United States v. Reichert

Decision Date03 June 2014
Docket NumberNo. 13–3479.,13–3479.
Citation747 F.3d 445
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Jeffrey J. REICHERT, Defendant–Appellant.
CourtU.S. Court of Appeals — Sixth Circuit


ARGUED:Darin Thompson, Office of the Federal Public Defender, Cleveland, Ohio, for Appellant. Robert W. Kern, United States Attorney's Office, Cleveland, Ohio, for Appellee. ON BRIEF:Darin Thompson, Office of the Federal Public Defender, Cleveland, Ohio, for Appellant. Robert W. Kern, Chelsea S. Rice, United States Attorney's Office, Cleveland, Ohio, for Appellee.

Before: ROGERS, GRIFFIN, and DONALD, Circuit Judges.

GRIFFIN, J., delivered the opinion of the court, in which ROGERS, J., joined. DONALD, J. (pp. 455–64), delivered a separate dissenting opinion.


GRIFFIN, Circuit Judge.

Jeffrey J. Reichert appeals his criminal conviction and sentence under the Digital Millennium Copyright Act (the “DMCA”) asserting three grounds: (1) that the jury received an inaccurate “deliberate ignorance” instruction that had the effect of negating the requirement that Reichert's conduct be a “willful” violation of the DMCA; (2) that the exclusion of a defense witness' testimony violated Reichert's constitutional right to present a defense; and (3) that he was improperly assessed a “special skills” sentencing enhancement under U.S.S.G. § 3B1.3. We hold that the jury instructions as a whole properly stated the law, the excluded testimony was not so vital to Reichert's defense that its exclusion caused him constitutional injury, and Reichert's self-taught technical expertise merited a § 3B1.3 enhancement. We therefore affirm.


Congress enacted the DMCA in 1998 to comply with international copyright treaties and to update domestic copyright law for the online world.” Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir.2004). In large part, the DMCA was intended to give copyright owners additional means to protect copyrighted materials in the digital age. Although copyright owners often attempted to protect digitized materials behind digital passwords or encryption codes, [p]rior to the DMCA, a copyright owner would have had no cause of action against anyone who circumvented any sort of technological control, but did not infringe [the copyright].” Chamberlain Group, Inc. v. Skylink Technologies, Inc., 381 F.3d 1178, 1195–96 (Fed.Cir.2004). Due to the ease of digital piracy, copyright owners feared that the ability to pursue only infringers, rather than those who “picked the lock” and enabled the infringement to occur in the first place, was inadequate to protect their copyrighted material. See Universal City Studios, Inc. v. Corley, 273 F.3d 429, 435 (2d Cir.2001).

In response to this problem, the DMCA gave copyright owners a remedy against those who did not themselves infringe a copyright but instead circumvented technological controls and thereby enabled others to infringe. It did so by creating both “circumvention liability for digital trespass under [17 U.S.C.] § 1201(a)(1),” and “trafficking liability under [17 U.S.C.] § 1201(a)(2) for facilitating such circumvention.” Chamberlain Group, 381 F.3d at 1196. Thus, the DMCA “targets the circumvention of digital walls guarding copyrighted material (and trafficking in circumvention tools),” even though it “does not concern itself with the use of those materials after circumvention has occurred.” Corley, 273 F.3d at 443;see also MGE UPS Sys., Inc. v. GE Consumer & Indus., Inc., 622 F.3d 361, 366 (5th Cir.2010). Circumventing or trafficking in circumvention tools in violation of § 1201 is a criminal offense if it is committed “willfully” and for commercial or private financial gain. 17 U.S.C. § 1204(a).

Reichert was prosecuted under the DMCA for trafficking in circumvention technology. Federal agents had begun investigating Xbox-scene.com, a website that hosted online forums dedicated to the discussion of modifying video game consoles by installing “modification chips” (or “mod chips”) in them so that they could run software for which the consoles were not originally designed. Reichert was one of the moderators of the discussion forums hosted on Xbox-scene.com, and an undercover agent contacted him in 2007, requesting a modified Nintendo Wii. Reichert responded to the agent's requests, purchased a Wii, installed a modification chip, and sold the modified Wii to the agent for a $50 profit. When the Wii was tested, it was able to play both legitimate video games and pirated ones. Agents subsequently obtained a search warrant and seized modification chips, a soldering iron, computers, and business cards advertising Reichert's services from Reichert's residence, as well as from the garage of one of his friends, Kevin Belcik. Reichert ultimately was charged in a one-count indictment under 17 U.S.C. § 1201(a)(2)(A), which prohibits, in relevant part, the trafficking of any technology that “is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected [by copyright].” Id.

At trial, the government put on evidence that modification chips are used to fool or bypass a game console's security measures and enable users to run software for which the console was not originally intended. One of the government's expert witnesses testified that the “primary purpose” of modification chips is to enable a user to play pirated video games. Although each particular hardware version of a console requires its own specialized modification chip, the government's witness detailed in general terms how a modification chip would typically be installed: the console would be opened, and wires from the modification chip would be soldered to the appropriate locations on a console's circuit board. According to the witness, it is a “pretty complicated process,” given that the modifier needs to identify the proper locations to which to attach the wires and because holding a soldering iron on the circuit board for too long could damage the board. As an example, the witness referenced one modification that required soldering twenty-nine individual wires to the circuit board.

Several online postings were also admitted against Reichert at trial. In one, Reichert informed an inquirer that a specific type of modification chip “is the best chip for sure, but it's not for people, normal people. You can [s]crew stuff up if you are not careful.” In another, an Xbox-scene.com user lauded Reichert as “the only person ... on any forum that knew there was another way beside the 29 wire mod” to modify a certain type of console. Some of Reichert's other online postings directed forum users to sites and chat rooms where they could obtain pirated games and thwart console manufacturers' ability to detect that their consoles were modified.

One government agent noted that in March 2007, Reichert posted on an online forum discussion board, “ha ha, I meant that no one cares if people are doing installs. We aren't technically supposed to do it.” Another agent, who had interviewed Reichert during the search of his residence, testified that, while Reichert “never stated to me that it was illegal to [sell and install modification chips], ... he did state that he knew the mod chips were in a gray area.” Finally, although one agent testified that Reichert did not knowingly order his modified chips from an international source, another witness testified that “it is pretty well known among the community that in the United States mod chips without licenses are illegal.”

After the conclusion of the prosecution's case, Reichert's friend Belcik testified as the lone witness on Reichert's behalf. Belcik testified that he and Reichert learned in a “vocational program in high school” how to build computers, and that Reichert modified his first Xbox in about 2003, while in eleventh or twelfth grade. Belcik testified that Reichert believed that some people were using modified consoles to play illegal software. Belcik began to state that Reichert “indicated that what he was doing was basically a hardware modification, not dissimilar from any work that we would do on a normal PC,” but the government objected. The district court sustained the objection and refused to allow Belcik to testify about whether Reichert had ever stated whether he thought his conduct was illegal. Defense counsel proffered that, if the objection had been overruled, Belcik would have testified that Reichert “indicated that he believed that modifying the hardware was legal but selling the copyrighted games was illegal.”

Before the jury was instructed, Reichert objected to the proposed instruction on deliberate ignorance, contending that “deliberateactions” must be proven in order to prove deliberate ignorance. The district court overruled Reichert's objection and declined to give the alternative deliberate ignorance instruction proposed by Reichert.

Before instructing the jury on deliberate ignorance, the district court gave the following instruction on “willfulness”:

As used in these instructions, an act is done willfully if it is done voluntarily and intentionally with the intent to do something unlawful, that is, with the intent either to disobey or disregard the law.

While a person must have acted with the intent to do something the law forbids, the person need not be aware of the specific law or the rule his conduct is violating. Willfulness requires the Government to prove that the law imposed a duty on the Defendant, that the Defendant knew of this duty, and that he voluntarily and intentionally violated that duty.

The court then gave the following deliberate ignorance instruction:

Next, I want to explain a little something about proving a Defendant's knowledge. No one can avoid responsibility for a crime by deliberately ignoring the obvious. If you are convinced that the Defendant deliberately ignored a high probability...

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