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Argument analysis: Few friendly faces in the crowd for computer fraud defendant

Yesterday’s argument in Musacchio v. United States consisted of repeated, polite expressions of rejection, with every Justice who spoke voicing mystification about, or disagreement with, Musacchio’s arguments.  The case presents two general procedural questions about criminal law in the context of a Computer Fraud and Abuse Act conviction – but the Justices seemed to realize yesterday that the case is very fact-specific.  Other than settling some arguable circuit splits and mentioning other scenarios in which its ruling may not apply, the Court’s opinion will likely produce a unanimous judgment in the government’s favor.

The facts and the Questions Presented

As I reported in my preview, Michael Musacchio and a partner secretly accessed the computerized email system of a business competitor for whom Musacchio had worked, stopping in March 2006 when the competitor discovered it.  The CFAA criminally punishes anyone who “intentionally accesses a computer without authorization or” – emphasis on the “or” – “exceeds authorized access.” In 2010, well within the applicable five-year statute of limitations, Musacchio was indicted in federal court for conspiring to commit both “unauthorized access” and “exceeding access.”  In 2012 – six years after the crime – a superseding indictment was returned, now charging a conspiracy to commit only “unauthorized” access (although still somewhat confusingly including some allegations that the co-conspirators had also “exceeded” access).  But when the jury was ultimately instructed, the judge mistakenly told them that the statute “makes it a crime for a person to intentionally access a protected computer without authorization and” – not “or,” as the statute and the government’s proffered instructions actually said – “exceed authorization.”  Thus the jury is assumed to have understood that, to convict, it had to find both unauthorized access “and” exceeding access, instead of just unauthorized access as the statute, and the superseding indictment, required.

The jury did convict.  And only after a motion for new trial was denied did anyone notice the “and” versus “or” error in the instructions.  Musacchio then argued that, because the evidence was insufficient to prove that he had “exceeded” access, the jury’s verdict, based on a requirement that it find both “unauthorized” and “exceeding” access, must be reversed.  The trial court rejected that belated argument, as did the court of appeals, ruling that the statute and the indictment express all the elements the government must prove, and that the mistaken injection of an additional element was both irrelevant and harmless here.  Indeed, it redounded to Musacchio’s benefit at trial, by adding to the government’s burden of proof (as Justice Ruth Bader Ginsburg also noted during yesterday’s oral argument).

Musacchio also argued, for the first time on appeal, that the 2012 superseding indictment had been returned beyond the five-year statute of limitations (which began in 2006), and that it could not “relate back” to the timely 2010 indictment.  But without examining the merits of that claim, the Fifth Circuit ruled that a statute of limitations defense is completely waived unless it was raised in the trial court.

The Supreme Court granted certiorari to review both questions: (1) whether the sufficiency of the evidence in a criminal case should be measured on appeal against the elements mistakenly expressed in jury instructions, or only against the elements actually set forth in the statute and the indictment; and (2) whether a statute of limitations violation may be raised for the first time on appeal or is instead waived if not raised below.  The grant in Musacchio’s case may be viewed as some necessary “clean up” work on these questions.  The first question can be traced to some sloppy “law of the case” dictum in United States v. Wells [519 U.S. 482 (1997)] and the resulting confusion in the lower courts, while the second presents a “split” between courts ruling that an unraised statute of limitations defense is subject to “plain error” review on appeal and courts holding it entirely unreviewable.

Oral argument: mystification but no sympathy

Candidly, I do not perceive any support for Musacchio’s arguments in the transcript of oral argument.  Rather, there were repeated expressions of non-understanding or outright rejection. Justice Antonin Scalia immediately began the questioning by asserting to attorney Erik Jaffe, representing Musacchio, that “there’s no doubt in this case, is there, that the jury found beyond reasonable doubt that the defendant had committed” the statutory and charged crime of unauthorized access?  That is, if the instructions required a finding of both A and B, and Musacchio now objects to the sufficiency only of B, then if the jury “said both are true,” A must have been sufficiently proven.  If so, then the statute, as actually charged in the indictment, is satisfied, regardless of a mistaken addition of “B.”  As Scalia later concluded, “He’s still guilty of A.  I just don’t see how you get around that.”

Other Justices repeated this same point.  While Jaffe (a former clerk to Justice Thomas) gamely refused to concede it (responding that it is “not entirely correct”), no Justice suggested any doubt about it.  “So why isn’t it harmless error?” asked Justice Sonia Sotomayor.  “They convicted on the first portion and that was enough,” Justice Ginsburg noted.  Indeed, Justice Stephen Breyer expressed pure mystification: “what you’re saying – I don’t understand the point. …I don’t see the theory of it.”  And Justice Samuel Alito suggested that Musacchio’s rule “would be a revolutionary holding.”  In sum, this appears to be a rare criminal case in which ideological differences seem to make no difference regarding the result.

Indeed, Justice Alito expressed an even less favorable point – not really the question presented but as Justice Kennedy noted, one that may “have considerable merit” – that perhaps there is actually no real difference between the statutory elements of “exceeding access” and accessing “without authorization.”  This is not a new idea — Orin Kerr examined the nuances of these somewhat opaque statutory concepts way back in 2003.  But because this is not the point on which the Court granted review, expect at most a short concurring opinion, or footnote, about it.

Justice Kennedy did note that, in some cases, mistaken jury instructions might cause juror confusion, such that fairness would require that the government be bound by the error on appeal.  But, he continued, he didn’t “see that there’s a possibility [of juror confusion] here.”  And as Justice Sotomayor later noted, there is no case in which “we’ve held … anything close” to Musacchio’s position.  Jaffe offered various ways to “cabin” a ruling in Musacchio’s favor.  But such offers simply underlined what emerged as the highly fact-specific nature of his arguments, and no Justice appeared to “bite.”

Chief Justice John Roberts finally urged Jaffe to move to his statute of limitations argument – but then the Justices seemed even less inclined to rule for Musacchio there.  As Roman Martinez, Assistant to the Solicitor General (and former clerk to the Chief Justice) explained in his argument, it is fair and even necessary to relegate an unraised statute of limitations argument to a collateral habeas corpus challenge for ineffective assistance of counsel, because much of the evidence necessary to resolve the question (such as whether defense counsel’s failure to raise it was strategic or accidental, what his reasons were, and why the government reasons that the limitations period was satisfied) will not be in the trial record.  While there may be some extreme obvious cases to the contrary – Justice Alito hypothesized an indictment that came twenty-five years too late – Musacchio’s case is, again, not that case.

As for the jury instruction question, only Justice Kennedy voiced even a mild disagreement with one overbroad statement in the government’s brief, while conceding that “it’s frankly a style point rather than a substantive point.”  Martinez quickly agreed with Justice Kennedy’s style pointer – and he also wisely conceded other hypothetical possibilities, on both questions, not presented by the facts here.  Martinez also explained why the rule requiring the defendant to plead a criminal statute of limitations defense in the trial court is different from the Court’s prior ruling that a statute of limitations defense in a civil habeas case can’t be “waived” by a government’s failure to raise it.  The contexts, the applicable federal rules, the decisional history, and the interests, are all very different. No Justice appeared to take issue with this careful explanation.


The decision in this case will not be a “blockbuster,” but I expect it will provide some useful clarification on both questions, which address procedural issues that arise with some frequency in the lower federal courts.  The spirit of former Justice Byron White, who often argued that the Court’s most important role should be to resolve circuit splits, no matter how obscure, should be pleased.

Recommended Citation: Rory Little, Argument analysis: Few friendly faces in the crowd for computer fraud defendant, SCOTUSblog (Dec. 1, 2015, 10:16 PM),