ORDER GRANTING THE GOVERNMENT'S EX PARTE MOTION TO AMEND THE INDICTMENT

Re: Dkt. No. 99

LUCY H. KOH, District Judge.

On September 10, 2015, Defendant Robert Saunders ("Defendant") was charged in a Superseding Indictment with, among other counts, one count of intentional damage to a protected computer in violation of "18 U.S.C. §§ 1030(a)(5)(A) & (c)(2)(B)(iii)" ("Count One"). ECF No. 41. Before the Court is an ex parte motion by the United States to correct the penalty provision citation of "(c)(2)(B)(iii)" to "(c)(4)(B)(i)." ECF No. 99. Although the motion was filed ex parte, Defendant opposed the motion on February 19, 2016.1 ECF No. 100. Having considered the submissions of the parties, the relevant law, and the record in this case, the Court GRANTS the government's ex parte motion to amend the indictment.

Federal Rule of Criminal Procedure 7(c)(1) requires that an indictment be a "plain, concise and definite written statement of the essential facts constituting the offense charged." Fed. R. Crim. P. 7(c)(1). Additionally, "[u]nless 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." Id. 7(c)(2). Accordingly, the Ninth Circuit has held that a court may correct a citation error in the indictment when the error "did not mislead [the defendant] as to the charges against him" and the defendant was not "prejudiced by the incorrect citation." United States v. Lim, 984 F.2d 331, 337 (9th Cir. 1993) (affirming the district court's grant of the government's motion to amend a "clear typographical error" in the indictment); see also United States v. Neill, 166 F.3d 943, 948 (9th Cir. 1999) (finding that a defendant was not prejudiced by the amendment of the indictment when the defendant was able "to make a plea and prepare a defense"). For the following reasons, the Court finds that the citation error in the instant case did not mislead nor prejudice Defendant.

First, the penalty provision cited in the Superseding Indictment is inapplicable to Defendant. Section (c)(2)(B)(iii) provides a maximum penalty of five years' imprisonment for offenses "under subsection (a)(2)." See 18 U.S.C. § 1030(c)(2)(B)(iii). However, Defendant was charged under a different section of Title 18, subsection (a)(5)(A). Although Defendant argues that Defendant was "entitled to rely on the multiple citations in the Superseding Indictment to . . . (c)(2)(B)(iii)," ECF No. 100 at 3, it is clear from the face of the Superseding Indictment that this penalty provision can not apply to Defendant. By contrast, the corrected penalty provision, Section (c)(4)(B)(i), provides a maximum penalty of ten years' imprisonment for offenses "under subsection (a)(5)(A)." See id. § 1030(c)(4)(B)(i).

Second, the charging language in the Superseding Indictment tracks the language of Section (c)(4)(B)(i). The Superseding Indictment alleges that Defendant's conduct "caused loss to 1 or more persons during a 1-year period affecting protected computers aggregating at least $5,000 in value." ECF No. 41 ¶ 9. This language triggers the application of Section (c)(4)(B)(i). See 18 U.S.C. § 1030(c)(4)(B)(i) (applying to "an offense under subsection (a)(5)(A) . . . if the offense caused . . . a harm provided in subclauses (I) through (VI) of subparagraph (A)(i)[,]" which includes "loss to 1 or more persons during any 1-year period . . . aggregating at least $5,000 in value").

By comparison, the penalty under Section (c)(2)(B)(iii) is imposed when "the value of the information obtained exceeds $5,000." See id. § 1030(c)(2)(B)(iii). The Superseding Indictment does not allege that the value of the information obtained exceeds $5,000.

Third, the penalty sheet filed in conjunction with the Superseding Indictment states that the maximum sentence for Count One is "10 Years." See ECF No. 41. This is the maximum penalty for Section (c)(4)(B)(i), not Section (c)(2)(B)(iii) (five years maximum imprisonment).

Consequently, Defendant has been on notice since the return of the Superseding Indictment on September 10, 2015, that Section (c)(2)(B)(iii) does not, and can not, apply to Count One. Additionally, Defendant has been on notice that the government does not intend to prove at trial that "the value of the information obtained exceeds $5,000," as required by Section (c)(2)(B)(iii). Rather, the Superseding Indictment states that the government will attempt to prove that Defendant's conduct "caused loss to 1 or more persons during a 1-year period affecting protected computers aggregating at least $5,000 in value," as required by Section (c)(4)(B)(i). Further, Defendant has been on notice since September 10, 2015, that the government believes the maximum penalty for Count One to be ten years' imprisonment. The Court notes that in the joint proposed verdict form submitted by the parties on February 16, 2016, Defendant agreed to use the correct penalty provision, Section (c)(4)(B)(i).2 See ECF No. 91.

In light of these circumstances, the Court concludes that Defendant was on notice of the correct penalty provision and not prejudiced by the citation error. See Neill, 166 F.3d at 948. The Court GRANTS the government's ex parte motion to amend the indictment and ORDERS that all references to 18 U.S.C. § 1030(c)(2)(B)(iii) in the Superseding Indictment shall be stricken and replaced with 18 U.S.C. § 1030(c)(4)(B)(i).

IT IS SO ORDERED.