United States v. Jeffrey Reichert

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 14a0060p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellee, -

UNITED STATES OF AMERICA,

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No. 13-3479

v.

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Defendant-Appellant. -

JEFFREY J. REICHERT,

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Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 1:12-cr-00177-1—Donald C. Nugent, District Judge.

Argued: October 4, 2013

Decided and Filed: March 28, 2014

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

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COUNSEL

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.

GRIFFIN, J., delivered the opinion of the court, in which ROGERS, J., joined.

DONALD, J. (pp. 15–27), delivered a separate dissenting opinion.

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OPINION

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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

1

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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.

I.

“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),”

No. 13-3479 USA v. Reichert Page 3

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

No. 13-3479 USA v. Reichert Page 4

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

No. 13-3479 USA v. Reichert Page 5

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 “deliberate actions” 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 that he was trafficking in

technology primarily designed to circumvent technological measures

designed to effectively control access to a work copyrighted under

federal law, then you may find that he knew he was violating the Digital

Millennium Copyright Act.

But to find this, you must be convinced beyond a reasonable doubt that

the Defendant was aware of a high probability that he was violating the

No. 13-3479 USA v. Reichert Page 6

Digital Millennium Copyright Act, and that the Defendant deliberately

closed his eyes to what was obvious.

Carelessness or negligence or foolishness on his part is not the same as

knowledge and is not enough to convict.

The jury convicted Reichert on the indictment’s lone charge. The presentence

report (“PSR”) prepared in Reichert’s case assigned him an offense level of 12 under

U.S.S.G. § 2B5.3(b)(3)(B) and added a two-point “special skills” enhancement under

U.S.S.G. § 3B1.3, concluding that Reichert’s crime was facilitated by his possession of

technical computer skills “not . . . possessed by members of the general public.”

Reichert’s total offense level of fourteen and criminal history category of I subjected him

to an advisory Guidelines range of fifteen to twenty-one months.

Reichert objected to the special skills enhancement, but the district court

overruled his objection, expressing its opinion that the enhancement was proper.

Nevertheless, the court observed that Reichert was “getting a tough deal” and varied

downward “two levels” from the Guidelines, ultimately sentencing Reichert to twelve

months and one day of imprisonment. Reichert now appeals his conviction and

sentence.

II.

A. Jury instructions.

Reichert’s first line of argument, which implicates the jury’s finding that his

conduct was “willful,” is notably narrow. Reichert does not argue that the pertinent

portions of the DMCA are so vague or of such uncertain application that no defendant

could know that his conduct was actually illegal. Nor does Reichert challenge any of the

jury’s findings—including its willfulness finding—as supported by insufficient

evidence.

Instead, Reichert claims that the jury was given a deliberate ignorance instruction

that was erroneous in at least two respects. First, Reichert argues that the instruction

failed to properly reflect that a defendant is willfully blind only if he took “deliberate

No. 13-3479 USA v. Reichert Page 7

action” to avoid actual knowledge. See Global-Tech Appliances, Inc. v. SEB S.A., 131 S.

Ct. 2060, 2070 (2011). But Reichert is incorrect. The deliberate ignorance instruction

given in this case tracks the language of Sixth Circuit Pattern Criminal Jury Instruction

§ 2.09. The pattern instruction explicitly incorporates the requirement that a defendant

act “deliberately” to avoid full knowledge, and we have “repeatedly” held the instruction

to be an accurate statement of the law. United States v. Mitchell, 681 F.3d 867, 876 n.51

(6th Cir. 2012).

Second, Reichert asserts that the deliberate ignorance instruction incorrectly

implemented the pattern jury instruction and consequently eviscerated the DMCA’s

willfulness requirement by allowing the jury to convict him upon finding only that he

knew that he was trafficking in circumvention technology, rather than after finding that

he knew that he was violating the law by trafficking in such technology. Although a

district court’s refusal to give a jury instruction is reviewed for abuse of discretion, this

court reviews de novo a claim that a jury instruction inaccurately stated the law. United

States v. Roth, 628 F.3d 827, 833 (6th Cir. 2011). As we have made plain, “no single

provision of the jury charge may be viewed in isolation; rather, the charge must be

considered as a whole.” United States v. Ross, 502 F.3d 521, 527 (6th Cir. 2007).

Reversal is warranted only “if the instructions, viewed as a whole, were confusing,

misleading and prejudicial.” United States v. Burchard, 580 F.3d 341, 345 (6th Cir.

2009). By contrast, where the instructions, “taken as a whole, fairly and adequately

submit[ ] the issues and applicable law to the jury,” our inquiry ends, as a defendant

cannot be improperly prejudiced by a jury instruction that is warranted by the evidence

and that accurately states the law. United States v. Zidell, 323 F.3d 412, 427 (6th Cir.

2003).

Despite Reichert’s assertions, we cannot agree with Reichert that the jury

instructions, viewed as a whole, improperly negated the DMCA’s willfulness

requirement. No court has yet discussed the reach of 17 U.S.C. § 1204(a)’s willfulness

requirement, and on this appeal we do not decide its scope. For this appeal, the parties

agree that it requires the government to prove that Reichert voluntarily and intentionally

No. 13-3479 USA v. Reichert Page 8

violated a known legal duty.1 This is consistent with our typical approach, as

“[g]enerally . . . , in criminal cases, in order to establish a ‘willful’ violation of a statute,

the Government must prove that the defendant acted with knowledge that his conduct

was unlawful.” Roth, 628 F.3d at 834 (internal quotation marks omitted). It is also

ordinarily the case that a defendant need not be aware of the specific provision of law

that his conduct violates, as long as he is aware that his act is illegal. Id.; see Bryan v.

United States, 524 U.S. 184, 196 (1998) (willful violation of 18 U.S.C. § 924(a)(1)(D)

requires only “knowledge that the conduct is unlawful,” not knowledge of the specific

legal provisions prohibiting the defendant’s conduct); see also United States v. Cross,

816 F.2d 297, 300 (7th Cir. 1987). Reichert also concedes that the DMCA’s willfulness

requirement may be satisfied by a showing of willful blindness; that is, a defendant’s

conscious decision to remain ignorant of the illegality of his conduct even when the

defendant is aware of a high probability that his conduct is in fact illegal. See Mitchell,

681 F.3d at 876–77.

Reichert’s argument rests primarily on the first portion of the deliberate

ignorance instruction. It advised the jury, “If you are convinced that the Defendant

deliberately ignored a high probability that he was trafficking in technology primarily

designed to circumvent technological measures designed to effectively control access

to a work copyrighted under federal law, then you may find that he knew he was

violating the Digital Millennium Copyright Act.” Given that this language hinges the

requisite mens rea finding on Reichert’s knowledge that the technology in which he

trafficked was primarily purposed to facilitate illegal conduct, Reichert’s claim that it

eviscerated the DMCA’s willfulness requirement is tenuous. See Roth, 628 F.3d at

834–35 (indicating that awareness of broad criminal regulations obviously applicable to

defendant’s conduct may suffice for willfulness). Still, devoid of context, this part of the

instruction lends some support to Reichert’s position, as it seems to inform the jury that

1

The government does not argue in this case that the willfulness requirement is met by a

defendant’s knowledge that the technology trafficked in was primarily designed for purposes known to be

illegal.

No. 13-3479 USA v. Reichert Page 9

if Reichert deliberately ignored a high probability that he merely engaged in the conduct

at issue, then the jury could find that Reichert knew that his conduct violated the DMCA.

But Reichert’s focus is too myopic. Even to the extent that the challenged

portion of the instruction could have been more precise, it was not given in a vacuum.

Instead, it was sandwiched between two instructions that stated the stricter requirement

and clarified the challenged language. Immediately before giving the challenged

instruction, the district court gave an instruction on “willfulness,” explaining that an act

is willful if done “with the intent either to disobey or disregard the law,” that the

defendant “must have acted with the intent to do something the law forbids,” and that

the government must 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.” And immediately after giving the portion of the deliberate ignorance instruction

to which Reichert objects, the district court cautioned the jury that, to find that Reichert

knew that he was violating the DMCA, “you must be convinced beyond a reasonable

doubt that the Defendant was aware of a high probability that he was violating the

Digital Millennium Copyright Act, and that the Defendant deliberately closed his eyes

to what was obvious.”

In context, therefore, the language relied upon by Reichert did not detract from

the jury instructions’ overall import: when viewed “as a whole,” the jury instructions

given in this case properly instructed the jury on the issue of willfulness. Ross, 502 F.3d

at 527. Reichert has never objected to the district court’s willfulness instruction, and it

informed the jury that, for a defendant’s conduct to be willful, he “need not be aware of

the specific law or the rule his conduct is violating.” Even in Reichert’s formulation,

then, the jury was not required to find that Reichert knew that his conduct violated any

specific statute; all that was required to convict Reichert was a finding that he knew that

his conduct was illegal. Roth, 628 F.3d at 834–35. This is exactly what the district

court’s “willfulness” instruction told the jury, and the mildly imprecise deliberate

ignorance instruction did not fatally undermine it.

No. 13-3479 USA v. Reichert Page 10

Having been properly instructed, the jury found that Reichert constructively

knew that his conduct was against the law, given his admissions that he was operating

in a “gray” area of the law and was “technically” not supposed to be engaging in his

conduct. Reichert does not directly challenge the jury’s factual finding in this regard,

claiming that he is due a reversal based purely on instructional error. Because the jury

instructions accurately stated the law, however, Reichert’s position is without merit.2

B. Constitutional right to present a defense.

Reichert next claims that he was denied his constitutional right to present a

defense when the district court excluded Belcik’s testimony indicating that Reichert had

previously expressed a belief that modifying consoles was not illegal. “Whether rooted

directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory

Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees

criminal defendants a meaningful opportunity to present a complete defense.” Holmes

v. South Carolina, 547 U.S. 319, 324 (2006) (quotation marks and citations omitted).

Reichert’s decision to frame his argument in constitutional terms is significant.

Where a defendant attacks an evidentiary ruling as violating the Sixth Amendment,

review of the legal aspects of the constitutional violation is de novo. United States v.

Hardy, 586 F.3d 1040, 1043 (6th Cir. 2009). But see United States v. Schreane, 331

F.3d 548, 564 (6th Cir. 2003) (“An appellate court reviews all evidentiary

rulings—including constitutional challenges to evidentiary rulings—under the

abuse-of-discretion standard.”). But, of course, a defendant “does not have an unfettered

right to offer evidence that is incompetent, privileged, or otherwise inadmissible under

standard rules of evidence.” United States v. Blackwell, 459 F.3d 739, 753 (6th Cir.

2006) (internal alterations and quotation marks omitted). Instead, “the Constitution

permits judges to exclude evidence that is repetitive, only marginally relevant or poses

an undue risk of harassment, prejudice, or confusion of the issues.” Holmes, 547 U.S.

2

Because the pertinent willfulness and deliberate ignorance principles were “substantially covered

by the actual jury charge,” the district court did not abuse its discretion in declining to give Reichert’s

proposed instruction instead of the one actually used. United States v. Blanchard, 618 F.3d 562, 573 (6th

Cir. 2010) (internal quotation marks omitted).

No. 13-3479 USA v. Reichert Page 11

at 326–27 (internal alterations and quotation marks omitted); United States v. Humphrey,

608 F.3d 955, 962 n.3 (6th Cir. 2010). And even “erroneous evidentiary rulings rarely

constitute a violation of a defendant’s right to present a defense.” Hardy, 586 F.3d at

1044. In fact, the exclusion of defense evidence violates a defendant’s constitutional

right to present a defense only where it is “arbitrary” or “disproportionate”; that is,

where “important defense evidence” is excluded without serving “any legitimate

interests” or in a manner that is “disproportionate to the ends that [the rationale for

exclusion is] asserted to promote.” Holmes, 547 U.S. at 324, 325, 326 (internal

quotation marks omitted).

Because a defendant suffers a constitutional violation only if evidence in which

the defense has a “weighty interest” is impermissibly excluded, see Ferensic v. Birkett,

501 F.3d 469, 475–76 (6th Cir. 2007), the arbitrary or disproportionate exclusion of

defense evidence has constitutional significance only if the excluded evidence,

“evaluated in the context of the entire record[,] creates a reasonable doubt that did not

otherwise exist.” Blackwell, 459 F.3d at 753 (quotation marks and internal alteration

omitted).

We readily conclude that the exclusion of Belcik’s testimony did not cause

Reichert a constitutional injury. To be sure, the statements may have been admissible

under Federal Rule of Evidence 803(3) as a statement of Reichert’s then-existing state

of mind. However, the government correctly observes that Belcik admitted that he was

in the Navy between 2004 and 2008 and that he was “away” in 2007 at the time of

Reichert’s sale of the modified console and the search of his residence. Belcik never

indicated that Reichert’s statements about the legality of his conduct were made at any

time contemporaneous to 2007. Belcik’s proffered testimony, therefore, had only

marginal relevance to whether Reichert believed in 2007 that his conduct was legal.

And, of course, Reichert had at least one other avenue of putting his own statements and

beliefs into evidence: by taking the stand himself. As a result, Reichert’s constitutional

right to present a defense was not violated by the district court’s evidentiary ruling in

this respect.

No. 13-3479 USA v. Reichert Page 12

C. Special skills enhancement.

Finally, Reichert challenges the district court’s decision to enhance his sentence

pursuant to U.S.S.G. § 3B1.3. Section 3B1.3 provides for a two-point enhancement if

a defendant “abused a position of public or private trust, or used a special skill, in a

manner that significantly facilitated the commission or concealment of the offense.” Id.

While a district court’s factual findings underlying its application of the enhancement

are reviewed for clear error, see United States v. Wilson, 345 F.3d 447, 449 (6th Cir.

2003), “[t]he district court’s conclusion that skills possessed by a defendant are ‘special’

within the meaning of the Guideline . . . is a mixed finding of law and fact that this court

reviews de novo.” United States v. Godman, 223 F.3d 320, 322 (6th Cir. 2000); see

United States v. Tatum, 518 F.3d 369, 372 (6th Cir. 2008).

Reichert contends that his skills are not “special” within the meaning of § 3B1.3.

Emphasizing that he is a truck driver with only a high school diploma, Reichert points

to § 3B1.3, cmt. n.4, which explains, “‘Special skill’ refers to a skill not possessed by

members of the general public and usually requiring substantial education, training or

licensing. Examples would include pilots, lawyers, doctors, accountants, chemists, and

demolition experts.” Id. Claiming that he “learned how to modify game consoles

through trial and error, using how-to books and information from the internet,” Reichert

argues that his ability to modify game consoles is not reasonably comparable to the skills

listed in Application Note 4.

We cannot agree. In Godman, we observed that requisitely “special” skills may

be acquired “through months (or years) of training, or the equivalent in self-tutelage.”

Godman, 223 F.3d at 323 (emphasis added). Nevertheless, we underscored that, to

qualify for the enhancement, a defendant’s self-taught skills must be “particularly

sophisticated.” Id. In this respect, emphasis is best placed “on the difficulty with which

a particular skill is acquired.” Id. at 322. In Godman, for instance, we observed that the

defendant’s familiarity with a computer scanner and experience in desktop

publishing—which the defendant used to manufacture “fairly good quality” counterfeit

bills, id.—could be replicated in fairly short order by “[m]ost persons of average ability”

No. 13-3479 USA v. Reichert Page 13

with “a minimum of difficulty.” Id. at 323. We therefore concluded that the defendant’s

skills were not similar to those listed in Application Note 4 and were thus not special for

purposes of the enhancement. Id.

Reichert’s skills, by contrast, are much more sophisticated than those at issue in

Godman. Building on skills learned in a high school vocational program that taught him

how to build his own computer systems from components, Reichert continued to modify

consoles for almost half of a decade. As one of the prosecution’s expert witnesses

testified at trial, modification of a game system can be a “pretty complicated process,”

requiring both familiarity with consoles’ specialized circuitry and the technical deftness

to install the modification chip without damaging the delicate circuit board. Over time,

Reichert became exceptionally skilled at making these modifications, eventually serving

as a moderator of a specialized internet discussion forum that was largely dedicated to

console modification. In fact, Reichert was lauded within the gaming community as one

of a very few individuals who knew a work-around for one of the most complicated

modifications, and his expert assistance was actively sought out and paid for by gamers

who had attempted to modify consoles on their own but were unable to do so or who

were trying to prevent console manufacturers from detecting that their consoles had been

modified. At one point, Reichert even cautioned that certain types of modifications were

“not for . . . normal people” because a modifier could “[s]crew stuff up” if he was “not

careful.”

This evidence suggests what we did not find in Godman: that Reichert’s

specialized abilities could not be duplicated by “[m]ost persons of average ability” with

“a minimum of difficulty.” Godman, 233 F.3d at 323. Although we agree with Reichert

that his skills were not as sophisticated as those at issue in United States v. Petersen,

98 F.3d 502, 504–07 (9th Cir. 1996), where the defendant’s self-taught computer skills

enabled him to hack into the secure computer systems of major financial institutions, the

record here demonstrates that Reichert’s skill with computer hardware and specialized

game console components was substantially more difficult to acquire than the mere

familiarity with desktop publishing that was present in Godman. See United States v.

No. 13-3479 USA v. Reichert Page 14

Berry, 717 F.3d 823, 835 (10th Cir. 2013) (ability to drive an eighteen-wheeler truck was

sufficiently “special” where the driver possessed almost five years of truck-driving

experience in addition to the basic “small potatoes” training initially required). The

district court’s findings with respect to Reichert’s self-training, ability, and

sophistication support the determination that his console-modification skills are

“special.” Accordingly, the district court did not err in applying § 3B1.3’s special skills

enhancement to Reichert.

III.

Having discerned no reversible error, we affirm Reichert’s conviction and

sentence.

No. 13-3479 USA v. Reichert Page 15

__________________

DISSENT

__________________

BERNICE BOUIE DONALD, Circuit Judge, dissenting. This appeal concerns

the criminal enforcement of the Digital Millennium Copyright Act (“DMCA”). A

violation of the DMCA may rise to the level of a criminal offense if it is committed

“willfully” and for “commercial advantage or private financial gain.” 17 U.S.C.

§ 1204(a).

As the majority explains, Jeffrey Reichert operated a small business of sorts,

providing modification services for video game consoles. He did so openly and

advertised his services on the Internet. For a fee of approximately $50, Reichert would

install a “mod chip” into a video game console that could enhance its functionality in a

number of legitimate ways, but that also enabled the console to play unauthorized pirated

copies of video games. In 2007, Reichert sold one of these modified consoles—a

Nintendo Wii—to an undercover agent of the U.S. Immigration and Customs

Enforcement’s (“ICE”) anti-piracy enforcement group during an investigation known as

Operation Tangled Web. As a result, Reichert was charged under the DMCA’s criminal

provision, § 1204(a), for trafficking in “service[s], device[s] . . . or part[s] thereof”

designed to circumvent technological protection measures that prevent copyright

infringement, in violation of the DMCA’s anti-circumvention provision. 17 U.S.C.

§§ 1201(a)(2)(A).

To establish that Reichert “willfully” violated the DMCA, as is required for

criminal liability to attach under § 1204(a), the Government had to prove that Reichert

acted “with knowledge that his conduct was unlawful.” United States v. Roth, 628 F.3d

827, 834 (6th Cir. 2011) (quoting Bryan v. United States, 524 U.S. 184, 191 (1998))

(internal quotation marks omitted). Reichert claims that he could not have “willfully”

violated the DMCA, because he was unaware that installing mod chips into video game

consoles was against the law.

No. 13-3479 USA v. Reichert Page 16

On appeal, Reichert argues, inter alia, that the jury instruction provided at trial

misstated the DMCA’s willfulness requirement and thus precluded the jury from

properly considering his defense. The majority concedes that the district court misstated

the law in its jury instruction, but concludes that the error was harmless.

If the statute of conviction in this case were itself less ambiguous, I might be

more inclined to agree with the majority. Here, however, an otherwise excusable fault

in the jury instruction compounded the already heightened risk for error in a case where

the charging statute was arguably subject to various interpretations as to the exact legal

status of the defendant’s conduct. Under these circumstances, I cannot agree with the

majority that the additional confusion resulting from the instruction was harmless.

Therefore, I respectfully dissent from Part II of the majority opinion.

I.

This case requires a sophisticated understanding of the technologies at issue and

their legal status under the DMCA.

A. Technological Protection Measures and Technological Circumvention

The term “technological protection measure” (“TPM”) refers to a wide variety

of technologies that are used to control or restrict access to digital content or electronic

devices. TPMs “range from the basic to the sophisticated” and include “password

protection, copy protection, encryption, digital watermarking and, increasingly, rights

management systems incorporating one or more of the foregoing.” June M. Besek, Anti-

Circumvention Laws and Copyright: A Report from the Kernochan Center for Law,

Media and the Arts, 27 Columb. J.L. & Arts 385, 391-392 (2004) [hereinafter

Kernochan Study] (internal quotation marks omitted).

Technology manufacturers use TPMs to limit the functionality of a device or

program to a particular use, to implement security measures, to strengthen privacy

controls, and of course, to protect intellectual property by preventing unauthorized

duplication and/or access. Id. at 446-466. Today, the vast majority of commercially

No. 13-3479 USA v. Reichert Page 17

available software and hardware devices are embedded with TPMs designed to achieve

the manufacturer’s interests in maintaining control of the technology after it has been

purchased by a consumer. Id. at 446-466. TPMs are useful and often necessary tools

for businesses that operate in the digital realm. This is particularly true in the context of

intellectual property, where TPMs can provide varying degrees of protection against the

general ease with which the Internet and digital technology “have made it possible to

reproduce copyrighted works and disseminate them around the world with ever greater

speed and efficiency.” Id. at 391.

On the other hand, overly restrictive or impractical TPMs can also interfere with

a consumer’s ability to use technology in legitimate, but perhaps unintended or

unforeseen ways. See id. at 393-394; see also Universal City Studios, Inc. v. Reimerdes,

111 F. Supp. 2d 294, 322 n.159 (S.D.N.Y. 2000), aff'd sub nom. Universal City Studios,

Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001). As a result, various circumvention

technologies designed to bypass TPMs have proliferated to meet the consumer demand

for interoperability and unrestricted access to various technologies. Id. at 392 (“TPMs

can be broken quickly by the technologically able; these individuals can then create and

distribute tools to those with less technological sophistication, allowing them to

circumvent protection measures.”).

Generally speaking, circumvention technology is computer code that overrides

or bypasses a TPM and can be accessed by downloading a program, running an

application, or, as in this case, inserting a computer chip embedded with such a code into

a hardware device. The DMCA describes circumvention technology as any mechanism

that “descramble[s]” or “decrypt[s]” or otherwise “avoid[s], bypass[es], remove[s],

deactivate[s], or impair[s]” a technological protection measure. 17 U.S.C.

§ 1201(a)(3)(A).

Although circumvention technologies can serve a number of legitimate, non-

infringing purposes, some can also be used to access or reproduce copyrighted works

without authorization. The DMCA was designed in part to remedy this problem.

No. 13-3479 USA v. Reichert Page 18

B. The DMCA’s “Anti-Circumvention” Provision, 17 U.S.C. § 1201(a)(2)

Congress enacted the DMCA to address “the ease with which pirates could [use

web-based services to] copy and distribute . . . copyrightable work[s] in digital form.”

Microsoft Corp. v. AT & T Corp., 550 U.S. 437, 458 (2007) (quoting Universal City

Studios, Inc. v. Corley, 273 F.3d 429, 435 (2d Cir. 2001)) (internal quotation marks

omitted). Specifically, the DMCA’s anti-circumvention provision was designed to

support “the efforts of copyright owners to protect their works from piracy behind digital

walls such as encryption codes or password protections” by banning the use,

manufacture, or sale of technologies that circumvent digital copyright controls. Id.

The DMCA’s anti-circumvention provision prohibits the act of circumvention

itself, 17 U.S.C. § 1201(a)(1), and also targets the availability of circumvention

technologies by making it unlawful to traffic in technologies designed to circumvent

TPMs that control access to copyrighted works, § 1201(a)(2).

In order to prevent the DMCA from adversely affecting otherwise lawful uses

of circumvention technologies, Congress built several exceptions into the anti-

circumvention provision. See 17 U.S.C. § 1201(d)-(j). Congress also charged the

Librarian of Congress, in conjunction with the U.S. Copyright Office and the National

Telecommunications and Information Administration (“NTIA”) of the U.S. Department

of Commerce, with the task of creating additional regulatory exemptions in the future,

to ensure that the anti-circumvention provision would continue serving its intended

purpose in a rapidly evolving technology industry. As directed in § 1201(a)(1)(C), the

Librarian of Congress carves out exceptions to § 1201 in rulemaking proceedings every

three years. See Bill D. Herman, Oscar H. Gandy, Jr., Catch 1201: A Legislative History

and Content Analysis of the DMCA Exemption Proceedings, 24 Cardozo Arts & Ent. L.J.

121, 128 (2006) (providing a comprehensive overview of the rulemaking process).

The legislative history of the DMCA makes clear that the anti-circumvention

provision is not intended to function as a comprehensive ban on all circumvention

technologies; rather, its purpose is to prevent those technologies from being used as a

tool for copyright infringement and to provide remedies for copyright holders against

No. 13-3479 USA v. Reichert Page 19

individuals and entities who facilitate the widespread unauthorized reproduction of

copyrighted works by making such technologies available to the public. See Kernochan

Study, 404-406 (providing a detailed legislative history of the DMCA’s anti-

circumvention provision); Lexmark Int’l, Inc. v. Static Control Components, Inc.,

387 F.3d 522, 551-52 (6th Cir. 2004) (“Such a reading would ignore the precise

language—‘for the purpose of’—as well as the main point of the DMCA—to prohibit

the pirating of copyright-protected works such as movies, music, and computer

programs.”), aff'd on other grounds, 572 U.S. ___ (2014).

Accordingly, several courts, including ours, have held that circumvention

technologies designed primarily for purposes other than to bypass copyright restrictions

are not within the ambit of the DMCA’s anti-circumvention provision. See Lexmark,

387 F.3d 522 (holding that a modification chip designed to make third party ink

cartridges compatible with Lexmark printers was not primarily designed to circumvent

copyright and thus did not violate the DMCA); Chamberlain Group, Inc. v. Skylink

Techs., Inc., 381 F.3d 1178, 1203-1204 (Fed.Cir.2004) (stating that circumvention alone

does not establish a violation of the DMCA unless it can also be demonstrated that there

is a nexus between the use of a particular circumvention technology and actual copyright

infringement); see also Storage Tech. Corp. v. Custom Hardware Eng'g & Consulting,

Inc., 421 F.3d 1307, 1318 (Fed. Cir. 2005) (“[C]ourts generally have found a violation

of the DMCA only when the alleged access was intertwined with a right protected by the

Copyright Act.”) (citing Universal City Studios v. Corley, 273 F.3d 429, 435 (2d

Cir.2001); RealNetworks, Inc. v. Streambox, Inc., 2000 WL 127311, at *7 (W.D.Wash.

Jan.18, 2000)).

The Ninth Circuit, however, disagrees and construes the DMCA’s anti-

circumvention more broadly. See MDY Indus., LLC v. Blizzard Entm't, Inc., 629 F.3d

928, 948 (9th Cir. 2010) (rejecting the “infringement nexus” requirement). As the Ninth

Circuit’s recent opinion demonstrates, competing interpretations of the anti-

circumvention provision give § 1201 the potential to function as a broader prohibition

against circumvention technologies with only an incidental relation to copyrighted

No. 13-3479 USA v. Reichert Page 20

works. Id. Indeed, the circuit split is representative of an ongoing debate over the

statutory construction and scope of the DMCA’s anti-circumvention provision among

scholars and other commentators who question whether certain applications of § 1201

have undermined the delicate balance that Congress sought to achieve between

strengthening copyright law and preserving consumer rights, promoting technological

innovation, and protecting First Amendment speech in our increasingly digitized culture.

See Kernochan Study, at 411-15 (compiling sources).

C. Legal Status of “Mod Chips” and Video Game Console Modifications

A modification chip, or “mod chip,” is a computer chip with software that—once

installed into a video game system’s motherboard—can enhance its capabilities or add

to its functionality. Like other circumvention technologies, mod chips can serve both

lawful and unlawful purposes. Although some modifications are designed to “allow

users to play unauthorized and illegal copies” of video games, Sony Computer Entm’t

Am., Inc. v. Filipiak, 406 F. Supp. 2d 1068, 1070 (N. D. Cal. 2005) (“A counterfeit,

unlicensed ‘burnt’ game disc will not play in an unmodified PlayStation console . . . but

if a mod chip is installed in a PlayStation console, the counterfeit, unlicensed ‘burnt’

game disc will play.”); many legitimate, non-infringing, uses exist for mod chips that do

not involve or facilitate copyright infringement.1

The fact that modified video game consoles can be used for both legitimate, non-

infringing purposes as well as to facilitate copyright infringement makes it all the more

difficult to determine the precise legal status of mod chips. In a vacuum, the plain

1

For example, a common complaint about the Nintendo Wii is that, unlike other popular video

game consoles, such as the Sony Playstation and Microsoft Xbox, the Wii cannot play ordinary DVDs.

The demand for a solution to this perceived deficiency is one of several reasons why a consumer might

purchase a mod chip or seek to have one installed into a video game console.

Mod chips can also be used to remedy failures and solve problems in video game consoles, or to

run back-up copies of legally purchased video games to replace damaged or lost originals. See 321 Studios

v. Metro Goldwyn Mayer Studios, Inc., 307 F. Supp. 2d 1085, 1097 (N.D.Cal. 2004) (finding that copyright

law does not prohibit consumers from creating duplicate “back-up” copies of legally purchased video

games).

In addition, mod chips enable video game enthusiasts and more sophisticated gamers to create

and play “homebrew” video games developed by independent amateur game creators and hobbyists. See

Lewis Stevenson, Fair Circumvention: A Judicial Analysis for the Digital Millennium Copyright Act Using

the Playstation 3 As A Case Study, 21 S. Cal. Interdisc. L.J. 681, 682 n.7 (2012) (“Homebrew is a term for

software applications created by consumers rather than licensed developers.”) (citing Mike Musgrove,

Routine Upgrades are the Bane of ‘Homebrew’ Enthusiasts, Wash. Post, July 6, 2006, at D04).

No. 13-3479 USA v. Reichert Page 21

language of § 1201(a), certainly lends itself to a reading under which mod chips would

be considered unlawful. See 17 U.S.C. § 1201(a)(2)(A). When read in conjunction with

the provision’s statutory exceptions and subsequent exemptions added through

regulatory rulemaking, however, the actual legal status of mod chips and video game

console modifications is not entirely clear.

Perhaps the most important of these exceptions is the “reverse engineering”

provision, which permits circumvention of TPMs through reverse engineering for the

purpose of “achiev[ing] interoperability of an independently created computer program

with other programs,” that are not otherwise readily available. 17 U.S.C. § 1201(f); see

Lexmark, 387 F.3d at 549 (“[T]he interoperability provision [was designed to] ensure

that the DMCA would not diminish the benefit to consumers of interoperable devices in

the consumer electronics environment.”). Because video games are essentially computer

programs, the reverse engineering exception has often been relied upon for the

proposition that video game modifications are not per se unlawful under the anti-

circumvention provision.2 Indeed, in the very first rulemaking proceeding to consider

exemptions to the DMCA’s anti-circumvention provision, the Librarian of Congress

considered, but ultimately declined to create an exemption for mod chips designed

achieve the interoperability of video games across multiple platforms, based on its

reasoning that § 1201(f) was sufficient to safeguard legitimate users of mod chips and

modified consoles from adverse action. See Exemption to Prohibition on Circumvention

of Copyright Protection Systems for Access Control Technologies, 65 Fed. Reg. 64556,

64570 (Oct. 27, 2000) (codified at 37 C.F.R. 201).

2

See Vijay G. Brijbasi, Game Console Modification Chips: The Effect of Fair Use and the Digital

Millennium Copyright Act on the Circumvention of Game Console Security Measures, 28 Nova L. Rev.

411, 436 (2004). Under the reverse engineering exception at § 1201(f), a console modification designed

“primarily” for the purpose of enhancing a console’s “interoperability,” such as accessing legitimately

purchased video games across multiple platforms, or to enable the playing of independently designed non-

infringing “homebrew” video games would appear to be lawful under the DMCA. See Stevenson, supra

n. 1; Phillip A. Harris Jr., Mod Chips and Homebrew: A Recipe for Their Continued Use in the Wake of

Sony v. Divineo, 9 N.C. J. L. & Tech. 113, 115-118 (2007). Similarly, installing a mod chip into a console

like the Wii for the purpose of enhancing its functionality, so that it can play ordinary and lawfully

purchased DVDs, would also seem to fall under the reverse engineering exception at § 1201(f), so long

as such a modification was not designed “primarily . . . for the purpose of” playing illegal, pirated video

games. See 17 U.S.C. §§ 1201(a)(2)(A), 1201(f).

No. 13-3479 USA v. Reichert Page 22

In 2003, however, the Librarian of Congress reversed course and carved out

several exemptions for circumvention technologies which had previously been thought

to fall within the statutory exception for reverse engineering at § 1201(f). See generally,

68 Fed. Reg. 62011 (Oct. 31, 2003). One of those exemptions permitted the

circumvention of TPMs on video games and video game consoles for the purpose of

accessing “video games distributed in formats that have become obsolete and which

require original media or hardware as a condition of access.” 68 Fed. Reg. 62011 (Oct.

31, 2003). Although the intent of the 2003 rulemaking was to clarify the DMCA’s

application to mod chips and other circumvention technologies, the addition of this new

regulatory exemption, which covered a particular use for mod chips that had previously

been thought to fall under an existing statutory exception, seems to have caused even

greater uncertainty. See generally Joe Linhoff, Video Games and Reverse Engineering:

Before and After the Digital Millennium Copyright Act, 3 J. on Telecomm. & High Tech.

L. 209, 229 (2004). Subsequent rulemakings renewed this exemption and introduced

several others, but did little to clarify the legal status of mod chips and other

circumvention technologies under the DMCA. 71 Fed. Reg. 68472, 68476 (Nov. 27,

2006).3

II.

Having established a basic understanding of the DMCA’s anti-circumvention

provision and the technologies it governs, it is now possible to delve into the more

specific argument raised by Reichert’s appeal. Reichert argues that the jury instruction

provided at trial misstated applicable law and so confused the jury on the willfulness

element of the DMCA’s criminal provision that the jury was precluded from properly

considering his defense. Because I find that the jury instruction fundamentally undercut

his defense, which in turn, was particularly susceptible to confusion due to conflicting

interpretations of the DMCA, I dissent from the majority’s opinion.

3

Meanwhile, at the time of this writing, there are two bills currently pending before Congress that

would override much of the framework established through the DMCA’s regulatory rulemaking process

since its passage. See The Unlocking Technology Act of 2013, H.R. 1892, 113th Cong. (2013); The

Unlocking Consumer Choice and Wireless Competition Act, H.R. 1123, 113th Cong. (2014).

No. 13-3479 USA v. Reichert Page 23

A. The Jury Instruction

This Court reviews de novo a claim that the jury instruction inaccurately stated

the law. United States v. Roth, 628 F.3d 827, 833 (6th Cir. 2011) (citing United States

v. Blanchard, 618 F.3d 562, 571 (6th Cir. 2010); H.C. Smith Invs., L.L.C. v. Outboard

Marine Co., 377 F.3d 645, 650 (6th Cir.2004)). When reviewing jury instructions, we

look to the instruction as a whole to determine whether “they adequately informed the

jury of the relevant considerations and provided a basis in law for aiding the jury in

reaching its decision.” United States v. Burchard, 580 F.3d 341, 345 (6th Cir. 2009); see

also United States v. Ross, 502 F.3d 521, 527 (6th Cir. 2007) (“No single provision of

the jury charge may be viewed in isolation; rather, the charge must be considered as a

whole.”). A judgment stemming from a jury verdict should be reversed if the

instruction, viewed as a whole, was prejudicial, or if the instructions confused or misled

the jury about the correct application of the law. Roth, 628 F.3d at 833; see also

Burchard, 580 F.3d at 345 (citing United States v. Robinson, 547 F.3d 632, 637 (6th Cir.

2008)).

A violation of § 1201 is only a criminal offense under § 1204(a) if it is

committed “willfully” and for commercial or private financial gain. The term

“willfully,” when used in a criminal statute, generally refers to conduct that involves “a

bad purpose,” or “careless disregard [for] whether a person has the right so to act.”

Bryan v. United States, 524 U.S. 184, 191 n.12, 13 (1998); the term marks a distinction

between deliberate criminal conduct and unwitting or oblivious conduct which does not

indicate a culpable state of mind. Id. at 191.

In order to establish a willful violation of a statute, “the Government must prove

that the defendant acted with knowledge that his conduct was unlawful.” Id. at 192

(quoting Ratzlaf v. United States, 510 U.S. 135, 137 (1994)); accord Dixon v. United

States, 548 U.S. 1, 5 (2006) (“[T]he term willfully . . . requires a defendant to have acted

with knowledge that his conduct was unlawful.”); United States v. Roth, 628 F.3d 827,

834 (6th Cir. 2011) (“[I]n criminal cases, in order to establish a willful violation of a

statute, the Government must prove that the defendant acted with knowledge that his

No. 13-3479 USA v. Reichert Page 24

conduct was unlawful.”). Therefore, at trial, the Government was required to prove that

Reichert knew that it was unlawful for him to sell modified video game consoles.

The district court should have instructed the jury to deliver a guilty verdict if it

was convinced that Reichert:

[D]eliberately ignored a high probability that he was breaking the law

designed to effectively control access to a work copyrighted under

federal law . . .

Instead, the district court instructed the jury to deliver a guilty verdict if Reichert:

[D]eliberately ignored a high probability that he was trafficking in

technology primarily designed to circumvent technological measures

designed to effectively control access to a work copyrighted under

federal law . . .

It is undisputed that, standing alone, this portion of the jury instruction did not properly

reflect the DMCA’s mandate that, in order for criminal liability to attach, the

Government had to prove that Reichert knew his conduct to be unlawful. 17 U.S.C.

§ 1204(a); Roth, 628 F.3d at 834 (“[I]n order to establish a ‘willful’ violation of a statute,

the Government must prove that the defendant acted with knowledge that his conduct

was unlawful.”). Moreover, the district court’s error was not a minor misstatement of

law—it directly undermined Reichert’s only defense at trial.

The only remaining question is whether other portions of the instruction, when

combined with the district court’s misstatement of law and viewed in its entirety,

salvaged the jury instruction such that Reichert was not deprived of a fair trial. In my

view, it did not. Accordingly, the judgment should be reversed because the instruction,

viewed as a whole, permitted the jury to deliver a guilty verdict upon a lesser finding

than the statute’s willfulness requirement. See 17 U.S.C. § 1204.

The majority concludes that the misstated part of the instruction was harmless

because it was accompanied by and “sandwiched between” two proper statements of

law, but the fact that other portions of the jury instruction provided a more accurate

statement of law did nothing to restore the incorrectly stated part of the instruction. If

No. 13-3479 USA v. Reichert Page 25

the district court had acknowledged its mistake and explicitly corrected itself, then

perhaps it could be said that the jury instruction, viewed as a whole, was proper. Here,

however, there is simply no way of knowing whether the jurors relied on the district

court’s incorrect misstatement of law or its accompanying, yet contradictory, correct

statements of the law. Although other parts of the instruction may have provided the

necessary clarity for some jurors to understand what the district court meant, there was

no indication that the court was correcting its earlier statement or that the jury should

apply the correct statement of the law instead of relying on the district court’s incorrect

statement. While it is certainly possible that the jury relied on the correct portion of the

instruction, the likelihood that it relied on the incorrect portion seems equally probable.

Since we simply cannot know, to conclude otherwise would require impermissible

speculation. See Davis v. Georgia, 451 U.S. 921, 922 (1981) (explaining that reversal

is necessary when “[a]n appellate court can do no more than guess at what a jury might

have done . . . [if] properly instructed”).

I would be more inclined to agree with the majority if the DMCA’s anti-

circumvention provision were itself less ambiguous. In this case, however, the charging

statute was arguably open to various interpretations. Under these circumstances, I

cannot agree with the majority that the additional confusion generated by a jury

instruction that muddled the mens rea element of the charge was harmless. See United

States v. Salisbury, 983 F.2d 1369, 1377 (6th Cir. 1993).

The emphasis upon mens rea in the vast majority of criminal statutes is “in

keeping with our longstanding recognition of the principle that ambiguity concerning the

ambit of criminal statutes should be resolved in favor of lenity.” Liparota v. United

States, 471 U.S. 419, 427-28 (1985) (citing Rewis v. United States, 401 U.S. 808, 812

(1971); United States v. U.S. Gypsum Co., 438 U.S. 422, 437 (1978); United States v.

Bass, 404 U.S. 336, 347–34, (1971); Bell v. United States, 349 U.S. 81, 83 (1955);

United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221-222 (1952)). The rule

of lenity, in turn, “ensures that criminal statutes will provide fair warning concerning

conduct rendered illegal and strikes the appropriate balance between the legislature, the

No. 13-3479 USA v. Reichert Page 26

prosecutor, and the court in defining criminal liability.” Liporta, at 427-28 (citing Bass,

404 U.S. at 348). Where “congressional purpose is unclear,” the rule of lenity “provides

a time-honored interpretive guideline” that criminal culpability does not attach unless

it has been clearly established. See Liparota, at 418.

In cases such as this one, where the charging statute is subject to various

interpretations, the relationship between adequacy of notice and a statute’s scienter

requirement may, under certain circumstances, resolve potential ambiguities. See Vill.

of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982) (finding

that “a scienter requirement may mitigate a law's vagueness, especially with respect to

the adequacy of notice to the complainant that his conduct is proscribed”). Therefore,

latent ambiguities in the DMCA’s anti-circumvention provision could have been less of

a concern in this case if the jury instruction had properly ensured that the Government

met its obligation to prove the willfulness element of Reichert’s alleged crime. Here,

however, the opposite is true—the jury instructions convoluted the scienter element of

the charge and aggravated the already heightened risk of error stemming from a statute

that was itself subject to various interpretations concerning the exact legal status of the

defendant’s conduct.

Finally, although the issue on appeal is neither the weight nor sufficiency of the

evidence, I mention it here because it leads to the conclusion that an error must have

been present for the jury to deliver a guilty verdict despite overwhelming the evidence

in support of Reichert’s defense. If the evidence at trial had done more to establish the

Government’s contention that Reichert knew he was breaking the law, then I might be

more inclined to agree with the majority. Here, however, Reichert put forth

overwhelming evidence to establish his defense. It is undisputed that Reichert operated

his console modification business openly; he advertised his services and even opened a

separate bank account for the business because he planned to file tax returns on the

income it generated. Moreover, at trial, an agent who had engaged in online

conversations with Reichert during the investigation testified that Reichert seemed to

believe that video game modifications and mod chips occupied a legal “gray area.”

No. 13-3479 USA v. Reichert Page 27

Given the ongoing debate over the scope of the DMCA’s anti-circumvention provision,

Reichert’s point of view was not unsupported. See e.g., Chamberlain, 381 F.3d at 1203-

1204; Lexmark, 387 F.3d at 547-48; cf. MDY Indus., 629 F.3d at 948. In fact, several

law review articles published around the time of Reichert’s arrest suggest that his

understanding of mod chips’ legal status was no different from the views expressed by

individuals who had a much more sophisticated understanding of the law. See, e.g.,

Vijay G. Brijbasi, Game Console Modification Chips: The Effect of Fair Use and the

Digital Millennium Copyright Act on the Circumvention of Game Console Security

Measures, 28 Nova L. Rev. 411, 426 (2004); Phillip A. Harris Jr., Mod Chips and

Homebrew: A Recipe for Their Continued Use in the Wake of Sony v. Divineo, 9 N.C.

J. L. & Tech. 113, 115-118 (2007); Zvi Rosen, Mod, Man, and Law: A Reexamination

of the Law of Computer Game Modifications, 4 Chi.-Kent J. Intell. Prop. 196 (2005);

Lewis Stevenson, Fair Circumvention: A Judicial Analysis for the Digital Millennium

Copyright Act Using the Playstation 3 as a Case Study, 21 S. Cal. Interdisc. L.J. 681

(2012). Nevertheless, the jury delivered a guilty verdict.

If the jury had received a proper instruction on the law, which imposed the

highest possible burden upon the Government to demonstrate that Reichert “willfully”

violated the DMCA, it seems highly improbable that it would have convicted Reichert

on the evidence presented at trial.

III.

For the foregoing reasons, I respectfully dissent from Part II of the majority

opinion. While I agree with the majority as to the other issues presented by this appeal,

I would reverse on the basis of the erroneous jury instruction.