Supreme Court Preview: Is the Government Required to Satisfy a Heightened Statutory Burden Because It Failed to Object to an Erroneous Jury Instruction?

Abstract

Petitioner Michael Musacchio was convicted pursuant to 18 U.S.C. §1030(a)(2)(c), which makes it unlawful for individuals to intentionally access a protected computer without authorization, or to intentionally exceed authorized access. The Court granted certiorari to consider whether the law-of-the-case doctrine requires the government to satisfy a heightened burden of proof because the district court, without objection, erroneously instructed the jury that it must find Petitioner guilty of unauthorized access and exceeding authorized access. Petitioner asserts that an acquittal is consistent with the interests of justice because “the Government was incapable of proving the conjunctive crime it alleged, the conjunctive crime it tried, and the conjunctive crime as instructed to the jury without objection.” The likely problem with this argument is that the conduct for which Petitioner was convicted satisfied one of the disjunctive statutory requirements. Thus, absent the erroneous jury instruction, the evidence was sufficient to support the conviction. Moreover, and as stated above, even though the evidence was “aimed at both forms of access,” Petitioner does not claim that the evidence was insufficient to convict him on the “unauthorized access” element. For these reasons, this argument appears to place form over substance, and the Court is likely to find it unpersuasive.