USCA4 Appeal: 20-4414 Doc: 72 Filed: 12/01/2022 Pg: 1 of 40 PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 20-4414 UNITED STATES OF AMERICA, Plaintiff − Appellee, v. ALEXANDER SAMUEL SMITH, a/k/a Amir Alexander, Defendant – Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Max O. Cogburn, Jr., District Judge. (3:17−cr−00182−MOC−DSC−1) Argued: March 11, 2022 Decided: December 1, 2022 Before GREGORY, Chief Judge, and DIAZ and HEYTENS, Circuit Judges. Affirmed in part, reversed in part, judgment vacated, and case remanded for resentencing by published per curiam opinion, in which Chief Judge Gregory and Judge Heytens joined in full. Judge Diaz joined the per curiam opinion in part. Judge Heytens wrote a concurring opinion. Judge Diaz wrote an opinion dissenting in part. ARGUED: James Walter Kilbourne, Jr., ALLEN STAHL & KILBOURNE, PLLC, Asheville, North Carolina; Allie Jordan Hallmark, HAMILTON WINGO LLP, Dallas, Texas, for Appellant. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF: Charles D. Swift, CONSTITUTIONAL LAW CENTER FOR MUSLIMS IN AMERICA, Richardson, Texas, for Appellant. William T. Stetzer, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. USCA4 Appeal: 20-4414 Doc: 72 Filed: 12/01/2022 Pg: 2 of 40 PER CURIAM: A jury convicted Alexander Samuel Smith on two counts of lying to the FBI, violating 18 U.S.C. § 1001(a)(2). The district court sentenced him to concurrent 60-month prison terms. On appeal, Smith challenges (1) the district court’s denial of his motion to dismiss Count Two of his indictment as multiplicitous, (2) the sufficiency of the evidence supporting the jury’s verdict, (3) the district court’s allegedly prejudicial statements to the jury, (4) the district court’s refusal to give an entrapment instruction, and (5) the district court’s application of a terrorism enhancement at sentencing. As explained below, we reverse the district court’s denial of the motion to dismiss Count Two, vacate the judgment, and remand for resentencing. We otherwise affirm. I. A. Acting on an informant’s tip, the FBI began investigating Smith in the summer of 2014. Smith had asked the informant for help in traveling to Syria to participate in its civil war. As far as the investigating agents knew, Smith wanted to join the armed conflict between Syria’s government and various factional forces, including the Islamic State of Iraq and Syria (“ISIS”). 1 ISIS had recently solicited Westerners to join its fight. Agents soon learned of a connection between Smith and the Kodaimatis—a father and son who were already under federal investigation for supporting ISIS. Smith once 1 The United States had long designated ISIS a terrorist organization. 2 USCA4 Appeal: 20-4414 Doc: 72 Filed: 12/01/2022 Pg: 3 of 40 worked for the Kodaimatis and traveled to Syria with them in 2006. Based on that connection and the informant’s tip, agents became concerned that Smith was considering joining ISIS in Syria. So agents had the informant refer Smith to a second informant, Abu …
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