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

Introduction

United States v. Kandic, decided April 11, 2025 by the Second Circuit (No. 23-7146-cr), addresses the proper drafting and pleading of a conspiracy charge under 18 U.S.C. § 2339B that includes a “death results” element. Defendant Mirsad Kandic, a U.S. lawful permanent resident who joined and supported ISIS as a financier, recruiter, arms dealer, and propagandist, was convicted in the Eastern District of New York for conspiring to provide material support to ISIS, resulting in multiple deaths including that of recruit Jake Bilardi. On appeal, Kandic challenged (1) the conspiracy count as impermissibly duplicitous; (2) the substantive counts as multiplicitous; and (3) the exclusion of certain hearsay evidence. The Second Circuit affirmed, laying out a nuanced rule governing notice, unanimity, and prejudice in “death results” conspiracy indictments.

Summary of the Judgment

The Second Circuit held, in a unanimous opinion by Judge Nathan, that:

The conspiracy count—alleging that Kandic’s provision of material support to ISIS “resulted in the death of one or more persons, including Jake Bilardi”—was formally duplicitous but not impermissibly so, because tailored jury instructions and a special verdict sheet secured unanimity and prevented prejudice.
Kandic’s multiplicity argument—claiming that the substantive counts punish the same offenses as the conspiracy count—was forfeited by failure to raise it below, and in any event is foreclosed by the well-settled principle that a conspiracy and its substantive object are distinct offenses (Pinkerton).
The district court did not abuse its discretion in excluding Bilardi’s siblings’ affidavits under the residual hearsay exception (Fed. R. Evid. 807), because far more probative, non-hearsay evidence about Bilardi’s radicalization was available at trial.

Accordingly, the court affirmed Kandic’s convictions and life sentences on Counts One and Five, plus concurrent 20-year terms on Counts Two, Three, Four, and Six.

Analysis

Precedents Cited

United States v. Murray, 618 F.2d 892 (2d Cir. 1980): Establishes that distinct crimes should be charged in separate counts and frames the basic duplicitous-count analysis.
United States v. Margiotta, 646 F.2d 729 (2d Cir. 1981): Holds that a duplicitous count is only impermissible if it prejudices the defendant.
United States v. Sturdivant, 244 F.3d 71 (2d Cir. 2001): Breaks down prejudice into unanimity, double jeopardy, and notice concerns, and applies tailored instructions to cure duplicity.
Pinkerton v. United States, 328 U.S. 640 (1946): Confirms that conspiracy and the substantive offense are separate crimes for which multiple punishments may be imposed.
Fed. R. Crim. P. 7(f) & United States v. Davidoff, 845 F.2d 1151 (2d Cir. 1988): Authorize a bill of particulars to clarify ambiguous indictments and secure notice.
Fed. R. Evid. 807 & Parsons v. Honeywell, 929 F.2d 901 (2d Cir. 1991): Define and limit the residual hearsay exception to rare circumstances with highly probative and trustworthy out-of-court statements.

Legal Reasoning

The court’s analysis proceeded in two main steps:

Duplicitous Conspiracy Count
• The conspiracy count improperly lumped every potential “death result” into a single count without specifying which deaths were at issue (formal duplicity).
• Under Margiotta and Sturdivant, a duplicitous count is only impermissible if it prejudices the defendant in one of three ways: (a) risking a non-unanimous verdict; (b) creating double jeopardy uncertainty; or (c) denying adequate notice.
• Here, prejudice (a) was cured by a jury instruction requiring unanimity as to which death occurred, and by a special verdict sheet naming Jake Bilardi and “any other person or persons”; (b) was foreclosed by the government’s election at trial, which estopped it from later asserting any broader “death results” interpretation; and (c) was absent because Kandic faced no surprise—he had long notice of each discrete incident, including Bilardi’s, and never requested a bill of particulars.
Multiplicity and Hearsay Exclusion
• Multiplicity was waived by failure to move to dismiss and is in any event barred by Pinkerton’s principle that conspiracy and its object are distinct punishable offenses.
• The residual hearsay exception (Fed. R. Evid. 807) was not satisfied: although the sibling affidavits were arguably “trustworthy,” they were not more probative than abundant direct evidence (e.g., Bilardi’s own blog post, recorded calls, seized computer files).

Impact

United States v. Kandic provides important guidance for prosecutors, defense counsel, and trial courts in terrorism cases (and others) where a statutory “death results” element appears in a conspiracy count:

Prosecutors should ordinarily specify each potential resulting death in the indictment or, at minimum, provide a bill of particulars identifying all deaths upon which they will rely.
Circuit precedent allows courts to cure formal duplicity through clear jury instructions and special verdict forms that secure unanimity on each discrete element.
Defendants should promptly seek a bill of particulars if an omnibus count leaves uncertainty about pivotal elements, and may request a continuance where necessary to avoid surprise.
Multiplicity challenges to conspiracy and substantive counts remain subject to the long-standing Pinkerton doctrine.
Residual hearsay under Rule 807 is only appropriate where no more direct, probative non-hearsay evidence is available.

Complex Concepts Simplified

Duplicitous Indictment: A single count that charges multiple distinct offenses. It becomes “impermissible” only if it actually prejudices the defendant by undermining unanimity, triggering double jeopardy issues, or denying notice.
Multiplicity: Charging the same offense in more than one count, risking multiple punishments for a single crime in violation of the Double Jeopardy Clause. Conspiracy and its substantive object, however, are treated as separate offenses.
Unanimity Instruction: A jury charge requiring jurors to agree on the same factual basis (e.g., “which death”) before convicting, thus curing potential non-unanimity from a duplicitous count.
Bill of Particulars: A procedural device under Rule 7(f) to force the government to clarify ambiguous or overly broad allegations in an indictment, ensuring adequate notice and fair trial preparation.
Residual Hearsay Exception (Rule 807): A narrowly drawn catch-all allowing highly reliable out-of-court statements when those statements are more probative than any other evidence reasonably obtainable.

Conclusion

United States v. Kandic refines the law on how “death results” elements must be pleaded and tried in conspiracy charges under federal terrorism statutes. By affirming that formal duplicity can be cured through unanimity safeguards and adequate prior notice, the Second Circuit strikes a pragmatic balance between rigid pleading rules and the realities of complex, multi-incident terrorist conspiracies. Trial courts and counsel must heed this decision: when an indictment sweeps across multiple potential deaths, specificity or a timely bill of particulars—and clear jury instructions—are essential to preserve the defendant’s rights and the indictment’s validity. This ruling will guide future terrorism prosecutions and bolster the due-process protections that underlie our criminal justice system.