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SCOTUS: Sufficiency of evidence measured against statutory elements, not erroneous jury instruction

Musacchio v. United States, USSC No. 14-1095, 2016 WL 280757 (January 25, 2016), affirming United States v. Musacchio, 590 Fed. Appx. 359 (5th Cir. 2014); Scotusblog page (including links to briefs and commentary)

Resolving a split among the federal circuits, a unanimous Supreme Court holds that when a jury instruction sets forth all the elements of the charged crime but incorrectly adds one more element, a sufficiency of evidence challenge is assessed against the elements of the charged crime, not against the erroneously heightened command in the jury instruction.

Musacchio was charged with obtaining information by improperly accessing a protected computer in violation of 18 U.S.C. § 1030(a)(2)(C). A person can commit this crime in one of two ways: 1) by obtaining access without authorization; or 2) if the person was given authorized access, by exceeding the authorization. Musacchio was charged with obtaining unauthorized access to a computer, but the jury that convicted him was mistakenly instructed that the government had to prove Musacchio gained unauthorized access and exceeded authorized access. (Slip op. at 1-3).

Musacchio challenged the sufficiency of the evidence for his conviction, claimed the evidence didn’t prove he did both, but the Court holds that his sufficiency challenge is measured against the statutory elements of the crime he was charged with—obtaining unauthorized access—not the “erroneously heightened command in the jury instruction” that added an element not required by the statute:

That conclusion flows from the nature of a court’s task in evaluating a sufficiency-of-the-evidence challenge. Sufficiency review essentially addresses whether “the government’s case was so lacking that it should not have even been submitted to the jury.” Burks v. United States, 437 U.S. 1, 16 (1978) (emphasis deleted). On sufficiency review, a reviewing court makes a limited inquiry tailored to ensure that a defendant receives the minimum that due process requires: a “meaningful opportunity to defend” against the charge against him and a jury finding of guilt “beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 314–315 (1979). The reviewing court considers only the “legal” question “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.” Id., at 319 (emphasis in original). That limited review does not intrude on the jury’s role “to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Ibid.

A reviewing court’s limited determination on sufficiency review thus does not rest on how the jury was instructed. 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. Id., at 314. And if the jury instruction requires the jury to find those elements “beyond a reasonable doubt,” the defendant has been accorded the procedure that this Court has required to protect the presumption of innocence. Id., at 314–315. The Government’s failure to introduce evidence of an additional element does not implicate the principles that sufficiency review protects. All that a defendant is entitled to on a sufficiency challenge is for the court to make a “legal” determination whether the evidence was strong enough to reach a jury at all. Id., at 319. The Government’s failure to object to the heightened jury instruction thus does not affect the court’s review for sufficiency of the evidence…. (Slip op. at 5-6).

As mentioned in our post on the cert grant, the federal circuits had split on this question; this decision resolves that split. The Wisconsin Supreme Court addressed a virtually identical situation in State v. Beamon, 2013 WI 47, 347 Wis. 2d 559, 830 N.W.2d 681, which involved an instruction that erroneously told the jury the state had to prove two disjunctive elements of eluding an officer under § 346.04(3). The Beamon court also held that when the instructions “do not accurately reflect the statute enacted by the legislature,” sufficiency of the evidence must be measured against the statutorily defined elements, not the erroneous instructions. 347 Wis. 2d 559, ¶¶22-23, 28.

Our post also noted that the Wisconsin Supreme Court was addressing a similar issue in a then-pending case, which has since been decided. In State v. (Maltese Lavele) Williams, 2015 WI 75, 364 Wis. 2d 126, 867 N.W.2d 736, the court held that a jury instruction can be harmless even if the error describes a theory of liability not presented to the jury or omits a theory that was presented. Williams filed a cert petition, which is currently pending a response from the state. While it might seem at first blush that the decision in Musacchio dooms Williams’s petition, that’s not necessarily the case. When an instruction mistakenly adds an element to the statutory elements, it’s easy to determine whether the evidence would have allowed the jury to convict in the absence of the mistakenly added element. But when the instruction advances one possible theory of liability and leaves out others, as in Williams’s trial, you run into the problem that the state might try to preserve a conviction based on a theory of liability it never advanced at trial, a strategy that is arguably foreclosed by Chiarella v. United States, 445 U.S. 222, 236 (1980) (“we cannot affirm a criminal conviction on the basis of a theory not presented to the jury”)). So keep an eye on Williams’s petition if you’re interested in this issue.

Which brings us to a last point about the Court’s sufficiency holding: The Court leaves open three specific questions:

First, we express no view on the question whether sufficiency of the evidence at trial must be judged by reference to the elements charged in the indictment, even if the indictment charges one or more elements not required by statute. Second, we do not suggest that the Government adds an element to a crime for purposes of sufficiency review when the indictment charges different means of committing a crime in the conjunctive. Third, we also do not suggest that an erroneous jury instruction cannot result in reversible error just because the evidence was sufficient to support a conviction. (Slip op at 6 n.2).

If you are litigating a case that arguably falls into one of those three categories, then, of course, argue that Masacchio doesn’t control.

Finally, the Court held that a statute of limitations defense cannot be raised for the first time on appeal because, based on its reading of the applicable federal statute, an out-of-time prosecution does not deprive the courts of jurisdiction. (Slip op. at 8-10). It even says, without much explanation, that it can’t even be raised as plain error, which undoes 7th Circuit precedent that allows plain-error review of limitations issues, United States v. Baldwin, 414 F.3d 791, 795 & n.2 (7th Cir. 2005). The Court’s ruling on this issue doesn’t affect state law: Under State v. Muentner, 138 Wis. 2d 374, 381-83, 406 N.W.2d 415 (1987), limitations periods are jurisdictional, so waiver of the limitation may not be implied; a plea of not guilty raises the statute of limitations defense.

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