                            NOT FOR PUBLICATION                          FILED
                     UNITED STATES COURT OF APPEALS                      OCT 18 2016
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT



 UNITED STATES OF AMERICA,                       No.    14-50479

                  Plaintiff-Appellee,            D.C. No. 2:12-cr-00496-DMG

   v.
                                                 MEMORANDUM*
 DIDIER DE NIER, AKA Didier Denier,
 AKA Didier Gene Theot, AKA Didier Jean
 Thepot, AKA Didier Jean Charles Thepot,

                  Defendant-Appellant.

                    Appeal from the United States District Court
                        for the Central District of California
                    Dolly M. Gee, U.S. District Judge, Presiding

                       Argued and Submitted October 4, 2016
                               Pasadena, California

Before: REINHARDT, FERNANDEZ, and OWENS, Circuit Judges.

        Didier De Nier was convicted of five counts of wire fraud and one count of

conspiracy to defraud the government in connection with the production of

fraudulent batteries that De Nier’s company, Powerline, sold to the Department of

Defense (“DOD”) to put in naval warships. As the parties are familiar with the


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
facts, we do not recount them here. We affirm.

       1. De Nier contests three of the district court’s evidentiary rulings – (1)

sustaining the government’s hearsay objection that prevented De Nier from

denying that he had confessed to knowingly participating in Powerline’s fraud, (2)

allowing the prosecutor to interject his own credibility at trial by referencing his

conversation with De Nier, and (3) admitting into evidence an email

advertisement that De Nier had forwarded to a co-conspirator for “the most

dangerous book in the world.” Assuming the district court erred in its evidentiary

rulings (and it likely did), and that the errors reached constitutional dimension, the

errors were harmless.

      Under Chapman v. California, 386 U.S. 18, 24 (1967), where a trial error

results in the infringement of a constitutional right, the government bears the

burden to “prove beyond a reasonable doubt that the error complained of did not

contribute to the verdict obtained.” The court must decide whether a reasonable

juror could have relied on the error in deciding the verdict. An error potentially

infringing constitutional rights is harmless and does not require automatic reversal

of a conviction when it has “little, if any, likelihood of having changed the result

of the trial.” Id. at 22.

      The evidence admitted legitimately against De Nier was voluminous.

Testimony from several former Powerline employees showed that De Nier had


                                          2
knowingly participated in a scheme to defraud the government. Employees

testified that De Nier gave them fraudulent shipping labels for the batteries, taught

them to assemble fraudulent batteries, instructed them to put the fraudulent labels

on the fraudulent battery packs, explained how to cover markings on the batteries

that would otherwise indicate they were fraudulent, and discussed with them that

the batteries did not meet temperature requirements specified by the DOD. They

also testified that De Nier was in regular contact with his employees and would

check in every day while he was away. On cross examination, the government

elicited potentially incriminating admissions from De Nier himself indicating that

he knew about and was involved in the fraudulent activities. In light of this

overwhelming evidence, any errors were harmless beyond a reasonable doubt.

      2. De Nier also challenges the amount of loss used to calculate his sentence.

In calculating loss under the sentencing guidelines, a district court need only make

a “reasonable estimate of the loss, given the available information.” United States

v. Ali, 620 F.3d 1062, 1074 (9th Cir. 2010). The court reviews the district court’s

factual determination of the amount of loss for clear error. United States v. Del

Toro-Barboza, 673 F.3d 1136, 1153-54 (9th Cir. 2012). The parties stipulated at

trial to an exhibit calculating the total amount of money paid from DOD to

Powerline as approximately $2.6 million. This was a sufficient basis for the court

to use in estimating loss.


                                          3
AFFIRMED.




            4
United States v. De Nier, 14-50479                                          FILED
Reinhardt, Circuit Judge, dissenting:                                        OCT 18 2016
                                                                         MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
      I disagree that the refusal to let De Nier refute his supposed confession   was

harmless beyond a reasonable doubt. A criminal defendant has a constitutional

right to testify in his own defense: this right is “essential to due process of law in a

fair adversary system,” Rock v. Arkansas, 483 U.S. 44, 62 (1987) (citation

omitted), and is violated when a trial court “arbitrarily excludes material portions”

of the defendant’s testimony, id. at 55. De Nier was denied his only means of

disproving that he had confessed to the crimes of which he was accused. As the

Supreme Court has instructed, “confessions have profound impact on the jury”; a

confession is “probably the most probative and damaging evidence that can be

admitted” against him at trial because it comes from the defendant himself.

Arizona v. Fulminante, 499 U.S. 279, 296 (1991) (citations omitted). Therefore,

although there was other evidence presented by the government of De Nier’s guilt,

I cannot conclude that no reasonable juror would have relied on De Nier’s

uncontested confession in finding him guilty.
