Musacchio v. United States
Even though a jury instruction contains an extra element, sufficiency of the evidence should be assessed only against the statutory elements of the charged crime, the U.S. Supreme Court ruled Jan. 25 in Musacchio v. United States.
The Court ruled in the same case that a statute-of-limitations defense under 18 U.S.C. Sec. 3282(a), the general federal criminal statute of limitations, cannot be raised for the first time on appeal.
Michael Musacchio was indicted in 2010 for violation of 18 U.S.C. Sec. 1030, which prohibits accessing a computer without authorization, or exceeding authorized access. The Government charged that Musacchio both accessed a computer without authorization, and exceeded authorized access. The charged acts occurred from 2005 to 2006.
In 2012, the Government filed a superseding indictment which charged only exceeding authorized access.
Musacchio proceeded to jury trial.
Instead of instructing the jury only as to exceeding authorized access, the trial court erroneously instructed the jury as to both means of committing the offense. The trial court instructed the jury that Musacchio could be convicted if he intentionally accessed the computer without authorization “and” exceeded authorized access.
Musacchio was convicted, and appealed to the Fifth Circuit.
In addition to challenging the sufficiency of the evidence, Musacchio asserted, for the first time on appeal, that his prosecution violated 18 U.S.C. 3282(a), which provides a general five-year statute of limitations.
The Fifth Circuit affirmed.
The U.S. Supreme Court granted cert. to resolve two questions that have divided lower courts: (1) whether sufficiency of the evidence should be measured against the elements described in the jury instructions where those instructions require the Government to prove more elements than the statute and indictment, and (2) whether a statute-of-limitations defense not raised at or before trial is reviewable on appeal.
Sufficiency is judged by statutory elements
In a unanimous opinion, the Supreme Court held that on the first question, “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.”
Appellate sufficiency review “does not rest on how the jury was instructed,” the Court said. “When a jury finds guilt after being instructed on all elements of the charged crime plus one more element, the jury has made all the findings that due process requires.”
The Court cautioned, however, that “we express no view on the question whether sufficiency of the evidence at trial must be judged by reference to the elements charged in the indictment,” and “we do not suggest that the Government adds an element to a crime for purposes of sufficiency review when the indictment charges different means of committing a crime in the conjunctive.”
The Court added, “[W]e also do not suggest that an erroneous jury instruction cannot result in reversible error just because the evidence was sufficient to support a conviction.”
Statute of limitations cannot be raised for first time on appeal
On the second question, the Court held that a statute-of-limitations defense under Sec. 3282(a) cannot be successfully raised for the first time on appeal.
A statute of limitations is not jurisdictional unless Congress has “clearly stated” that it is, the Court said. The statute at issue contains no such clear statement.
As a result, “Sec. 3282(a) imposes a nonjurisdictional defense that becomes part of a case only if a defendant raises it in the district court,” the Court held.
The Court expressly refused to resolve whether failure to raise a statute-of-limitations defense is a “waiver” or “forfeiture.” Instead, the Court held only that a district court’s failure to enforce an unraised limitations defense under Sec. 3282(a) “cannot be a plain error.”