SCOTUS: Flawed Instruction Didn't Undo Verdict

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By Lance J. Rogers

Jan. 25 — A jury's guilty verdict in a computer fraud case wasn't fatally flawed just because an incorrect instruction required the jurors to find the man guilty of an extra element that wasn't required by law, a unanimous U.S. Supreme ruled Jan. 25.

“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 said in an opinion by Justice Clarence Thomas.

The court also ruled that a criminal defendant can't raise a statute-of-limitations challenge for the first time on appeal.

‘Meaningful Opportunity to Defend.'

“I think this was an easy case for the court,” Adam Lamparello, a law professor at the Indiana Tech Law School, told Bloomberg BNA. “I'm a little surprised the court even granted cert.”

Lamparello predicted that the decision will make it harder for defendants to show that an erroneous jury instruction is grounds for reversible error because the court said, in essence, that defendants lose so long as they had a “meaningful opportunity to defend” against the charges.

According to Justice Thomas, a reviewing court's sufficiency-of-evidence analysis is one of “limited review” that focuses on the bottom line: “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.”

“That can be a difficult hurdle to overcome,” Lamparello said.

In this case, the court concluded that Michael Musacchio received all the due process he was entitled to get because the evidence supporting the charges was strong enough to be presented to a jury and the jury found him guilty beyond a reasonable doubt.

Minimum Level of Due Process

The decision settles a circuit split but it is also notable, however, for what it didn't say, Lamparello observed.

In a footnote, the court stressed that it wasn't expressing any view on whether the sufficiency of the evidence at trial must be weighed by reference to the elements charged in the indictment, even if the document charges one or more elements not required by statute.

The court also said it wasn't suggesting that the government adds an element to a crime for purposes of sufficiency review if the indictment charges different means of committing the same crime in the conjunctive.

Finally, it said it wasn't foreclosing the likelihood that some erroneous jury instructions might lead to reversible error even if the evidence was deemed sufficient to support a conviction.

The court had appeared skeptical of Musacchio's arguments at oral argument Nov. 30 (98 CrL 196, 12/2/15).

Unauthorized Access

Musacchio was convicted of 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 erroneously instructed the jury that it could only find him guilty if it found that he intentionally accessed a protected computer without authorization and that he overstepped an authorized access. He was sentenced to 60 months in prison.

On appeal, Musacchio argued that the government was now stuck with that erroneous instruction.

Any instruction that increases the government's burden without government objection, he contended, becomes the law-of-the-case for purposes of appellate review.

But neither the U.S. Court of Appeals for the Fifth Circuit nor the justices saw it that way.

“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,” Thomas wrote.

Limited Due Process Inquiry

The trouble with Musacchio's argument, Lamparello said, is that the erroneous instruction required the jury to find more than it was required to find under the plain language of the fraud statute and arguably made it harder for the government to convict.

That put Musacchio in the position of arguing that his rights were violated because the government proved something it didn't have to prove, Lamparello added.

“As Justice Scalia pointed out at oral argument,” Lamparello said, “he's still guilty on A.”

The government's failure to object to, or even introduce any evidence bearing on, the extra element didn't have any impact on the jury's finding of guilt on the charged crime or his meaningful opportunity to defend against the charge, 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,” it said.

Musacchio's reliance on the law-of-the-case doctrine is misplaced, the court added, because appellate courts aren't bound by district court rulings under that doctrine. 

Statute of Limitations Claim Waived

The court also rejected Musacchio's argument that he should have been allowed to assert a statute of limitations defense on appeal even though he never raised it at the trial court level.

According to Musacchio, the government indictment cited conduct that occurred outside the five-year limit set out in 18 U.S.C. § 3282(a).

Lamparello suggested that it was “ironic” that Musacchio was arguing that the government's failure to correct the flawed instruction at trial meant it was now stuck with meeting the heightened burden of proof but at the same time insisted that his own failure to raise a statute of limitations defense at trial should be forgiven.

“I think the court recognized the contradiction there by ruling exactly the opposite,” Lamparello said.

Musacchio's position fails, the court said, because Section 3282 doesn't impose a jurisdictional limit. Therefore, it is only reviewable—if at all—for plain error. There was no plain error here, it added, because a district court's failure to enforce an unraised statute of limitations defense doesn't qualify.

If a defendant doesn't press a defense, it said, “there is no error for an appellate court to correct—and certainly no plain error.”

Erik S. Jaffe, Washington, argued for Musacchio. Roman Martinez, of the Solicitor General's Office, Washington, argued for the government.

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