United States v. Warren Wilder , 627 F. App'x 639 ( 2015 )

FILED
NOT FOR PUBLICATION DEC 17 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-30160
Plaintiff - Appellee, D.C. No. 2:13-cr-00016-RAJ-3
v.
MEMORANDUM*
WARREN LANCE WILDER,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 14-30202
Plaintiff - Appellee, D.C. No. 2:13-cr-00016-RAJ-3
v.
WARREN LANCE WILDER,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Argued and Submitted December 8, 2015
Seattle, Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: McKEOWN and TALLMAN, Circuit Judges and GLEASON,** District
Judge.
Warren Lance Wilder appeals his conviction and sentence for mail fraud and
conspiring to traffic in counterfeit goods. We have jurisdiction under 28 U.S.C. §
1291 and 18 U.S.C. § 3742(a), and we affirm.
1. The district court held an evidentiary hearing and properly admitted
Wilder’s confession to Department of Homeland Security agents after finding it
voluntary. The district court’s factual findings are not clearly erroneous. On de
novo review of the application of law to these facts, the district court correctly
denied the motion to suppress his statements. Wilder argues that his confession
was involuntary because the agents “deliberately prey[ed]” on his family ties to
solicit his cooperation in violation of United States v. Tingle, 658 F.2d 1332,
1336–37 (9th Cir. 1981). But unlike the defendant in Tingle, Wilder is an
educated, middle-aged man who was interviewed in the backyard of his home, and
for part of the interview his wife was in attendance. Under the totality of the
circumstances, we cannot say that Wilder’s will was overborne at the time he
confessed and after his wife had urged him to “tell them what you know.” See
**
The Honorable Sharon L. Gleason, United States District Judge for
the District of Alaska, sitting by designation.
2
Dickerson v. United States, 530 U.S. 428, 434 (2000). The conduct of the agents
in this interview did not amount to impermissible coercion.
2. Wilder also argues that his due process rights were violated when the
government destroyed approximately 6,500 computer cables reasonably believed
to be counterfeit. But these cables were only potentially exculpatory. See
California v. Trombetta, 467 U.S. 479, 487–89 (1984). The government does not
contest that Connectzone, his employer, sold legal generics in addition to
counterfeits. Nor would it change Wilder’s sentence if he proved that some of the
destroyed cables were real because his sentence was based on an artificially low
number of infringing items. Because the evidence was just potentially exculpatory,
Wilder’s due process rights are only violated if the government acted in bad faith.
United States v. Del Toro-Barboza, 673 F.3d 1136, 1149 (9th Cir. 2012). The
district court did not clearly err in finding the government destroyed the cables in
good faith pursuant to established U.S. Customs forfeiture procedures. See id.;
United States v. Heffington, 952 F.2d 275, 281 (9th Cir. 1991).
3. Any error in calculating the infringing amount for purposes of sentencing
was harmless. See United States v. Ali, 620 F.3d 1062, 1074 (9th Cir. 2010).
Wilder argues that the district court should have used the wholesale price, rather
than the manufacturer’s suggested retail price (MSRP), which is up to 42% more.
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But even discounting the district court’s MSRP figures by 42%, the infringing
amount is still above $400,000, triggering the same 14-level enhancement under
U.S.S.G. § 2B5.3 (2013). Wilder points to estimates that the counterfeit goods
confiscated on August 8, 2011, were valued between $396,083 and $397,451. But
these estimates are based on the price of counterfeit cables (not authentic goods),
exclude the government’s July 2012 seizure (which had an MSRP of $125,000),
and exclude all other suspected counterfeit sales from the nine year conspiracy.
Thus, the record shows by clear and convincing evidence that even using
wholesale prices, a conservative estimate of the infringing amount is still above
$400,000.
4. Wilder’s arguments regarding the amount of the forfeiture judgment are
foreclosed by United States v. Newman, 659 F.3d 1235 (9th Cir. 2011). Wilder’s
ability to pay and limited personal profits are irrelevant where he was convicted of
knowingly participating in a conspiracy, and he took home a salary and earned
sales commissions from his participation. Id. at 1243–44. We are also satisfied
that the forfeiture judgment is not grossly disproportionate to Wilder’s crime, as it
represents a conservative estimate of the counterfeit profits from only four years of
the conspiracy, and the harm caused by Wilder’s offense is much greater than the
harm addressed in United States v. Bajakajian, 524 U.S. 321 (1998).
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AFFIRMED.
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