United States v. Khaled Miah

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 22-2983

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UNITED STATES OF AMERICA

v.

KHALED MIAH,

Appellant

____________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 2-21-cr-00110-001)

District Judge: Honorable W. Scott Hardy

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Argued June 10, 2024

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BEFORE: CHAGARES, Chief Judge, RESTREPO, and

FREEMAN, Circuit Judges

(Filed: September 20, 2024)

Sufia M. Khalid

Charles D. Swift

Muslim Legal Fund of America

100 N Central Expressway

Suite 1010

Richardson, TX 75080

Allie J. Hallmark [ARGUED]

Hamilton Wingo

325 N St. Paul Street

Suite 3600

Dallas, TX 75201

Counsel for Appellant

Laura S. Irwin

Direct: 412-894-7374

Office of United States Attorney

700 Grant Street

Suite 4000

Pittsburgh, PA 15219

Jeffrey M. Smith [ARGUED]

United States Department of Justice

National Security Division, 6521

950 Pennsylvania Avenue NW

Washington, DC 20530

Counsel for Appellee

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OPINION OF THE COURT

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RESTREPO, Circuit Judge

Khaled Miah threatened FBI agents over social media,

specifically targeting the agents investigating his online

activities. A jury convicted Miah of issuing interstate threats,

threatening to assault FBI agents, and knowingly deleting

social media accounts and postings with the intent to impede

their investigation. He received a sentence of six years’

imprisonment followed by three years’ supervised release. On

appeal, Miah raises claims of trial court error and contends that

his sentence is illegal. After thoughtful review, we will affirm

the judgment of sentence.

In September 2020, FBI Special Agent Nick Edquist

and an officer from the Joint Terrorism Task force went to

Miah’s apartment to interview him about his comments on

several social media platforms. Miah’s comments drew the

FBI’s attention because they suggested he believed in a

“particular extremist ideology,” consisting of a “vengeful,

2

violent form of Islam.” A697, A701.1 Miah was not

cooperative during the initial interview and in fact filed a

complaint against the FBI. He agreed to another interview the

following day but was again uncooperative, refusing to answer

the agents’ questions about his online conduct.

On October 8, 2020, Miah created a Twitter account

named after Agent Edquist’s wife that contained pictures of her

and her personal information, including her approximate age,

place of employment, education, and religion. The next day

agents executed a warrant to search Miah’s home and devices.2

Miah admitted to creating the tweets but claimed they were a

joke and that he would not post such content again. He instead

immediately resumed creating tweets featuring Agent Edquist

and his wife, as well as tweets providing personal details about

Agent Edquist’s supervisor.

In December 2020, Miah created a second Twitter

account with the name “Federal Intelligence Service” and a

profile photo of a mock FBI seal. It was on this account that

Miah posted the statements that underlie the charges for which

he was convicted. On December 27, 2020, Miah tweeted,

“Nick, Dave, Mike, the whole bureau, the deed will be done at

a time which is the most opportunistic for me, chosen by

myself.” A1100. He followed with, “Currently eating pasta and

watching videos of the second plane hit the south tower.”

A1100. The next day, Miah tweeted, “The zero hour is

1

Agent Edquist testified at trial that the tweets included

incendiary language encouraging violence against Christian-

majority countries, an “explicit call to attack Jews,” and the

glorification of the September 11, 2001 terrorist attacks. A698-

70. The FBI’s physical surveillance revealed that Miah

frequently went alone to the local shooting range.

2

The search of the devices revealed that Miah had gone to gun

stores to research different types of weapons, “specifically

weapons that had suppressors on the gun and things like that.”

A1074. The devices contained photographs of assault rifles

and Miah dressed in a manner that appeared to the agents as

emulating ISIS fighters. They also contained multiple pictures

of the Tsarnaev brothers, who committed the 2013 Boston

Marathon terrorist attack.

3

approaching.” A1104. On December 29, 2020, Miah tweeted,

“38 53’ 42.7’’ N, 771’ 30’’ W,” which are the coordinates

for the FBI headquarters in Washington, D.C. A1106-07;

A1936. The following day, he posted, “Rasheed, Dave, Nick,

Mike . . . . how’s your investigation going? Things are looking

‘bright’ in 2021. Did you find the Saudi passports?” A1107-

08. Later he tweeted, “2001-2021 is 20 years. An entire

generation, yet men like me still exist and pop up into

existence. Next time you come in cowboy with the crew, the

hardwood will collapse beneath your feet.” A1108-1110.

Finally, on December 31, 2020, Miah tweeted, “Remember

boys, the more eyes on me, the less eyes on others. Regardless,

yellow tapes will flow.” A1112.

Miah was arrested and later indicted on a total of eight

counts by a grand jury in the Western District of Pennsylvania

on March 16, 2021. Counts One through Five alleged interstate

threats in violation of 18 U.S.C. § 875(c), Counts Six and

Seven alleged threats to assault FBI agents in violation of 18

U.S.C. §§ 115(a)(1)(B) and 115(b)(4), and Count Eight alleged

the destruction, alteration, or falsification of records in a

federal investigation in violation 18 U.S.C. § 1519.

Prior to trial, Miah moved to dismiss Counts Two,

Three, Five and Seven of the indictment, claiming that the

December 2020 tweets did not qualify as threats to injure the

agents or as “true threats” under First Amendment

jurisprudence. Miah also argued the statutes he was charged

under were too vague to warn him that his communications

were illegal.

The District Court denied the motion, ruling that the

indictment provided sufficient context for a reasonable jury to

conclude that the tweets expressed an intent to injure the agents

and constituted true threats unprotected by the First

Amendment. It also denied Miah’s vagueness claim, finding

that he had “a reasonable opportunity to understand that the

conduct, as charged in the Indictment, would be prohibited by

the statutes.” A166.

Also prior to trial, the government moved for an in-

limine ruling to admit numerous exhibits of other-acts

evidence. Miah opposed the motion. The District Court granted

4

the motion in part and denied it in part, ruling the proffered

evidence was not intrinsic but that some of the exhibits were

admissible under Federal Rule of Criminal Procedure 404(b).

The Court deemed admissible the evidence that provided the

“context and foundational basis” for the FBI’s initial

investigation of Miah, A240, as well as those exhibits that were

“probative of [his] state of mind” when sending the charged

communications. A251.3

The jury convicted Miah of all five interstate threat

counts, one count of threatening to assault FBI agents, and one

count of destroying evidence to obstruct their investigation. At

sentencing, the Court applied enhancements for conduct

evidencing the intent to carry out the threats, U.S.S.G. §

2A6.1(b)(1), and for obstructing justice by deleting threatening

communications for which he was charged, U.S.S.G. § 3C1.1.

The District Court varied downward from the calculated

Guideline range of 78 to 97 months imprisonment to impose a

term of 72 months imprisonment, to be followed by three years

of supervised release. This appeal followed. We have

jurisdiction to review Miah’s claims pursuant to 28 U.S.C. §

1291.

I.

Miah’s first claim is that the District Court erred by

denying his motion to dismiss the threat charges tied to Counts

One, Two, Three, and Five of the indictment. Specifically, he

contends the indictment failed to allege facts establishing that

the tweets threatened to harm people, which is required for a

Section 875(c) conviction. Miah asserts the indictment at most

established that he communicated generalized threats to

commit terroristic attacks, a crime for which he was not

charged. He further alleges the indictment did not sufficiently

establish the tweets were “true threats” that expressed a sincere

intent to commit violence against the agents, which means they

were entitled to First Amendment protection.

3

In its lengthy memorandum opinion, the District Court ruled

to exclude an exhibit demonstrating a prior stalking incident,

A241, and various social media posts that purportedly reflected

Miah’s “violent and hostile mentality.” A256

5

Miah’s challenge as to the sufficiency of the indictment

is a legal question over which this Court exercises plenary

review. United States v. Stock, 728 F.3d 287, 291 (3d Cir.

2013). This Court in Stock observed that “whether a statement

constitutes a threat under § 875(c) is based on the context and

totality of the communication,” which means the indictment

must include sufficient context for the District Court “to

determine that a reasonable jury could find that [the charged]

statement expressed an intent to injure in the present or future.”

Id. at 301. Here, the District Court found the indictment

provided sufficient context to present the threat charges to the

jury, both under Section 875(c) and the First Amendment. We

agree.

A person violates Section 875(c) by “transmit[ting] in

interstate or foreign commerce any communication containing

. . . any threat to injure the person of another.” 18 U.S.C. §

875(c). Miah argues the tweets that do not identify a natural

person as their target—such as “the zero hour is approaching”

or the coordinates of the FBI headquarters—cannot be lawfully

charged as threats under Section 875(c). This argument

overlooks that the context and totality of circumstances of the

communications must be considered when assessing whether a

threat has been alleged. The indictment provided both context

and circumstances by describing Miah’s retaliatory targeting

of Agent Edquist’s wife, his inclusion of the names of the

investigating agents in his tweets, the contents of his devices

revealing an “interest in weapons, his fascination with

violence, and his strong animosity toward law enforcement,”

and his recurring surveillance of Agent Edquist’s residence and

the FBI Pittsburgh Field Office. A45.

Thus, the District Court properly ruled Miah’s tweet

“the zero hour is approaching,” which it found indicated “the

occurrence of a significant event,” could be deemed a threat by

a reasonable jury given that it was posted the day after the tweet

referencing the September 11, 2001 terrorist attack. A158.

Similarly, the Court properly concluded the coordinates of the

FBI’s headquarters, when viewed through the lens of Miah’s

conduct and preceding tweets, could be found to “constitute[]

a threat to injure agents at that location.” A158. It was also

correct to conclude that the tweet telling the “boys,” who were

agents named in a prior tweet, that “yellow tapes will flow,”

6

which appears to reference crime scene tape, could reasonably

be interpreted as a threat to inflict harm. A158. In sum, we

agree that the charges alleging a violation of Section 875(c)

were properly put to the jury. See United States v. C.S., 968

F.3d 237, 245 (3d Cir. 2020) (holding that context and

circumstances of statements could enable a reasonable person

to view them as serious threats).

We also conclude a reasonable jury could find Miah’s

tweets communicated “a serious expression of an intent to

commit an act of unlawful violence to a particular individual

or group of individuals” and therefore constituted true threats

under First Amendment jurisprudence. United States v.

Davitashvili, 97 F.4th 104, 109 (3d Cir. 2024) (citing Virginia

v. Black, 538 U.S. 343, 359 (2003)). As with violations of

Section 875(c), we look to Miah’s earlier conduct to

“contextualize the meaning” of his tweets. Id. at 110. As

discussed, the conduct outlined in the indictment established

Miah’s antipathy for specific agents, as well as his animosity

towards law enforcement in general. It also demonstrated

Miah’s captivation with weapons and terroristic-style attacks.

We therefore agree with the District Court that a reasonable

jury could find Miah’s contextualized tweets expressed a

serious intent to harm the agents and hold that threats targeting

FBI agents generally are sufficiently particularized to qualify

as true threats. Id. at 111 (citing United States v. Khan, 937

F.3d 1042, 1046 (7th Cir. 2019) (holding that threats to harm

“an entire city region” counted as sufficiently particularized)).

To the extent Miah raises a vagueness challenge

regarding his convictions under Section 875(c), we deny this

claim as well. A conviction under 18 U.S.C. § 875(c) requires

proof of both a subjective and an objective component; the

subjective component is satisfied if the defendant transmitted

a communication for the purpose of issuing a threat or with the

knowledge it would be viewed as one. United States v. Elonis,

841 F.3d 589, 596 (3d Cir. 2016). This subjective component

alleviates concerns that “a defendant will be convicted for an

action that he or she committed by mistake.” United States v.

Fullmer, 584 F.3d 132, 152 (3d Cir. 2009). Here, we agree with

the District Court that Miah’s conduct prior to issuing the

December 2020 threats—which included his refusal to

cooperate with the agents, his social media posts targeting

7

Agent Edquist’s wife, his surveillance of Agent Edquist’s

house and the Pittsburgh FBI Field Office, his frequent trips to

gun ranges, and his research into different weapons and past

terroristic attacks—established that he knew his

communications would be viewed by those agents

investigating him as threats. C.S., 968 F.3d at 246.

We will therefore affirm the District Court’s denial of

Miah’s motion to dismiss charges in the indictment.4

II.

Miah next claims that the District Court’s decision to

close the courtroom during voir dire proceedings violated his

Sixth Amendment right to a public trial. Specifically, he

contends the procedure of screening prospective jurors in open

court before questioning the remaining panel members in a

closed courtroom warrants the grant of a new trial. We

conclude that Miah is not entitled to relief.

Firstly, Miah has not provided the notes of the voir dire

proceedings for us to review to decide this claim. Under

Federal Rule of Appellate Procedure 10(b)(1)(A), Miah was

required to “order . . . a transcript of such parts of the

proceedings not already on file as [he] considers necessary.” In

addition, this Court’s Local Appellate Rules require that the

appendix include “[r]elevant portions of a trial transcript,

exhibit, or other parts of the record . . . at such length as may

be necessary to preserve context.” L.A.R. 30.3(a); see also

L.A.R. 11.1 (outlining appellant’s duty to transmit the trial

court transcript). Miah’s failure to provide a transcript of the

voir dire proceedings renders the alleged Sixth Amendment

violation unreviewable and serves as grounds to dismiss the

claim. See Fed. R. App. P. 3(a)(2) (providing that failure to

comply with procedural rules allows the court to act “as it

4

To the extent Miah challenges the charge under 18 U.S.C. §

115(a)(1)(B), which prohibits threatening a federal law

enforcement officer, we hold the indictment was sufficient.

Miah, operating within the context of having contempt for law

enforcement and a fixation with extreme violence, named the

agents investigating him while referencing the September 11,

2001 terroristic attacks.

8

considers appropriate, including dismissing the appeal”).

Because we will not reverse a conviction and grant a new trial

without first reviewing the relevant portions of the record, we

deem it appropriate to hold this claim forfeited. See Morisch

v. United States, 653 F.3d 522, 529–30 (7th Cir. 2011) (noting

the inability to conduct “meaningful review” of a claim without

a transcript and the failure to order a transcript can be grounds

for forfeiture).

In any event, the parties agree that the jurors were

screened in open court but were individually questioned about

their potential anti-Muslim bias in private. Miah acknowledges

that he did not object to the District Court’s procedure nor

claim it interfered with his right to a public trial, which means

we would review this issue for plain error. Fed. R. Crim. P.

52(b). Thus, a new trial would only be justified if the District

Court committed an obvious error that affected Miah’s

substantial rights, as well as the “fairness, integrity or public

reputation of judicial proceedings.” United States v. Olano,

507 U.S. 725, 732-36 (1993).

It is well established that a defendant’s Sixth

Amendment right to a public trial “extends to the voir dire of

prospective jurors.” Presley v. Georgia, 558 U.S. 209, 213

(2010). Thus, the closing of a courtroom is an obvious error

that “by [its] very nature, ‘affect[s] substantial rights’ and so

cannot be ‘disregarded.’” United States v. Williams, 974 F.3d

320, 340 (3d Cir. 2020) (citing Fed. R. Crim. P. 52(b)). But,

unlike in Williams, the courtroom was not closed for the entire

voir dire proceeding. Presumably the initial screening of the

prospective jurors took place in open court, followed by the

individual voir dire that took place in private. It is also

presumed that Miah and the attorneys for both sides were

present for the entire voir dire. Miah does not claim that any

member of the public (or press) requested and was denied

access to the private portion of the questioning. Applying plain

error review, we have previously decided that similar

circumstances do not violate the Sixth Amendment right to a

public trial. United States v. Bansal, 663 F.3d 634, 661 (3d Cir.

2011). Thus, even if this claim had not been forfeited, there

was no plain error.

9

III.

Miah next challenges the District Court’s decision to

admit “other acts” evidence pursuant to Federal Rule of

Evidence 404(b). He contends the Court abused its discretion

in admitting exhibits relating to four subjects: (1) his comments

on YouTube where he intimated that a terroristic attack was

imminent; (2) exhibits consisting of “firearm and gun-range

evidence” and “[r]esearch and images” of different types of

explosive devices; (3) exhibits relating to the “Tsarnaev

brothers,” who perpetrated the Boston Marathon bombing in

April 2013; and (4) a video where he expressed anti-police

sentiments and sang “about ISIS.” Appellant Br. 36, 38, 40, 43,

45. In addition, Miah alleges the District Court’s curative

instructions were inadequate to cure any undue prejudice

caused by admitting the contested evidence. We conclude no

such prejudice occurred and affirm the evidentiary rulings

made by the District Court.

We review evidentiary rulings for abuse of discretion,

noting that an abuse occurs only if a ruling is “arbitrary,

fanciful, or unreasonable.” United States v. Starnes, 583 F.3d

196, 214 (3d Cir. 2009) (citing Ansell v. Green Acres

Contracting Co., 347 F.3d 515, 519 (3d Cir. 2003)). To the

extent Miah argues the evidence fell outside the scope of Rule

404(b), we exercise plenary review of the Court’s

interpretation of the Federal Rules of Evidence. United States

v. Green, 617 F.3d 233, 239 (3d Cir. 2010) (citing United

States v. Cruz, 326 F.3d 392, 394 (3d Cir. 2003)).

Rule 404(a)(1) states that “[e]vidence of a person's

character or character trait is not admissible to prove that on a

particular occasion the person acted in accordance with the

character or trait.” Fed. R. Evid. 404(a)(1). This prohibition

does not prevent evidence of “other crimes, wrongs or acts”

from being admitted “for another purpose, such as proving

motive, opportunity, intent, preparation, plan, knowledge,

identity, absence of mistake, or lack of accident.” Fed. R. Evid.

404(b)(2).

A four-part test governs the admissibility of other-acts

evidence under Rule 404(b). Such evidence must: (1) have a

proper, non-propensity purpose; (2) be relevant to that non-

10

propensity purpose; (3) satisfy the requirement under Federal

Rule of Evidence 403 that its probative value is not

substantially outweighed by the risk of unfair prejudice; and

(4) be accompanied by a limiting instruction where requested.

United States v. Repak, 852 F.3d 230, 241 (3d Cir. 2017). The

party seeking admission, here the government, “must do more

than conjure up a proper purpose—they must also establish a

chain of inferences no link of which is based on a propensity

inference.” United States v. Smith, 725 F.3d 340, 345 (3d Cir.

2013).

In its memorandum opinion, the District Court

addressed the admissibility of the proffered evidence,

articulating “those inferential chains when readily apparent and

discernable from the record.” A238 (citing Repak, 852 F.3d at

245). Regarding Miah’s comments on YouTube, the Court

found the evidence provided a “context and foundational basis

for why the FBI agents began investigating [him],” which in

turn “led to [his] subsequent interactions with the agents,

including his charged conduct.” A240.5 Given the evidence’s

relevance, the Court found that any potential for prejudice

“was not substantial enough” to outweigh its probative value.

Id. We agree. In Green, this Court held that other-acts evidence

admitted to provide “helpful background information to the

finder of fact” constitutes a proper purpose under Rule 404(b).

617 F.3d at 250. Evidence of Miah’s comments on YouTube

explained to the jury “why [he] was under investigation,”

which in turn “completed the story of the crime.” Id.

Accordingly, the admission did not constitute an abuse of

discretion.6

5

The District Court also found this evidence demonstrated that

the FBI agents were “engaged in the performance of their

official duties,” a requisite element of 18 U.S.C. § 115

(a)(1)(B) (Counts Six and Seven), while conducting their

investigation under the jurisdiction of a federal agency, a

requisite element of 18 U.S.C. § 1519 (Count Eight), when

Miah issued the charged communications. A240. We agree.

6

Miah takes issue with the District Court conducting the

analysis after finding that the government failed to meet its

burden of establishing the contested exhibits served a non-

propensity purpose. This was not error. In Repak, this Court

11

We reach the same conclusion regarding the exhibits

establishing Miah’s connection to firearms, tactical gear, and

types of explosives. The first six exhibits establish Miah’s

familiarity with firearms and wearing tactical gear, which the

Court found were “probative of [the] knowledge and intent”

behind the charged communications. A246. The last four

convey Miah’s “research into weapons and attempts to build

explosives at home,” which provide “contextual and

circumstantial evidence tending to make more probable the

likelihood that a reasonable person would consider [his]

charged communications to be serious expressions of an intent

to inflict serious bodily injury.” A246, A254. We agree with

the District Court that these exhibits were relevant to Miah’s

subjective mental state when he issued the threats and are

therefore “probative of a material issue other than character.”

United States v. Cross, 308 F.3d 308, 321 (3d Cir. 2002) (citing

Huddleston v. United States, 485 U.S. 681, 685 (1988)).

Moreover, the content of the admitted evidence is closely

related to the conduct outlined in the charged

communications—the reasonable inference from the exhibits

is that Miah had the knowledge and means to carry out his

threats of violence.7 Because the exhibits were admitted for

non-propensity purposes, we conclude there was no abuse of

discretion.

conducted a proper Rule 404(b) analysis and deemed the

“other-acts” evidence admissible after concluding both the

District Court’s and the government’s analysis lacking. 852

F.3d at 242, 244. In so doing, the Repak Court assessed the

record, much like the District Court did here, and found the

necessary chain of inferences supporting the exhibits’

admission. Id.

7

Miah argues that evidence of his subjective intent to carry out

the charged threat is not relevant. To support this claim, Miah

cites United States v. Himmelwright, 42 F.3d 777 (3d Cir.

1994). The Himmelwright decision was abrogated by the

Supreme Court in Elonis v. United States, 575 U.S. 723, 737-

40 (2015), which held that the government must prove the

defendant’s subjective intent to establish a violation of Section

875(c).

12

Miah next contends the District Court erred in admitting

exhibits relating to the Tsarnaev brothers who committed the

2013 Boston Marathon bombing. The District Court deemed

the exhibits admissible because they tended to make his motive

and intent in making the threats “more probable than without

such evidence.” A248.8 The Court recognized that one of the

exhibits—the July 2018 social media post—was created prior

to the start of the FBI’s investigation but found it relevant

because it illustrated “his emulation of the Tsarnaevs” and “his

intention for instilling terror.” A257. We agree there is a

connection between the charged communications and this post,

especially given that Miah’s defense at trial was that the

December 2020 tweets were not serious expressions of his

intent to inflict harm. The Tsarnaev exhibits show Miah’s

history of mimicking terrorists, which makes them probative

of whether he intended to threaten a similar type of attack.

United States v. Willis, 844 F.3d 155, 170 (3d Cir. 2016)

(holding evidence of past conduct admissible under Rule

404(b) to demonstrate the defendant’s state of mind in

accepting bribes).

Finally, Miah challenges the admission of a video

recorded in February 2018 on his phone, which shows him in

front of a police car expressing an anti-police sentiment and

singing about ISIS. The District Court admitted the video

because it demonstrated Miah’s “animosity toward law

enforcement, thus making it more likely that [he] was

motivated to make true threats against the FBI agents.” A244.

Miah challenges the admission, arguing that it invited the jury

8

There was a total of six Tsarnaev exhibits: five were images

of the Tsarnaev brothers dated between January and August

2020 (A1837, A1836, A1832, A1833); and one was a social

media post from July 2018 with a comment referencing “the 2

brothers in Boston” (A1850). Although the July 2018 post was

addressed separately in the District Court’s memorandum

opinion, the Court cited the same reasons for its admission as

the other exhibits: that it “may tend to make one of Defendant’s

motives (i.e., emulating the Tsarnaev brothers) and his intent

(i.e., the power of instilling terror) for making the charged

threat communications more probable than without such

evidence.” A257.

13

to draw conclusions about his character. Appellant Br. 45.

Regardless of whether such conclusions could have been

drawn, the video was probative of Miah’s incentive for

threatening law enforcement with a terroristic attack, and this

probative value was not substantially outweighed by the risk of

unfair prejudice to Miah. Because the exhibit demonstrated

something other than character, the District Court properly

exercised its discretion.

Miah argues that the District Court erred in applying

Federal Rule of Evidence 403 because the cumulative impact

of the other-acts evidence led the jury to improperly infer

propensity, causing the prejudicial effect to outweigh any

probative value. Initially, we note that the District Court’s

balancing pursuant to Federal Rule of Evidence 403 is due

great deference, with reversal justified only if the court’s

conclusion is “arbitrary or irrational.” United States v. Bergin,

682 F.3d 261, 279-80 (3d Cir. 2012) (citing United States v.

Kellogg, 510 F.3d 188, 197 (3d Cir. 2007)). Next, we recognize

that “evidence can be kept out only if its unfairly prejudicial

effect ‘substantially outweigh[s]’ its probative value.” Cross,

308 F.3d at 323 (citing Fed. R. Evid. 403). To establish this

substantial imbalance, Miah needed to identify unfair prejudice

“based on something other than [the evidence’s] persuasive

weight.” Bergin, 682 F.3d at 279. Miah has not met this burden.

Any prejudice did not outweigh the exhibits’ value, especially

given his claim that the government failed to prove the

subjective component of Section 875(c). The exhibits were

persuasive in establishing Miah’s subjective intentions in

sending the charged communications, his personal knowledge

of the subject matter referenced in the tweets, and his

understanding that his posts would be interpreted as threats by

the investigating agents. Given the highly probative value of

the admitted evidence, we will affirm the District Court’s

balancing under Rule 403.

Miah challenges the limiting instructions issued by the

District Court, claiming they suggested to the jury they were

“free to consider [his] potential to commit . . . terrorist

attack[s].” Appellant Br. 48. A limiting instruction, if

requested by the defendant, must “advise[] the jury that the

evidence is admissible for a limited purpose and may not be

considered in another manner.” United States v. Caldwell, 760

14

F.3d 267, 277 (3d Cir. 2014). The District Court issued

approximately fifteen limiting instructions over the course of

the trial. Each identified the purpose the “other acts” evidence

served and informed the jury that it may only consider the

evidence for that purpose, not as proof of bad character or a

propensity to commit crimes. These instructions were then

reiterated during the charge to the jury, where the Court again

recited the limited purpose served by each piece of Rule 404(b)

evidence. Miah’s challenge is particularly unpersuasive given

that this Court in Repak determined that substantially identical

instructions were sufficient to mitigate “any concern that the

jury would have used [the other-acts] evidence to draw a

propensity inference.” 852 F.3d at 247. Here, as in Repak, there

is no indication the jury did not follow the oft repeated

instructions in considering the evidence. Accordingly, we will

affirm the District Court’s evidentiary rulings.

IV.

Finally, Miah challenges the sentence imposed by the

District Court. This Court reviews a district court’s

interpretation of the Guidelines de novo and reviews factual

findings relevant to the Guidelines for clear error. United

States v. Ali, 508 F.3d 136, 143 (3d Cir. 2007) (citing United

States v. Grier, 475 F.3d 556, 570 (3d Cir. 2007)). When

assessing the district court’s application of the Guidelines to a

particular set of facts and if “th[ose] facts ‘fit’ within what the

Guidelines prescribe,” we apply the deferential clearly

erroneous standard of review. United States v. Richards, 674

F.3d 215, 219 (3d Cir. 2012).

Miah first argues that the District Court erred in

imposing a six-level increase in his offense-level under

U.S.S.G. § 2A6.1. Such an increase is justified when a

defendant is convicted of issuing threats and “the offense

involved any conduct evidencing an intent to carry out such a

threat.” U.S.S.G. § 2A6.1(b)(1). In applying this enhancement,

courts must consider conduct that occurred during the crime

and any pre-crime conduct that is “substantially and directly

connected to the offense, under the facts of the case taken as a

whole.” Id. at application n.1. The District Court found the

following overt acts were directly and substantially connected

to the threats of conviction:

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The Defendant researching the agents as well as

their families, where their family members for

instance worked, even their pets, traveled to the

vicinity of one of the agent's residences, traveled

to the vicinity of the agents' place of

employment, the Pittsburgh Field Office of the

FBI at various times of the day and night,

researching weapons, explosives and violence,

and then on one instance going to a shooting

range on the day he made an actual threat or post.

A1704-05. In making this finding, the Court recognized that

Miah was convicted of threatening to injure the named agents

as well as those located in the FBI’s headquarters by executing

terroristic attacks. Because the conduct was directly connected

to the threatening communications, the Court did not err in

applying this enhancement.

Next, Miah challenges the grouping of his conviction

under 8 U.S.C. § 1519, which prohibits the destruction of

evidence to obstruct a federal investigation, with his other

convictions. Miah violated Section 1519 by deleting the

threatening communications that gave rise to Counts One and

Two. Application Note 8 of U.S.S.G. § 3C1.1 states that

subsection (c) of § 3D1.2 dictates that a conviction for an

obstruction offense—here, the deletion of his threatening

communications to impede the FBI’s investigation—should be

grouped with the convictions for the underlying offense—here,

the transmitting of the threatening communications. Such

grouping prevents multiple punishments for the same

offending conduct while accounting for the additional crimes

committed. United States v. Bush, 56 F.3d 536, 538 (3d Cir.

1995). Miah claims the grouping was improper because his

obstructive conduct “cover[ed] a wider range of conduct and

time than the threat convictions.” Appellant Br. 58. But this

argument does not undermine the District Court’s finding that

Miah’s obstruction offense was predicated on transmitting

threatening communications. Thus, the District Court properly

applied §§ 3C1.1 and 3D1.2(c) in grouping Diaz’s offenses and

enhancing his total offense level by two levels. See United

States v. Leung, 360 F.3d 62, 68 (2d Cir. 2004) (affirming that

the Guidelines require grouping of passport fraud count with

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obstruction of justice count where convictions were based on

same underlying conduct).

V.

For the foregoing reasons, we will affirm the judgment

of sentence.

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