United States v. Willis Maxon

578 F. App'x 703

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 12, 2014
• Docket: 12-30239
• Status: Unpublished

Opinion

MEMORANDUM *

Willis Scott Maxon appeals his conviction for false identification of wildlife pursuant . to 16 U.S.C. §§ 3372(d)(2) and 3373(d)(3)(A)(ii). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Assuming without deciding that Maxon preserved his objection to the erroneous citation to 16 U.S.C. § 3373(d)(1)(B), we conclude that Maxon cannot demonstrate that he was prejudiced by the Government’s citation error. See Fed.R. Crim.P. 7(c)(2) (“Unless the defendant was misled and thereby prejudiced, neither an error in a citation nor a citation’s omission is a ground to dismiss the indictment or information or to reverse a conviction.”). 1 An indictment’s “description of the alleged conduct is far more critical than the indictment’s ... citation of a particular provision of a statute,” United States v. Bonallo, 858 F.2d 1427, 1430 (9th Cir.1988), and the indictment here alleged conduct corresponding to the elements of 16 U.S.C. §§ 3372(d)(2) and 3373(d)(3)(A)(ii). Moreover, the record shows Maxon was on notice of the correct charges against him before trial commenced. Nor was Maxon prejudiced at sentencing, because the maximum fines possible under 16 U.S.C. § 3373(d)(3)(A)(ii), and the erroneously cited penalty provision, 16 U.S.C. § 3373(d)(1)(B), are identical. See 18 U.S.C. § 3571(b); id. § 3571(e).

AFFIRMED.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

1 . Contrary to Maxon's argument, automatic reversal is not warranted on Fifth Amendment grounds because a "statutory citation is not regarded as part of the indictment.” United States v. Pazsint, 703 F.2d 420, 423 (9th Cir.1983).