United States v. Duka

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

Nos. 09-2292, 09-2299, 09-2300,

09-2301, and 09-2302

_____________

UNITED STATES OF AMERICA

v.

ELJVIR DUKA,

Appellant in 09-2292

_____________

UNITED STATES OF AMERICA

v.

MOHAMAD IBRAHIM SHNEWER,

Appellant in 09-2299

_____________

UNITED STATES OF AMERICA

v.

DRITAN DUKA

a/k/a DISTAN DUKA

a/k/a TONY DUKA

a/k/a ANTHONY DUKA

Dritan Duka,

Appellant in 09-2300

_____________

UNITED STATES OF AMERICA

v.

SHAIN DUKA,

Appellant in 09-2301

_____________

UNITED STATES OF AMERICA

v.

SERDAR TATAR,

Appellant 09-2302

_____________

Appeals from the United States District Court

for the District of New Jersey

(D.C. Criminal Nos. 1-07-cr-00459-001 through 005)

District Judge: Honorable Robert B. Kugler

_____________

Argued on May 23, 2011

Before: McKEE, Chief Judge,

SCIRICA and RENDELL, Circuit Judges.

(Opinion Filed December 28, 2011)

2

_____________

Troy A. Archie, Esq. [ARGUED]

The Elegance Building, Suite A

116 North Third Street

Camden, NJ 08102

Counsel for Appellant Eljvir Duka

Rocco C. Cipparone, Jr., Esq. [ARGUED]

205 Black Horse Pike

Haddon Heights, NJ 08035

Counsel for Appellant Mohamad Ibrahim Shnewer

Michael N. Huff, Esq. [ARGUED]

1333 Race Street

Philadelphia, PA 19107

Counsel for Appellant Dritan Duka

Michael E. Riley, Esq. [ARGUED]

100 High Street, Suite 302

The Washington House

Mount Holly, NJ 08060

Counsel for Appellant Shain Duka

Richard Sparaco, Esq. [ARGUED]

1920 Fairfax Avenue

Cherry Hill, NJ 08003

Counsel for Appellant Serdar Tatar

Mark E. Coyne, Esq.

Office of United States Attorney

970 Broad Street, Room 700

Newark, NJ 07102

3

Norman Gross, Esq. [ARGUED]

Office of United States Attorney

Camden Federal Building & Courthouse

401 Market Street, 4th Floor

Camden, NJ 08101

Counsel for Appellee

_____________

OPINION OF THE COURT

_____________

RENDELL, Circuit Judge.

In this consolidated appeal, defendants Mohamad

Shnewer, Dritan Duka, Eljvir Duka, Shain Duka, and Serdar

Tatar appeal various aspects of the convictions and sentences

they received after a high-profile, two-and-a-half-month jury

trial concerning a plot to attack United States military bases

in New Jersey, Pennsylvania, and Delaware, particularly the

United States Army Base at Fort Dix. The government

presented extensive evidence of the plot, including: dozens

of recorded conversations among defendants and two

confidential informants discussing violent jihad and plans to

stage an attack; weeks of testimony from the government‟s

confidential informants and the law enforcement agents who

coordinated the government‟s sixteen-month investigation;

videos of defendants‟ “training” trips in the Poconos, where

they engaged in target practice; propaganda videos

advocating violent jihad, including attacks against American

service members, which defendants viewed and discussed;

and video surveillance of a transaction in which two

defendants purchased automatic and semi-automatic weapons

for use in an attack. All defendants were convicted of

4

conspiring to murder United States military personnel in

violation of 18 U.S.C. §§ 1114 and 1117. Four of the five

defendants were also convicted of various firearm offenses.

Defendants raise numerous arguments on appeal.

Most significantly, they urge that (1) their convictions should

be reversed because they were based in part on evidence

procured under a purportedly unconstitutional provision of

the Foreign Intelligence Surveillance Act (FISA) and (2) the

District Court improperly admitted certain out-of-court

statements against Serdar Tatar under the coconspirator

exception to the hearsay rule. In a joint, counseled brief and

individual briefs that we permitted them to file pro se,

defendants also raise a number of evidentiary and other issues

concerning the conduct of their trial. Because we conclude

that their arguments lack merit and that Judge Kugler

managed this extraordinarily complex trial in an exemplary

way, we will affirm the District Court‟s judgments as to the

conspiracy and most of the firearm offenses. For reasons we

discuss in more detail below, we will vacate Mohamed

Shnewer‟s conviction on Count 4, attempted possession of

firearms in furtherance of a crime of violence in violation of

18 U.S.C. § 924(c)(1)(A).

I.

Shnewer, the Duka brothers, and Tatar are a group of

young men who lived in New Jersey and developed an

interest in violent jihad, particularly attacks against the United

States military. Defendants, who had known each other since

high school, came to the FBI‟s attention after it received a

copy of a video that was brought to a Circuit City store in Mt.

Laurel, New Jersey, for copying. The video dated from

January 2006 and depicted the five defendants and others at a

5

firing range in the Pocono Mountains, shooting weapons and

shouting “Allah Akbar!” and “jihad in the States.”

Over the course of the next sixteen months, the FBI

deployed two cooperating witnesses, Mahmoud Omar and

Besnik Bakalli, to monitor defendants‟ activities. The

evidence presented at trial showed that, between January

2006 and May 2007, defendants viewed and shared videos of

violent jihadist activities, including beheadings, around the

world; they viewed and shared videos of lectures advocating

violent jihad against non-Muslims; they sought to acquire

numerous weapons, including automatic firearms and rocket-

propelled grenades; they returned to the Poconos, where they

again engaged in shooting practice; they discussed plans to

attack the United States military; they conducted research and

surveillance on various potential targets for such an attack in

New Jersey, Pennsylvania, and Delaware; and they procured

a map of the United States Army Base at Fort Dix to use in

planning and coordinating such an attack.

With respect to the individual defendants, the evidence

demonstrated the following:

Mohamed Shnewer is a naturalized American citizen

who was born in Jordan. He admired and sought to emulate

the “nineteen brothers,” i.e., the September 11 hijackers,

Osama bin Laden, and the leader of al Qaeda in Iraq, Abu

Musab al-Zarqawi. Shnewer openly discussed and planned

attacks on military targets in New Jersey, Pennsylvania, and

Delaware. Along with Omar, the government informant, he

staked out the United States Army Base at Fort Dix, McGuire

Air Force Base, Lakehurst Naval Air Station, and the United

States Army Base at Fort Monmouth in New Jersey; the

United States Coast Guard Base in Philadelphia,

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Pennsylvania; and Dover Air Force Base in Delaware.

Shnewer also considered attacking the federal government

building at 6th and Arch Streets in Philadelphia and drove by

the building to determine whether such an attack would be

feasible. To accomplish an attack on these targets, Shnewer

proposed deploying a gas tanker truck as a bomb, using

roadside bombs or surface-to-air missiles, and spraying

military targets with machinegun fire. He sought to acquire

AK-47 machineguns from Omar to use in such an attack.

Dritan, Shain, and Eljvir Duka are brothers who were

born in Albania. During the events that were the subject of

the trial, they were in the United States illegally. In 2006 and

2007, the Dukas took at least two trips to the Poconos to train

for jihad by firing weapons, attempting to buy automatic

weapons, discussing jihad, and watching violent jihadist

videos. The Dukas befriended government informant Bakalli,

a fellow Albanian, and encouraged him to join them in

avenging Muslims who had been oppressed by the United

States and Israel. They viewed and praised a lecture,

Constants on the Path to Jihad, by Anwar al-Awlaki, the

prominent cleric and proponent of attacks against the United

States military, and videos depicting attacks on American

soldiers by violent jihadists in Iraq and elsewhere. In

recorded conversations presented at trial, the Dukas described

beheadings depicted in the videos as just punishment for

traitors. The Dukas watched the beheading videos over and

over again until they became inured to the spectacle. Dritan

told Bakalli that, although at first he “couldn‟t take it,”

“[n]ow I see it and it‟s nothing, I do not care. I saw hundreds

being beheaded.” Similarly, Eljvir told Bakalli that the

beheadings were difficult to watch at first, but that “[n]ow we

can watch it no problem.”

7

Like Shnewer, the Dukas sought to acquire firearms to

further their plans. They could not acquire weapons lawfully

because they were in the country illegally, so they turned to

the black market. By January 2007, the three brothers told

Bakalli they had acquired a shotgun, two semi-automatic

rifles, and a pistol, and they continued to look for

opportunities to buy machineguns.

Later that spring, Dritan Duka ordered nine fully

automatic weapons — AK-47s and M-16s — from a contact

of Omar‟s in Baltimore. The FBI arranged a controlled

transaction, and, on May 7, 2007, Dritan and Shain Duka

went to Omar‟s apartment to retrieve their weapons. After

handing Omar $1,400 in cash, Dritan and Shain examined and

handled four fully automatic machineguns and three semi-

automatic assault rifles. They asked Omar for garbage bags

to conceal the weapons (so they would look like golf clubs) as

they carried them out to the car. Before they could get there,

however, federal and state law enforcement officers entered

Omar‟s apartment and arrested them. The entire transaction

was captured on video by equipment installed in Omar‟s

apartment by the FBI and was shown to the jury at trial.

Serdar Tatar is a lawful permanent resident in the

United States who was born in Turkey. Tatar appears in the

video of defendants‟ January 2006 training trip to the

Poconos. After extensive discussions with Omar about

Shnewer‟s plan to attack Fort Dix, Tatar agreed to help by

providing Omar with a map of Fort Dix to use in planning

such an attack. Regarding the overall plan to attack Fort Dix,

Tatar told Omar in a recorded conversation, “I‟m in, honestly,

I‟m in.”

8

All five defendants were arrested on May 7, 2007,

after Dritan and Shain Duka completed the controlled firearm

purchase from Omar. A superseding indictment, filed on

January 15, 2008, charged defendants with:

Count 1: conspiracy to murder members of the

United States military, in violation of 18 U.S.C.

§§ 1114 & 1117 (all defendants);

Count 2: attempt to murder members of the

United States military, in violation of 18 U.S.C.

§ 1114 (all defendants);

Count 3: possession or attempted possession

of firearms in furtherance of a crime of violence

in violation of 18 U.S.C. §§ 924(c)(1)(A) and

924(c)(1)(B)(ii) (Dritan, Eljvir, and Shain

Duka);

Count 4: attempted possession of firearms in

furtherance of a crime of violence in violation

of 18 U.S.C. §§ 924(c)(1)(A) and

924(c)(1)(B)(ii) (Shnewer);

Count 5: possession of machineguns in

violation of 18 U.S.C. § 922(o) (Dritan and

Shain Duka); and

Counts 6 and 7: possession of firearms by an

illegal alien in violation of 18 U.S.C.

§ 922(g)(5) (Dritan and Shain Duka (2 counts);

Eljvir Duka (1 count)).

9

Defendants pleaded not guilty to all charges. After a

two-and-a-half-month jury trial, they were convicted and

sentenced as follows:

Defendant Convictions Sentence1

Shnewer Conspiracy to murder Life

members of the U.S.

military

Attempted possession 360 months, to

of firearms in run

furtherance of a crime consecutively

of violence

1

Unless otherwise noted, sentences on different counts run

concurrently with one another.

10

Defendant Convictions Sentence1

Dritan Duka Conspiracy to murder Life

members of the U.S.

military

Possession or 360 months, to

attempted possession run

of firearms in consecutively

furtherance of a crime

of violence

Possession of 120 months

machineguns

Possession of firearms 120 months

by an illegal alien (two for each count

counts)

Eljvir Duka Conspiracy to murder Life

members of the U.S.

military

Possession of firearms 120 months

by an illegal alien (one

count)

11

Defendant Convictions Sentence1

Shain Duka Conspiracy to murder Life

members of the U.S.

military

Possession or 360 months, to

attempted possession run

of firearms in consecutively

furtherance of a crime

of violence

Possession of 120 months

machineguns

Possession of firearms 120 months on

by an illegal alien (two each count

counts)

Tatar Conspiracy to murder 396 months

members of the U.S.

military

Defendants timely appealed the judgments entered

against them. We have jurisdiction to review their

convictions and sentences under 28 U.S.C. § 1291 and 18

U.S.C. § 3742, respectively.

12

II.

A. Defendants’ FISA Challenge

Defendants challenge their convictions on the ground

that the government‟s case was tainted by its reliance on

evidence procured pursuant to the Foreign Intelligence

Surveillance Act, or FISA, 50 U.S.C. § 1801 et seq., as

amended by the 2001 Patriot Act.2 The Patriot Act revised a

provision of FISA, 18 U.S.C. § 1804, to require a national

security officer to certify that “a significant purpose,” rather

than “the purpose,” of surveillance the officer seeks to

conduct under FISA is “to obtain foreign intelligence

information.” Compare 50 U.S.C. § 1804(a)(6)(B) (2008)

with 50 U.S.C. § 1804(a)(7)(B) (2000). Before the Patriot

Act amendment, courts routinely interpreted that provision to

require certification that foreign intelligence collection was

the “primary purpose” of a FISA search. See, e.g., United

States v. Duggan, 743 F.2d 59, 77 (2d Cir. 1984) (“The

requirement that foreign intelligence information be the

primary objective of the surveillance is plain . . . from the

requirements in § 1804 as to what the application must

contain.”).

Defendants contend that FISA, as amended by the

Patriot Act, violates the Fourth Amendment in two ways.

They urge that FISA‟s post-Patriot Act “significant purpose”

test does not appropriately balance individual privacy

interests against the government‟s interests in foreign

2

The Patriot Act‟s full name is the Uniting and

Strengthening America by Providing Appropriate Tools

Required to Intercept and Obstruct Terrorism Act of 2001,

Pub. L. No. 107-56, 115 Stat. 272 (Oct. 26, 2001).

13

intelligence gathering and, therefore, is unreasonable under

the Fourth Amendment. Defendants also argue that FISA

unconstitutionally authorizes the government to conduct

searches for criminal prosecution purposes that do not satisfy

typical Fourth Amendment requirements. Most significantly,

they complain that “[t]he requirements under FISA do not

include probable cause of a crime being committed.”3

Appellants‟ Opening Br. 58.

Defendants maintain that we must reverse their

convictions because the government used unlawful FISA-

3

Defendants also briefly assert that FISA does not satisfy the

Fourth Amendment‟s neutral magistrate, notification, and

particularity requirements. We agree with the Foreign

Intelligence Surveillance Court of Review that these

arguments do not preclude a determination that amended

FISA is constitutional. See In re Sealed Case, 310 F.3d 717,

738 (Foreign Intel. Surv. Ct. Rev. 2002) (per curiam)

(“[T]here is no dispute that a FISA judge satisfies the Fourth

Amendment‟s requirement of a „neutral and detached

magistrate.‟”); see also id. at 739-40 (under FISA, executive

officers must identify with particularity the type of foreign

intelligence information sought and facts establishing

probable cause to believe that facilities or places at which

surveillance is directed are being used, or are about to be

used, by a foreign power and that the target of the

surveillance is a foreign power or an agent of a foreign

power); id. at 741 (FISA requires notice to defendant that

evidence obtained through FISA surveillance will be used in a

criminal proceeding).

14

derived evidence throughout the trial;4 the FISA-derived

evidence resulted in their convictions; and, without that

evidence, the government cannot prove the charges against

them.

Aligning with all of the other courts of appeals that

have considered this issue, however, we reject defendants‟

constitutional challenge. We conclude that FISA‟s amended

“significant purpose” requirement is reasonable under the

Fourth Amendment, and, therefore, that the government‟s use

of FISA-derived evidence in its case against defendants was

lawful. We also observe that, even if we were to hold the

statute unconstitutional, defendants still would not be entitled

to have their convictions reversed. Defendants‟ argument for

reversal depends on the assumption that, if FISA is declared

unconstitutional, then the exclusionary rule would preclude

4

The scope and nature of the FISA-derived evidence

presented at trial appear to be limited. Defendants do not

identify which specific pieces of evidence were obtained

through FISA surveillance, but the government informed us

in its brief that, of all the evidence presented at trial, only two

recorded conversations were obtained through FISA

surveillance. On the eve of oral argument, the government

notified us that it also presented several FISA-derived

photographs at trial. Assuming the government now has

provided us with a complete accounting of the FISA-derived

evidence used in the case, we conclude that it was de minimis,

both in terms of the overall volume of evidence presented at

the trial and of its probative value. Because we cannot be

certain that the government has identified all of the FISA-

derived evidence it used, however, we do not base our

disposition on this conclusion.

15

the use of FISA-derived evidence in their case. Not so.

Where, as here, the challenged search was conducted in

objectively reasonable reliance on a duly authorized statute,

the Supreme Court has held that the exclusionary rule does

not preclude the admission of the fruits of the search.5

1. FISA and the Fourth Amendment

a. Statutory Background and Structure

FISA, as originally enacted in 1978, empowered the

Chief Justice of the United States to establish a special court

(now known as the FISA court), staffed by district court

judges, with “jurisdiction to hear applications for and grant

orders approving electronic surveillance” related to foreign

intelligence. 50 U.S.C. § 1803. As relevant here,

[FISA] authorizes a judge on the

FISA court to grant an application

for an order approving electronic

surveillance to “obtain foreign

intelligence information” if “there

is probable cause to believe

5

Although the challenged evidence would stand even if FISA

was unconstitutional, we have nevertheless undertaken a

thorough analysis of the defendants‟ Fourth Amendment

claim because of the importance of the issues it raises. See

United States v. Leon, 468 U.S. 897, 924 (1984) (“If the

resolution of a particular Fourth Amendment question is

necessary to guide future action by law enforcement

officers . . . , nothing will prevent reviewing courts from

deciding that question before turning to the good faith

issue.”).

16

that . . . the target of the electronic

surveillance is a foreign power or

an agent of a foreign power,” and

that “each of the facilities or

places at which the surveillance is

directed is being used, or is about

to be used, by a foreign power or

an agent of a foreign power.”

In re Sealed Case, 310 F.3d 717, 722 (Foreign Intel. Surv. Ct.

Rev. 2002) (per curiam) (quoting 50 U.S.C. § 1805(a)(3)).

Among other things, the statute defines a “foreign power” as

“a group engaged in international terrorism or activities in

preparation therefor,” 50 U.S.C. § 1801(a)(4), and an “agent

of a foreign power” as (a) a non-“United States person” (i.e.,

non-U.S. citizen or lawful permanent resident) who “engages

in international terrorism or activities in preparation therefore

[sic],” id. § 1081(b)(1)(C); see also id. § 1801(i) (defining

“United States person”), or (b) “any person” who “knowingly

engages in sabotage or international terrorism, or activities

that are in preparation therefor, for or on behalf of a foreign

power,” id. § 1801(b)(2)(C), (i).6

The relevant provision in this case, 50 U.S.C. § 1804,

“sets forth the elements of an application for [such] an order.”

Sealed Case, 310 F.3d at 723. The original version of § 1804

“required a national security official in the Executive

Branch — typically the Director of the FBI — to certify that

„the purpose‟ of the surveillance is to obtain foreign

6

On appeal, defendants do not argue that the government

failed to satisfy these statutory requirements or assert any

procedural irregularity in obtaining or executing the FISA

orders that generated the evidence used in this case.

17

intelligence information.” Id. (quoting former 50 U.S.C.

§ 1804(a)(7)(B)). In 2001, as part of the Patriot Act,

Congress revised that requirement so that it now requires the

official to certify “that a significant purpose of the

surveillance is to obtain foreign intelligence information.” 50

U.S.C. § 1804(a)(6)(B) (emphasis added).

b. The Fourth Amendment’s

Reasonableness Requirement

At its most basic level, defendants‟ argument is that

FISA‟s “significant purpose” standard is unconstitutional

because it allows the government to conduct electronic

surveillance upon a lesser showing than the ordinary criminal

requirement that searches conducted pursuant to a warrant

must be supported by a reasonable belief that the target of the

search has committed, or is about to commit, a crime. See

Berger v. New York, 388 U.S. 41, 55 (1967) (“Probable cause

under the Fourth Amendment exists where the facts and

circumstances within the affiant‟s knowledge, and of which

he has reasonably trustworthy information, are sufficient unto

themselves to warrant a man of reasonable caution to believe

that an offense has been or is being committed.”); see also

Appellants‟ Joint Opening Br. 58-59 (citing and quoting

Berger and Mayfield v. United States, 504 F. Supp. 2d 1023

(D. Or. 2007)).7 While that requirement certainly applies to

searches that are conducted solely for law enforcement

purposes, the Fourth Amendment is more flexible than

7

Defendants‟ argument relies in large part on the analysis in

Mayfield. Because the Ninth Circuit Court of Appeals

vacated the judgment in that case, see Mayfield v. United

States, 599 F.3d 964, 973 (9th Cir. 2010), it is no longer good

law and we do not address it.

18

defendants‟ argument allows. Specifically, the Supreme

Court has indicated that the standards governing a “warrant

application may vary according to the governmental interest

to be enforced and the nature of citizen rights deserving

protection.” United States v. U.S. District Court (Keith), 407

U.S. 297, 323 (1972).

The Fourth Amendment provides:

The right of the people to be

secure in their persons, houses,

papers, and effects, against

unreasonable searches and

seizures, shall not be violated, and

no Warrants shall issue, but upon

probable cause, supported by

Oath or affirmation, and

particularly describing the place

to be searched and the persons or

things to be seized.

The Supreme Court has explained that, “[i]n cases in which

the Fourth Amendment requires that a warrant to search be

obtained, „probable cause‟ is the standard by which a

particular decision to search is tested against the

constitutional mandate of reasonableness.” Camara v. Mun.

Ct., 387 U.S. 523, 534 (1967). In other words, the critical

Fourth Amendment requirement, for purposes of this case, is

that the statutory standard for obtaining a warrant must be

reasonable. See United States v. Abu-Jihaad, 630 F.3d 102,

122 (2d Cir. 2010) (“The benchmark for judicial review of the

constitutionality of warrant requirements established by

Congress is reasonableness . . . .”).

19

What is reasonable, in turn, depends on the nature of

the search: “[t]o apply this standard, it is obviously necessary

first to focus upon the governmental interest which allegedly

justifies official intrusion upon the constitutionally protected

interests of the private citizen.” Camara, 387 U.S. at 534-35.

So, for example, in the criminal context, where the objective

of a search may be “to recover specific stolen or contraband

goods,” a warrant to search for such goods “is „reasonable‟

only when there is „probable cause‟ to believe that they will

be uncovered in a particular dwelling.” Camara, 387 U.S. at

535. But in the administrative context, where searches might

be “aimed at securing city-wide compliance with minimum

physical standards for private property,” id. at 535, the

reasonableness of the warrant “will not necessarily depend

upon specific knowledge” related to a particular property, id.

at 539; it may be based, instead, on a judicial determination

that “the city has adopted a reasonable system of inspections

and is not targeting citizens for irregular or malicious

reasons,” United States v. Wen, 477 F.3d 896, 898 (7th Cir.

2006) (describing Camara).

The government‟s interests in security and intelligence

are entitled to particular deference. As the Supreme Court

has explained, “[w]here . . . the risk against which the

Government seeks to guard is substantial, the need to prevent

its occurrence furnishes an ample justification for reasonable

searches calculated to advance the Government‟s goal.” Nat’l

Treasury Emps. Union v. Von Raab, 489 U.S. 656, 674-75

(1989). Thus, the Court has indicated that mandatory,

suspicionless searches of passengers and luggage at airports

may be deemed reasonable “„so long as the search is

conducted in good faith for the purpose of preventing

hijacking or other like damage and with reasonable scope and

20

the passenger has been given advance notice of his liability to

such a search so that he can avoid it by choosing not to travel

by air.‟” Id. at 675 n.3 (quoting United States v. Edwards,

498 F.2d 496, 500 (2d Cir. 1974)); see also United States v.

Hartwell, 436 F.3d 174, 179-80 (3d Cir. 2006) (holding

airport checkpoint searches constitutional, in part because

“there can be no doubt that preventing terrorist attacks on

airplanes is of paramount importance” and such searches

“advance the public interest” (internal quotation marks

omitted)).

The Supreme Court has not addressed the

reasonableness of the standards set forth in FISA (or of any

searches conducted for the purpose of gathering foreign

intelligence), but it has specifically suggested that different

probable cause standards for intelligence surveillance “may

be compatible with the Fourth Amendment.” Keith, 407 U.S.

at 322. As in the above examples, the key is whether such

standards “are reasonable both in relation to the legitimate

need of Government for intelligence information and the

protected rights of our citizens.” Id. at 322-23. Thus, we

must determine whether FISA‟s “significant purpose”

standard is reasonable given the government‟s special interest

in collecting foreign intelligence information. On that key

question, we do not write on a blank slate.

c. The Fourth Amendment and Foreign

Intelligence

Probable cause standards other than the typical

requirement for belief regarding the commission of a crime

have been determined to be appropriate and reasonable in the

foreign intelligence context. The Supreme Court‟s decision

in Keith provides a useful starting point in this area. While

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discussing the standards that apply to electronic surveillance

for domestic security purposes, the Court there observed that

certain “policy and practical considerations” differentiate

domestic security investigations from ordinary criminal

investigations:

“The gathering of security intelligence is often

long range and involves the interrelation of

various sources and types of information.”

“The exact targets of such surveillance may be

more difficult to identify than in surveillance

operations against many types of crimes . . . .”

“Often, . . . the emphasis of domestic

intelligence gathering is on the prevention of

unlawful activity or the enhancement of the

Government‟s preparedness for some possible

future crisis or emergency.”

Keith, 407 U.S. at 322. In sum, “the focus of domestic

surveillance may be less precise than that directed against

more conventional types of crime.” Id.

In light of these considerations, the Court stated that

“Congress may wish to consider protective standards” for

domestic security surveillance warrants that “differ from

those” prescribed in ordinary criminal cases. Id. In

particular, it suggested that Congress might “judge that the

application and affidavit showing probable cause” for such

surveillance “should allege other circumstances more

appropriate to domestic security cases.” Id. at 323. Because

the same policy and practical considerations highlighted by

the Keith Court apply equally, or perhaps even to a greater

22

extent, to foreign intelligence gathering, the Court‟s

comments provide important guideposts for our analysis in

this case.

After Keith, several courts of appeals, including our

own, have examined the Fourth Amendment‟s application to

electronic surveillance conducted under the guise of the

President‟s executive authority to collect foreign intelligence

information. These courts almost uniformly have concluded

that the important national interest in foreign intelligence

gathering justifies electronic surveillance without prior

judicial review, creating a sort of “foreign intelligence

exception” to the Fourth Amendment‟s warrant requirement.

See, e.g., United States v. Truong Dinh Hung, 629 F.2d 908,

914 (4th Cir. 1980) (“[B]ecause of the need of the executive

branch for flexibility, its practical experience, and its

constitutional competence, the courts should not require the

executive to secure a warrant each time it conducts foreign

intelligence surveillance.”); United States v. Butenko, 494

F.3d 593, 605 (3d Cir. 1974) (en banc) (holding, in light of

the “strong public interest” in uninterrupted foreign

intelligence collection, that the Fourth Amendment does not

require “prior judicial authorization” of surveillance

“conducted and maintained solely for the purpose of

gathering foreign intelligence information”). See generally

Duggan, 743 F.2d at 72 (summarizing foreign intelligence

exception cases).

Admittedly, FISA changed the landscape by instituting

a procedure by which the executive branch could seek

advance judicial review of, and procure a warrant-like order

for, electronic foreign intelligence surveillance. Given the

prevailing pre-FISA conclusion that the executive branch

could conduct electronic surveillance for foreign intelligence

23

purposes without a warrant, it was perhaps predictable that

the courts of appeals that have reviewed FISA, both before

and since the Patriot Act amendments, all would conclude

that FISA‟s standards and procedures for authorizing foreign

intelligence surveillance orders are reasonable under the

Fourth Amendment. See Abu-Jihaad, 630 F.3d at 128-29;

Wen, 477 F.3d at 898-99; United States v. Damrah, 412 F.3d

618, 625 (6th Cir. 2005); United States v. Johnson, 952 F.2d

565, 573 (1st Cir. 1991); United States v. Pelton, 835 F.2d

1067, 1075 (4th Cir. 1987); United States v. Cavanaugh, 807

F.2d 787, 790-91 (9th Cir. 1987); Duggan, 743 F.2d at 72-74;

see also Sealed Case, 310 F.3d at 746.

d. The Fourth Amendment and the

“Primary Purpose” Requirement for

FISA Searches

Defendants do not ignore all of this history. Instead,

they focus on the Patriot Act‟s revision of what is now 50

U.S.C. § 1804(a)(6)(B) to require a national security officer

to certify that “a significant purpose,” rather than “the

purpose” — which courts had interpreted to mean “the

primary purpose” — of the surveillance the officer seeks to

conduct under FISA is “to obtain foreign intelligence

information.” They urge that the Patriot Act amendment

violates the Fourth Amendment by bringing the standard

below this “primary purpose” threshold. In fact, however, the

pre-FISA and pre-Patriot Act amendment foreign intelligence

cases do not control this case. Those cases do not establish

the “primary purpose” requirement as a sine qua non of

FISA‟s constitutionality, and, even if they did, we would hold

that application of the reasonableness test set forth above

counsels a different result.

24

The notion of a “primary purpose” requirement arises

in pre-FISA foreign intelligence surveillance cases.

Defendants, understandably, focus on United States v.

Butenko, 494 F.2d 593, 605-06 (3d Cir. 1974) (en banc), in

which our Court held that the executive branch need not

secure prior judicial authorization for foreign intelligence

surveillance, but commented in dicta that, “[s]ince the

primary purpose of these searches is to secure foreign

intelligence information, a judge, when reviewing a particular

search [after the fact] must, above all, be assured that this was

in fact its primary purpose and that the accumulation of

evidence of criminal activity was incidental.” That comment

has little bearing here, however, because it arose out facts

specific to Butenko, not out of a reasoned analysis of what

minimum standards would satisfy the Fourth Amendment.8

See id. at 606.

The Fourth Circuit Court of Appeals has come closer

to suggesting a link between a “primary purpose” requirement

and the constitutionality of foreign intelligence surveillance.

In United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir.

1980), it explicitly balanced government and private interests

under a series of different standards and concluded that “the

executive should be excused from securing a warrant only

when the surveillance is conducted „primarily‟ for foreign

intelligence reasons.” Id. at 915. But Truong also does not

control our analysis. It involved “the scope of presidential

8

Specifically, in Butenko, the Attorney General certified, and

the district court found, that the particular surveillances at

issue “„were conducted and maintained solely for the purpose

of gathering foreign intelligence information.‟” 494 F.2d at

601.

25

authority to conduct warrantless foreign intelligence

surveillance.” Abu-Jihaad, 630 F.3d at 121. Here, we

consider the constitutionality of a program approved by

Congress that requires an executive officer to apply to the

judicial branch for a warrant-like order. These features

distinguish our case from Truong in important ways:

Whatever purpose limits might be

placed on the president‟s authority

to conduct warrantless

surveillance to ensure that the

exception does not extend beyond

the constitutional ground for its

recognition, it does not follow that

the Fourth Amendment demands

the same limitation when, as

under FISA, the powers of all

three branches of government —

in short, the whole of federal

authority — are invoked in

determining when warrants may

reasonably be sought and issued

for the purpose of obtaining

foreign intelligence information.

Id.

FISA cases before the Patriot Act amendments often

incorporated a “primary purpose” standard without much

discussion or analysis, typically by assuming, or even

asserting outright, that it was a statutory requirement. See,

e.g., Johnson, 952 F.2d at 572 (affirming district court

determination that FISA surveillance was lawful in part

because “it is clear that” the “primary purpose” of the

26

government‟s FISA applications “was to obtain foreign

intelligence information, not to collect evidence for any

criminal prosecution of appellants”); Pelton, 835 F.2d at 1075

(rejecting defendant‟s argument that “FISA surveillance was

conducted primarily for the purpose of his criminal

prosecution, and not primarily „for the purpose of obtaining

foreign intelligence information‟ as required by 50 U.S.C.

§ 1802(b)”);9 Duggan, 743 F.2d at 77 (“The requirement that

foreign intelligence information be the primary objective of

the surveillance is plain not only from the language of

§ 1802(b) but also from the requirements in § 1804 as to what

the application must contain.”). Those cases did not

expressly link the “primary purpose” standard to an analysis

of whether FISA satisfies the Fourth Amendment or consider

whether FISA would be constitutional if it incorporated a

lower standard instead, which is the question we face now.

Cf. Sealed Case, 310 F.3d at 727 (concluding that there was

“not much need” for courts reviewing pre-Patriot Act

amendment FISA cases to focus on the constitutional

significance of the “primary purpose” test).

In all events, we do not believe that the Fourth

Amendment compels a “primary purpose” test. The

dispositive issue is whether the “significant purpose” test is

reasonable. Because we conclude that it is for the reasons set

9

50 U.S.C. § 1802(b) provides, in relevant part: “[A] judge

to whom an application is made may, notwithstanding any

other law, grant an order . . . approving electronic

surveillance of a foreign power or an agent of a foreign power

for the purpose of obtaining foreign intelligence

information . . . .” (emphasis added).

27

forth below, surveillance based on that standard satisfies the

Fourth Amendment.

e. The “Significant Purpose” Test Is

Reasonable

We agree with our sister courts of appeals and the

Foreign Intelligence Surveillance Court of Review that

amended FISA‟s “significant purpose” standard is reasonable

under the Fourth Amendment, for three reasons.

First, the “significant purpose” standard reflects a

balance struck by Congress between “the legitimate need of

Government for intelligence information” and “the protected

rights of our citizens.” Keith, 407 U.S. at 323. The

legislative history reveals that “Congress was keenly aware

that [the Patriot Act‟s amendment to what is now

§ 1804(a)(6)(B)] relaxed a requirement that the government

show that its primary purpose was other than criminal

prosecution.” Sealed Case, 310 F.3d at 732. By adopting the

amendment, Congress signaled its determination that the new

standard was needed to promote coordination between

intelligence and law enforcement officials in combating

terrorism, acknowledging that, as a practical matter, these

functions inevitably overlap.10 While Congress‟s conclusion

10

Senator Dianne Feinstein explained:

[I]n today‟s world things are not

so simple. In many cases,

surveillance will have two key

goals—the gathering of foreign

intelligence, and the gathering of

evidence for a criminal

28

prosecution. Determining which

purpose is the “primary” purpose

of the investigation can be

difficult, and will only become

more so as we coordinate our

intelligence and law enforcement

efforts in the war against terror.

Rather than forcing law

enforcement to decide which

purpose is primary . . . this bill

strikes a new balance. It will now

require that a “significant”

purpose of the investigation must

be foreign intelligence gathering

to proceed with surveillance under

FISA.

The effect of this provision will

be to make it easier for law

enforcement to obtain a FISA

search or surveillance warrant for

those cases where the subject of

the surveillance is both a potential

source of valuable intelligence

and the potential target of a

criminal prosecution. Many of

the individuals involved in

supporting the September 11

attacks may well fall into both of

those categories.

29

in that regard of course is not dispositive, nonetheless, the

Supreme Court in Keith suggested that “congressional

judgment” has an important role to play in weighing

government interests and determining reasonable “protective

standards” related to intelligence. Keith, 407 U.S. at 322-23.

We therefore view Congress‟s actions in this area with some

additional measure of deference.

Second, even leaving Congress‟s judgment aside, we

conclude that FISA‟s “significant purpose” standard is

reasonable in light of the government‟s legitimate national

security goals. We are mindful of the high stakes involved

and emphasize the Supreme Court‟s admonition that

“[w]here, as here, the possible harm against which the

Government seeks to guard is substantial, the need to prevent

its occurrence furnishes an ample justification for reasonable

searches calculated to advance the Government‟s goal.” Von

Raab, 489 U.S. 674-75; see also id. at 675 n.3 (approving

Second Circuit Court of Appeals‟ conclusion that “„[w]hen

the risk is the jeopardy to hundreds of human lives and

millions of dollars of property inherent in pirating or blowing

up of a large airplane, that danger alone meets the test of

reasonableness so long as the search is conducted in good

faith for the purpose of preventing hijacking‟” and other

safeguards are in place (quoting Edwards, 498 F.2d at 500)).

Replacing the “primary purpose” standard with a

“significant purpose” test reasonably furthers the

government‟s national security goals. As other courts, and

Congress, have observed, the status quo ante proved difficult

to administer — in complex national security investigations,

147 Cong. Rec. S10,591 (Oct. 11, 2001), quoted in Sealed

Case, 310 F.3d at 732-33.

30

it was often difficult to say whether intelligence or law

enforcement, or neither of them, was the “primary”

objective — and resulted in a rigid, artificial separation

between intelligence and law enforcement investigations that

prevented cooperation and, ultimately, “imposed a cost on

national security.” Abu-Jihaad, 630 F.3d at 124-25; see also

Sealed Case, 310 F.3d at 732-33, 743-44 & nn.27-29.

The “significant purpose” standard, which reflects a

“negotiated compromise” between those in Congress who

wished to keep the law the same and officials in the executive

branch, “who wished to virtually eliminate the foreign

intelligence standard,” 147 Cong. Rec. S10,591 (Oct. 11,

2001) (statement of Sen. Dianne Feinstein); see also Abu-

Jihaad, 630 F.3d at 125-26; Sealed Case, 310 F.3d at 732,

alleviates those practical concerns by doing away with the

problematic “primary purpose” test. It also retains key

protections for individuals. In particular, the Foreign

Intelligence Surveillance Court of Review has held that the

statute, as amended, “require[s] „that the government have a

measurable foreign intelligence purpose, other than just

criminal prosecution of even foreign intelligence crimes‟” and

“„excludes from the purpose of gaining foreign intelligence

information a sole objective of criminal prosecution,‟ even for

foreign intelligence crimes.” Abu-Jihaad, 630 F.3d at 128

(quoting Sealed Case, 310 F.3d at 735); see also Sealed Case,

310 F.3d at 736 (“[T]he FISA process cannot be used as a

device to investigate wholly [non-foreign-intelligence related]

ordinary crimes.”).

Finally, and importantly, FISA contains significant

procedural safeguards against abuse. As amended, FISA

requires a senior government official (typically the Director

of the FBI, see Sealed Case, 310 F.3d at 736) to certify that

31

“obtaining foreign intelligence information . . . is a bona fide

purpose of the surveillance” and the Attorney General (or a

senior-level designee, see 50 U.S.C. § 1801(g)) to approve

each FISA application. Abu-Jihaad, 630 F.3d at 127. That

senior Justice Department officials must approve every FISA

application gives us additional comfort that this process does

not provide an end run around the more stringent Fourth

Amendment standards that apply in ordinary criminal cases.

The statute also provides for appropriate, albeit

limited, judicial review. An Article III judge sitting on the

FISA court reviews every application, makes particularized

findings concerning the application‟s compliance with the

statute‟s requirements, and issues an order specifying the

parameters of the government‟s surveillance authority. See

50 U.S.C. § 1805(a), (c). The FISA judge may demand

“further inquiry into the certifying officer‟s purpose — or

perhaps even the Attorney General‟s or Deputy Attorney

General‟s reasons for approval” of the application, and should

deny the application if he or she “conclude[s] that the

government‟s sole objective [is] merely to gain evidence of

past criminal conduct — even foreign intelligence crimes —

to punish the agent rather than halt ongoing espionage or

terrorist activity.” Sealed Case, 310 F.3d at 735-36. These

safeguards confirm that FISA‟s “significant purpose”

standard is reasonable under the Fourth Amendment.

f. Evidence Derived from a Reasonable

Search Is Admissible in a Criminal

Trial

Underlying defendants‟ argument that FISA‟s

“significant purpose” test is unconstitutional is the notion that

the government should not be allowed to introduce in a

32

criminal prosecution evidence not gathered in compliance

with the minimum procedural requirements the Fourth

Amendment typically imposes on criminal investigations.

While that notion may be appealing, it does not reflect the

law. Instead, it is clear that the government may use evidence

derived from non-law-enforcement searches (i.e., searches not

based on a reasonable belief regarding the commission of a

crime) that otherwise satisfy the Fourth Amendment‟s

reasonableness requirement to prosecute crimes. Thus, in the

administrative context, “[i]nspectors lawfully on the

premises . . . may report any violations of law that they find.”

Wen, 477 F.3d at 898. Likewise, the government may

prosecute a defendant for possession of drugs uncovered in

the course of a routine airport search. See Hartwell, 436 F.3d

at 181; see also id. at 181 n.13 (“[T]he fruits of the search

need not be suppressed so long as the search itself was

permissible.”).

Here, we have concluded that searches in the form of

surveillance conducted pursuant to FISA‟s “significant

purpose” requirement are reasonable under the Fourth

Amendment. Accordingly, we join other courts of appeals in

holding that evidence derived from duly authorized FISA

surveillance is admissible in a criminal case. See Wen, 477

F.3d at 898 (holding that if, in the course of conducting FISA-

authorized surveillance, “agents discover evidence of a

domestic crime, they may use it to prosecute for that offense,”

even if the agents knew or “may have known” when they

applied for the FISA order “that they were likely to hear

evidence of domestic crime”); see also Duggan, 743 F.2d at

78 (noting that “otherwise valid FISA surveillance is not

tainted simply because the government can anticipate that the

fruits of such surveillance may later be used, as allowed by

33

[50 U.S.C.] § 1806(b), as evidence in a criminal trial” and

holding that “the fact that domestic law enforcement concerns

may also have been implicated” in government‟s decision to

seek a FISA order “did not eliminate the government‟s ability

to obtain a valid FISA order”).

2. Defendants Are Not Entitled to Relief

Because the FISA Searches Were

Conducted in Reasonable Reliance on a

Statute

We are confident that FISA‟s “significant purpose”

test satisfies the Fourth Amendment. But even if we were

not, we still would not overturn defendants‟ convictions based

on the government‟s use of FISA-derived evidence at trial.

Supreme Court precedent makes abundantly clear that, even if

we were to conclude that amended FISA is unconstitutional,

evidence derived from it would nevertheless have been

admissible in the government‟s case.

Defendants‟ argument for reversal depends in part on

the theory that, if FISA violates the Fourth Amendment,

FISA-derived evidence automatically must have been

excluded.11 See, e.g., Appellants‟ Joint Opening Br. 53 (“By

11

Defendants‟ theory also depends on the notion that, absent

the FISA-derived evidence, the government would not have

been able to secure their convictions. See, e.g., Appellants‟

Joint Opening Br. 53 (asserting that, if FISA-derived

evidence were excluded, “no evidence would be admissible to

prove the elements of the crimes charged and Appellants

could not be convicted of the charges”). We do not reach this

aspect of defendants‟ argument, but, in light of the de minimis

34

holding FISA as amended by the Patriot Act unconstitutional

the evidence used will be illegally obtained and prohibited to

be used in trial against the Appellants.”). But that is not

necessarily so. See United States v. Tracey, 597 F.3d 140,

151 (3d Cir. 2010) (“[A] determination that the Fourth

Amendment has been violated does not necessarily require

application of the exclusionary rule.”). The exclusionary rule

precludes the admission of evidence tainted by a Fourth

Amendment violation “only in those unusual cases in which

exclusion will further the purposes of the . . . rule.” United

States v. Leon, 468 U.S. 897, 918 (1984). Because the rule

“is designed to deter police misconduct,” id. at 916, it applies

only where it will “alter the behavior of individual law

enforcement officers or the policies of their departments,” id.

at 918.

The Supreme Court has ruled categorically that

“suppress[ing] evidence obtained by an officer acting in

objectively reasonable reliance on a statute” would not further

the purposes of the exclusionary rule, even if that statute is

later declared unconstitutional. Illinois v. Krull, 480 U.S.

340, 349-50 (1987). Therefore, even a defendant who can

establish that evidence against him or her was procured under

a statute that violates the Fourth Amendment is not entitled to

have such evidence excluded from his or her criminal trial

unless he or she can establish that the officer‟s reliance on the

statute was not objectively reasonable. Cf. Krull, 480 U.S. at

368 (O‟Connor, J., dissenting) (observing that, “under [the

Court‟s] decision today, no effective remedy is to be provided

nature and quantity of the FISA-derived evidence, see supra

n.4, we doubt seriously that would be the case.

35

in the very case in which the statute at issue was held

unconstitutional”).

The FISA amendment defendants challenge was duly

enacted by Congress through the Patriot Act, and defendants

have not argued on appeal that government officials did not

reasonably rely on amended FISA in seeking the surveillance

orders at issue in this case.12 Thus, under Krull, the

exclusionary rule plainly does not apply, and, even if we

agreed with defendants that the “significant purpose” test is

unconstitutional, we would be powerless to overturn their

convictions on that ground.

B. Statements Made “In Furtherance” of the

Conspiracy

Serdar Tatar argues that the District Court improperly

admitted under the coconspirator exception to the hearsay

rule two sets of statements made by Dritan and Shain Duka

about him. Federal Rule of Evidence 801(d)(2)(E) provides,

in relevant part, that “a statement by a coconspirator of a

party during the course and in furtherance of the conspiracy”

is not hearsay. Fed. R. Evid. 801(d)(2)(E). Tatar argues that

12

The objective reasonableness of the officers‟ reliance on

the statute in this case is further bolstered by the fact that the

particular provision at issue has been reviewed and declared

constitutional by several courts, going as far back as 2002.

See Sealed Case, 310 F.3d at 746; see also Abu-Jihaad, 630

F.3d at 128-29; Wen, 477 F.3d at 898-99; Damrah, 412 F.3d

at 625; cf. Davis v. United States, 131 S. Ct. 2419, 2434

(2011) (holding that “when the police conduct a search in

objectively reasonable reliance on binding appellate

precedent, the exclusionary rule does not apply”).

36

the District Court erred in finding that the relevant statements

were made “in furtherance” of the conspiracy. We hold that

the District Court did not abuse its discretion by admitting the

first set of statements. Although it abused its discretion in

admitting the second set of challenged statements, its error

was harmless in light of the other evidence of Tatar‟s

participation in the conspiracy to kill United States military

personnel, the only offense of which he was convicted.

1. The Challenged Statements and the

District Court’s Rulings

The first set of statements comes from an audio

recording of a conversation among Dritan Duka, Shain Duka,

and confidential informant Besnik Bakalli. Dritan said that

Tatar “wanted to join the military in America” and “wanted to

kill them from inside.” (Joint App. 2789.) He told Bakalli

that Tatar “was very serious, just to get in and kill them” and

that he was “a maniac, he sees [UI] like we aren‟t human by

watching Muslims get killed everyday [UI].”13 (Id.) Later, he

said that, when Tatar sought to join the U.S. military, “[t]hat

was the only thing on his mind that he kill American soldiers”

(Joint App. 2791). Shain Duka said, “[Tatar]‟s not totally all

there, like you‟re supposed to be” and that Tatar was “very

funny but he‟s not serious.” (Joint App. 2789.)

The District Court accepted the government‟s

argument that these statements were made in furtherance of

the conspiracy because the Dukas wanted to show Bakalli that

they were serious, to keep Bakalli in the conspiracy, and “to

buck him up.” (Joint App. 950.) After discussing other

evidence in the record (including Tatar‟s own admissions)

13

[UI] denotes unintelligible words in the recordings.

37

concerning Tatar‟s attempts to join the military, the District

Court concluded that these statements were akin to a “present

sense assurance to Mr. Bakalli that this is a serious matter.

We‟ve got these people lined up who are going to do serious

things and I mean and look at Serdar, he‟s so serious about

this, he wanted to join the military to get on the inside.”

(Joint App. 951.)

The second set of statements occurred later in the same

conversation, when Shain Duka was discussing “our group.”

Shain said, “our group was this Sayed, that boy, the Turk,

Serdani [i.e., Tatar], me, Dritoni [i.e., Dritan], Sulemaini [i.e.,

Eljvir] . . .” and that, “[b]etween the six of us that hung out

together, there was no motherf***** that could f*** with us.

Everybody feared us, We were bad. Heading on the wrong

path.” (Joint App. 2795-96.) The District Court originally

expressed some reluctance to admit these statements, saying,

“I don‟t know what the context of that conversation . . . is to

be honest,” but ultimately concluded that the statements were

admissible because they were “talking about an association

that apparently the Government contends continued through

the length of the conspiracy. It shows that they‟ve been

together as a group for some time.” (Joint App. 949.)

2. Rule 801(d)(2)(E) Analysis

“„We review a District Court‟s decision to admit or

exclude evidence for abuse of discretion, although our review

is plenary as to the district court‟s interpretation of the

Federal Rules of Evidence.‟” United States v. Riley, 621 F.3d

312, 337 (3d Cir. 2010) (quoting Marra v. Phila. Hous. Auth.,

497 F.3d 286, 297 (3d Cir. 2007)).

38

As a threshold matter, we reject Tatar‟s argument,

made in passing, that the statements do not qualify under the

Rule because they were made to a government informant,

“not . . . an alleged coconspirator,” Appellants‟ Joint Opening

Br. 92, because no blanket rule forbids the admission of

coconspirator statements made to informants. Where

coconspirators‟ statements have been made to government

informants and were intended to keep others “abreast of

developments and allay any fear they might have had,” we

have held that they satisfy the “in furtherance of the

conspiracy” requirement. United States v. Gibbs, 739 F.2d

838, 840 n.2 (3d Cir. 1984); cf. Bourjaily v. United States,

483 U.S. 171, 173-74, 184 (1987) (affirming court of appeals‟

determination that telephone conversations between

defendant‟s coconspirator and FBI informant were made in

furtherance of the conspiracy and admissible under Rule

801(d)(2)(E)). As far as Dritan and Shain Duka were

concerned, Bakalli was involved in the conspiracy.

Therefore, as long as the statements satisfy the other

requirements of Rule 801(d)(2)(E), i.e., they were made

“during the course and in furtherance of the conspiracy,” they

are admissible.

Tatar‟s challenge focuses on whether the statements

satisfy the “in furtherance” requirement. We have previously

explained that “„[s]tatements between conspirators which

provide reassurance, serve to maintain trust and cohesiveness

among them, or inform each other of the current status of the

conspiracy‟” satisfy that requirement “„and are admissible so

long as the other requirements of Rule 801(d)(2)(E) are

met.‟” United States v. Weaver, 507 F.3d 178, 182 (3d Cir.

2007) (quoting United States v. Ammar, 714 F.2d 238, 252

(3d Cir. 1983)). The threshold for establishing that a

39

statement was made in furtherance of a conspiracy is not

high: “„[t]he in furtherance requirement is usually given a

broad interpretation.‟” Id. at 183 (quoting Gibbs, 739 F.2d at

845).

Applying these standards, we cannot say the District

Court abused its discretion in concluding that the first set of

challenged statements was made “in furtherance” of

defendants‟ conspiracy. The District Court found that, in the

context of the overall conversation, the first set of statements

was intended to reassure Bakalli and maintain trust within the

conspiracy by illustrating for Bakalli the seriousness of the

conspirators‟ intent. Its analysis in that regard is reasonable,

and Tatar has not pointed to any specific dialogue or evidence

that would undermine the District Court‟s conclusion.

The second set of statements is more problematic. The

District Court reasoned that the statements were evidence of

the Dukas‟ association with Tatar, but did not make any

finding regarding how those statements furthered the

conspiracy. The government offers a couple of arguments as

to how these statements could be viewed as “in furtherance

of” the conspiracy — “Shain‟s statements about the long

duration and comradely nature of his and his brother‟s

association with Tatar, dating to when they were high school

students together, were designed to show Bakalli that . . .

Dritan and Shain had a well-grounded and reliable

understanding of Tatar‟s proclivities, and thus could be

counted on to accurately predict how far Tatar would be

willing to go to advance the lethal goals of the conspiracy,”

and “Even if Dritan and Shain were not then actively

recruiting Bekalli [sic] into the conspiracy, the statements

furthered the conspiracy by tacitly warning Bekalli [sic] not

to expose it.” Consol. Br. for Appellee 124-25. We do not

40

find either of those explanations convincing, especially

because, as the District Court observed, the transcript

provides no broader context for that portion of the

conversation. (Joint App. 949.) Moreover, in our view, the

relevance of the second set of statements was tenuous at best,

and, in all events was clearly outweighed by the potential for

prejudice inherent in the suggestion of Tatar‟s close

association with the other defendants. See Fed. R. Evid. 403

(“The court may exclude relevant evidence if its probative

value is substantially outweighed by a danger of . . . unfair

prejudice.”). We therefore conclude that the District Court

abused its discretion in admitting them.

Given our deferential standard of review, however, we

must conclude that the District Court‟s abuse of discretion

was harmless in the context of this trial. As we discuss

below, the admission of the second set of statements does not

undermine confidence in the verdict against Tatar. See

United States v. Zerhbach, 47 F.3d 1252, 1264 (3d Cir. 1995)

(en banc) (“An appellate court should not exercise its

„supervisory power to reverse a conviction . . . when the error

to which it is addressed is harmless, since, by definition, the

conviction would have been obtained notwithstanding the

asserted error.‟” (quoting United States v. Hasting, 461 U.S.

499, 508-09 (1983))). We also observe that Tatar has not

argued on appeal that those statements were inadmissible

under Rule 403.

3. Harmless Error

“An error in an evidentiary ruling is harmless . . . when

„it is highly probable that the error did not affect the result.‟”

United States v. Friedman, --- F.3d ----, 2011 WL 4470674, at

*7 (3d Cir. Sept. 28, 2011) (quoting Hill v. Laeisz, 435 F.3d

41

404, 420 (3d Cir. 2006)). “High probability means that we

have a sure conviction that the error did not prejudice the

defendants.” United States v. Casseus, 282 F.3d 253, 256 (3d

Cir. 2002) (internal quotation marks omitted). That is the

case here, where evidence other than the challenged

statements amply supports Tatar‟s sole conviction for

conspiracy to murder United States military personnel. More

specifically, the government established, through evidence

Tatar does not challenge on appeal, that Tatar participated in

the conspiracy with the other defendants, i.e., that he “knew

of the agreement and intended both to join it and to

accomplish its illegal objects.” United States v. McKee, 506

F.3d 225, 241 (3d Cir. 2007).

Tatar knew of the agreement. Tatar appeared in the

video that the FBI discovered of defendants at the shooting

range in the Poconos. He discussed violent jihad with the

other defendants and gathered with them to listen to and

discuss Anwar al-Awlaki‟s Constants on the Path of Jihad, a

lecture advocating violent jihad. (See Joint App. 979, 989,

2749-52, 2784-85.) In a recorded conversation with

government informant Omar, Tatar agreed to provide Omar

with a map of Fort Dix after Omar explained that he needed

the map as part of his plan to make “this country . . . pay the

price for something they did to me.” (Joint App. 2098-99.)

Tatar understood and acknowledged the gravity of what Omar

proposed: in a subsequent conversation, Tatar specifically

asked Omar, “[W]hat are you thinking of doing?” (Joint App.

2123.) After Omar responded by describing his surveillance

of Fort Dix with Shnewer, Tatar said, “This is nothing small.”

(Joint App. 2124.) In addition to this evidence, the

government also introduced the transcript of a recorded

conversation between Shnewer and Omar, the admission of

42

which Tatar has not challenged on appeal, in which Omar told

Shnewer that Tatar was aware that Omar and Shnewer had

made “a plan on the basis that, in the future, we‟ll make an

attack on Fort Dix.” (Supp. App. 88-89.)

Tatar intended both to join the conspiracy and to

accomplish its illegal objects. Tatar plainly understood the

implications of providing Omar and Shnewer with the map of

Fort Dix. At one point, he said to Omar, “I‟m getting

involved in it, you understand? I‟m getting involved in it by

giving you the maps.” (Joint App. 2123.) In a conversation

discussing the planned attack on Fort Dix, Tatar also told

Omar, “I‟m in, honestly, I‟m in.” (Joint App. 2114.) Finally,

Tatar expressed his decision to join the group in unequivocal

terms, saying:

I‟m gonna do it. . . . I‟m gonna

give it to you. . . . It doesn‟t

matter to me, whether I get locked

up, arrested, or they take me

away, it doesn‟t matter. Whether

I die, don‟t matter, I‟m doing it in

the name of Allah.

(Joint App. 2135.) Omar testified at trial that, after all of this

discussion, Tatar actually gave him the Fort Dix map,

confirming that he intended to help Omar and Shnewer carry

out their attack. (Joint App. 477-78.)

Given this direct evidence of Tatar‟s participation in

the conspiracy, we do not view the admission of the

challenged statements concerning Tatar‟s attempts to join the

military to attack it from the inside, or his long association

with the Duka brothers, as significant. We note, further, that

43

the admitted statements were mostly cumulative of other

evidence: the video from the Poconos and numerous

recorded conversations established that Tatar socialized with

the other defendants, and Dritan Duka‟s challenged statement

was not the only evidence that Tatar had tried to attack U.S.

institutions from “the inside” — in a recorded conversation,

Tatar suggested to Omar that “you could do it from the

inside” and said that he had attempted to become a police

officer in California for precisely that reason. (Joint App.

2139.) Therefore, we will not reverse Tatar‟s conviction

based on the District Court‟s admission of the challenged

coconspirator statements.

C. Other Issues

In addition to the challenges discussed in detail above,

defendants raised numerous other challenges to their

convictions and sentences in their consolidated, counseled

brief and in individual briefs we permitted them to file pro se.

Those challenges relate to:

the District Court‟s admission of jihadist

videos, certain audio recordings, coconspirator

statements made by Shnewer, and evidence

seized from Tatar‟s apartment;

whether the prosecution constructively amended

the indictment or violated defendants‟ Fifth

Amendment rights during its closing argument;

whether the District Court erred in failing sua

sponte to strike a juror whose son was wounded

in combat in Iraq but who stated during voir

44

dire that her son‟s experience would not affect

her judgment;

whether the prosecution improperly took

inconsistent positions concerning the

relationship between the Duka brothers and

government informant Omar;

the sufficiency of the evidence supporting the

conspiracy charges against Eljvir Duka and

Serdar Tatar;

the District Court‟s application of

enhancements for terrorism and for targeting

“official victims” to defendants‟ sentences and

its failure to consider the role of the government

informants when determining defendants‟

sentences;

the District Court‟s denial of defendants‟ fifth

request for a continuance of trial;

the restitution portion of Shnewer‟s sentence;

jury instructions;

ineffective assistance of counsel; and

whether, even assuming each of defendants‟

challenges fails individually, all of the legal,

factual, and procedural errors they have raised

cumulatively deprived defendants of their right

to a fair trial.

45

None of the evidentiary issues rises to the level of

reversible error. The most significant challenge is made to

the District Court‟s decision to admit videos of beheadings

that defendants viewed and discussed at length as part of their

overall preparations for jihad. Defendants argue that the

District Court abused its discretion in admitting the videos

under Federal Rule of Evidence 403 because they were

unduly prejudicial and lacked any probative value relative to

the charges.14 We disagree. The District Court carefully

considered the parties‟ arguments; determined that the video

evidence “explains or could explain if the jury accepts it, I

should say, why the defendants would do what they‟re

charged with doing” (Supp. App. 807); and required the

government to “sanitize” the videos, replacing the actual

beheadings with a “rather antiseptic description of what

happens” to be delivered by a government witness at trial

(Supp. App. 809). Based on the foregoing, the District Court

could not “conclude that the probative value” of the redacted

videos “is substantially outweighed by the danger of unfair . .

. prejudice in this case.” (Id.)

After reviewing the videos and the testimony that

accompanied them at trial, we conclude that the District Court

reasonably assessed the videos‟ relevance and probative value

and took appropriate steps to mitigate their prejudicial

14

Federal Rule of Evidence 403 provides, in relevant part:

“Although relevant, evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair

prejudice . . . .”

46

impact.15 We discern no error in the District Court‟s

approach. Cf. Abu-Jihaad, 630 F.3d at 133-34 (identifying

“no error, let alone arbitrary or irrational error,” in the district

court‟s decision to admit violent, pro-jihadist videos to show

defendant‟s “motive and intent” in participating in a scheme

to communicate information to be used in the destruction of a

U.S. military ship where danger of prejudice was minimized

by redactions and limiting instructions).

The District Court approached each of the evidentiary

issues before us on appeal with the same thoroughness and

thoughtfulness it employed in analyzing the beheading

videos. We find no abuse of discretion with respect to any of

those issues and commend Judge Kugler for his handling of

this lengthy and complicated trial.

We also reject defendants‟ argument that the

prosecution constructively amended the indictment during the

rebuttal portion of its closing remarks. Specifically,

defendants urge that the prosecutor‟s assertion that “[i]t

doesn‟t matter if the object of the conspiracy was to kill a

soldier in Delaware, or in Pennsylvania, or in Iraq or

Afghanistan” impermissibly broadened the superseding

indictment which, they contend, charged only a conspiracy to

15

The District Court spoke only in terms of the videos‟

“relevance” under Federal Rule of Evidence 401, and did not

separately analyze their “probative value” under Federal Rule

of Evidence 403. But we do not view that as an error, let

alone a reversible error, here, where the videos‟ probative

value — providing the jury with insights into defendants‟

state of mind by allowing it to view videos that defendants

viewed to prepare for their planned attack — was closely tied

to their relevance.

47

attack military personnel at specified bases in New Jersey,

Delaware, or Pennsylvania. Defendants did not raise this

issue in the District Court, so our review is only for plain

error. United States v. Vosburgh, 602 F.3d 512, 531 (3d Cir.

2010).

“„An indictment is constructively amended when, in

the absence of a formal amendment, the evidence and jury

instructions at trial modify essential terms of the charged

offense in such a way that there is substantial likelihood that

the jury may have convicted the defendant for an offense

differing from the offense the indictment returned by the

grand jury actually charged.‟” Id. at 532 (quoting United

States v. Daraio, 445 F.3d 253, 259-60 (3d Cir. 2006)). That

is not what happened here, because the challenged remarks

did not refer to an element or “essential term” of the charged

offense. The statutes under which defendants‟ conspiracy

charge arose, 18 U.S.C. §§ 1117 and 1114, do not even refer

to the place where the defendant intends to kill the federal

employee, i.e., whether at a particular base in New Jersey or

somewhere in Afghanistan, let alone define it as an element

of the conspiracy or the underlying substantive offense.16

16

18 U.S.C. § 1117, “conspiracy to murder,” provides:

If two or more persons conspire to

violate section 1111, 1114, 1116,

or 1119 of this title, and one or

more of such persons do any overt

act to effect the object of the

conspiracy, each shall be

punished by imprisonment for any

term of years or for life.

48

At most, then, the prosecutor‟s comments reflected a

“variance” from the indictment. See United States v. McKee,

506 F.3d 225, 231 n.7 (3d Cir. 2007) (distinguishing

constructive amendments from variances); see also Vosburgh,

602 F.3d at 532 n.20 (same). Unlike a constructive

amendment, a variance is a reversible error only where the

defendant establishes “„that the variance prejudiced some

substantial right.‟” Id. at 532 (quoting Daraio, 445 F.3d at

262). “A variance that sufficiently informs the defendant of

the charges against him and allows him to prepare his defense

without being misled or surprised at trial does not prejudice

the defendant‟s substantial rights.” Id. Here, defendants have

not argued that the prosecutor‟s comment surprised them or

18 U.S.C. § 1114, “protection of officers and employees of

the United States,” sets forth the punishment for:

Whoever kills or attempts to kill

any officer or employee of the

United States or of any agency in

any branch of the United States

Government (including any

member of the uniformed

services) while such officer or

employee is engaged in or on

account of the performance of

official duties, or any person

assisting such an officer or

employee in the performance of

such duties or on account of that

assistance.

49

otherwise prevented them from presenting their case at trial in

any way. Accordingly, their argument that the prosecutor‟s

comment constitutes reversible error must fail.17

Having thoroughly reviewed each of the other issues

presented in defendants‟ myriad briefs, we conclude that they

lack merit.18

D. The Attempted Possession Counts

One week before oral argument in this case, the

government informed us in a letter that it had discovered a

legal error in the superseding indictment that was tried to the

jury: Count 3, against Dritan and Shain Duka,19 and Count 4,

17

Although we analyze this issue as a variance, not a

constructive amendment, we note that defendants‟

constructive amendment challenge would likely also fail on

its own terms because ample evidence supported defendants‟

convictions of conspiracy to attack military bases in New

Jersey, Pennsylvania, and Delaware, particularly the United

States Army Base at Fort Dix. See Vosburgh, 602 F.3d at 532

(“If a defendant is convicted of the same offense that was

charged in the indictment, there is no constructive

amendment.”).

18

In particular, we note that we ordinarily do not address

ineffective-assistance arguments on direct appeal, especially

where, as here, the factual basis for the claims is not well

developed. See United States v. Thornton, 327 F.3d 268, 271-

72 (3d Cir. 2003).

19

Eljvir Duka also was charged in Count 3, but was acquitted

of that count.

50

against Mohamed Shnewer, each charged a non-existent

crime, namely, attempted possession of firearms in

furtherance of a crime of violence in violation of 18 U.S.C.

§ 924(c)(1)(A).20 The government explained that, because

§ 924(c) does not contain an explicit attempt provision and

there is no general federal attempt statute, “attempted

possession of firearms in furtherance of a crime of violence in

violation of 18 U.S.C. § 924(c)(1)(A)” is not a legally

cognizable crime.

The government also has informed us that it will not

defend Shnewer‟s Count 4 conviction, as the indictment and

verdict slip framed Count 4 solely as an attempt offense.

Accordingly, we will vacate Shnewer‟s conviction and

sentence for Count 4 and remand so that the District Court

can dismiss Count 4 and remove (or refund) the associated

$100 special assessment.

At the same time, the government urges us to affirm

the convictions of Dritan and Shain Duka on Count 3. That

count differs from Count 4 because the indictment charged

possession or attempted possession of seven specific firearms

in furtherance of a crime of violence under § 924(c)(1)(A),

20

18 U.S.C. § 924(c)(1)(A) provides, in relevant part:

“[A]ny person who, during and in relation to any crime of

violence or drug trafficking crime . . . for which the person

may be prosecuted in a court of the United States, uses or

carries a firearm, or who, in furtherance of any such crime,

possesses a firearm, shall” be subject to a mandatory

minimum sentence of imprisonment set forth in the statute “in

addition to the punishment provided for such crime of

violence or drug trafficking crime . . . .”

51

and therefore contained both valid and invalid theories of

liability. The government argues that any charging error on

that count was not plain and, in all events, was harmless

under Hedgpeth v. Pulido, 555 U.S. 57 (2008) (per curiam),

because its theory against Dritan and Shain on Count 3 at trial

was that they actually possessed the seven specified firearms

and the evidence established beyond any doubt that Dritan

and Shain actually possessed those guns.21 Dritan and Shain

argue that we must vacate their convictions on Count 4

because the jury may have relied on the invalid attempt

theory.

21

The government initially argued that defendants waived

their rights to challenge their convictions on Counts 3 and 4

by failing to identify this issue in their opening briefs, but it

appears to have abandoned this argument in its subsequent

letter brief. In all events, we consider the possibility that

defendants may have been convicted of a crime that does not

exist to be an “extraordinary circumstance” that warrants

review. Cf. United States v. Albertson, 645 F.3d 191, 195-96

(3d Cir. 2011) (reviewing merits of challenge that may

otherwise have been waived where (1) government would not

be prejudiced because it had an opportunity to present

briefing on the challenge and “failed to pursue meaningfully

its waiver argument” in that briefing and (2) failure to

consider challenge may have affected the fairness of the

judicial proceedings); see also United States v. Tann, 577

F.3d 533, 542-43 (3d Cir. 2009) (holding that, under Ball v.

United States, 470 U.S. 856 (1985), and Rutledge v. United

States, 517 U.S. 292 (1996), improper conviction affected

defendant‟s substantial rights).

52

We first consider what standard applies to our review

of this issue. The Supreme Court made clear in Pulido that

questions involving juries that are “instructed on multiple

theories of liability, one of which is improper,” are “trial

errors subject to harmless-error review.”22 555 U.S. at 60-61.

Dritan and Shain argue that their convictions on Count 4 were

not harmless because it is not clear beyond a reasonable doubt

that the jury would have convicted them absent the attempt

theory. See United States v. Saybolt, 577 F.3d 195, 206 (3d

Cir. 2009) (“An error is harmless when it appears beyond a

reasonable doubt that the error complained of did not

contribute to the verdict obtained.” (quoting Neder v. United

States, 527 U.S. 1, 15 (1999)) (internal quotation marks

omitted)).

The government argues that, because Dritan and Shain

failed to raise this issue in the District Court, the more

stringent plain-error standard applies. We agree. Defense

counsel certainly should have brought to the District Court‟s

attention the fact that the indictment charged their clients with

a non-existent crime. Moreover, as a legal matter, Pulido

holds that alternative-theory errors are “trial errors,” not

“structural errors.” 555 U.S. at 60-61. Accordingly, they are

not subject to the “structural error” exception to the plain-

error rule. See United States v. Marcus, 130 S. Ct. 2159,

2164-65 (2010). Where, as here, an issue was not raised in

the district court, we are not aware of any other basis for

22

Pulido was a habeas case, but the Court later confirmed

that harmless-error analysis is to be conducted in direct-

appeal cases (like this one) as well as those on collateral

review. See United States v. Skilling, 130 S. Ct. 2896, 2934

n.46 (2010).

53

avoiding Federal Rule of Criminal Procedure 52(b)‟s plain-

error rule.

Review for plain error proceeds in four steps, with the

burden placed on defendants. We must determine whether

Dritan and Shain have demonstrated that:

(1) there is an error; (2) the error

is clear or obvious, rather than

subject to reasonable dispute; (3)

the error affected the appellant‟s

substantial rights, which in the

ordinary case means it affected

the outcome of the district court

proceedings; and (4) the error

seriously affects the fairness,

integrity or public reputation of

judicial proceedings.

Id. at 2164 (internal quotation marks and alterations omitted).

The government has conceded an error that is clear —

the first two prongs of the analysis — by admitting that the

indictment charged Dritan and Shain with an “attempt” crime

that does not exist. This point appears to be well taken, as

several statements from other courts support the proposition

that an attempt to violate § 924(c)(1)(A) is not a legally

cognizable offense. See, e.g., United States v. Douglas, 525

F.3d 225, 251 (2d Cir. 2008) (because there is no general

federal attempt statute, “an attempt to commit criminal

conduct „is . . . actionable only where . . . a specific criminal

statute makes impermissible its attempted as well as actual

violation‟” (second omission and emphasis in original));

United States v. Anderson, 89 F.3d 1309, 1314 (6th Cir. 1996)

54

(Ҥ 924(c), among other things, makes it a crime to use or

carry a firearm during a drug trafficking offense; it does not

specifically criminalize an attempt to use or carry a firearm

during such an offense.” (citations omitted)). See generally

United States v. Berrigan, 482 F.2d 171, 185 (3d Cir. 1973)

(“Federal criminal law is purely statutory; there is no federal

common law of crimes.”).

Thus, we turn to the third prong, whether the error

affected Dritan and Shain‟s “substantial rights,” i.e., whether

it “affected the outcome of the district court‟s proceedings.”

Marcus, 130 S. Ct. at 2164 (internal quotation marks and

citations omitted). We agree with the government that it did

not because the evidence at trial clearly established Dritan

and Shain Duka‟s actual, as opposed to attempted, possession

of the firearms at issue in Count 3.

In contrast with the allegations in Count 4 that

Shnewer only “attempt[ed] to possess” an unspecified “AK-

47 machinegun and/or semiautomatic assault weapon,”,

Count 3 of the superseding indictment charged Dritan and

Shain Duka with “possess[ing] or attempt[ing] to possess”

seven particular firearms, each identified by make, model,

and serial number. The government entered each of the

specified firearms into evidence, along with testimony from a

law enforcement officer that he placed those weapons in the

apartment of confidential informant Mahmoud Omar on the

evening of May 7, 2007. (Joint App. 233-34.) Omar‟s

eyewitness testimony, and audio and video recordings from

FBI surveillance equipment installed in Omar‟s apartment,

established that, on May 7, 2007, Dritan and Shain Duka

came to Omar‟s apartment, handed over $1,400 in cash to

Omar, and took possession of the seven weapons. Federal

and state law enforcement agents arrested Dritan and Shain

55

inside Omar‟s apartment that evening as they prepared to take

the guns out to their car. (Joint App. 238.) The government‟s

sole argument to the jury on Count 3 against Dritan and Shain

was that the “May 7th recording” provided “overwhelming

evidence” that they actually possessed the relevant firearms.23

(Joint App. 1282.)

We acknowledge that the jury instructions did not

clearly distinguish between the attempt and actual possession

theories of liability (see Joint App. 1250-51) and the verdict

slip allowed the jury to convict Dritan and Shain on Count 3

if it found beyond a reasonable doubt that they “possessed or

attempted to possess” firearms in furtherance of the

conspiracy and attempt offenses charged in Counts 1 and 2 of

the indictment. But we conclude in light of the evidence and

the way the government argued the case to the jury that there

is no reasonable possibility that the jury convicted Dritan and

Shain of the unlawful attempt, as opposed to the proper actual

possession, offense.

23

In this regard, the government‟s argument against Dritan

and Shain on Count 3 contrasts sharply with its argument

against Eljvir Duka on Count 3, which relied on a

coconspirator theory (see Joint App. 1282-83 (“Eljvir Duka

clearly was not at the May 7th deal. But by then it‟s certainly

foreseeable to him that his coconspirators, Dritan and Shain

Duka would be getting guns.”)), and its argument against

Shnewer on Count 4, which was based on a pure attempt

theory (see Joint App. 1283 (citing evidence “where

Mohamed Shnewer makes numerous efforts to acquire the

guns from Omar and says he‟s got the money ready” as

proving Count 4 “beyond a reasonable doubt”)).

56

Dritan‟s and Shain‟s arguments to the contrary are

unpersuasive. They rely on other evidence concerning their

attempts to acquire weapons before the May 2007 transaction

and the prosecution‟s comments on that evidence during its

summation. But that evidence does not speak to the seven

specific weapons identified in Count 3 of the indictment, and

the prosecution only used it to bolster its argument that

defendants were serious about attacking the military. The

evidence concerning the Dukas‟ previous attempts to obtain

firearms does not negate the extensive, direct evidence of the

May 7th transaction or the fact that the prosecution clearly

focused on Dritan‟s and Shain‟s actual possession of weapons

on May 7th as its sole theory of liability against them on

Count 3.

III.

For the foregoing reasons, we will reverse Shnewer‟s

conviction on Count 4. We will vacate the 360-month

consecutive sentence imposed for that count and remand for

the limited purpose of dismissing that count and removing the

associated $100 special assessment. As to all of the other

counts, we will affirm the judgments of the District Court.

57