When a jury instruction erroneously adds an element to an offense and there is no objection, the appellate court assesses sufficiency of the evidence against the elements of the charged crime, not those set forth in the instruction. Musacchio and Brown were charged with conspiracy to commit 18 U.S.C. § 1030(a)(2)(C), which prohibits intentionally accessing a computer without authorization or accessing a computer with authorization but then using that access improperly. The charge here was limited to unauthorized access. Without objection, the jury was erroneously instructed that § 1030(a)(2)(C) required the prosecution to prove both intentional unauthorized access and exceeding authorized access. Musacchio was convicted. On appeal, he challenged the sufficiency of the evidence based on the erroneous jury instruction. The Fifth Circuit affirmed. The U.S. Supreme Court granted review to resolve how sufficiency of the evidence should be measured when a jury instruction erroneously requires the prosecution to prove more elements than the statute or indictment. Held: Affirmed. A sufficiency review addresses whether the government’s case was so lacking it should not have gone to the jury. The legal inquiry is limited to whether the defendant received adequate due process, i.e., the meaningful opportunity to defend against the charges. The reviewing court considers whether, when viewed in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. This determination does not rest on how the jury was instructed. A jury who convicts a defendant based on an instruction that sets forth the elements of the offense but erroneously adds one more element, has made all the findings due process requires. “The Government’s failure to introduce evidence of an additional element does not implicate the principles that sufficiency review protects.” Musacchio did not dispute that the evidence was sufficient to convict him of the crime as it was charged in the indictment and his sufficiency claim was properly rejected.

The full opinion is available on the court’s website here: http://www.supremecourt.gov/opinions/15pdf/14-1095_2d8f.pdf