Ensuring Notice and Unanimity in “Death Results” Conspiracy Counts: United States v. Kandic

Introduction

The Court of Appeals for the Second Circuit’s decision in United States v. Kandic, 23-7146-cr (2d Cir. Apr. 11, 2025), addresses critical procedural protections in federal conspiracy prosecutions under 18 U.S.C. § 2339B (material support to a designated foreign terrorist organization). Appellant Mirsad Kandic, convicted in the Eastern District of New York of providing material support to ISIS (including resulting deaths and a death-resulting conspiracy), challenged his conviction on three grounds: (1) that the “death results” conspiracy count was impermissibly duplicitous and deprived him of notice; (2) that the substantive counts were multiplicitous; and (3) that the district court abused its discretion by excluding certain hearsay evidence. The Second Circuit’s ruling reaffirms the importance of unanimity and adequate notice in multi-focal conspiracy charges.

Summary of the Judgment

The court affirmed the district court’s judgment in full, holding:

1. The conspiracy count (Count One, § 2339B death‐results conspiracy) was duplicitous in theory, since it grouped multiple potential “death results” within a single count, but—given the trial record, unanimity instruction, and special verdict sheet—the defendant suffered no actual prejudice.
2. The substantive counts (Counts Two through Six) were not multiplicitous. Conspiracy to commit an offense and the substantive offense are distinct under Pinkerton, 328 U.S. 640 (1946).
3. The district court did not abuse its discretion in excluding sibling affidavits under the residual hearsay exception (Rule 807), where more probative and readily available evidence of the material fact (Bilardi’s radicalization) was admitted.

Analysis

1. Precedents Cited

• United States v. Murray, 618 F.2d 892 (2d Cir. 1980): Defines “duplicitous” indictments and the requirement of separate counts for distinct offenses.
• United States v. Margiotta, 646 F.2d 729 (2d Cir. 1981): Sets out threefold prejudice test for duplicitous charges (unanimity, double jeopardy, adequate notice).
• United States v. Sturdivant, 244 F.3d 71 (2d Cir. 2001): Emphasizes unanimity protections and equitable estoppel against the government exploiting prejudicial ambiguities.
• Pinkerton v. United States, 328 U.S. 640 (1946): Distinguishes conspiracy and substantive offenses, rejecting multiplicity challenges when both are charged separately.
• Fed. R. Evid. 807 (Residual Hearsay Exception): Provides a narrow catch-all for hearsay statements deemed highly trustworthy and more probative than any other obtainable evidence.

2. Legal Reasoning

A. Duplicitous “Death Results” Conspiracy Count
• A count is duplicitous if it joins distinct crimes into one count and causes prejudice.
• The court found theoretical duplicity because Count One grouped multiple potential deaths (“one or more persons, including Jake Bilardi”).
• To prove prejudice, the defendant must show risk of non-unanimous verdict, double jeopardy exposure, or lack of notice. The court held:

• Unanimity: Fully cured by detailed jury instructions and a special verdict sheet requiring unanimity on which death the jury found.
• Double Jeopardy: The government was equitably estopped from exploiting ambiguity to retry the defendant on any death not specified at trial.
• Adequate Notice: The indictment named Bilardi; other deaths were well known from the bill of particulars letter and the trial record; the defendant never sought one nor alleged actual surprise.

B. Multiplicity of Substantive Counts
• Multiplicity forbids multiple punishments for the same statutory offense in separate counts.
• Pinkerton doctrine confirms that conspiracy and the substantive offense are distinct, so Counts Two–Six do not overlap impermissibly with Count One.

C. Residual Hearsay Exception
• Under Rule 807, hearsay affidavits must be more probative than any other available evidence and inherently trustworthy.
• The court found the sibling affidavits not “more probative” than the admitted direct evidence (e.g., recorded calls, blog posts, full computer contents) concerning the material fact (Bilardi’s radicalization). No abuse of discretion in exclusion.

3. Impact

This decision clarifies procedural safeguards in “death results” prosecutions under § 2339B and similar statutes:

• Conspiracy counts that invoke a “death results” element should specify, either in the indictment or by bill of particulars, the discrete set of possible resulting deaths to ensure proper notice and avoid potential prejudice.
• Comprehensive unanimity instructions and special verdict forms can cure theoretical duplicity when defendants receive actual notice and no surprise arises at trial.
• Defendants should timely request bills of particulars when confronted with broad conspiracy counts; failing to do so may foreclose later challenges.
• Residual hearsay exceptions remain narrowly construed; courts will compare proffered hearsay to already‐admitted direct evidence in deciding admissibility.

Complex Concepts Simplified

• Duplicitous Indictment: One count charging multiple separate crimes; disfavored because it can hide which crime the jury unanimously found.
• Multiplicity: Charging the same offense in multiple counts; barred to prevent double punishment.
• Unanimity Requirement: The Sixth Amendment guarantees that all jurors must agree on the same discrete offense or element (e.g., which death in a “death results” count).
• Bill of Particulars: A pretrial tool under Rule 7(f) allowing a defendant to seek clarification of ambiguous or overly broad charges.
• Residual Hearsay Exception (Rule 807): A limited catch-all exception for out-of-court statements deemed highly trustworthy and uniquely probative.

Conclusion

United States v. Kandic reaffirms that federal procedure demands precise notice and unanimous jury determinations in conspiracy prosecutions with “death results” elements. While broad conspiracy counts are not per se invalid, courts and prosecutors should specify the discrete events or deaths at issue—either in the indictment or via a bill of particulars—to protect defendants’ rights to notice and unanimity. The decision also underscores that conspiracy and substantive offenses remain distinct for multiplicity analysis, and that the residual hearsay exception will not supplant more probative direct evidence. Together, these holdings strengthen procedural fairness in national security and terrorism cases.