Musacchio v. United States, 136 S. Ct. 709

Michael Musacchio, former president of Exel Transportation Services (ETS), was indicted under 18 U.S.C. §1030(a)(2)(C) for accessing ETS computers without authorization; count 1 charged conspiracy, count 2 charged a specific unauthorized access date range in Nov 2005.
At trial the district court’s jury instruction misstated §1030(a)(2)(C) by using “and” (requiring both "without authorization" and "exceeds authorized access"), effectively adding an extra element; the Government did not object.
Musacchio did not raise a statute-of-limitations defense under 18 U.S.C. §3282(a) in the district court; he raised it for the first time on appeal, arguing the superseding indictment was time-barred.
The jury convicted Musacchio on both counts; the Fifth Circuit affirmed, evaluating sufficiency against the indictment’s elements (not the erroneous jury instruction) and holding the limitations defense waived.
The Supreme Court granted certiorari to decide (1) whether sufficiency review should be measured against the charged elements or the unobjected-to, heightened jury instruction, and (2) whether §3282(a)’s limitations defense can be raised for the first time on appeal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Proper baseline for sufficiency review when jury instruction adds an extra element	Musacchio: sufficiency should be judged against the jury instruction (which added an element)	Government: sufficiency should be judged against the elements charged in the indictment/statute	Court: Review sufficiency against the charged elements, not an erroneously heightened instruction
Effect of government’s failure to object to erroneous jury instruction	Musacchio: lack of objection should not prevent assessment against the instruction	Government: failure to object does not change sufficiency standard	Court: Government’s failure to object does not alter the Jackson sufficiency inquiry
Whether §3282(a) statute of limitations is jurisdictional (thus reviewable on appeal even if unraised)	Musacchio: §3282(a) is jurisdictional or at least plain error, so he may raise it on appeal	Government: §3282(a) is a nonjurisdictional defense that must be raised in district court	Court: §3282(a) is nonjurisdictional; Congress did not clearly make it jurisdictional
Whether an unraised §3282(a) defense can be reviewed for plain error on appeal	Musacchio: even if nonjurisdictional, plain-error review should apply	Government: failure to raise precludes appellate relief	Court: Cannot be plain error because the defense never became part of the case; raising it first on appeal fails

Jackson v. Virginia, 443 U.S. 307 (establishes legal standard for sufficiency review)
Burks v. United States, 437 U.S. 1 (explains when a case should not have been submitted to a jury)
Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (text, context, and history guide jurisdictional determinations)
Henderson v. Shinseki, 562 U.S. 428 (requires clear congressional statement for jurisdictional treatment)
Pepper v. United States, 562 U.S. 476 (describes law-of-the-case doctrine limits)
Arizona v. California, 460 U.S. 605 (definition and use of law-of-the-case principle)
Messenger v. Anderson, 225 U.S. 436 (law-of-the-case does not limit a court’s power to revisit rulings)
United States v. Cook, 17 Wall. 168 (historical precedent treating limitations as a defense that must be pleaded)
Biddinger v. Commissioner of Police of City of New York, 245 U.S. 128 (statute of limitations is a defense to be asserted at trial)