U.S. Supreme Court affirms Exel exec's hacking conviction

The Supreme Court affirmed the felony conviction of former ETS President Michael Musacchio, who used the information he pilfered from his former employer to start a new company.
The Supreme Court affirmed the felony conviction of former ETS President Michael Musacchio, who used the information he pilfered from his former employer to start a new company.

The felony conviction of former Exel Transportation Services (ETS) President Michael Musacchio, who used the information he pilfered from his former employer to start a new company, still stands, the U.S. Supreme Court said Monday.

Musacchio, who was sentenced to 63 months in prison, had appealed the May 2013 conviction on one felony count of conspiracy to make unauthorized access to a protected computer and two felony counts of hacking, for breaching his previous employer's servers after he left ETS to launch a competitor.

The jury was erroneously told that it had to find that the executive had “agreed to make unauthorized access and exceed authorized access,” rather than “or” exceed authorized access, the Fifth Circuit Court of Appeals noted in rejecting Musacchio's challenges and affirming of the lower court's conviction in November of 2014, according to a report in Courthouse News. The Supreme Court sided with the circuit court.

“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," Justice Clarence Thomas wrote in the court's opinion, that upheld the Fifth Circuit's ruling. "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."

Musacchio also contended that he shouldn't have been prosecuted for unauthorized access to the Exel computers because the statute of limitations had expired. But the Supreme Court rejected that notion as well, with Thomas noting that "a defendant thus cannot successfully raise the statute-of-limitations defense ... for the first time on appeal.”

Two of Musacchio's coworkers at his new venture, Joseph Roy Brown and John Michael Kelly, also former ETS employees pleaded guilty in 2010 to corporate hacking counts, with Brown receiving a two months and one day prison sentence and Kelly 12 months probation for the crimes, which occurred from 2004 to 2006, according to a Federal Bureau of Investigation release. ETS also won a $10 million settlement in a lawsuit against Musacchio, Brown and other defendants.

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