United States v. Willis Maxon

FILED
NOT FOR PUBLICATION JUN 12 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-30239
Plaintiff - Appellee, D.C. No. 4:11-cr-00003-RRB-1
v.
MEMORANDUM*
WILLIS SCOTT MAXON,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, Chief District Judge, Presiding
Argued and Submitted June 4, 2014
Anchorage, Alaska
Before: WALLACE, WARDLAW, and CHRISTEN, Circuit Judges.
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.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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.
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).
2