Musacchio v. United States

(Slip Opinion) OCTOBER TERM, 2015 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

MUSACCHIO v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

No. 14–1095. Argued November 30, 2015—Decided January 25, 2016

Petitioner Musacchio resigned as president of Exel Transportation Ser-

vices (ETS) in 2004, but with help from the former head of ETS’s in-

formation-technology department, he accessed ETS’s computer sys-

tem without ETS’s authorization through early 2006. In November

2010, Musacchio was indicted under 18 U. S. C. §1030(a)(2)(C), which

makes it a crime if a person “intentionally accesses a computer with-

out authorization or exceeds authorized access” and thereby “obtains

. . . information from any protected computer.” (Emphasis added.)

He was charged in count 1 with conspiring to commit both types of

improper access and in count 23 with making unauthorized access

“[o]n or about” November 24, 2005. In a 2012 superseding indict-

ment, count 1 dropped the charge of conspiracy to exceed authorized

access, and count 2 changed count 23’s date to “[o]n or about” No-

vember 23–25, 2005. Musacchio never argued in the trial court that

his prosecution violated the 5-year statute of limitations applicable to

count 2. See §3282(a). At trial, the Government did not object when

the District Court instructed the jury that §1030(a)(2)(C) “makes it a

crime . . . to intentionally access a computer without authorization

and exceed authorized access” (emphasis added), even though the

conjunction “and” added an additional element. The jury found Mu-

sacchio guilty on counts 1 and 2. On appeal, he challenged the suffi-

ciency of the evidence supporting his conspiracy conviction and ar-

gued, for the first time, that his prosecution on count 2 was barred by

§3282(a)’s statute of limitations. In affirming his conviction, the

Fifth Circuit assessed Musacchio’s sufficiency challenge against the

charged elements of the conspiracy count rather than against the

heightened jury instruction, and it concluded that he had waived his

statute-of-limitations defense by failing to raise it at trial.

2 MUSACCHIO v. UNITED STATES

Syllabus

Held:

1. A sufficiency challenge should be assessed against the elements

of the charged crime, not against the elements set forth in an errone-

ous jury instruction. Sufficiency review essentially addresses wheth-

er the Government’s case was strong enough to reach the jury. A re-

viewing court conducts a limited inquiry tailored to ensuring that a

defendant receives the minimum required by due process: a “mean-

ingful opportunity to defend” against the charge against him and a

jury finding of guilt “beyond a reasonable doubt.” Jackson v. Virgin-

ia, 443 U. S. 307, 314–315. It does this by considering only the “le-

gal” 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. A reviewing court’s determination thus does not rest on

how the jury was instructed. The Government’s failure to introduce

evidence of an additional element does not implicate these principles,

and its failure to object to a heightened jury instruction does not af-

fect sufficiency review. Because Musacchio does not dispute that he

was properly charged with conspiracy to obtain unauthorized access

or that the evidence was sufficient to convict him of the charged

crime, the Fifth Circuit correctly rejected his sufficiency challenge.

Pp. 5–8.

2. A defendant cannot successfully raise §3282(a)’s statute-of-

limitations bar for the first time on appeal. Pp. 8–11.

(a) A time bar is jurisdictional only if Congress has “clearly

state[d]” that it is. Sebelius v. Auburn Regional Medical Center, 568

U. S. ___, ___. Here, the “text, context, and relevant historical treat-

ment” of §3282(a), Reed Elsevier, Inc. v. Muchnick, 559 U. S. 154,

166, establish that it imposes a nonjurisdictional defense that be-

comes part of a case only if a defendant raises it in the district court.

The provision does not expressly refer to subject-matter jurisdiction

or speak in jurisdictional terms. It thus stands in marked contrast to

§3231, which speaks squarely to federal courts’ general criminal sub-

ject-matter “jurisdiction” and does not “conditio[n] its jurisdictional

grant on” compliance with §3282(a)’s statute of limitations. Id., at

165. The history of §3282(a)’s limitations bar further confirms that

the provision does not impose a jurisdictional limit. See United

States v. Cook, 17 Wall. 168, 181; Smith v. United States, 568 U. S.

___, ___. Pp. 8–10.

(b) Because §3282(a) does not impose a jurisdictional limit, the

failure to raise the defense at or before trial is reviewable on appeal—

if at all—only for plain error. A district court’s failure to enforce an

unraised limitations defense under §3282(a) cannot be a plain error,

however, because if a defendant fails to press the defense, it does not

Cite as: 577 U. S. ____ (2016) 3

Syllabus

become part of the case and, thus, there is no error for an appellate

court to correct. Pp. 10–11.

590 Fed. Appx. 359, affirmed.

THOMAS, J., delivered the opinion for a unanimous Court.

Cite as: 577 U. S. ____ (2016) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 14–1095

_________________

MICHAEL MUSACCHIO, PETITIONER v.

UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

[January 25, 2016]

JUSTICE THOMAS delivered the opinion of the Court.

In this case, the Government failed to object to a jury

instruction that erroneously added an element that it had

to prove, and petitioner failed to press a statute-of-

limitations defense until his appeal. We address two

questions arising from the parties’ failures to raise timely

challenges. We first consider how a court should assess a

challenge to the sufficiency of the evidence in a criminal

case when a jury instruction adds an element to the

charged crime and the Government fails to object. We

conclude that the sufficiency of the evidence should be

assessed against the elements of the charged crime. We

next consider whether the statute-of-limitations defense

contained in 18 U. S. C. §3282(a) (the general federal

criminal statute of limitations) may be successfully raised

for the first time on appeal. We conclude that it may not be.

I

Petitioner Michael Musacchio served as president of a

logistics company, Exel Transportation Services (ETS),

until his resignation in 2004. In 2005, he formed a rival

company, Total Transportation Services (TTS). Musacchio

2 MUSACCHIO v. UNITED STATES

Opinion of the Court

was soon joined there by Roy Brown, who previously

headed ETS’s information-technology department. At TTS,

Brown, using a password, continued to access ETS’s com-

puter system without ETS’s authorization. Brown also

gave Musacchio access to ETS’s system. This improper

access of ETS’s system kept on until early 2006.

In November 2010, a grand jury indicted Musacchio

under 18 U. S. C. §1030(a)(2)(C). Under that provision, a

person commits a crime when he “intentionally accesses a

computer without authorization or exceeds authorized

access,” and in doing so “obtains . . . information from any

protected computer.” (Emphasis added.) The statute thus

provides two ways of committing the crime of improperly

accessing a protected computer: (1) obtaining access with-

out authorization; and (2) obtaining access with authoriza-

tion but then using that access improperly. See ibid.;

§1030(e)(6) (defining “exceeds authorized access”). Count

1 of the indictment charged Musacchio with conspiring to

commit both types of improper access. Count 23 charged

him with making unauthorized access to ETS’s e-mail

server “[o]n or about” November 24, 2005. App. 70–71.1

In 2012, the Government filed a superseding indictment

amending those charges. Count 1 dropped the charge of

conspiracy to exceed authorized access, limiting that

charge to conspiracy to make unauthorized access. Count

2 amended the allegations originally contained in count 23

by alleging that Musacchio accessed specific ETS e-mail

accounts “[o]n or about” November 23–25, 2005. Id., at

83–84. The Government later filed a second superseding

indictment that made no changes relevant here.

Musacchio proceeded to a jury trial. At no time before

or during trial did he argue that his prosecution violated

——————

1 Counts 2 through 22 charged other defendants with exceeding au-

thorized access to specific e-mail accounts. App. 68–70. Those defend-

ants pleaded guilty, and later indictments dropped those counts.

Cite as: 577 U. S. ____ (2016) 3

Opinion of the Court

the 5-year statute of limitations applicable to count 2. See

18 U. S. C. §3282(a) (providing general 5-year statute of

limitations).

For the Government’s part, it submitted proposed jury

instructions on the conspiracy count before and during the

trial. Each set of proposed instructions identified that

count as involving “Unauthorized Access to Protected

Computer[s],” and none required the jury additionally to

find that Musacchio conspired to exceed authorized access

to protected computers. Musacchio did not propose in-

structions on the conspiracy count.

Diverging from the indictment and the proposed in-

structions, the District Court instructed the jury on count

1 that §1030(a)(2)(C) “makes it a crime for a person to

intentionally access a computer without authorization and

exceed authorized access.” App. 168 (emphasis added).

The parties agree that this instruction was erroneous: By

using the conjunction “and” when referring to both ways of

violating §1030(a)(2)(C), the instruction required the

Government to prove an additional element. Yet the

Government did not object to this error in the instructions.

The jury found Musacchio guilty on both counts 1 and 2.

The District Court sentenced him to 60 months’ impris-

onment. Musacchio appealed, making the two challenges

that he again advances in this Court. First, he challenged

the sufficiency of the evidence supporting his conspiracy

conviction on count 1. He maintained, moreover, that the

sufficiency of the evidence should be assessed against the

erroneous jury instruction that included the additional

element. Second, he argued, for the first time, that his

prosecution on count 2—for unauthorized access—was

barred by the 5-year statute of limitations because the

superseding indictment was filed seven years after the

crime and did not relate back to the timely original

indictment.

The Fifth Circuit rejected both challenges and affirmed

4 MUSACCHIO v. UNITED STATES

Opinion of the Court

Musacchio’s conviction. 590 Fed. Appx. 359 (2014) ( per

curiam). First, the Court of Appeals concluded that it

should assess Musacchio’s sufficiency challenge against

the charged elements of the conspiracy count, not against

the erroneous jury instruction. See id., at 362–363. Un-

der Fifth Circuit precedent, the court explained, errone-

ously heightened jury instructions generally become the

binding “law of the case” on appeal. Id., at 362 (internal

quotation marks omitted). Circuit precedent supplies an

exception, however, when (1) the jury instruction is “ ‘pa-

tently erroneous,’ ” and (2) “ ‘the issue is not misstated in

the indictment.’ ” Ibid. (quoting United States v. Guevara,

408 F. 3d 252, 258 (CA5 2005)). The Fifth Circuit con-

cluded that those conditions for applying the exception

were satisfied. See 590 Fed. Appx., at 362–363. The court

explained that the instruction’s requirement of an addi-

tional element was “an obvious clerical error,” and that

the indictment correctly charged Musacchio only with

“Conspiracy To Make Unauthorized Access to [a] Protected

Computer.” Id., at 362. Therefore, the Fifth Circuit did

not assess Musacchio’s sufficiency challenge under the

heightened jury instruction. Id., at 362–363. Because

Musacchio did not dispute that the evidence was sufficient

to support a conviction under the elements set out in the

indictment, the Fifth Circuit rejected his challenge. Id., at

363.

Second, the Fifth Circuit rejected Musacchio’s statute-

of-limitations defense, concluding that he had “waived” the

defense by failing to raise it at trial. Id., at 363, 364.

We granted certiorari to resolve two questions that have

divided the lower courts. 576 U. S. ___ (2015). The first

question is whether the sufficiency of the evidence in a

criminal case should be measured against the elements

described in the jury instructions where those instruc-

tions, without objection, require the Government to prove

more elements than do the statute and indictment. Com-

Cite as: 577 U. S. ____ (2016) 5

Opinion of the Court

pare, e.g., United States v. Romero, 136 F. 3d 1268, 1272–

1273 (CA10 1998) (explaining that sufficiency is measured

against heightened jury instructions), with Guevara,

supra, at 258 (CA5) (adopting an exception to that rule).

The second question is whether a statute-of-limitations

defense not raised at or before trial is reviewable on ap-

peal. Compare, e.g., United States v. Franco-Santiago, 681

F. 3d 1, 12, and n. 18 (CA1 2012) (limitations defense not

raised and preserved before or at trial is reviewable on

appeal for plain error), with United States v. Walsh, 700

F. 2d 846, 855–856 (CA2 1983) (limitations defense not

properly raised below is not reviewable on appeal).

II

We first address how a court should assess a sufficiency

challenge when a jury instruction adds an element to the

charged crime and the Government fails to object. We

hold that, when a jury instruction sets forth all the ele-

ments 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.

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 evi-

dence in the light most favorable to the prosecution, any

6 MUSACCHIO v. UNITED STATES

Opinion of the Court

rational trier of fact could have found the essential ele-

ments of the crime beyond a reasonable doubt.” Id., at 319

(emphasis in original). That limited review does not in-

trude 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 ele-

ments 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 evi-

dence 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 evi-

dence 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.2

——————

2 In resolving the first question presented, we leave open several mat-

ters. 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 errone-

ous jury instruction cannot result in reversible error just because the

evidence was sufficient to support a conviction.

Cite as: 577 U. S. ____ (2016) 7

Opinion of the Court

Musacchio does not contest that the indictment here

properly charged him with the statutory elements for

conspiracy to obtain unauthorized access. The jury in-

structions required the jury to find all of the elements of

that charged offense beyond a reasonable doubt. Nor does

he dispute that the evidence was sufficient to convict him

of the crime charged in the indictment—of conspiring to

make unauthorized access. Accordingly, the Fifth Circuit

correctly rejected his sufficiency challenge.

The Fifth Circuit erred, however, in basing that conclu-

sion on the law-of-the-case doctrine. See 590 Fed. Appx.,

at 362–363. That doctrine does not apply here. The law-

of-the-case doctrine generally provides that “ ‘when a court

decides upon a rule of law, that decision should continue

to govern the same issues in subsequent stages in the

same case.’ ” Pepper v. United States, 562 U. S. 476, 506

(2011) (quoting Arizona v. California, 460 U. S. 605, 618

(1983)). The doctrine “expresses the practice of courts

generally to refuse to reopen what has been decided,” but

it does not “limit [courts’] power.” Messenger v. Anderson,

225 U. S. 436, 444 (1912). Thus, the doctrine may describe

an appellate court’s decision not to depart from a ruling

that it made in a prior appeal in the same case. See C.

Wright et al., 18B Federal Practice and Procedure §4478,

p. 646, and n. 16 (2d ed. 2002) (collecting cases). But the

doctrine is “something of a misnomer” when used to de-

scribe how an appellate court assesses a lower court’s

rulings. United States v. Wells, 519 U. S. 482, 487, n. 4

(1997). An appellate court’s function is to revisit matters

decided in the trial court. When an appellate court re-

views a matter on which a party failed to object below, its

review may well be constrained by other doctrines such as

waiver, forfeiture, and estoppel, as well as by the type of

challenge that it is evaluating. But it is not bound by

district court rulings under the law-of-the-case doctrine.

That doctrine does not bear on how to assess a sufficiency

8 MUSACCHIO v. UNITED STATES

Opinion of the Court

challenge when a jury convicts a defendant after being

instructed—without an objection by the Government—

on all charged elements of a crime plus an additional

element.

III

We now consider whether a defendant may successfully

raise the statute-of-limitations bar in 18 U. S. C. §3282(a)

for the first time on appeal. Musacchio argues that he

may do so, either because §3282(a) imposes a nonwaivable

limit on federal courts’ subject-matter jurisdiction or

because a previously unraised limitations claim may

constitute plain error that can be noticed on appeal. We

disagree with both points, and hold that a defendant

cannot successfully raise this statute-of-limitations bar for

the first time on appeal.

A

Statutes of limitations and other filing deadlines “ordi-

narily are not jurisdictional.” Sebelius v. Auburn Regional

Medical Center, 568 U. S. ___, ___ (2013) (slip op., at 8).

We treat a time bar as jurisdictional only if Congress has

“clearly stated” that it is. Id., at ___ (slip op., at 6–7);

(brackets and internal quotation marks omitted); see, e.g.,

Henderson v. Shinseki, 562 U. S. 428, 436, 439 (2011)

(requiring a “clear indication” that a statute is jurisdic-

tional (internal quotation marks omitted)). To determine

whether Congress has made the necessary clear state-

ment, we examine the “text, context, and relevant histori-

cal treatment” of the provision at issue. Reed Elsevier,

Inc. v. Muchnick, 559 U. S. 154, 166 (2010).

Congress has not made such a clear statement here.

Rather, the statutory text, context, and history establish

that §3282(a) imposes a nonjurisdictional defense that

becomes part of a case only if a defendant raises it in the

district court.

Cite as: 577 U. S. ____ (2016) 9

Opinion of the Court

The statutory text suggests that §3282(a) does not im-

pose a jurisdictional limit. Section 3282(a) provides:

“Except as otherwise expressly provided by law, no

person shall be prosecuted, tried, or punished for any

offense, not capital, unless the indictment is found or

the information is instituted within five years next af-

ter such offense shall have been committed.”

Although §3282(a) uses mandatory language, it does not

expressly refer to subject-matter jurisdiction or speak in

jurisdictional terms. The text of §3282(a) does not, there-

fore, provide a “clear indication that Congress wanted that

provision to be treated as having jurisdictional attributes.”

Henderson, supra, at 439.

Context confirms that §3282(a) does not impose a juris-

dictional limit. Federal courts’ general criminal subject-

matter jurisdiction comes from 18 U. S. C. §3231, which

states: “The district courts . . . shall have original jurisdic-

tion . . . of all offenses against the laws of the United

States.” Section 3231 speaks squarely to federal courts’

“jurisdiction,” in marked contrast to §3282(a), which does

not mention “jurisdiction” or a variant of that term. And,

nothing in §3231 “conditions its jurisdictional grant on”

compliance with §3282(a)’s statute of limitations. Reed

Elsevier, supra, at 165. This context supports the conclu-

sion that §3282(a) is not jurisdictional.

The history of the limitations bar in §3282(a) demon-

strates that it is a defense that becomes part of a case only

if the defendant presses it in the district court. This Court

held in United States v. Cook, 17 Wall. 168 (1872), that a

statute of limitations—identical in all relevant respects to

§3282(a)—was “a matter of defence and must be pleaded

or given in evidence by the accused.” Id., at 181; see §32, 1

Stat. 119 (statute of limitations); see also Cook, supra, at

173, and n. * (citing and describing statute of limitations).

When a defendant introduces the limitations defense into

10 MUSACCHIO v. UNITED STATES

Opinion of the Court

the case, the Government then has “the right to reply or

give evidence” on the limitations claim. 17 Wall., at 179.

Cook was decided more than 140 years ago, and we have

adhered to its holding. Just three Terms ago, we reaf-

firmed that “[c]ommission of [a federal] crime within the

statute-of-limitations period is not an element of the . . .

offense,” and “it is up to the defendant to raise the limita-

tions defense.” Smith v. United States, 568 U. S. ___, ___

(2013) (slip op., at 6) (citing Cook; emphasis deleted); see

also Biddinger v. Commissioner of Police of City of New

York, 245 U. S. 128, 135 (1917) (“The statute of limitations

is a defense and must be asserted on the trial by the de-

fendant in criminal cases . . . ” (citing Cook)). There is, in

sum, a long history of treating the operative language in

§3282(a) as providing a nonjurisdictional defense that a

defendant must press at trial to insert into the case.

In keeping with §3282(a)’s text, context, and history, we

conclude that §3282(a) provides a nonjurisdictional de-

fense, not a jurisdictional limit.

B

Because §3282(a) does not impose a jurisdictional limit,

the failure to raise it at or before trial means that it is

reviewable on appeal—if at all—only for plain error. See

Fed. Rule Crim. Proc. 52(b) (providing for consideration of

“[a] plain error that affects substantial rights” even

though the error “was not brought to the court’s atten-

tion”). We conclude, however, that a district court’s failure

to enforce an unraised limitations defense under §3282(a)

cannot be a plain error.3

——————

3 Because we conclude that the failure to enforce §3282(a)’s limita-

tions defense cannot be plain error, we do not resolve whether the

failure to raise that defense in the District Court amounts to waiver

(which some courts have held to preclude all appellate review of the

defense) or forfeiture (which some courts have held to allow at least

plain-error review). See United States v. Franco-Santiago, 681 F. 3d 1,

Cite as: 577 U. S. ____ (2016) 11

Opinion of the Court

As explained above, a statute-of-limitations defense

becomes part of a case only if the defendant puts the

defense in issue. When a defendant presses a limitations

defense, the Government then bears the burden of estab-

lishing compliance with the statute of limitations by pre-

senting evidence that the crime was committed within the

limitations period or by establishing an exception to the

limitations period. See Cook, supra, at 179. When a

defendant fails to press a limitations defense, the defense

does not become part of the case and the Government does

not otherwise have the burden of proving that it filed a

timely indictment. When a defendant does not press the

defense, then, there is no error for an appellate court to

correct—and certainly no plain error.

A defendant thus cannot successfully raise the statute-

of-limitations defense in §3282(a) for the first time on

appeal. The Fifth Circuit correctly refused to consider

Musacchio’s limitations defense here.

* * *

For the foregoing reasons, we affirm the judgment of the

Fifth Circuit.

It is so ordered.

——————

12, n. 18 (CA1 2012) (collecting cases).