Confusion Abounds in Supreme Court Arguments

WASHINGTON (CN) - The confusion that plagued a jury in a computer hacking trial has followed the case all the way to the U.S. Supreme Court, where hypotheticals and technical questions abounded during oral argument Monday.

Michael Musacchio was convicted in May 2013 of one felony count of conspiracy to make unauthorized access to a protected computer and two felony counts of hacking. He was sentenced to 63 months in prison.

Musacchio was president of Exel Transportation Services from 2000 until September 2004, when he left to form a competing business, Total Transportation Services, as president and CEO. Two other former Exel employees, Joseph Brown and John Kelly, went with him.

Prosecutors said that Musacchio and Brown, assisted by Kelly, hacked into Exel's computer system and raided its email accounts to steal confidential and proprietary business information from 2004 to 2006.

Exel discovered the scheme when an agent with whom it was negotiating a new contract revealed that Brown had shown him an undisclosed contract addendum. Concerned about the leak of a proprietary document, ETS president Jim Damman hired a forensic investigator who found that Musacchio and Brown had been accessing its servers.

ETS sued Musacchio, Brown and others, and the lawsuit was settled for $10 million. In 2010, Musacchio, Brown and Kelly were indicted on several counts related to the unauthorized access to a protect computer.

Brown and Kelly pleaded guilty to their roles in the conspiracy. In September 2013, Brown was sentenced to a year and a day in prison, and Kelly was sentenced to 12 months of probation.

The jury in Musacchio's case received the erroneous instruction that it had to find proof that he had accessed a private computer without authorization and exceeded his authorized access, according to the Fifth Circuit ruling. The jury found him guilty on all three counts, after which he claimed that the government failed to prove both elements of the charge as it was explained to the jury.

By including both elements in the jury instruction, Musacchio said, the court made that the law of the case, and the government failed to prove he exceeded access, the Fifth Circuit ruled.

This question, along with whether Musacchio can raise a statute-of-limitations defense for the first time on appeal, was before the Supreme Court Monday. The preliminary transcript was released Monday evening.

Erik Jaffe, on behalf of Musacchio, began by arguing that because the jury made a decision based on an erroneous jury instruction and a law of the case that did not match the statutes, the verdict must be thrown out as irrational.

Were the word "or" to have appeared in the jury instructions, the jury would have had to unanimously find Musacchio had committed one or the other of offense, Jaffe said.

But because the instructions contained the word "and," there is no knowing whether the jury unanimously found one or the other as required - it could have been split evenly across both, Jaffe said, which would create an invalid verdict.

"Our point in this court is that, if the government wants to ignore or have a court disregard the instructions, it would then be its burden to prove harmlessness, and that same uncertainty about unanimity would then read down to our benefit," Jaffe said.

Seven justices interjected with criticism and questions about case law. Justice Stephen Breyer joined others in pointing out that because the jury found Musacchio had committed two offenses due to the misreading of the instructions, it had by default found that he had committed at least one of the two.

"You have to find A and B. Therefore, they must have found A," Breyer said. "The indictment, superseding indictment charged A. The statute says A. OK? So we know they found A. Now, what's the problem?"

Breyer said the problem was that they made a mistake, but because Musacchio failed to object, it is harmless error.

On the issue of limitations, Jaffe argued that it was unintentional attorney error to not raise it as a defense in the initial phase of the trial, so Musacchio never affirmatively waived it as a defense.

"(I)f the government has to affirmatively waive a limitations objection to a habeas petition, then petitioner, who has so much more at stake, should have to affirmatively waive a limitations objection to indictment," Jaffe said.

Roman Martinez, assistant to the solicitor general, argued for the government that Musacchio's position would allow for "windfall acquittals" of guilty defendants.

The erroneous jury instruction in this case should be remedied like any other, he said, by remand or vacatur and an order for a new trial.

"But that's not what petitioner is asking for," Martinez said. "What he is asking for is an acquittal, despite the fact that the jury found with respect to all of the actual elements of the crime, there was sufficient evidence as to those actual elements."

As for the statute of limitations, Martinez said, it is an affirmative defense that must be raised at time of trial. If it is raised on direct appeal and not in habeas, the government is not given an opportunity to develop a rebuttal.

During his four minutes of rebuttal, Jaffe returned to the issue of confusion: It tainted the jury, he said, and pervades the case still.

"Just as Justice Alito is pointing out that it's very difficult to see the difference between unauthorized and exceeding authorized access, that too would have infected the jury," he said. "We could not prove it sufficiently to show prejudice, but they cannot prove it sufficiently to show harmlessness or inevitability of a conviction had you not so instructed them."

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