United States v. Kandic: Validation of Broad Conspiracy Counts with “Death Results” Element

Introduction

United States v. Kandic, 23-7146-cr (2d Cir. April 11, 2025) is a significant Second Circuit decision addressing how courts should treat conspiracy counts that include a “death results” element but do not specify each individual fatality. Mirsad Kandic, a former ISIS recruiter and financier, was convicted in the Eastern District of New York on six counts under 18 U.S.C. § 2339B, including a conspiracy count carrying a “death results” allegation. On appeal, Kandic argued that the conspiracy count was impermissibly duplicitous—charging multiple deaths without identifying them all—and that the substantive counts were multiplicitous. He also challenged the exclusion of certain hearsay evidence. The Second Circuit affirmed, articulating the limits of duplicity doctrine and reinforcing that an omnibus “death results” conspiracy count may stand if it does not prejudice the defendant’s rights to unanimity, notice, or protection against double jeopardy.

Summary of the Judgment

The Court of Appeals rejected all of Kandic’s challenges and upheld his convictions. Key holdings include:

• Duplicity: While Count One (the conspiracy count) was technically duplicitous—combining multiple “death results” allegations—it was not impermissibly duplicitous because the trial court cured any risk of jury non-unanimity with a tailored unanimity instruction and a special verdict form. Kandic also received adequate notice of the charged deaths, including Jake Bilardi, and principles of double jeopardy were preserved by the government’s concession as to the scope of the bar.
• Multiplicity: Kandic’s argument that the substantive counts (Counts Two through Six) were flawed because they overlapped with the conspiracy count was forfeited by failure to raise it below, and in any event conspiracy and its substantive objects are distinct offenses under Pinkerton.
• Evidentiary Ruling: The district court did not abuse its discretion in excluding affidavits from the residual hearsay exception when far more probative evidence of Bilardi’s radicalization was available at trial.

Analysis

Precedents Cited

• United States v. Murray, 618 F.2d 892 (2d Cir. 1980) – established the principle that two or more distinct crimes should not be joined in a single count and outlined duplicity concerns.
• United States v. Margiotta, 646 F.2d 729 (2d Cir. 1981) – explained that not every duplicitous indictment is impermissible; prejudice must be shown in terms of unanimity, notice, or double jeopardy.
• Ramos v. Louisiana, 590 U.S. 83 (2020) – reaffirmed the Sixth Amendment right to a unanimous jury verdict on each element of a crime, including unanimity as to which incident or “death result” is proven.
• Pinkerton v. United States, 328 U.S. 640 (1946) – held that conspiracy and the substantive offenses that are its objects are distinct offenses for sentencing and double jeopardy purposes.
• Fed. R. Evid. 807 – codifies the residual hearsay exception; this Court emphasized its narrow scope and the requirement that any statement admitted must be both highly trustworthy and more probative than other available evidence.

Legal Reasoning

The Court’s reasoning rests on a three-part inquiry into duplicity:

1. Jury Unanimity: A duplicitous count risks non-unanimous verdicts when jurors may find guilt as to different underlying crimes. Here, the district court gave a specific unanimity instruction—requiring jurors to agree on the same resulting death—and employed a special verdict sheet enumerating those deaths. This eliminated any risk of a non-unanimous verdict.
2. Double Jeopardy Protection: The government conceded that the broad conspiracy count would bar subsequent prosecutions for any “death results” within the charged time frame and methods of support. Equity and estoppel principles prevented the government from invoking different interpretations of the verdict to Kenic’s detriment.
3. Adequate Notice: Although the indictment did not list every fatality, it named Jake Bilardi and expressly tied liability to “one or more persons,” encompassing all deaths resulting from Kandic’s support. Kandic never sought a bill of particulars or a continuance, and he identified no surprise evidence. He thus had a clear picture of the charged conspiracy, its time frame, and means, and ample opportunity to defend.

The Court contrasted this outcome with situations in which a conspiratorial count lists only a generic “death results” element without indicating which deaths will be relied on at trial, leaving defendants to guess about countless incidents. It recommended that, in ordinary practice, prosecutors specify the universe of deaths either in the indictment or via a bill of particulars to avoid notice issues.

Impact

United States v. Kandic clarifies the line between permissible and impermissible duplicitous conspiracy counts when a statute’s “death results” element is invoked. Lower courts and practitioners should take heed:

• Conspiracy counts that include broad “death results” allegations can survive duplicity challenges if the court provides strong jury-unanimity safeguards and the defendant has fair notice of which deaths are at issue.
• Prosecutors ought to consider using bills of particulars or enumerating potential fatalities in the indictment itself when charging any “death results” element to eliminate ambiguity.
• Defendants facing omnibus death allegations should promptly seek bills of particulars and, if necessary, trial continuances under the Speedy Trial Act to secure adequate notice.

Complex Concepts Simplified

Duplicity: When a single count charges multiple distinct crimes (e.g., deaths of different individuals) without separating them, a defendant could face confusion or jury non-unanimity. Not every duplicitous count is illegal—only those that actually harm the defendant’s rights.

Unanimity Instruction: A judge can tell jurors that they must agree on the exact single act (or death) that constitutes the crime before finding the defendant guilty under a duplicitous count.

Bill of Particulars: A document the defense can request that forces the government to specify details (e.g., which deaths) it intends to prove, preventing blind-sided trial strategies.

Multiplicity: Charging the same criminal conduct in multiple counts. Conspiracy to commit a crime and the crime itself are distinct, so they are not multiplicitous.

Residual Hearsay Exception: A rare rule that allows highly reliable out-of-court statements when they are more probative than any other available evidence. Courts apply it only when no better evidence exists.

Conclusion

United States v. Kandic reaffirms that broad conspiracy counts with “death results” components are not per se invalid. Provided that courts implement clear unanimity instructions, ensure defendants have adequate notice (or supply particulars on request), and preserve double jeopardy protections, such counts may stand—even if they technically list multiple fatalities without specifying each. The decision thus balances prosecutorial flexibility in complex terrorism cases against the fundamental trial rights of notice, unanimity, and protection from double jeopardy. Future litigants—both prosecutors and defense counsel—will look to Kandic for guidance on charging and challenging “death results” conspiracy counts.