IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

MEL VIN JOHNSON, 

Petitioner, 

v. 

UNITED STATES OF AMERICA 

Respondent. 

JONES, Judge: 

PORTLAND DIVISION 

) 

) 

) CASE NOS. 3:14-CR-00210-J0-02 

) 3:15-CV-01455-JO 

) 

) OPINION AND ORDER 

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) 

) 

) 

Melvin Johnson filed a motion to dismiss for lack of subject matter jurisdiction (# 105), 

which I construe as a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct the 

sentence imposed in United States v. Johnson, case No. 3:14-CR-00210-J0-02. Upon careful 

review of the record, I conclude Johnson's claim for relieflacks merit and an evidentiary hearing 

is unnecessary because Johnson alleges no facts that would entitle him to relief. For the reasons 

set fmth below, Johnson's§ 2255 motion is DENIED. 

BACKGROUND 

Johnson stipulated to the following facts in his plea agreement and plea petition. (# 60) 

During all times relevant to this matter, Johnson was serving life sentences on three counts of 

first-degree murder. Beginning on or about April 2, 2005 and extending through October, 2012, 

Johnson gathered personal identifying information of fellow inmates and other third parties. He 

then conveyed this identifying information to his wife and codefendant, Loretta Johnson, and 

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Case 3:14-cr-00210-JO Document 116 Filed 09/16/15 Page 1 of 4
instructed her to file fraudulent tax returns and claim unwarranted income tax refunds. Over this 

period, Loretta Johnson filed approximately 124 such returns falsely claiming $359,828 in 

refunds. Loretta Johnson actually received refunds totaling $174,411 from the Internal Revenue 

Service that she deposited in bank accounts she or Johnson controlled. 

On September 16, 2014, Johnson pied guilty to Count 1 of the Indictment: Conspiracy to 

Defraud the United States with Respect to Claims, in violation of 18 U.S.C. § 286. Johnson 

entered a plea pursuant to a plea agreement, in which he waived most of his appellate rights and 

any collateral attacks on the conviction or sentence. 

I sentenced Johnson to 37 months of imprisonment on January 22, 2015, and imposed an 

order of restitution in the amount of $174,411. On July 28, 2015, Johnson filed a Motion to 

Dismiss for Lack of Subject Matter Jurisdiction, which the clerk received and docketed as a 

Motion to Vacate or Set Aside the Sentence under 28 U.S.C. § 2255. 

LEGAL STANDARD 

Under 28 U.S.C. § 2255, a federal prisoner may claim the right to be released on the 

ground that the sentencing couli lacked jurisdiction to impose sentence. The couli is authorized 

to grant a hearing on a motion under Section 2255, unless the motion and the files and records of 

the case conclusively show that the prisoner is entitled to no relief. 

DISCUSSION 

Johnson argues the court lacks subject matter jurisdiction, because the indictment cites 

the Statutes at Large rather than 18 U.S.C. § 286. This argument fails because the government 

properly referred to the United States Code in the indictment. Additionally, even had the 

government cited the wrong version of the statute, this enor would not deprive the comt of 

subject matter jurisdiction. 

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First, 18 U.S.C. § 286 is a valid law of the United States, and it represents the proper 

citation for the indictment at hand. The Statutes at Large specifically states that "Title 18 of the 

United States Code, entitled 'Crimes and Criminal Procedure', is hereby revised, codified, and 

enacted into positive law, and may be cited as 'Title 18, U.S.C. § _' ... ". In other words, the 

United States Statutes at Large explicitly states that the citation may be written as "18 U.S.C. § 

286." Because Title 18 of the United States Code was enacted into positive law, citation to the 

Statutes at Large and to the United States Code is equally proper. As the Government elucidates, 

"a law of the United States does not cease to be a law of the United States simply because it is 

published and cited in more than one place." Gov. Resp. to § 2255 Mot(# 109 at 3). 

Second, even if the government had made a citation e1rnr or omission in the indictment, 

this enor would not be a valid ground to dismiss for lack of subject matter jurisdiction. Defects 

in an indictment do not deprive a court of its subject matter jurisdiction. See United States v. 

Cotton, 535 U.S. 625, 630 (2002) ("defects in an indictment do not deprive a court of its power 

to adjudicate a case."); United States v. Williams, 341 U.S. 58 (1951) (ruling "that the indictment 

is defective does not affect the jurisdiction of the trial court to detennine the case presented by 

the indictment"); Lamar v. United States, 240 U.S. 60 (1916) (an "objection that an indictment 

does not charge a crime against the United States goes only to the merits of the case."). The 

Ninth Circuit has similarly held that an indictment need not cite the controlling statute. In 

United States v. Vroman, for example, the court concluded that the indictment provided the 

defendant with sufficient notice of the charges against him, even though the wrong statute was 

cited. As stated by the com1, "[ c ]on·ect citation to the relevant statute, though always desirable, 

is not fatal if omitted." Vroman, 975 F.2d 669, 671 (91

" Cir. 1992). 

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Furthermore, the Federal Rules of Criminal Procedure provide: "Unless the defendant 

was misled and thereby prejudiced, neither an enor in a citation nor a citation's omission is a 

ground to dismiss the indictment or info1mation or to reverse a conviction." Fed. R. Crim. P. 7. 

Our law does not consider the statute to be part of the indictment. So long as the charges are 

governed by some statute in force, it does not matter what statute, if any, is cited in the 

indictment. Williams v. United States, 168 U.S. 382, 289 (1897); United States v. Hutcheson, 

312 U.S. 219, 229 (1941). Thus, even had Johnson been correct in alleging that the indictment 

should have cited the Statutes at Large rather than the United States Code, this error would not 

be a valid ground for dismissal. In the case at hand, however, Johnson's motion to dismiss can 

be denie~ on more narrow grounds, because no citation error was present in the indictment. 

CONCLUSION 

Constrning the § 2255 motion in a manner most favorable to the pro se petitioner, the 

motion and the files and records of the case conclusively show that prisoner is entitled to no 

relief. The court had subject matter jurisdiction in this case. Accordingly, the motion(# 105) is 

DENIED. Pending motions, if any, are DENIED AS MOOT. 

The comt declines to issue a certificate of appealability on the basis that petitioner has 

not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. 

§2253 ( c )(2). 

IT IS SO ORDERED. 

DATED this _11_ "' day of September, 2015. 

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