Issues
- Must the United States prove elements of a crime not contained in the relevant criminal statute but included in an erroneous jury instruction if the government failed to object to that instruction at trial?
- Can a statute-of-limitations defense be raised for the first time on appeal if it was not raised at trial?
In this case, the Supreme Court will consider whether the United States must prove elements of a crime not contained in the relevant criminal statute but included in an erroneous jury instruction if the government failed to object to that instruction at trial. The Court will also consider whether an appellate court may review a statute-of-limitations defense not raised at trial. Michael Musacchio was convicted of conspiracy to access a computer system without authorization. According to the relevant statute, the United States had to demonstrate “Mussachio had agreed to make unauthorized access or exceed authorized access” of a computer system. However, the trial court’s jury instructions stated that the jury must find that Musacchio “intentionally access[ed] a protected computer without authorization and exceed[ed] authorized access.” (emphasis added) Neither Musacchio nor the United States objected to the instruction. On appeal, Musacchio challenged the sufficiency of the government’s evidence. Musacchio contends that the law-of-the-case doctrine requires the United States to prove the elements of the crime as described in the jury instructions, even when the jury instructions were erroneous and imposed a heightened burden on the government. Musacchio also argues that a statue-of-limitations defense not raised at trial is reviewable on appeal. . The United States contends that the law-of-the-case doctrine is inapplicable, because the jury instructions were patently erroneous, and the proper statutory elements were stated in the indictment. The United States further argues that Musacchio waived his statute-of-limitations defense by failing to raise it at trial. The Court’s decision in this case may affect the government’s prosecutorial power, the fairness of trials, and the availability of statute of limitations defenses.
Questions as Framed for the Court by the Parties
- Does the law-of-the-case doctrine require the sufficiency of the evidence in a criminal case to be measured against the elements described in the jury instructions where those instructions, without objection, require the government to prove additional or more stringent elements than do the statute and indictment?
- Is a statute-of-limitations bar not raised at or before trial reviewable on appeal?
Facts
Michael Musacchio was the president of Exel Transportation Services (“ETS”), a transportation brokerage company, until his resignation in 2004. In 2005, Musacchio started Total Transportation Services (“TTS”), and recruited Roy Brown and Michael Kelly, two former ETS employees, to join him at TTS. In 2006, several other ETS agents joined TTS. During this time period, Jim Damman, the president of ETS, began hiring new agents but became “suspicious” when he noticed that some agents were aware of the new terms of ETS contracts before they were hired. “One agent revealed Brown had shown him an undisclosed ETS contract addendum,” so Damman “hired a forensic firm to investigate the leak.” The investigation revealed that Musacchio and Brown were accessing ETS’ servers. Subsequently,ETS sued TTS, Musacchio, and Brown, . . . and the parties settled for $10 million.”
In 2010, the United States indicted Musacchio, Brown, and Kelly under the Computer Fraud and Abuse Act for “conspiracy to make unauthorized access and exceed authorized access to a protected computer.” After Brown and Kelly pled guilty, the government again indicted Musacchio in 2012. The superseding indictment’s language did not contain the phrase “exceed authorized access” in its summary of the offense, but it did use that phrase in the “Object of the Conspiracy” and “Manner and Means” sections. At trial, the government showed that after leaving ETS, Musacchio asked Brown, before Brown left ETS, “to access other employees’ email to collect information.”Brown agreed, and continued to access emails by using a remote server after leaving ETS.
The United States’ proposed jury instruction stated that the jury must find that Musacchio “agreed to ‘intentionally access[ ] a protected computer[] without authorization.’” The proposed instruction did not include the “exceed authorized access” language. However, the district court “revised the instructions,” stating that the jury must find that Musacchio “intentionally access[ed] a protected computer without authorization and exceed[ed] authorized access.” Neither the United States nor Musacchio objected to the court’s instructions. The jury found Musacchio guilty of all charges. Musacchio appealed to the Court of Appeals for the Fifth Circuit.
On appeal, Musacchio challenged the sufficiency of the United States’ evidence regarding count 1, the conspiracy charge. . According to the relevant statute, the United States had to demonstrate “Mussachio had agreed to make unauthorized access or exceed authorized access.” However, the trial court instructed the jury as if the government needed to satisfy both elements to convict Musacchio. Musacchio argued that the trial court’s instruction, although incorrect, became the governing law because the United States did not object to the instruction. Therefore, as “the law-of-the-case,” the court’s instruction compelled the United States to satisfy both elements. To that end, Musacchio alleged that the United States’ evidence was insufficient to support the second element, exceed authorized access. Additionally, Musacchio argued for the first time that the government’s allegation that he had intentionally accessed the “Exel email accounts of Exel President and Exel legal Counsel” without authorization around November 23-25, 2005 was barred by a statute of limitations.
The Fifth Circuit affirmed the district court’s ruling. The court explained that the law-of-the-case doctrine states that an erroneous jury instruction, which the United States does not object to, and which heightens the United States’ burden of proof, becomes the governing law of the case. But the court stated that the law-of-the-case doctrine is inapplicable when—as in Musacchio’s case—the jury instructions are “patently erroneous,” and “the issue is not misstated in the indictment.” The court declined to consider Musacchio’s statute-of-limitations argument, because he waived the defense by failing to raise it in district court.
Musacchio subsequently petitioned the Supreme Court for a writ of certiorari, which the Court granted on June 29, 2015.
Analysis
In this case, the Supreme Court will examine the scope of the law-of-the-case doctrine and whether a statute-of-limitations defense may be raised for the first time on appeal. Musacchio argues that under the law-of-the-case doctrine, uncontested, erroneous jury instructions are governing law regardless of whether they impose a greater burden on the United States. And Musacchio claims that the statute-of-limitations defense is reviewable on appeal despite it not being raised at trial. The United States contends that when a defendant attacks the sufficiency of the government’s evidence on appeal, the statutory elements of the crime, and not erroneous trial instructions, govern the reviewing court’s analysis. The United States also argues that Musacchio waived his right to a statute-of-limitations defense because it was not raised at trial.
IS THE SUFFICIENCY OF THE GOVERNMENT’S EVIDENCE MEASURED AGAINST THE STATUTORY ELEMENTS OF THE OFFENSE OR BY THE JURY INSTRUCTIONS?
Musacchio argues that the jury instructions included two elements, accessing a protected computer without authorization and exceeding authorized access, and therefore, under the law-of-the-case doctrine, the government must present sufficient evidence to prove both elements. Musacchio asserts that nearly “every court to consider the issue applies the law-of-the case doctrine to jury instructions that erroneously increase the government’s burden of proof in criminal cases.” Musacchio explains that courts adopt this position because they do not want to give the government a second opportunity on appeal to raise a claim it neglected to address in trial court. While Musacchio acknowledges that the First and Fifth Circuit Courts of Appeals refuse to apply the law-of-the-case doctrine “when a more stringent jury instruction is ‘patently incorrect’ and the indictment states the correct more lenient standard,” he argues that neither court has adequately explained their refusal. Musacchio decries the Eighth Circuit Court of Appeals’ approach, which affirms convictions on appeal if “the government shows sufficient evidence to satisfy the erroneously substituted element” or can show that any rational jury would have found that the government proved the omitted element beyond a reasonable doubt. Musacchio maintains that this approach, too, is unwarranted, because it allows the United States to prove a “non-element instead of an actual, but omitted, element.”
The United States argues that the Court’s precedent commands that the sufficiency of the evidence must be evaluated against the elements of the offense as provided in the statute. The United States explains that the appropriate standard, found in the Court’s decision in Jackson v. Virginia, 443 U.S. 307, 319 (1979), is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational [juror] could have found the essential elements of the crime beyond a reasonable doubt.” The United States contends that the “essential elements” of a criminal charge are those adopted by Congress in the criminal statute. The United States explains that this standard ensures due process of law by satisfying “two core due process principles.” One, the government must present affirmative evidence of guilt, because people cannot be deprived of liberty if they are innocent. And two, guilt must be proven beyond a reasonable doubt, which supports the presumption of innocence. For this reason, the United States contends that these principles are not “threatened” by an erroneous jury instruction. The United States argues that even if jury instructions have additional elements not found in the statute, “[s]o long as the instructions require the jury to find evidence of guilt with respect to the actual, statutory elements of the crime, the defendant will have had a ‘meaningful opportunity to defend’ against the charge.”
DOES A ‘PLAIN-ERROR EXCEPTION’ APPLY TO THE LAW-OF-THE-CASE DOCTRINE?
Musacchio asserts that the plain error exception does not apply when the United States fails to object to erroneous jury instructions. According to Musacchio, the law-of-the-case doctrine necessarily assumes that the jury instruction is wrong, and thus the “plainness or debatability of the error” is inconsequential. Rather, Musacchio maintains that the animating force of the doctrine is the government’s voluntary assumption of a higher burden. To highlight this point, Musacchio argues that if the jury instructions were correct, the law-of-the-case doctrine would be pointless. Instead of focusing on whether there was an error made in the jury instruction, Musacchio proposes that the emphasis should be on whether the United States has failed to object to the erroneous jury instruction. Although the United States cites different cases to propose an exception to the law-of-the-case doctrine, Musacchio contends that those cases have either been overruled or can be distinguished on their facts.
The United States argues that even if the law-of-the-case doctrine applied, appellate courts can review plainly erroneous jury instructions under Federal Rule of Criminal Procedure 52(b). According to the United States, Rule 52(b) permits courts to review prior decisions that are clearly erroneous and would result in “miscarriage[s] of justice.” The United States argues that under Musacchio’s reading of the law-of-the-case doctrine, appellate courts would be forbidden from reviewing the most blatant and “prejudicial instructional errors.”
CAN A CRIMINAL STATUTE-OF-LIMITATIONS DEFENSE BE RAISED ON APPEAL?
Musacchio claims that a statute-of-limitations defense is permissible on appeal even if it was not raised at or before trial. Musacchio reasons that statutes of limitations serve as substantive checks on prosecutorial power and jurisdictional limitations that cannot be waived. Musacchio asserts that statutes of limitations are “no mere administrative tool for keeping dockets moving, but . . . [are] ‘designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time.’” And although Musacchio concedes that courts have moved away from a jurisdictional view, Musacchio cites numerous cases that illustrate courts’ willingness to treat statute-of-limitations defenses as jurisdictional bars, which cannot be waived because jurisdiction is essential to a court’s ability to decide a case. Musacchio further contends that even if the statute of limitations is deemed non-jurisdictional, it is not waivable if a party forgets to raise it at or before trial. Musacchio reasons that “waiver is the ‘intentional relinquishment of a known right,’” and that failing to raise a limitations bar due to forgetfulness does not constitute intentional relinquishment.
The United States argues that a statute-of-limitation defense must be raised by the defendant at or before trial “to become part of the case.” The United States argues that this is so because it is a non-jurisdictional affirmative defense. The United States maintains that Musacchio is incorrect in characterizing the defense as non-waviable and jurisdictional. The United States contends that a line of cases, starting with Biddinger v. Commissioner of Police, 245 U.S. 128 (1917), found that the limitations defense must be raised by the defendant to become part of the case. Moreover, the United States contends that “nothing in the text, context, or history” of the statute-of-limitations provision suggests that Congress intended for it to be a jurisdictional, non-waivable rule.
Discussion
In this case, the Supreme Court may settle a circuit split regarding the law-of–the–case doctrine and determine whether a statute-of-limitations defense can be raised for the first time on appeal. Musacchio urges the Court to hold that uncontested jury instructions become the law of the case even when they are erroneous and impose a heightened burden on the government.Musacchio also argues that a statute-of-limitations defense is reviewable on appeal despite not being raised at trial. But the United States contends that the law-of-the-case doctrine is inapplicable, because the Court should use the statutory language to measure the sufficiency of the government’s evidence. The United States further argues that Musacchio waived his statute-of-limitations defense by failing to raise it at trial. The Court’s decision in this case may affect the government’s prosecutorial power, the fairness of trials, and the availability of statute of limitations defenses.
CHECKING PROSECUTORIAL POWER AND ENSURING FAIR TRIALS
Musacchio argues that requiring the government to satisfy a more burdensome, albeit erroneous, standard mitigates the unjust risk that a court of appeal “sustain a conviction” on a different theory than the one conveyed to the jury. Additionally, Musacchio maintains that the law-of-the-case doctrine reduces the risks generated by the trial court and the jury applying different legal standards, such as the jury’s considering “extraneous” or “prejudicial” conduct, or “confusion regarding the interplay between original and added elements” in an instruction. In his case, Musacchio alleges that the jury may have confused or combined evidence relevant to accessing a computer without authorization, which was part of the indictment, and evidence relevant to exceeding authorized access, which appeared in the jury instruction. If the United States needs only to satisfy the first element, Mussachio maintains that the government would gain the unfair advantage of relying on “uncharged ‘bad acts’” relating to exceeding authorized access to prove the crime actually charged in the indictment, accessing a computer without authorization.Moreover, Musacchio contends the doctrine addresses constitutional concerns over the United States’ prosecutorial power by forcing the government “to comply with additional burdens that it assumed without objection.” Musacchio contends that these additional burdens strike a just balance between defendants’ obligation to meet “a host of procedural hurdles” during their defense, and the government’s power to “take away a [defendant’s] liberty.”
The United States argues that any jury confusion arising over the actual and additional elements in the jury instructions resulted from instructional errors that are unrelated to the sufficiency of the evidence presented. The United States maintains that “[t]o the extent the record establishes a plausible basis for such confusion, it might justify granting a new trial.” But the United States concludes that confusion does not demand “outright acquittal.” The United States notes that Musacchio “did not object to the isolated references to ‘exceed[ing] authorized access’ at trial,” and that evidence demonstrating Musacchio’s exceeding authorized access was relevant to “his intent to conspire to obtain unauthorized access.” Moreover, the United States contends that Musacchio’s “mandatory, no-exceptions” law-of-the-case doctrine, as the government describes it, serves only to “exonerate the guilty” at the expense of the innocent. The United States explains that Musacchio’s approach would require acquittal even if the court properly instructed the jury about the charged offense, the jury was unanimous in its conviction, and the government presented sufficient evidence to support the conviction. In that case, the United States concludes that a defendant would receive “a trial that is not merely fair, but actually biased in his favor.”
STATUTES OF LIMITATIONS CONSTRAINT ON GOVERNMENT ACTION OR A STRATEGIC TOOL FOR DEFENDANTS?
Musacchio argues that the federal statute of limitations is not a mechanism to manage the court’s docket; rather, it is a tool that protects individuals while limiting the Executive and Judiciary’s power. Musacchio explains that the statute of limitations “embodies weighty congressional policy concerning the checks and limits on the power of the Executive and the courts to prosecute, try and punish crimes.” Musacchio maintains the courts have allowed appellees to raise statute of limitations defenses for the first time on appeal when similarly weighty policy concerns were at play.
The United States disagrees with Musacchio’s claim that the statute of limitations is a “non-waivable jurisdictional limit on the court’s authority.” The United States contends that the statute of limitations is a non-jurisdictional affirmative defense that must be raised by defendants at trial to be considered on appeal. The United States maintains that the waivability of the defense actually provides strategic benefits to defendants, such as allowing “a defendant . . . [to] plead guilty to a time-barred offense in exchange for avoiding a more serious, but timely, charge,” or allowing a defendant to “waive a statute-of-limitations defense in order to avoid an immediate indictment and extend the period of time available to engage in plea-bargaining.”
Conclusion
In this case, the Supreme Court will resolve two issues. First, the Court will decide whether the law-of-the-case doctrine applies to jury instructions that include more stringent elements than the relevant statute. Second, the Court will decide whether a defendant can raise a statute-of-limitations defense on appeal if it was not raised during trial. The Court’s decision in this case may affect the government’s prosecutorial power, the fairness of trials, and the availability of statute of limitations defenses.
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Acknowledgments
Additional Resources
- W. Whitaker Rayner, U.S. Supreme Court to Review Fifth Circuit CFAA Decision, Trade Secret Insider (July 9, 2015).