                                                                            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                           NOT FOR PUBLICATION                              DEC 17 2015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.


                                           3
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).


                                           4
AFFIRMED.




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