## Facts

- Jeffrey J. Reichert moderated an online forum devoted to modifying video-game consoles by installing “mod chips.”
- Reichert openly operated and advertised a business installing mod chips and used specialized technical knowledge to perform and advise on complex console modifications.
- Evidence showed Reichert posted online acknowledging that people were not “supposed” to install mod chips and told an undercover agent mod chips were in a “gray area.”
- The government presented expert testimony that the primary purpose of mod chips was enabling users to play pirated video games by bypassing console access controls.
- Reichert was arrested after undercover agents interacted with him and investigated his trafficking in mod chips intended to circumvent technological measures controlling access to copyrighted works.
- At trial, the district court instructed the jury that conviction required a “willful” violation (knowledge that the conduct was illegal) and also gave a deliberate-ignorance instruction.
- The court excluded testimony from a defense witness.
- The jury convicted Reichert, and the court applied a “special skills” sentencing enhancement under U.S.S.G. § 3B1.3 based on his console-modification expertise.

## Issues

1. Whether a deliberate-ignorance instruction improperly diluted the DMCA “willfulness” requirement by permitting conviction without proof that Reichert knew his conduct was unlawful.
2. Whether excluding a defense witness violated Reichert’s constitutional right to present a defense.
3. Whether Reichert’s self-taught technical proficiency in installing mod chips justified a “special skills” enhancement under U.S.S.G. § 3B1.3.

## Decision

- The Sixth Circuit affirmed the conviction and sentence.
- The court held the jury instructions, read as a whole, correctly required proof of willfulness and permissibly allowed deliberate ignorance as a basis to infer knowledge.
- The court held the excluded defense testimony was not so essential to the defense that its exclusion caused a constitutional violation.
- The court upheld the § 3B1.3 enhancement because Reichert’s specialized, self-taught technical skills significantly facilitated the offense.

## Legal Principles

- A deliberate-ignorance instruction is permissible when the charge, considered in its entirety, still requires the jury to find the defendant knew the conduct was unlawful where willfulness is an element.
- Evidentiary exclusions violate the constitutional right to present a defense only when they are arbitrary or disproportionate and when the excluded evidence is central to the defense.
- The “special skills” enhancement under U.S.S.G. § 3B1.3 can apply to self-taught skills if they are beyond those of the general public and significantly facilitate commission of the offense.

## Conclusion

The Sixth Circuit affirmed Reichert’s DMCA trafficking conviction and sentence, concluding that the willful-blindness instruction did not negate the required finding of willfulness, exclusion of a defense witness did not deprive him of a meaningful defense, and his specialized console-modification skills supported a § 3B1.3 sentencing enhancement.


United States v. Reichert, 747 F.3d 445 (6th Cir. 2014)