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Musacchio v. United States, USSC No. 14-1095, cert. granted 6/29/15

Questions presented:

1.  Whether the law-of-the-case doctrine requires the sufficiency of the evidence in a criminal case to be measured against the elements described in the jury instructions where those instructions, without objection, require the government to prove additional or more stringent elements than do the statute and indictment.

2.  Whether a statute-of-limitations defense not raised at or before trial is reviewable on appeal.

Lower court opinion: United States v. Musacchio, 590 Fed. App. 359 (5th Cir. 2014) (unpublished)


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The questions presented are self-explanatory. As with most cases in which the Court grants certiorari, there are circuit splits in need of resolution.

On the first question, two circuits (including the Fifth, in which this case originated) hold that while jury instructions that hold the government to a greater burden of proof (most commonly by adding an unnecessary element) generally define the law of the case, that rule doesn’t apply where the instruction is “patently erroneous” and the elements had not been misstated in the indictment. United States v. Guevara, 408 F.3d 252, 258 (5th Cir. 2005); United States v. Zanghi, 189 F.3d 71, 79-80 (1st Cir. 1999). The Eighth and Tenth Circuits, however, apply the law-of-the-case doctrine to hold the government to the greater burden whenever the government fails to object to the instruction and regardless of whether the indictment correctly charges the elements or whether the instruction is patently erroneous. United States v. Staples, 435 F.3d 860, 866-67 (8th Cir. 2006); United States v. Romero, 136 F.3d 1268, 1272-73 (10th Cir. 1998).

Readers may recognize that the law-of-the-case issue was recently addressed by our state supreme court, State v. Beamon, 2013 WI 47, 347 Wis. 2d 559, 830 N.W.2d 681, which essentially took the approach of the First and Fifth Circuits. Our court is grappling with the issue again after granting certification in State v. Maltese Lavele Williams, which should be decided any day now—unless it’s put on hold in light of the cert grant in this case. Obviously, if this decision rejects the First and Fifth’s approach, the holding in Beamon may be limited, if not effectively overruled.

As to the second question, most circuits hold that a failure to raise a limitations defense in the trial court forfeits the issue on appeal (though the Seventh allows the issue to be raised subject to plain error review, United States v. Baldwin, 414 F.3d 791, 795 & n.2 (7th Cir. 2005), overruled on other grounds, United States v. Parker, 508 F.3d 434 (7th Cir. 2007). But one circuit holds that statutes of limitations may be raised on appeal absent an explicit waiver of the defense in the trial court. United States v. Crossley, 224 F.3d 847, 858 (6th Cir. 2000). Wisconsin takes a similar approach as a matter of state law, State v. Muentner, 138 Wis. 2d 374, 381-83, 406 N.W.2d 415 (1987) (limitations periods are a jurisdictional prerequisite to the power of the court to act, so waiver of the limitation may not be implied; and by pleading not guilty the defendant raises the statute of limitations defense), so the decision in this case should not affect practice in state courts.

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