U.S. v. Reichert

A sentencing enhancement under U.S.S.G. § 3B1.3 was proper because defendant had skills in the area of circumvention technology that “[m]ost persons of average ability” with “a minimum of difficulty” could not replicate.

Opinion (Griffin): Jeffery Reichert ("Reichert") was convicted of trafficking circumvention technology, meaning that he was circumventing the built-in security measures of gaming consoles, such as Xboxes and Nintendo Wiis, to allow them to play pirated games. Reichert appealed his conviction, arguing that (1) the "deliberate ignorance" jury instruction was inaccurate and negated the requirement that his conduct be a "wilfull" violation of the Digital Millennium Copyright Act ("DMCA"). The court rejected this argument as being too narrow; holding that the instructions, when viewed as a whole, correctly stated the wilfulness element required by the DMCA. Another argument advanced by Reichert on appeal was that he was improperly given a "special skills" sentencing enhancement under U.S.S.G. § 3B1.3 because he had no formal training in computer and device modification. The court also rejected this argument, holding under United States v. Godman, 223 F.3d 320 (6th Cir. 2000) that no formal education was necessary, but that self-taught skills could meet this requirement if they were "particularly sophisticated." This court further found that Reichert had the sophistication because he was lauded as an expert in the online communities and other people came to him as an expert in modifying consoles; accordingly, he had skills in this area that “[m]ost persons of average ability” with “a minimum of difficulty” could not replicate. The court also rejected a sixth amendment argument pertaining to witness exclusion, and accordingly AFFIRMED Reichert's conviction and sentencing (with the exception of J. Douglas, who dissented).