Sunday, February 7, 2016

Sufficiency of Evidence under Musacchio

Musacchio v. United States, decided by a unanimous Supreme Court last month, seems to have been met with a general "meh." But we thought it might be useful to look a little closer---and see what the Court did not decide.

The government indicted Mr. Musacchio for improperly accessing his former employer's computer. The original indictment charged him with both unauthorized access and exceeding authorized access. A superseding indictment dropped the exceeding-authorized-access language. But the district court instructed the jurors that they had to find both unauthorized access and exceeding authorized access. In other words, the court held the government to a higher standard of proof than necessary in its instructions, by adding an uncharged element. On appeal, Mr. Musacchio challenged the sufficiency of the government's evidence to establish that added, uncharged element, arguing that the evidence had to be measured against the jury instructions rather than against the charged elements. The High Court disagreed, holding 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."

And that is all that the Court held, as it emphasized in footnote 2:

In resolving the first question presented, we leave open several matters.
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.

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