliation instruction as well.

Impact of the Decision

• Clarifies the jury’s role in § 2339B cases: By expressly approving the instruction that the FTO designation is a matter of law, the Fifth Circuit reduces trial friction over proof of designation. Prosecutors can rely on official designations under 8 U.S.C. § 1189 and the court’s instruction, focusing the jury on the mens rea and conduct elements. This harmonizes Fifth Circuit practice with the Eighth Circuit and the circuit’s own pattern instructions.
• Narrows the availability of “combatant immunity” in criminal prosecutions: The court reinforces that the defense is inapplicable where the underlying acts violate the laws of war. Defendants seeking such an instruction must present evidence that the conduct at issue was lawful under international humanitarian law. Mere participation in a civil conflict, or claims of acting under a foreign state’s “direction,” will not suffice if the record shows war crimes.
• Expands prosecutorial pathways under § 956 for financiers and facilitators: The opinion illustrates that those who knowingly fund and expedite violent operations can be conspirators to murder or maim abroad, even without direct participation in the violence. Coded communications, shell entities, and knowledge that funds will purchase weapons can support § 956 liability.
• Procedural discipline in sufficiency challenges: The case is a cautionary tale: non-specific Rule 29 motions for acquittal forfeit de novo review. Defense counsel should clearly articulate each asserted insufficiency, especially when alternative theories (e.g., murder and maim) are both in play.
• Spoliation in criminal cases remains a high bar: The decision reaffirms Youngblood’s bad-faith requirement for due process relief and Martinez’s abuse-of-discretion standard for spoliation sanctions, reinforcing that negligent or non-nefarious loss or migration of data will rarely warrant dismissal or adverse-inference instructions.
• Temporal issues after FTO revocations: The panel notes that al-Nusra’s designation was revoked effective July 8, 2025. Although it did not squarely decide retroactivity effects (none were presented), the opinion implicitly situates the designation inquiry at the time of the charged conduct and trial. Moreover, § 2339B’s alternative knowledge prongs (knowledge of designation, or of terrorist activity, or of terrorism) cushion prosecutions against later policy changes in designation status.

Complex Concepts Simplified

• Combatant immunity: A doctrine rooted in the laws of war that protects lawful combatants from domestic criminal liability for lawful acts of war (e.g., killing enemy combatants in battle). It does not cover war crimes (e.g., intentionally targeting civilians). To get a jury instruction on combatant immunity, a defendant should present evidence that the charged conduct was lawful under the laws of armed conflict.
• Material support statutes—§ 2339A vs. § 2339B:
  • Section 2339A punishes providing material support knowing or intending that it will be used to commit specified terrorism offenses.
  • Section 2339B punishes providing (or attempting/conspiring to provide) material support to an organization the Secretary of State has designated as an FTO. The Government must prove the defendant’s knowledge that the organization is designated, or engages in terrorist activity/terrorism.
• 18 U.S.C. § 956 (conspiracy to murder/maim abroad): Requires proof of an agreement to commit murder or maiming abroad, intentional participation in the agreement, an overt act in the U.S. in furtherance, and that at least one conspirator was within U.S. jurisdiction when the agreement was made. Funding violent operations with knowledge of their unlawful ends can satisfy the “agreement” and “intent” elements.
• Rule 403 balancing: Even relevant evidence can be excluded if its probative value is substantially outweighed by risks like unfair prejudice, confusing the issues, misleading the jury, or needless presentation of cumulative proof.
• Preserving sufficiency challenges: To get de novo review on appeal, a Rule 29 motion must specify the precise respects in which the evidence is insufficient. Generic motions “on all counts” do not preserve specific theories (e.g., challenging intent as to murder but not maim).
• Spoliation and due process: In criminal cases, losing or failing to preserve potentially useful evidence violates due process only if the Government acted in bad faith—i.e., destroyed or withheld evidence to hide adverse facts. Absent bad faith, dismissal or adverse-inference instructions are generally unwarranted.

Conclusion

United States v. Wadi offers several clarifications with practical significance in terrorism and extraterritorial conspiracy prosecutions. Most prominently, the Fifth Circuit endorsed instructing the jury, as a matter of law, that an organization was designated a foreign terrorist organization under § 2339B, aligning with the circuit’s pattern instruction and the Eighth Circuit’s approach. The court also cabined the availability of a combatant-immunity instruction by stressing that immunity does not extend to violations of the laws of war; where the record shows the targeting of civilians, the instruction is properly refused. Procedurally, Wadi underscores the importance of specificity in Rule 29 motions to preserve de novo review and reiterates the high threshold for spoliation sanctions in criminal cases absent bad faith.

Substantively, the opinion confirms that financiers and facilitators who knowingly intend to fuel violent campaigns can face § 956 liability for conspiracy to murder or maim abroad, even without direct participation in the killings. And although the State Department’s policy choices about FTO designations may change over time, Wadi’s approval of judicially supplied designation instructions—and § 2339B’s alternative knowledge prongs—ensures prosecutorial stability and doctrinal clarity in this sensitive area of national security law.