The U.S. Supreme Court held on January 25, 2016 that an erroneous jury instruction does not result in an acquittal for a defendant who was found guilty of hacking his former employer, thereby addressing a circuit split on the impact of an improper jury instruction.  Michael Musacchio v. United States, No. 14¬-1095. Michael Musacchio was President of Excel Transportation Services (ETS) until his resignation in 2004. In 2005, Mr. Musacchio formed a rival company and, along with another former ETS employee, accessed ETS’s computer system without authorization until early 2006. In November 2010, a federal grand jury found Mr. Musacchio guilty under the Computer Fraud and Abuse Act (“CFAA”), specifically under the provision that a person commits a crime when he “intentionally accesses a computer without authorization or exceeds authorized access” and in doing so “obtains ... information from any protected computer.” Mr. Musacchio was sentenced to five years in prison.

Mr. Musacchio appealed, arguing that his conviction rested on jury instructions which erroneously directed the jury to find him guilty if he (a) intentionally accessed a computer without authorization and (b) exceeded authorized access. Although the statute actually allows conviction if (a) or (b) is proven and both sides agreed the instruction was erroneous, the government did not object to the instruction at trial despite the fact that it imposed a burden beyond what the statute requires for conviction. The U.S. Court of Appeals for the Fifth Circuit ruled against Mr. Musacchio and held that the sufficiency of the evidence charge should be assessed against the elements of the crime that was charged and not against the erroneous jury instructions. Additionally, the Fifth Circuit explained that the erroneous jury instruction was “an obvious clerical error.” The U.S. Supreme Court, speaking through Justice Clarence Thomas, unanimously agreed and held that a sufficiency of the evidence challenge should be assessed against the elements of the crime not against the jury instructions. Because Musacchio conceded that the evidence adduced at trial was sufficient to convict him of the crime he was charged with -- conspiring to make unauthorized access -- the Fifth Circuit was correct to reject his challenge to the sufficiency of the evidence as compared to the erroneous jury instruction.