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Musacchio v. United States

Supreme Court of the United States

November 30, 2015, Argued; January 25, 2016, Decided

No. 14-1095


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,  [*713]  and petitioner failed to press a statute-of-limitations defense [***5]  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.

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 [***6]  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  [**646]  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 [***7]  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.

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136 S. Ct. 709 *; 193 L. Ed. 2d 639 **; 2016 U.S. LEXIS 972 ***; 84 U.S.L.W. 4077; 25 Fla. L. Weekly Fed. S 606


Notice: The LEXIS pagination of this document is subject to change pending release of the final published version.


United States v. Musacchio, 590 Fed. Appx. 359, 2014 U.S. App. LEXIS 21358 (5th Cir. Tex., 2014)

Disposition: Affirmed.


indictment, instruction of a jury, statute-of-limitations, statute of limitations, limitations defense, charged crime, conspiracy, sufficiency challenges, sufficiency of evidence, unauthorized access, district court, plain error, assess, press, additional element, jury instructions, first time, authorization, instructions, heightened

Criminal Law & Procedure, Standards of Review, Substantial Evidence, Sufficiency of Evidence, Evidence, Weight & Sufficiency, Appeals, Reviewability, Preservation for Review, Defenses, Statute of Limitations, Computer & Internet Law, Criminal Offenses, Computer Fraud & Abuse Act, Computer Crimes, Governments, Legislation, Statute of Limitations, Time Limitations, Jury Instructions, Particular Instructions, Elements of Offense, Constitutional Law, Fundamental Rights, Procedural Due Process, Scope of Protection, Burdens of Proof, Proof Beyond Reasonable Doubt, Juries & Jurors, Province of Court & Jury, Weight of Evidence, Reasonable Doubt, Courts, Judicial Precedent, Preservation for Review, Failure to Object, Waiver, Triggers of Waivers, Jurisdiction & Venue, Jurisdiction, Governmental Entities, Plain Error, Plain Error, Indictments, Trials, Prosecution