Musacchio v. United States, No. 14-1095, ___ U.S. ___, (Jan. 25, 2016).

Justice Thomas delivered the opinion of the Court.


In November 2010, a grand jury indicted Musacchio under 18 U. S. C. §1030(a)(2)(C). Under that provision, 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.” (Emphasis added.) The statute thus provides two ways of committing the crime of improperly accessing a protected computer: (1) obtaining access without authorization; and (2) obtaining access with authorization but then using that access improperly. …

Diverging from the indictment and the proposed instructions, the District Court instructed the jury on count 1 that §1030(a)(2)(C) “makes it a crime for a person to intentionally access a computer without authorization and exceed authorized access.” App. 168 (emphasis added). The parties agree that this instruction was erroneous: By using the conjunction “and” when referring to both ways of violating §1030(a)(2)(C), the instruction required the Government to prove an additional element. Yet the Government did not object to this error in the instructions.

The jury found Musacchio guilty on both counts 1 and 2. …


We granted certiorari to resolve two questions that have divided the lower courts. 576 U. S. ___ (2015). The first question is whether the sufficiency of the evidence in a criminal case should be measured against the elements described in the jury instructions where those instructions, without objection, require the Government to prove more elements than do the statute and indictment. [Citations omitted.] The second question is whether a statute-of-limitations defense not raised at or before trial is reviewable on appeal. [Citations omitted.]


We first address how a court should assess a sufficiency challenge when a jury instruction adds an element to the charged crime and the Government fails to object. We hold 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.


A reviewing court’s limited determination on sufficiency review … does not rest on how the jury was instructed. When a jury finds guilt after being instructed on all elements of the charged crime plus one more element, the jury has made all the findings that due process requires. If a jury instruction requires the jury to find guilt on the elements of the charged crime, a defendant will have had a “meaningful opportunity to defend” against the charge. [Citation omitted.] And if the jury instruction requires the jury to find those elements “beyond a reasonable doubt,” the defendant has been accorded the procedure that this Court has required to protect the presumption of innocence. [Citation omitted.] The Government’s failure to introduce evidence of an additional element does not implicate the principles that sufficiency review protects. All that a defendant is entitled to on a sufficiency challenge is for the court to make a “legal” determination whether the evidence was strong enough to reach a jury at all. [Citation omitted.] The Government’s failure to object to the heightened jury instruction thus does not affect the court’s review for sufficiency of the evidence.2

[Footnote 2:] In resolving the first question presented, we leave open several matters. First, we express no view on the question whether sufficiency of the evidence at trial must be judged by reference to the elements charged in the indictment, even if the indictment charges one or more elements not required by statute. Second, we do not suggest that the Government adds an element to a crime for purposes of sufficiency review when the indictment charges different means of committing a crime in the conjunctive. Third, we also do not suggest that an erroneous jury instruction cannot result in reversible error just because the evidence was sufficient to support a conviction.


We now consider whether a defendant may successfully raise the statute-of-limitations bar in 18 U. S. C. §3282(a) for the first time on appeal. Musacchio argues that he may do so, either because §3282(a) imposes a nonwaivable limit on federal courts’ subject-matter jurisdiction or because a previously unraised limitations claim may constitute plain error that can be noticed on appeal. We disagree with both points, and hold that a defendant cannot successfully raise this statute-of-limitations bar for the first time on appeal.


Statutes of limitations and other filing deadlines “ordinarily are not jurisdictional.” [Citation omitted.] We treat a time bar as jurisdictional only if Congress has “clearly stated” that it is. [Citations omitted.] To determine whether Congress has made the necessary clear statement, we examine the “text, context, and relevant historical treatment” of the provision at issue. [Citation omitted.]

Congress has not made such a clear statement here. …


Because §3282(a) does not impose a jurisdictional limit, the failure to raise it at or before trial means that it is reviewable on appeal—if at all—only for plain error. See Fed. Rule Crim. Proc. 52(b) (providing for consideration of “[a] plain error that affects substantial rights” even though the error “was not brought to the court’s attention”). We conclude, however, that a district court’s failure to enforce an unraised limitations defense under §3282(a) cannot be a plain error.3

[Footnote 3:] Because we conclude that the failure to enforce §3282(a)’s limitations defense cannot be plain error, we do not resolve whether the failure to raise that defense in the District Court amounts to waiver (which some courts have held to preclude all appellate review of the defense) or forfeiture (which some courts have held to allow at least plain-error review). [Citations omitted.]

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For the foregoing reasons, we affirm the judgment of the Fifth Circuit.

It is so ordered.

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