In Musacchio v. United States, the United States Supreme Court ruled that where the judge’s instruction to the jury erroneously added an element to the charged offense and the prosecution did not object, Musacchio’s challenge to the sufficiency of the evidence was properly measured against the elements of the charged offense, not against the jury instruction. The “facts” were as follows:   After resigning as president of a company, Musacchio improperly continued to use the company’s computer system via a password in the possession of another former employee. Musacchio was indicted under a federal statute that makes it a crime when a computer user “‘intentionally accesses a computer without authorization or exceeds authorized access,’ and in doing so ‘obtains … information from any protected computer.’” At issue in this decision was a count charging Musacchio with conspiracy to violate the statute. In its jury instructions, the District Court “diverged from the indictment” by instructing that the statute  “‘makes it a crime for a person to intentionally access a computer without authorization and exceed authorized access.’ The parties agreed that this instruction was erroneous: By using the conjunction ‘and’ when referring to both ways of violating the statute, the instruction required the Government to prove an additional element. Yet the Government did not object to this error in the instructions.” In his appeal, “Musacchio did not dispute that the evidence was sufficient to support a conviction under the elements set out in the indictment.” He contended, however, that the evidence was insufficient as to the additional element included in the judge’s instruction.

In its decision, the Supreme Court held “that, when a jury instruction sets forth all the elements 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.” The Court stated that “on sufficiency review, … the limited inquiry is 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.’  The sole focus is the ‘legal’ 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.’  In the Court’s view, the government’s purported failure here to introduce sufficient evidence of the additional element included in the judge’s instruction did “not implicate the principles that sufficiency review protects. All that a defendant is entitled to … is a determination whether the evidence was strong enough to reach a jury at all.  The Government’s failure to object to the heightened jury instruction thus does not affect” the assessment of the sufficiency of the evidence.


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