United States v. Muresanu, No. 18-3690 (7th Cir. 2020)Annotate this Case
Muresanu began participating in an ATM skimming scheme when he was 17 years old and had recently arrived from his native Romania. Muresanu was charged with possession of counterfeit access devices and three counts of attempted aggravated identity theft. There is no such federal crime; the statutory definition of aggravated identity theft does not cover attempts. Muresanu’s attorney did not object to the defect in a pretrial motion but “strategically waited" and moved for acquittal on the identity-theft counts after the government rested its case. The judge ruled that Muresanu had waived the objection, then deleted the attempt language from the jury instructions and instructed the jury on the elements of the completed crime. The modified instruction conformed to the statutory offense but varied from the indictment. Convicted, Muresanu was sentenced to 34 months on count one and a consecutive mandatory 24-month sentence on the identity-theft counts.
The Seventh Circuit affirmed in part and reversed in part. The judge correctly applied the Sentencing Guidelines to count one. Defects in the indictment are not jurisdictional and must be raised by pretrial motion but the modification of the jury instructions led the jury to convict Muresanu of crimes not charged by the grand jury, violating his Fifth Amendment right to be tried only on charges brought by indictment. That error is per se reversible.