By Lorene D. Park, J.D.
Rejecting a former executive’s sufficiency-of-the-evidence challenge to his conviction for conspiracy to access to his former employer’s protected computer without authorization in violation of the Computer Fraud and Abuse Act (CFAA), the Supreme Court unanimously held that the sufficiency of evidence is to be measured against the criminal charge, not against a jury instruction that erroneously added an element for the government to prove. Focusing on due process considerations, the High Court explained that when a jury finds guilt based on the elements of a charged crime plus one more, the defendant has been given a “meaningful opportunity to defend” against the charge. The High Court also affirmed that the employee waived his challenge under the statute of limitations by not raising it in the district court (Musachhio v. United States
, January 25, 2016, Thomas, C.).
Unauthorized computer access.
The employee was president of Exel Transportation Services (ETS), a transportation brokerage company that arranges shipments for businesses; it relies on independent agents to sell its services. In 2005, the employee founded a competing company and two ETS employees followed him. Starting in 2006, several independent agents moved from ETS to this competitor. Meanwhile, the new ETS president learned that undisclosed contract terms had been leaked and, during a forensic investigation, it was discovered that the employee and others had been accessing ETS servers. The company sued and the parties settled for $10 million.
Criminal CFAA case.
In 2010, the employee was indicted for violating the CFAA, which makes it a crime to obtain access of a protected computer without authorization or to exceed authorized access. He was charged with conspiring to commit both types of violations and, in a separate count, charged with making unauthorized access to ETS’s email server “[o]n or about November 24, 2005.” In 2012, the government filed a superseding indictment amending those charges. Count one dropped the charge of conspiracy to exceed authorized access, limiting that charge to conspiracy to make unauthorized access. Count two was amended to allege that the employee accessed specific ETS email accounts “[o]n or about” November 23–25, 2005.
The case went to a jury. Relevant here, the employee did not claim that his prosecution on count two fell outside the applicable five-year statute of limitations. Also relevant, the trial court diverged from the indictment and from the government’s proposed jury instructions on the conspiracy count. It instructed the jury that CFAA Section 1030(a)(2)(C) “makes it a crime for a person to intentionally access a computer without authorization and
exceed authorized access.” The government did not object, but it was undisputed that this instruction erred by using the conjunction “and” when referring to the two ways the section can be violated and thus requiring proof of both elements. The jury found the employee guilty on both counts.
On appeal, the employee challenged the sufficiency of the evidence on his conspiracy conviction, asserting that sufficiency should be assessed against the erroneous jury instruction. He also argued that his prosecution on count two was barred by the limitations period because the superseding indictment was filed seven years after the crime and did not relate back to the original. The Fifth Circuit affirmed
, finding that he waived his limitations argument by not raising it at trial and that the “law of the case” doctrine did not make the heightened jury instructions binding because this was an obvious clerical error and the indictment correctly charged the employee only with conspiracy to make unauthorized access.
The Supreme Court granted certiorari to resolve two questions that have divided lower courts: (1) “Whether the sufficiency of the evidence in a criminal case should be measured against the elements described in the jury instructions where those instructions, without objection, require the Government to prove more elements than do the statute and indictment;” and (2) “whether a statute-of-limitations defense not raised at or before trial is reviewable on appeal.”
Sufficiency of evidence is assessed against the charge.
Affirming, the High Court first held 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.” This conclusion, said the Court, flowed logically from the nature of a sufficiency review, which considers whether the government’s case was “so lacking that it should not have even been submitted to the jury.”
A court’s inquiry is limited to ensuring that a defendant has received the minimum that due process requires: a “meaningful opportunity to defend” against the charge and a jury finding of guilt “beyond a reasonable doubt.” This limited review does not intrude on the jury’s factfinding role and does not rest on how the jury was instructed. The Court explained, “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. If a jury instruction requires the jury to find guilt on the elements of the charged crime, a defendant will have had a ‘meaningful opportunity to defend’ against the charge.” The government’s failure to object to the heightened jury instruction thus did not affect the court’s review for sufficiency of evidence.
Law-of-case doctrine did not apply.
That said, the Fifth Circuit erred in basing its conclusion on the law-of-the-case doctrine. That doctrine did not apply here, explained the Supreme Court, because the appellate court’s function is
, in fact, to revisit
matters decided in the trial court, and the appeals court was not bound by district court rulings.
Limitations period waived.
The High Court affirmed the appellate ruling that the employee could not successfully raise a statute-of-limitations argument for the first time on appeal. It rejected the employee’s claim that the applicable provision in 18 U.S.C. §3282(a) imposed a nonwaivable limit on subject matter jurisdiction. To the contrary, the statutory text, context, and history established that the section imposes a nonjurisdictional defense that becomes part of a case only if a defendant raises it in the district court.