Musacchio v. United States

• Decision Date: 25 January 2016
• Docket Number: No. 14–1095.,14–1095.
• Citation: 136 S.Ct. 709,193 L.Ed.2d 639,577 U.S. 237
• Parties: Micheal MUSACCHIO, Petitioner v. UNITED STATES.
• Court: U.S. Supreme Court

577 U.S. 237

136 S.Ct. 709

193 L.Ed.2d 639

Micheal MUSACCHIO, Petitioner

v.UNITED STATES.

No. 14–1095.

Supreme Court of the United States

Argued Nov. 30, 2015.

Decided Jan. 25, 2016.

Erik S. Jaffe, Washington, DC, for Petitioner.

Roman Martinez, Washington, DC, for Respondent.

Donald B. Verrilli, Jr., Solicitor General, Leslie R. Caldwell, Assistant Attorney General, Michael R. Dreeben, Deputy Solicitor General, Roman Martinez, Assistant to the Solicitor, General, Praveen Krishna, Attorney, Department of Justice, Washington, DC, for Respondent.

Joe Kendall, Jody Rudman, The Kendall Law Group, Dallas, TX, Erik S. Jaffe, Erik S. Jaffe, P.C., Washington, DC, for Petitioner.

Justice THOMAS delivered the opinion of the Court.

In this case, the Government failed to object to a jury instruction that erroneously added an element that it had to prove, and petitioner failed to press a statute-of-limitations defense until his appeal. We address two questions arising from the parties' failures to raise timely challenges. We first consider how a court should assess a challenge to the sufficiency of the evidence in a criminal case when a jury instruction adds an element to the charged crime and the Government fails to object. We conclude that the sufficiency of the evidence should be assessed against the elements of the charged crime. We next consider whether the statute-of-limitations defense contained in 18 U.S.C. § 3282(a) (the general federal criminal statute of limitations) may be successfully raised for the first time on appeal. We conclude that it may not be.

I

Petitioner Michael Musacchio served as president of a logistics company, Exel Transportation Services (ETS), until his resignation in 2004. In 2005, he formed a rival company, Total Transportation Services (TTS). Musacchio was soon joined there by Roy Brown, who previously headed ETS's information-technology department. At TTS, Brown, using a password, continued to access ETS's computer system without ETS's authorization. Brown also gave Musacchio access to ETS's system. This improper access of ETS's system kept on until early 2006.

In November 2010, a grand jury indicted Musacchio under 18 U.S.C. § 1030(a)(2)(C). Under that provision, a person commits a crime when he "intentionally accesses a computer without authorization or exceeds authorized access," and in doing so "obtains ... information from any protected computer." (Emphasis added.) The statute thus provides two ways of committing the crime of improperly accessing a protected computer: (1) obtaining access without authorization; and (2) obtaining access with authorization but then using that access improperly. See ibid. ; § 1030(e)(6) (defining "exceeds authorized access"). Count 1 of the indictment charged Musacchio with conspiring to commit both types of improper access. Count 23 charged him with making unauthorized access to ETS's e-mail server "[o]n or about" November 24, 2005. App. 70–71.¹

In 2012, the Government filed a superseding indictment amending those charges. Count 1 dropped the charge of conspiracy to exceed authorized access, limiting that charge to conspiracy to make unauthorized access. Count 2 amended the allegations originally contained in count 23 by alleging that Musacchio accessed specific ETS e-mail accounts "[o]n or about" November 23–25, 2005. Id., at 83–84. The Government later filed a second superseding indictment that made no changes relevant here.

Musacchio proceeded to a jury trial. At no time before or during trial did he argue that his prosecution violated the 5–year statute of limitations applicable to count 2. See 18 U.S.C. § 3282(a) (providing general 5–year statute of limitations).

For the Government's part, it submitted proposed jury instructions on the conspiracy count before and during the trial. Each set of proposed instructions identified that count as involving "Unauthorized Access to Protected Computer[s]," and none required the jury additionally to find that Musacchio conspired to exceed authorized access to protected computers. Musacchio did not propose instructions on the conspiracy count.

Diverging from the indictment and the proposed instructions, the District Court instructed the jury on count 1 that § 1030(a)(2)(C) "makes it a crime for a person to intentionally access a computer without authorization and exceed authorized access." App. 168 (emphasis added). The parties agree that this instruction was erroneous: By using the conjunction "and" when referring to both ways of violating § 1030(a)(2)(C), the instruction required the Government to prove an additional element. Yet the Government did not object to this error in the instructions.

The jury found Musacchio guilty on both counts 1 and 2. The District Court sentenced him to 60 months' imprisonment. Musacchio appealed, making the two challenges that he again advances in this Court. First, he challenged the sufficiency of the evidence supporting his conspiracy conviction on count 1. He maintained, moreover, that the sufficiency of the evidence should be assessed against the erroneous jury instruction that included the additional element. Second, he argued, for the first time, that his prosecution on count 2—for unauthorized access—was barred by the 5–year statute of limitations because the superseding indictment was filed seven years after the crime and did not relate back to the timely original indictment.

The Fifth Circuit rejected both challenges and affirmed Musacchio's conviction. 590 Fed.Appx. 359 (2014) (per curiam ). First, the Court of Appeals concluded that it should assess Musacchio's sufficiency challenge against the charged elements of the conspiracy count, not against the erroneous jury instruction. See id., at 362–363. Under Fifth Circuit precedent, the court explained, erroneously heightened jury instructions generally become the binding "law of the case" on appeal. Id., at 362 (internal quotation marks omitted). Circuit precedent supplies an exception, however, when (1) the jury instruction is " ‘patently erroneous,’ " and (2) " ‘the issue is not misstated in the indictment.’ " Ibid. (quoting United States v. Guevara, 408 F.3d 252, 258 (C.A.5 2005) ). The Fifth Circuit concluded that those conditions for applying the exception were satisfied. See 590 Fed. Appx., at 362–363. The court explained that the instruction's requirement of an additional element was "an obvious clerical error," and that the indictment correctly charged Musacchio only with "Conspiracy To Make Unauthorized Access to [a] Protected Computer." Id., at 362. Therefore, the Fifth Circuit did not assess Musacchio's sufficiency challenge under the heightened jury instruction. Id., at 362–363. Because Musacchio did not dispute that the evidence was sufficient to support a conviction under the elements set out in the indictment, the Fifth Circuit rejected his challenge. Id., at 363.

Second, the Fifth Circuit rejected Musacchio's statute-of-limitations defense, concluding that he had "waived" the defense by failing to raise it at trial. Id., at 363, 364.

We granted certiorari to resolve two questions that have divided the lower courts. 576 U.S. ––––, 135 S.Ct. 2889, 192 L.Ed.2d 923 (2015). The first question is whether the sufficiency of the evidence in a criminal case should be measured against the elements described in the jury instructions where those instructions, without objection, require the Government to prove more elements than do the statute and indictment. Compare, e.g., United States v. Romero, 136 F.3d 1268, 1272–1273 (C.A.10 1998) (explaining that sufficiency is measured against heightened jury instructions), with Guevara, supra, at 258 (C.A.5) (adopting an exception to that rule). The second question is whether a statute-of-limitations defense not raised at or before trial is reviewable on appeal. Compare, e.g., United States v. Franco–Santiago, 681 F.3d 1, 12, and n. 18 (C.A.1 2012) (limitations defense not raised and preserved before or at trial is reviewable on appeal for plain error), with United States v. Walsh, 700 F.2d 846, 855–856 (C.A.2 1983) (limitations defense not properly raised below is not reviewable on appeal).

II

We first address how a court should assess a sufficiency challenge when a jury instruction adds an element to the charged crime and the Government fails to object. We hold that, when a jury instruction sets forth all the elements of the charged crime but incorrectly adds one more element, a sufficiency challenge should be assessed against the elements of the charged crime, not against the erroneously heightened command in the jury instruction.

That conclusion flows from the nature of a court's task in evaluating a sufficiency-of-the-evidence challenge. Sufficiency review essentially addresses whether "the government's case was so lacking that it should not have even been submitted to the jury." Burks v. United States, 437 U.S. 1, 16, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) (emphasis deleted). On sufficiency review, a reviewing court makes a limited inquiry tailored to ensure that a defendant receives the minimum that due process requires: a "meaningful opportunity to defend" against the charge against him and a jury finding of guilt "beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 314–315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The reviewing court considers only the "legal" question "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id., at 319, 99 S.Ct. 2781 (emphasis in original). That limited review does not intrude on the jury's role "to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Ibid.

A reviewing court's limited determination on sufficiency review thus does not rest on how the jury was instructed. When a jury finds guilt after being instructed on all...