SCOTUS to Weigh Jury|Instruction Dispute

     (CN) – The Supreme Court on Monday agreed to hear the appeal of a Plano, Texas, man convicted of conspiring to hack into his former employer’s computers while setting up his competing business.
     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 later sentenced to 63 months in prison.
     According to court documents, 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 also left to join the new enterprise.
     Prosecutors said between 2004 and 2006, Musacchio and Brown, assisted by Kelly, hacked into Exel’s computer system and raided its email accounts to steal confidential and proprietary business information.
     Exel discovered the scheme after an agent with whom it was negotiated a new contract revealed 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 parties settled the lawsuit for $10 million. But 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 one year and one day in prison, while Kelly was sentenced to 12 months of probation.
     But Musacchio challenged his conviction on the grounds that the court incorrectly instructed the jury that it had to unanimously find he had agreed to make unauthorized access to Exel’s computers and to exceed authorized access. The statute requires only that he agreed to make unauthorized access or exceed authorized access.
     Musacchio argued the government presented insufficient evidence to prove he agreed to exceed authorized access. The distinction is important because conviction on both made the former executive subject to an accelerated sentence and other penalties.
     Musacchio contended that these and other errors in his trial combined to render it unconstitutionally unfair.
     But on review, the Fifth Circuit concluded “the only error was instructing the jury that it had to find that Musacchio agreed to make unauthorized access and exceed authorized access.”
     “If that error affected the trial at all, it benefited Musacchio and does not justify reversal,” the unsigned Fifth Circuit said.
     The court also rejected Musacchio’s contention that some of the government’s charges against him were barred by the statute of limitations. The Fifth Circuit rejected this claim, holding it was rendered irrelevant by Musacchio’s failure to raise the issue at his trial.
     Musacchio filed a petition for a writ of certiorari on March 9, 2015. In it he raised two questions:
     Whether the law-of-the-case doctrine requires the sufficiency of the evidence in a criminal case to be measured against the elements described in the jury instructions where those instructions , without objection, require the government to prove additional or more stringent elements than do the statute and indictment?
     Whether a statute-of-limitations defense not raised at or before trail is reviewable on appeal?
     In its response, the government argued the Fifth Circuit recognized the error in the jury instructions, and then properly declined to consider the extra element included in the jury instruction as it assessed the sufficiency of the evidence against Musacchio.
     “Justice would not be served by granting petitioner an acquittal despite the sufficiency of the evidence to support the jury’s finding that he committed every statutory element of the crime,” the government said.
     The Justices, as is their custom, did not explain their rationale for taking the case.

%d bloggers like this: