Justices Skeptical Flawed Jury Instruction Was Harmful

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By Lance J. Rogers

Nov. 30 — Counsel for a Texas man convicted of illegally hacking into his former boss's computer system had a tough time persuading the U.S. Supreme Court Nov. 30 that the conviction should be overturned just because an incorrect instruction required the jury to find the man guilty of an extra element that wasn't required by law.

The jury found him guilty of both A and B, but the statute is satisfied if he's found guilty of just A, said Justice Stephen Breyer. “How could it have been harmful?”

“He's still guilty on A,” Justice Antonin Scalia chimed in. “I just don't see how you get around that.”

The justices gave less indication about how they felt about the man's additional claim that he should be allowed to raise on appeal, as a matter of “plain error,” a statute of limitations argument that wasn't raised at trial.

Failure to Object

Michael Musacchio was charged with violating the federal computer fraud statute, 18 U.S.C. § 1030(a)(2)(c), which makes it illegal to either steal information by gaining access to a computer “without authorization” or by stealing information after exceeding an “authorized access.”

Although Musacchio was just charged with gaining illegal access, the district court instructed the jury that it could only find him guilty if it found he intentionally accessed a protected computer without authorization and that he exceeded an authorized access.

Arguing on behalf of Musacchio, Erik S. Jaffe, Washington, told the justices that his client should be allowed to attack his conviction on a sufficiency of evidence ground because the government failed to prove that Musacchio exceeded an authorized access. Any instruction that increases the government's burden without government objection becomes the law-of-the-case for purposes of appellate review, he said.

“This case is about the consequences of failure to object or raise an issue at trial,” he said. “We are defending the jury instruction; not rejecting it.”

‘Off the Rails.'

However, Roman Martinez, of the Solicitor General's Office in Washington, argued that the slip-up was a mere clerical error that didn't affect the validity of the conviction because the fraud statute only requires prosecutors to prove that a person either gained unauthorized access to a computer or exceeded authorized access.

“The extra element in the instructions is obviously erroneous,” he said, and shouldn't “give guilty defendants windfall acquittals.”

The U.S. Court of Appeals for the Fifth Circuit sided with the government, ruling that the clerical error didn't affect the trial.

Judging from their questions, it appeared that several of the justices were leaning that way, too.

Justices Sonia M. Sotomayor and Anthony M. Kennedy both pressed Jaffe to explain how Musacchio was prejudiced by putting an extra burden on the government.

“Why isn't this harmless error?” Sotomayor asked. Wasn't the evidence more than sufficient to convict him of encouraging others to gain illegal access?

What if the instruction required the jurors to find that the defendant murdered someone while looking at the ceiling but the evidence doesn't prove he was looking at the ceiling, Justice Breyer asked. “You have to let the guy go?”

If the jury had “zero evidence” of the thing they found him guilty of, Jaffe replied, “the verdict is irrational.”

When the jury goes that far “off the rails,” Jaffe added, it is clear that the extraneous elements confused them and led to an unreliable verdict.

Increased Risk of Acquittal

The original indictment charged Musacchio with both unauthorized access and exceeding authorized access, but a superseding indictment made it clear that the government had dropped the “exceeding” charge and was focusing exclusively on the conspiracy to hack into the computer system, Martinez said.

Justice Ruth Bader Ginsburg wanted to know why the government didn't object to the instructions.

Martinez said he didn't know, but added that the last three proposed instructions from the government didn't include the “exceeds” count.

In any event, he said, the error benefitted the defendant because it increased the chance he would be acquitted.

Justice Samuel A. Alito Jr. pressed lawyers from both sides to concede that the two clauses in the statute were really just different ways of proving the same crime, but neither would take him up on the point.

Jaffe later claimed that Alito's question gave weight to his claim that the jury was confused by the added element. Confusion, he said, obviously “persists to this day.”

Statute of Limitations Debate

Jaffe further argued that the Fifth Circuit erred when it refused to review Musacchio's statute of limitations argument on the ground that he waived it.

Alleged statute of limitations waivers are jurisdictional in nature and should be reviewed for plain error, he said.

Chief Justice John G. Roberts Jr. wondered whether adopting Jaffe's proposal would encourage attorneys to engage in “gamesmanship” by waiting to raise the claim on appeal.

“No sane lawyer would do that because they'd subject themselves to claims of malpractice,” Jaffe said.

Well sometimes malpractice is good practice if it works out to the client's advantage, Roberts said.

Martinez stressed that the statute of limitations claim is an affirmative defense and that the rule has always been that it is the accused's burden to raise such a claim.

We allow such claims to be raised in habeas petitions claiming ineffective assistance of counsel, Scalia said. “Why not decide that statute-of-limitations thing in the direct appeal?”

To contact the reporter on this story: Lance J. Rogers in Washington at lrogers@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

For More Information 
Transcript of oral argument at http://src.bna.com/bjC