Opposition Brief — Musacchio v. United States, 135 S. Ct. 2889 (2015) (No. 14-1095)

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Supreme Court, U.S.

FILED

MAY 22 2015

No. 14-1095 | OFFICE OF THE CLEPK |

In the Supreme Court of the Cinited States

MICHAEL MUSACCHIO, PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

DONALD B. VERRILLI, JR.

Solicitor General

Counsel of Record

LESLIE R. CALDWELL

Assistant Attorney General

PRAVEEN KRISHNA

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCt Briefs(usdoj.gov

202) 514-2217

QUESTIONS PRESENTED

1. Whether a sufficiency-of-the-evidence challenge

to a criminal conviction is properly analyzed in light of

the statutory elements of the offense charged in the

indictment, where a jury instruction to which the

government did not object added a patently erroneous

element to the charged offense.

2. Whether a statute-of-limitations defense is waived

on direct appeal, absent good cause, if not raised before

trial.

(I)

TABLE OF CONTENTS

Page

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STITT es iiscuretiicijanendundituniniccuniieeabiinatitaaiiditiianeiipnemininntenndenetetnniieeaneia 1

ITT iasssasiyinsinsinleinrepsieninensbiicedesanbaaiiinnsedniinadipmnaiintminiteninnciitensis l

Bein ncssnenennincerneniionnmnsennsstanteiennnninenmnasnanammanmnneinmasneatil 6

Ee ee ee 20

TABLE OF AUTHORITIES

Cases:

Agostini v. Felton, 521 U.S. 203 (1997) .....csccsecseseseseeerensees 10

Arizona v. California, 460 U.S. 605 (1983) .............000000 10, 16

Berry v. United States, 583 U.S. 953 (2001) ...............cccc000 17

Biddinger v. Commissioner of Police, 245 U.S. 128

I itch tatiana alias aan cietpamrmmieenneins 17

Bishop v. Smith, 760 F.3d 1070 (10th Cir.),

cert. denied, 135 S. Ct. 271 (2014) ..............ccccsseseseesseeeererees 16

Ciavarella v. United States, 134 S. Ct. 1491 (2014)............ 17

Henderson v. United States, 133 S. Ct. 1121 (2013)........... 12

Jackson v. Virginia, 443 U.S. 307 (1979) .........c.ccccceeceseseees 6, 7

Johnson v. Champion, 288 F.3d 1215 (10th Cir. 2002) ......16

Johnson v. United States, 520 U.S. 461 (1997)...............000 12

Pepper v. United States, 562 U.S. 476 (2011) ............0-+ 10, 16

Puckett v. United States, 556 U.S. 129 (2009) ................004 18

Smith v. United States, 133 S. Ct. 714 (2013)................0000 17

United States v. Arky, 938 F.2d 579 (5th Cir. 1991),

cert. denied, 503 U.S. 908 (1992)............cccccccsssssesseeseeneeecensees 5

United States v. Ausler, 395 F.3d 918 (8th Cir.),

cert. denied, 546 U.S. 861 (2005) ..........ccccccecsesesseseneeneneees 13

Usited States v. Cook, 84 U.S. (17 Wall.) 168 (1872) .......... 17

United States v. Franco-Santiago, 681 F.3d 1

I eibibdapietlinaeditiaeliniaaeeanadiesntiniaiiinstel 17

Cases—Continued: Page

United States v. Guevara, 408 F.3d 252 (5th Cir.

2005), cert. denied, 546 U.S. 1115 (2006) ....................... 5, 11

United States v. Inman, 558 F.3d 742 (8th Cir.),

cert. denied, 558 U.S. 916 (2009)................... 9, 11, 12, 13, 14

United States v. Johnson, 652 F.3d 918

EEE a se a 14

United States v. Jokel, 969 F.2d 132 (Sth Cir. 1992)............. 4

United States v. Kamahele, 748 F.3d 984

ESTES EES aT eee = nee eC 16

United States v. Marcus, 560 U.S. 258 (2010)............... 18, 19

United States v. Olano, 507 U.S. 725 (1998) .......cccccccecceeeeee 12

United States v. Prentiss, 256 F.3d 971

I eielatg 15

United States v. Romero, 136 F.3d 1268

at cecal 15

United States v. Schmick, 904 F.2d 936 (5th Cir.

1990), cert. denied, 498 U.S. 1067 (1991) ..........cccccccccceeeees 19

United States v. Sisk, 87 Fed. Appx. 323

tite 11

United States v. Staples, 435 F.3d 860 (8th Cir.),

cert. denied, 549 U.S. 862 (2006)...............cccececeseseseeeseseseeees 13

United States v. Torres-Villalobos, 487 F.3d 607

erasing 14

United States v. Wells, 519 U.S. 482 (1997) ........ccccccssssecceeeee 8

United States v. Zanghi, 189 F.3d 71 (1st Cir. 1999),

cert. denied, 528 U.S. 1097 (2000)..................cccc000 10, 11, 15

Whalen v. United States, 445 U.S. 684 (1980) 00.0002... i)

Winship, In re, 397 U.S. 358 (1970) ........cccccccseseseceseseseneeeneees 7

Wisniewski v. United States, 353 U.S. 901 (1957).............. 15

Constitution, statutes and rule: Page

Co Ct, BNE, WE vcccccencsecvintccentitnisinennciininnteramaiugpiaanaaaal 14

es Ci ccecnscintecormsecsusinsninisendtineasiiisiiipiiasensissaniiaesiaail 2,7

OD G. CR iccscucecsssersstuiiciesitcsnttiiennssenniaiiiseiienainndinesiinmmmaaaial 8

18 U.S.C. 1080(a)(2)(C) (2006) ........cccceesceseseeseeseenes 2,3, 5, 6,7

ire. He cicticcsccsiceininnitniantantetorietsintenisesgennniial 3,7

18 U.S.C. 1030(c)(2)(B)(i) (2006)... ccceceeeeeeeeeeeeeeeeeeeeneeeneens 2

18 U.S.C. 1080(c)(2)(B)(iii) (2006) 2... eee ceeeeeteeeeeeeeeneeee 2

a BE cntccscsivicicsictnntsesiisstentsiajuiiiniiaptigesiaianiunel 4,18

PE, Te SITU, We Ce cecescernnsicicincciainhniiasiiptascsetiipeitatetpibintaiaiaaaa 11

Miscellaneous:

18 Charles Alan Wright et al., Federal Practice and

Prana Ga Oi. Te cectcescsavssnanininenisninarinininapinanings 8

In the Supreme Court of the United States

No. 14-1095

MICHAEL MUSACCHIO, PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. Al-

A16) is not published in the Federal Reporter but is

reprinted in 590 Fed. Appx. 359.

JURISDICTION

The judgment of the court of appeals was entered

on November 10, 2014. A petition for rehearing was

denied on December 9, 2014 (Pet. App. C1-C2). The

petition for a writ of certiorari was filed on March 9,

2015. The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District

Court for the Northern District of Texas, petitioner

was convicted on one count of conspiracy to access

without authorization a protected computer, in vio-

(1)

lation of 18 U.S.C. 371 and 18 U.S.C. 1030(a)(2)(C)

(2006); and on two counts of the underlying

unauthorized-access offense, in violation of 18 U.S.C.

1030(a)(2)(C) (2006). Pet. App. B1-B2. He was

sentenced to a total of 63 months of imprisonment, to

be followed by three years of supervised release. /d.

at B3, B5. The court of appeals affirmed. /d. at Al-

Al6.

1. Until 2004, petitioner was president of Extel

Transportation Services (ETS), a shipping-logistics

company. In 2005, petitioner formed a rival company,

Total Transportation Services (TTS). Pet. App. Al;

Gov't C.A. Br. 3-4. After recruiting employees in

ETS’s information-technology department, petitioner

accessed ETS’s e-mail servers for TTS’s benefit. Pet.

App. Al-A2; Gov’t C.A. Br. 3-6.

In 2010, a grand jury returned an indictment

against petitioner charging him with, inter alia,

(1) conspiracy to obtain unauthorized access to a

protected computer and to exceed authorized access to

a protected computer, in violation of 18 U.S.C. 371 and

18 U.S.C. 1030(a)(2)(C) (2006); (2) unauthorized access

of ETS’s e-mail server on or about November 24,

2005, in violation of 18 U.S.C. 1030(a)(2)(C),

(c)(2)(B)(i) and (iii) (2006); and (3) unauthorized access

of the e-mail account of ETS’s legal counsel on or

about January 21, 2006, also in violation of 18 U.S.C.

1030(a)(2)(C), (¢)(2)(B)(i) and (iii) (2006). Pet. App.

A2-A3; Gov't C.A. Br. 6-7.

In 2012, the government filed a superseding in-

dictment clarifying that the conspiracy charge in-

volved unauthorized access to a protected computer

and no longer alleging “exceed authorized access” in

the count’s summary of the offense. Pet. App. A2; see

id. at A2-A3. The superseding indictment also modi-

fied the charge relating to petitioner’s unauthorized

access of ETS’s computers in November 2005. Specif-

ically, it identified the targets of the access as the e-

mail accounts of ETS’s president and legal counsel,

and it changed the offense date to on or about No-

vember 23 to 25, 2005. Jd. at A2-A3. In 2013, the

government filed a second superseding indictment

that kept those changes. /d. at A3.

Petitioner proceeded to a jury trial. On the con-

spiracy count, the district court instructed the jury

that 18 U.S.C. 1030(a)(2)(C) (2006), the statute provid-

ing the object of the conspiracy, “makes it a crime for

a person to intentionally access a protected computer

without authorization and exceed authorized access.”

Pet. App. A6 (emphasis added). That jury instruction

was erroneous: Section 1030(a)(2)(C) makes clear that

a person can violate the statute (1) by intentionally

accessing a protected computer without authorization

or (2) by intentionally exceeding authorized access. 18

U.S.C. 1030(a)(2)(C) (2006); Pet. App. A5; see Pet. 4

(noting that these are “two discrete means of commit-

ting the crime).' By using the conjunction “and,” the

instruction appeared to require the government to

prove an extra element to establish the crime. Pet.

App. A5. Neither the government nor petitioner ob-

jected to that error in the charge. /d. at A3.

The jury convicted petitioner on all three counts.

Pet. App. B1-B2. The district court imposed concur-

' Section 1030(a)(2)(C) provides, in relevant part, that “[w]hoever

* * * intentionally accesses a computer without authorization or

exceeds authorized access, and thereby obtains * * * information

from any protected computer * * * shall be punished as provided

in [18 U.S.C. 1080(c)).” 18 U.S.C. 1030(a)(2)(C) (2006).

rent terms of 60 months of imprisonment for the con-

spiracy count and the first unauthorized-access count,

and a consecutive term of three months of imprison-

ment for the remaining unauthorized-access count, to

be followed by three years of supervised release. /d.

at B3, B5.

2. On appeal, petitioner raised two arguments that

are relevant to his petition for certiorari. First, peti-

tioner argued that the evidence was insufficient to

support his conviction on the conspiracy count. He did

not dispute that the evidence was sufficient to prove

the charged offense of conspiracy to obtain unauthor-

ized access to ETS’s computers. See Pet. App. A5.

But he asserted that the erroneous jury instruction

was “law of the case” on direct appeal and that the

evidence was insufficient to prove a conspiracy to

“exceed authorized access” to ETS’s computers. /bid.

Second, petitioner argued that his prosecution for the

November 2005 unauthorized-access offense was

barred by the five-year statute of limitations in 18

U.S.C. 3282(a). Pet. App. A8. The court of appeals

rejected those arguments and affirmed the conviction

in an unpublished, per curiam opinion. /d. at Al-A15.

a. The court of appeals declined to apply law-of-

the-case principles to evaluate his challenge to the

sufficiency of the evidence under a patently incorrect

jury instruction. Pet. App. A5-A7. The court

acknowledged that, “[i]n general,” unobjected-to jury

instructions that increase the government’s burden

are generally treated as “law of the case” on direct

appeal. /d. at A5-A6 (citing United States v. Jokel,

969 F.2d 132, 136 (5th Cir. 1992) (per curiam)). But

the court also noted that this rule does not apply

where (1) the jury instructions are “patently errone-

ous,” and (2) “the issue is not misstated in the indict-

ment.” Jd. at A6 (quoting United States v. Guevara,

408 F.3d 252, 258 (5th Cir. 2005), cert. denied, 546

U.S. 1115 (2006)).

The court of appeals explained that both of those

conditions were satisfied here. The court noted that

the second superseding indictment correctly stated

the conspiracy charge, and it emphasized that the jury

instructions incorrectly required the government to

prove both that petitioner had conspired to access a

computer without authorization and that petitioner

had conspired to exceed authorized access. Pet. App.

A5-A7. The court observed that the instruction’s

“replacement of ‘or’ with ‘and’ was an obvious clerical

error, not a possible alternative description of the

offense.” Jd. at A6. The court noted that petitioner

“does not dispute the sufficiency of the evidence” with

respect to unauthorized access of the computers at

issue, and it rejected petitioner’s insufficiency chal-

lenge on that basis. Jd. at A7.”

b. The court of appeals also rejected petitioner’s

statute-of-limitations argument with respect to the

November 2005 unauthorized-access offense. Pet.

App. A8-A9. The court explained that petitioner had

waived any statute-of-limitations defense by failing to

raise it at trial. /bid. (citing United States v. Arky,

® Judge Haynes concurred in the court of appeals’ judgment with

respect to the conspiracy charge, but declining to address the

merits of petitioner’s “law of the case” argument. Pet. App. A16.

She held that even if the jury instruction was binding, the evidence

was sufficient to establish that petitioner violated “both prongs

(‘exceeds authorized use’ and ‘unauthorized access’)” of Section

1030(a)(2(C). Ibid.

938 F.2d 579, 582 (5th Cir. 1991) (per curiam), cert.

denied, 503 U.S. 908 (1992)).

ARGUMENT

Petitioner contends (Pet. 10-24) that the court of

appeals erred by rejecting his sufficiency-of-the-

evidence and statute-of-limitations claims. Neither

issue warrants this Court’s review.

1. Petitioner argues (Pet. 10-20) that the evidence

was insufficient to support his conviction for conspira-

cy to violate 18 U.S.C. 1030(a)(2)(C) (2006). Specifical-

ly, he asserts (Pet. 19-20) that under the “law of the

case” doctrine, the government should be held to an

extra, erroneous element in the jury instructions that

required the government to establish that he con-

spired to exceed authorized access, even though he

concedes that the evidence was sufficient support the

jury’s finding that he conspired to obtain unauthorized

access. See Pet. App. A5, A7. Petitioner is wrong to

argue that the sufficiency of the evidence in this case

must be measured against the erroneous but unob-

jected-to jury instruction, instead of against the statu-

tory elements of the crime. The judgment of the court

of appeals is correct, and no clear split of authority

among the courts of appeals warrants this Court’s

review.

a. When a criminal defendant challenges a convic-

tion on grounds of insufficient evidence, a reviewing

court must consider “whether, after viewing the evi-

dence in the light most favorable to the prosecution,

any rational trier of fact could have found the essen-

tial elements of the crime beyond a reasonable doubt.”

Jackson v. Virginia, 443 U.S. 307, 319 (1975). The

purpose of that analysis is “to guarantee the funda-

mental protection of due process of law,” ibid. (foot-

note omitted), by ensuring that the defendant’s guilt

has been established by “proof beyond a reasonable

doubt of every fact necessary to constitute the crime

with which he is charged,” Jn re Winship, 397 U.S.

358, 364 (1970).

Here, petitioner was charged with conspiracy to

gain unauthorized access to a protected computer, in

violation of 18 U.S.C. 371 and 18 U.S.C. 1030(a)(2)(C)

(2006). Pet. App. A2-A3; Second Superseding Indict-

ment 4 (Jan. 8, 2013). Section 1030 (a)(2)(C) provides,

in relevant part, that “[wJhoever * * * intentionally

accesses a computer without authorization * * * and

thereby obtains * * * information from any protected

computer * * * shall be punished as provided in [18

U.S.C. 1030(c)].” 18 U.S.C. 1080(a)(2)(C) (2006).

Petitioner does not dispute that the evidence was

sufficient to establish that he conspired to intentional-

ly access a computer without authorization and there-

by obtained information from that protected comput-

er. Pet. App. A5, A7. Nor does he dispute that the

jury instructions correctly required the jury to find

that the government had established each of these

statutory elements. See Pet. 5-6. The jury therefore

“could have found”—and did find—“the essential

elements of the crime beyond a reasonable doubt.”

Jackson, 443 U.S. at 319. Petitioner’s conviction on

the conspiracy charge was consistent with due process

of law, and the court of appeals’ judgment upholding

that conviction was correct.

b. Petitioner argues (Pet. 19-20) that the evidence

was insufficient not because the government failed to

establish the statutory elements of the offense, but

rather because the government failed to establish an

extra element that was erroneously included in the

jury instructions. According to petitioner (Pet. 19-20),

the government’s failure to object to the erroneous

instruction rendered that instruction the “law of the

case,” and heightened the government’s burden, on

appellate review for purposes of considering the suffi-

ciency of the evidence on appeal.

Petitioner is mistaken. In United States v. Wells,

519 U.S. 482 (1997), this Court acknowledged that

several courts of appeals had ruled that “when the

[glovernment accepts jury instructions treating a fact

as an element of an offense, the ‘law of the case’ doc-

trine precludes the [glovernment from denying on

appeal that the crime includes the element.” Jd. at

487.* But the Court nonetheless held that the law-of-

the-case doctrine did not preclude the government

from arguing that materiality was not an element of

the offense of making false statements to a bank, in

violation of 18 U.S.C. 1014, even though the govern-

ment had asked the district court to instruct the jury

that withholding a “material” fact made a statement

false, thus effectively treating materiality as an “ele-

ment.” Wells, 519 U.S. at 485-488 & nn.4-5. The

Court explained that, whatever utility the “law of the

case” doctrine may have for the courts of appeals, it is

insufficient to prevent the Court from applying its

traditional rule permitting review of a legal issue that

had been resolved in the court of appeals. /d. at 487-

488.

* This Court observed that “[{i]n this context, the ‘law of the case’

doctrine is something of a misnomer. It does not counsel a court to

abide by its own prior decision in a given case, but goes rather to

an appellate court’s relationship to the court of trial.” Wells, 519

U.S. at 487 n.4 (citing 18 Charles Alan Wright et al., Federal

Practice and Procedure § 4478 (1st ed. 1981)).

Both the holding and rationale of Wells are incon-

sistent with petitioner’s argument that the govern-

ment is categorically required to show that the evi-

dence at trial was sufficient to prove an extra offense

element that was erroneously included in the jury

instructions. On the contrary, Wells suggests that the

law-of-the-case doctrine is best viewed as a prudential

measure that appellate courts may, but are not re-

quired to, apply depending on the particular context

at issue.

No reason exists to apply the law-of-the-case doc-

trine when a criminal defendant seeks to overturn a

conviction by claiming that the prosecution introduced

insufficient evidence to prove a non-element. Con-

gress defines the elements of a criminal offense, not

courts or prosecutors. See, e¢.g., Whalen v. United

States, 445 U.S. 684, 689 (1980). The public interest in

the just administration of the criminal law favors

adhering to the due process standard embraced in

Jackson, which focuses on whether the trial evidence

is sufficient to prove the elements of an offense. “A

defendant has no due process right * * * to proof

beyond a reasonable doubt of elements not necessary

to constitute the crime charged, including elements

erroneously or unnecessarily charged to the jury.”

United States vy. Inman, 558 F.3d 742, 748 (8th Cir.),

cert. denied, 558 U.S. 916 (2009). Sufficiency-of-the-

evidence review should hew to the elements as Con-

gress defined them, and a defendant should not be

entitled to acquittal—foreclosing any subsequent

prosecution—when the government has proved the

statutory elements of the offense.‘

* If the inclusion of the erroneous element prejudiced the de-

fendant’s defense by confusing the jury, a defendant might be able

c. Even if it were proper for the courts of appeals

to hold that—in general—the law-of-the-case doctrine

requires the government to satisfy jury instructions to

which it has acquiesced, that rule should not apply

when the instructions contain an obvious mistake and

no prejudice would result to the defendant. As this

Court has explained, the law-of-the-case doctrine

“directs a court’s discretion, it does not limit the tri-

bunal’s power.” Pepper v. United States, 562 U.S. 476,

506 (2011) (quoting Arizona v. California, 460 U.S.

605, 618 (1983)). Crucially, the doctrine “does not

apply if the court is convinced that its prior decision is

clearly erroneous and would work a manifest injus-

tice.” Jd. at 506-507 (quoting Agostini v. Felton, 521

U.S. 203, 236 (1997)) (internal quotation marks and

brackets omitted).

The court of appeals’ decision below is consistent

with those principles. The court upheld petitioner’s

conviction after concluding that (1) the crime was

properly charged in the indictment; (2) the extra ele-

ment included in the jury instructions was patently

erroneous; (3) the instructions required the jury to

find that the government had established all of the

actual, statutory elements of the offense; and (4) the

evidence was sufficient for the jury to find that peti-

tioner committed all of those statutory elements. Pet.

App. A6-A7. The court of appeals recognized that the

to argue thei he should receive a new trial. See United States v.

Zanghi, 189 F.3d 71, 80 n.11 (1st Cir. 1999) (patently erroneous

jury instruction could “infect the charge” and confuse the jury on

the elements so as to warrant relief on plain-error review), cert.

denied, 528 U.S. 1097 (2000). But an outright acquittal because the

government did not prove an element that it was not required to

prove is not justified.

jury instruction’s inclusion of an extra element re-

flected “an obvious clerical] error,” id. at A6, and it

properly declined to consider the extra element when

assessing the sufficiency of the evidence. Justice

would not be served by granting petitioner an acquit-

tal despite the sufficiency of the evidence to support

the jury’s finding that he committed every statutory

element of the crime.*

Petitioner urges (Pet. 19-20) this Court to embrace

a categorical law-of-the-case rule under which a crim-

inal defendant is always entitled to a judgment of

acquittal if the government fails to prove an element

erroneously included in the jury instructions without

objection from the government. He argues (2bid.) that

because a defendant may sometimes “forfeit potential-

ly valid claims through procedural default at multiple

stages in criminal proceedings, * * * surely the gov-

ernment should be required to meet such burdens as

it has assumed or acquiesced in when not objecting to

a jury instruction setting a higher bar than the statute

or indictment.”

Petitioner’s rationale for his proposed categorical

rule does not withstand scrutiny. It is true that some

claims are waived when a defendant does not object at

the appropriate time. But under Federal Rule of

Criminal Procedure 52(b), a defendant may be able to

® Other courts of appeals have likewise recognized that errone-

ous jury instructions should not become the law of the case in

similar circumstances. See /nman, 558 F.3d at 748; United States

v. Sisk, 87 Fed. Appx. 323, 328 (4th Cir. 2004) (per curiam) (un-

published); Zanghi, 189 F.3d at 79 (explaining that jury instruction

is not law of the case when it is “patently incorrect or internally

inconsistent”); see also United States v. Guevara, 408 F.3d 252,

258 (5th Cir. 2005), cert. denied, 546 U.S. 1115 (2006).

obtain redress for a plain error that affects his

substantial rights—including an erroneous jury

instruction—even though the defendant failed to

object to that error at the appropriate time. See, e.g.,

Johnson v. United States, 520 U.S. 461, 465-466

(1997). One ingredeient of such a claim is that an

error is obvious. See United States v. Olano, 507 U.S.

725, 734 (1993); see also Henderson v. United States,

133 S. Ct. 1121, 1126 (2013). Just as forfeiture does

not preclude relief for a defendant in all circumstances

of clear error, the court of appeals’ approach recog-

nizes that in certain instances of clear error, the gov-

ernment will not be foreclosed from urging an appel-

late court to apply the correct rule of law.

d. Petitioner is wrong to suggest (Pet. 11-16) that

this Court’s intervention is warranted to resolve a

clear division of authority among the courts of appeals

on the law-of-the-case issue.

Petitioner asserts (Pet. 11) that the Eighth Circuit

—unlike the First and Fifth Circuits—“appl[ies] the

law-of-the-case doctrine in the same circumstances [as

present here] to hold the government to any height-

ened burden imposed by jury instructions to which it

did not object.” That is not correct. As petitioner

himself later acknowledges (Pet. 13-15), the Eighth

Circuit’s decision in /nman rejects that approach.

There, the court explained that a defendant lacks any

due process right to proof beyond a reasonable doubt

“of elements not necessary to constitute the crime

charged, including elements erroneously or unneces-

sarily charged to the jury.” 558 F.3d at 748. It re-

fused to apply the law-of-the-case doctrine in the man-

ner now proposed by petitioner, and it instead “re-

view[ed] the sufficiency of the evidence according to

the element as defined by statute and charged in the

indictment”—not as presented in the erroneous jury

instructions. /d. at 750 (emphasis added); see id. at

748.°

Petitioner asserts (Pet. 11-13) that the Eighth Cir-

cuit applied his preferred approach in several cases

decided before /nman, namely United States v.

Torres-Villalobos, 487 F.3d 607, 611 n.1 (2007), United

States v. Staples, 435 F.3d 860, 866-867, cert. denied,

549 U.S. 862 (2006), and United States v. Ausler, 395

F.3d 918, 920, cert. denied, 549 U.S. 861 (2005). But

Torres-Villalobos did not involve a sufficiency-of-the-

evidence challenge, but instead only a dispute over

whether certain evidence was properly admitted, and

the court had no occasion to consider whether the

* Unlike this case, Jnman involved a circumstance in which the

jury charge—in addition to including a non-statutory element—

also omitted a statutory element of the offense. See 558 F.3d at

746-747 (explaining that instructions included a non-statutory

element (that the materials containing the child pornography was

produced using materials that had been shipped in interstate

commerce) and excluded a statutory element (a requirement that

the materials used to produce the child pornography was itself

shipped in interstate commerce)). In that circumstance, the court

of appeals held that

where a statutory element of an offense is included in the in-

dictment but erroneously omitted from instructions to the jury,

and the evidence is insufficient to establish the unobjected-to

{non-statutory] element used instead, the conviction may be af-

firmed against a sufficiency challenge where the evidence is so

overwhelming or incontrovertible that there is no reasonable

doubt that any rational jury would have found that the gov-

ernment proved the statutory element.

Id. at 749. This case is easier than /nman, insofar as the jury in-

structions expressly required the jury to find all statutory ele-

ments of the offense beyond a reasonable doubt.

“clear error” exception to the law-of-the-case doctrine

should apply. See 487 F.3d at 611 n.1. And Inman

itself distinguished Staples and Ausler on the grounds

that neither of those cases involved instances where

the trial evidence was sufficient only to support a

conviction for the offense under the relevant statute,

but not the offense set forth in the jury instructions.

Inman, 558 F.3d at 749-750 & n.5.

Petitioner also invokes (Pet. 14-15) the Eighth Cir-

cuit’s post-Inman decision in United States v. John-

son, 652 F.3d 918 (2011). But as petitioner himself

concedes (Pet. 15), that case—like /nman itself—

rejected the categorical law-of-the-case rule that he

urges the Court to embrace here. See Johnson, 652

F.3d at 922-924. And Johnson differs significantly

from this case because the instructions there did not

cover the correct statutory elements.’ In any event,

even if petitioner were correct (Pet. 11-16) that the

Eighth Circuit cases addressing this issue are in ten-

’ As in Inman, the jury instructions in Johnson erred by both

omitting a statutory element and including a non-statutory ele-

ment. See Johnson, 652 F.3d at 922-924; note 6, supra. On those

facts, Johnson declined to follow what it described as the rule

embraced by First and Fifth Circuits, under which the court would

simply consider whether the evidence would have been sufficient

to establish the defendant’s guilt if the jury instructions had been

correct. 652 F.3d at 923-924. Notably, however, the Johnson court

rejected that alternative standard in light of (1) the due process

requirement that the prosecution prove all elements of a crime

beyond a reasonable doubt, and (2) the Sixth Amendment re-

quirement that the jury, not the judge, make the requisite findings

of guilt. /bid. Neither of those constitutional considerations are

present in the circumstances presented here, where—unlike in

both Jnman and Johnson—the jury was required to find that

petitioner committed all statutory elements of the crime. See note

6, supra.

sion with one another, “[ijt is primarily the task of a

[cjourt of [a)ppeals to reconcile its internal difficul-

ties.” Wisniewski v. United States, 353 U.S. 901, 902

(1957) (per curiam).

Petitioner also asserts (Pet. 16) a conflict with the

Tenth Circuit’s decision in United States v. Romero,

136 F.3d 1268 (1998). There, the government argued

that it did not need to present evidence on a offense

element that—according to the government—was not

required by the statute and yet was erroneously

included in the jury instructions. Jd. at 1271-1274.

The court of appeals rejected that argument. /d. at

1271. It interpreted this Court’s decision in Wells to

“hl ojid that adherence to the law of the case doctrine

at the circuit level is a matter left to the discretion of

the circuit courts.” /d. at 1272. The court of appeals

then applied that doctrine and reversed the conviction

on the ground that government had failed to present

any evidence with respect to the disputed element of

the crime. /d. at 1273-1274.

Romero’s analysis is not necessarily inconsistent

with the rule embraced by the First and Fifth Cir-

cuits. As the First Circuit explained in United States

v. Zanghi, 189 F.3d 71 (1999), cert. denied, 528 U.S.

1097 (2000), “Romero is distinguishable because the

instruction in that case was not ‘patently erroneous’ in

light of the statutory requirements,” and “[i}n fact, it

may have been legally correct.” Jd. at 80 n.10; see

Romero, 136 F.3d at 1271 (emphasizing that the dis-

pute over the elements of the offense “raise[s] some

very difficult federal Indian law questions”); see also

United States v. Prentiss, 256 F.3d 971, 976-977 (10th

Cir 2001) (en banc) (per curiam) (subsequently holding

that, contrary to the government’s argument in

Romero, the disputed element is a statutory element

of the relevant offense). Romero was plainly not a

case like this one, where the parties agree that the

jury instruction was erroneous and where the court of

appeals expressly held that it contained an “obvious

clerical error.” Pet. App. A6.

Notably, none of the Tenth Circuit decisions apply-

ing Romero has considered whether to recognize an

exception to the law-of-the-case doctrine in circum-

stances where the offense was properly charged in the

indictment and the jury instruction was patently erro-

neous. Indeed, the government has not yet urged it to

do so. See United States v. Kamahele, 748 F.3d 984,

1003 n.13 (10th Cir. 2014). Such an exception would be

consistent with the settled principle—embraced by

both this Court and the Tenth Circuit—that the law-

of-the-case doctrine does not apply when a prior rul-

ing “is clearly erroneous and would work a manifest

injustice.” Pepper, 562 U.S. at 506-507 (citations omit-

ted); see Arizona, 460 U.S. at 618 n.8; Bishop v.

Smith, 760 F.3d 1070, 1086 (10th Cir.), cert. denied,

135 S. Ct. 271 (2014); Johnson v. Champion, 288 F.3d

1215, 1226 (10th Cir. 2002). Until the Tenth Circuit

has had occasion to consider that exception to law-of-

the-case principles in the particular context at issue

here, any claim of a square conflict would be prema-

ture.

2. Petitioner also seeks (Pet. 21-24) review of the

court of appeals’ holding that he waived his statute-of-

limitations challenge to his conviction for accessing a

protected computer in November 2005 without author-

ization. Petitioner concedes (Pet. 21) that he did not

raise the limitations defense in the district court, but

he argues that the court of appeals should have ap-

plied plain-error review to address the district court’s

failure to sua sponte instruct the jury on that issue.

Petitioner is incorrect. This Court has held that

the “statute of limitations is a defense and must be

asserted on the trial by the defendant in criminal

cases.” Biddinger v. Commissioner of Police, 245

U.S. 128, 135 (1917) (citing United States v. Cook, 84

U.S. (17 Wall.) 168 (1872)). Although the statute of

limitations “may inhibit prosecution, it does not ren-

der the underlying conduct noncriminal.” Smith v.

United States, 133 S. Ct. 714, 720 (2013). It is not an

element of the underlying offense, and the govern-

ment is not required to allege the time of the offense

in the indictment. /bid. Rather, “it is up to the de-

fendant to raise the limitations defense.” /bid.

As petitioner acknowledges (Pet. 22-23), a majority

of courts of appeals have taken the position that a

criminal defendant’s failure to raise a statute-of-

limitations defense waives that defense and makes it

unreviewable on appeal. See United States v. Franco-

Santiago, 681 F.3d 1, 12 n.18 (1st Cir. 2012) (collecting

cases). A minority of courts of appeals, however, have

treated the failure to raise a statute-of-limitations

issue at trial as forfeiture, rather than as waiver of an

affirmative defense, and have thus applied plain-error

review under Federal Rule of Criminal Procedure

52(b). Jbid. Despite the conflict of authority, this

Court has previously denied review of this issue. See

Ciavarella v. United States, 134 S. Ct. 1491 (2014)

(No. 13-7103); Berry v. United States, 533 U.S. 953

(2001) (No. 00-8761).

This case is a poor vehicle for addressing the con-

flict among the circuits because the choice of ap-

proaches is not outcome-determinative. Even assum-

ing that petitioner could raise the affirmative statute-

of-limitations defense for the first time after trial, he

would not be entitled to relief. Under Rule 52(b),

an appellate court may, in its discretion, correct an

error not raised at trial only where the appellant

demonstrates that (1) there is an “error”; (2) the

error is “clear or obvious, rather than subject to

reasonable dispute”; (3) the error “affected the ap-

pellant’s substantial rights, which in the ordinary

case means” it “affected the outcome of the district

court proceedings”; and (4) “the error seriously af-

fect[s] the fairness, integrity or public reputation of

judicial proceedings.”

United States v. Marcus, 560 U.S. 258, 262 (2010)

(brackets in original) (quoting Puckett v. United

States, 556 U.S. 129, 135 (2009)).

Petitioner cannot satisfy any of those requirements

because his statute-of-limitations defense lacks merit.

The original indictment was timely filed in 2010, with-

in five years of the unauthorized-access offense. Pet.

App. A2; Indictment 1 (Nov. 2, 2010); see 18 U.S.C.

3282(a). In 2012, the government filed a superseding

indictment modifying the relevant count only by (1) no

longer alleging “exceed authorized access” in the

conspiracy count’s summary of the offense; (2) chang-

ing the offense date from on or about November 24,

2005, to on or about November 23 to 25, 2005; and

(3) changing the point of access from ETS’s e-mail

server to two e-mail accounts on the server. Pet. App.

A2-A3; Indictment 25; First Superseding Indictment

23 (Sept. 6, 2012). In 2013, the government filed a

second superseding indictment that made “no relevant

changes” to the charge. Pet. App. A3.

Below, petitioner argued that the superseding in-

dictments were outside the five-year statute of limita-

tions because they changed the charges against him.

Pet. C.A. Br. 48-50. But that argument is plainly

incorrect. A superseding indictment relates back to

the original indictment so long as it does not “broad-

en{] or substantially amend[] the charges made in the

original indictment.” United States v. Schmick, 904

F.2d 936, 940 (5th Cir. 1990), cert. denied, 498 U.S.

1067 (1991). The change in date—from “[o]n or about”

November 24, 2005 to “[oJn or about” November 23 to

25, 2005)—did not meaningfully broaden the charges.

Indictment 25; First Superseding Indictment 23. And

the greater specificity provided in the superseding

indictment—including by referring to two specific

email accounts on the ETS server, instead of to the

server as a whole—made the charges narrower, not

broader. /bid.

In those circumstances, there was no error, much

less a “clear or obvious” error that affected the out-

come of the proceedings or impugned the fairness or

integrity of judicial proceedings more generally.

Marcus, 560 U.S. at 262. Petitioner would therefore

not be able to obtain relief even if he could prevail on

the question presented to this Court. Further review

of petitioner’s statute-of-limitations challenge is un-

warranted.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.