Opinion analysis: A straightforward opinion settles two federal criminal law questions
on Jan 26, 2016 at 11:33 am
As seemed clear to me from the oral argument, the Court yesterday unanimously ruled for the government on two questions of federal criminal law. Justice Clarence Thomas’s crisp fourteen-page opinion for the Court carefully avoids controversy. Indeed, more interesting than the answers, perhaps, are the questions affirmatively left “open” in Musacchio v. United States. Within an often-divided Supreme Court, expressly leaving questions open is sometimes the price necessary to retain unanimity.
Two straightforward rulings
Before reviewing the specific facts, here are the two rulings in this case (with a law professor’s immodest editing):
First, “when a jury instruction [correctly] sets forth all the elements of a charged crime but incorrectly adds” another fact or “element” not required by the statute, an appellate challenge to the sufficiency of the evidence under Jackson v. Virginia “should be assessed against the elements of the charged crime, not against the erroneously heightened” elements “in the [erroneous] jury instruction.”
And second, the general five-year statute of limitations for federal criminal cases “imposes a nonjurisdictional defense, not a jurisdictional limit.” As such, it must be affirmatively raised by a defendant in the trial court, and “cannot” be raised “for the first time on appeal.” Indeed, says the Court, it “cannot [even] be plain error.” The breadth of this last point, however, is still left a bit murky – clearly Justice Thomas wanted to keep the opinion short.
Mussachio left a company (ETS), of which he was president, to start a competing entity. He was soon joined by Roy Brown, the former head of ETS’s IT department. For some months (until early 2006), and without authorization from ETS, Brown and Musacchio continued to use a password from their former company to access ETS’s computer system.
Four years after the unauthorized access was discovered (and thus within the five-year statute of limitations), Brown and Musacchio were federally indicted for conspiring both to access ETS’s computers “without authorization” and for “exceeding” access. The relevant criminal statute prohibits both methods of accessing a computer system: whoever “intentionally accesses without authorization or exceeds authorized access” can be guilty.
The “or” in this statute is the fulcrum of the case. Two years later (which was six years after the access stopped and thus more than five years after the offense), a superseding indictment was returned, dropping the charge of “exceeding” authorized access and limiting the criminal charges only to accessing “without authorization.” With regard to the statute of limitations, Musacchio argued on appeal (but never raised it in the trial court), that other changes in the superseding indictment were substantive amendments such that it could not “relate back” to the first indictment that was filed within the five-year statute.
At the end of Musacchio’s jury trial, the government submitted proposed jury instructions that correctly identified the charge as accessing computers “without authorization.” However, in a complicated set of instructions to which neither side objected, the district court incorrectly instructed the jury at one point that the charged crime was “to intentionally access a computer without authorization and exceed authorized access.” Thus the jury was asked to find an additional fact (or “element”) that neither the indictment nor the statute required for conviction here: “exceeding” access, in addition to accessing “without authorization.”
On appeal, Musacchio made two arguments. First, because the superseding indictment had been filed outside the five-year limitations period, the charges should be dismissed. And second, the evidence was insufficient to find that he had “exceeded” access, even if it was sufficient to find that he had accessed “without authorization”; and because the jury had been instructed that it must find both “elements,” his conviction should be vacated under Jackson v. Virginia (in which the Court held that a conviction must be vacated when an appellate court finds that no rational juror could have found the evidence on an element sufficient to have proved it beyond reasonable doubt).
The Fifth Circuit rejected both arguments. It found that although an erroneously heightened jury instruction can become binding “law of the case,” there is an exception when the jury instruction is patently erroneous and the correct elements were stated in the indictment. That exception applied here. As for the statute of limitations, the Fifth Circuit ruled that the failure of a defendant to raise it in the trial court “waives” it on appeal.
The Court’s opinion – What it held, and what it did not
First, an appellate court reviewing the evidence at trial for constitutional sufficiency has a “limited” role, one that “does not rest on how the jury was instructed.” The only question under Jackson is whether “a rational trier of fact could have found the essential elements of the crime beyond reasonable doubt.” Here, Musacchio does not contest the sufficiency of evidence on “without authorization,” and because that is all that the statute and the indictment required, for the crime charged in this case, any evidentiary failure on unrequired, additional “elements” is irrelevant.
Moreover, the Fifth Circuit’s reference to “law of the case” doctrine is erroneous, because while legal rulings by the district court may bind the case at that level, they have no binding power on appellate review. Indeed, “[a]n appellate court’s function is to revisit matters decided by the trial court.”
Significantly, in footnote 2 the Court expressly “leave[s] open” three issues; one can imagine other Justices suggesting that Justice Thomas expressly mention these lest they write separately. First, what happens if the indictment also incorrectly adds an “element” not required by the statute? Second, it is not necessarily adding an “element” when “different means of committing a crime” are alleged “in the conjunctive.” And third (perhaps one for the Court’s more liberal Justices here?), “we do not suggest that an erroneous jury instruction cannot result in reversible error just because the evidence was sufficient.” This last issue seems self-evident, no? But someone wanted it said.
As for the statute of limitations, the statute does not clearly state that it is jurisdictional, and the Court says that “context confirms” this because other statutes expressly do mention jurisdiction. “History” (that is, cases going back to at least 1872) also demonstrates that the federal limitations statute “is a defense that becomes part of the case only if the defendant” (or presumably, as a few Justices suggested at oral argument, a judge of his or her own accord) raises it. In fact, the Court said this “just three Terms ago” in Smith v. United States: a limitations period “is not an element of the offense, and it is up to the defendant to raise it.”
The Court goes on to say that exceeding a limitations period cannot be even “plain error” noticed on appeal, if no objection is raised below. The Court expressly reserves the question whether the failure to raise a statute of limitation in the trial court is “waiver” or “forfeiture” and what those labels might mean. But, the Court says, “when a defendant does not press the defense, then, there is no error for an appellate court to correct – and certainly no plain error.” (I note that the Court twice says “press” rather than “raise.” Whether this is merely word choice, or actually masks some disagreement within the Court, is unaddressed.)
In any case, this final “no plain error” conclusion is not explained in detail. But I think it fails to fully explain itself. Federal Rule of Criminal Procedure 52(b) allows consideration of a “plain error that affects substantial rights” even if “not brought to the court’s attention.” There is case law probing the meaning of this rule that is not discussed in this short opinion. Presumably no one disagreed. But the Court’s summary treatment does not answer a good question posed by Justice Samuel Alito at oral argument: what if an indictment were filed “25 years after the event” but not challenged by the defense, and when the government was asked (by a court of appeals), “do you have any explanation?” it responded, “we can’t think of anything.” What then?
The government’s immediate response to Justice Alito at argument was “wait til habeas.” And when pressed by Justice Sonia Sotomayor, Assistant to the Solicitor General Roman Martinez said that “habeas relief may well be appropriate.” Martinez also suggested that “there are sometimes strategic reasons for not raising the defense.” The Court’s short, unanimous opinion yesterday did not address Justice Alito’s question or the government’s additional suggestions. But its broad assertion suggested no equivocation: the failure to raise a statute of limitations defense in the trial court “cannot be plain error” on appeal.
The Court’s workmanlike opinion in this case leaves no doubt about the answers to the clear questions presented. And Justice Thomas efficiently leaves open questions that are unnecessary to the decision. However, I often tell my students that the Court’s weakest decisions are often the unanimous ones, because there is no Justice smartly “testing” the majority’s statements in dissent. Later cases with different facts sometimes suggest that unexamined statements in unanimous opinions were too broad – and Justices have to scramble to “distinguish” rather than overrule. Later generations will have to judge whether this case will fall into that category. For now it provides short, clear, and uncontroversial guidance to lower federal courts.