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                            NOT FOR PUBLICATION                             JUN 12 2014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
United States v. Willis Maxon

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