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,

6
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

21
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