F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
December 12, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee, No. 06-4191
v. District of Utah
KEV IN J. CRO CK ETT, (D.C. No. 2:06-CV-78-DB)
(D.C. No. 2:01-CR-38-DB)
Defendant-Appellant.
OR DER DENY ING CERTIFICATE O F APPEALABILITY *
Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.
Kevin J. Crockett was convicted of conspiracy to defraud the United States,
18 U.S.C. § 371, and of aiding and assisting in the filing of a false tax return, 26
U.S.C. § 7206(2). The U.S. District Court for the District of Utah sentenced him
to a prison term of sixty months. Proceeding pro se, M r. Crockett now seeks
from this Court a certificate of appealability (COA) that would allow him to
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore submitted without oral argument. This order and judgment is not
binding precedent except under the doctrines of law of the case, res judicata and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 (eff. Dec. 1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1,
2007).
appeal from the district court’s denial of his habeas corpus petition under 28
U.S.C. § 2255. See 28 U.S.C. § 2253(c)(1)(B). Because w e conclude that M r.
Crockett has failed to make “a substantial showing of the denial of a
constitutional right,” 28 U.S.C. § 2253(c)(2), we deny his request for a COA and
dismiss the appeal.
A district court’s denial of a motion for relief under 28 U.S.C. § 2255 may
be appealed only if the district court or this Court first issues a COA. 28 U.S.C. §
2253(c)(1)(B). Congress has determined that a COA will issue “only if the
applicant has made a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). The applicant may satisfy this standard “by
demonstrating that jurists of reason could disagree with the district court’s
resolution of his constitutional claims,” or alternatively, “that jurists could
conclude the issues presented are adequate to deserve encouragement to proceed
further.” M iller-El v. Cockrell, 537 U.S. 322, 327 (2003).
M r. Crockett argues that the federal district court lacked subject matter
jurisdiction over his criminal case. He also contends the government failed to
state the amount of tax due in its prosecution of the tw o tax counts.
As to the first claim, M r. Crockett was charged with federal crimes, and
federal district courts have exclusive jurisdiction over all offenses against the
United States, including tax crimes as defined in Title 26 of the United States
Code. 18 U.S.C. § 3231; United States v. Collins, 920 F.2d 619, 629-30 (10th
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Cir. 1990). M r. Crockett argues against district court jurisdiction on the
ostensible ground that “[t]he government failed to prove that it had a bona fide
property interest of the United States. Prospective tax collection are not a bona
fide property interest of the United States. (See Baral v. U.S., 528 U.S. 431
(2000).” Appellant’s Br. 1. W e are not sure what this has to do with jurisdiction.
The Baral decision was not a criminal tax prosecution, had nothing to do with
jurisdiction, and did not mention anything about bona fide property interests of
the United States. M r. Crockett was indicted and charged for a violation of the
criminal law s of the United States, and whether or not the government proved it
had a bona fide property interest in prospective tax collection— whatever that
means— the federal district court had jurisdiction over the case.
Contrary to M r. Crockett’s second claim, the government was not required
to specify an amount of tax due in its prosecution of 26 U.S.C. § 7206(2). The
statute enunciates three elements the government must prove: (1) that the
defendant aided, assisted, procured, counseled, or advised the preparation of a tax
return; (2) that the return was fraudulent or false as to a material matter; and (3)
that the defendant acted willfully. See United States v. Cutler, 948 F.2d 691, 694
(10th Cir. 1991). M r. Crockett does not deny that the government successfully
proved each of these elements.
In his COA application, M r. Crockett raises two arguments not made to the
court below. He argues that the interval between his indictment and trial
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exceeded the seventy-day period mandated by the Speedy Trial Act, 18 U.S.C. §
3161(c)(1); he also raises an ineffective assistance of counsel claim. Because M r.
Crockett failed to argue these points before the district court, we decline to
address them now. Apodaca v. City of Albuquerque, 443 F.3d 1286, 1289 (10th
Cir. 2006).
W e therefore D EN Y M r. Crockett’s request for a COA and DISM ISS this
appeal. Petitioner’s motion to proceed in form a pauperis is also DENIED.
Entered for the Court,
M ichael W . M cConnell
Circuit Judge
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