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).

F I LED

United States Court of Appeals

Tenth Circuit

December 12, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 06-4191

v. District of Utah

KEVIN J. CROCKETT,

Defendant-Appellant.

(D.C. No. 2:06-CV-78-DB)

(D.C. No. 2:01-CR-38-DB)

ORDER DENYING CERTIFICATE OF APPEALABILITY 

*

Before MURPHY, SEYMOUR, and McCONNELL, 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, Mr. Crockett now seeks

from this Court a certificate of appealability (COA) that would allow him to
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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 we conclude that Mr.

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.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). 

Mr. 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 two tax counts. 

As to the first claim, Mr. 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). Mr. 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. We 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. Mr. Crockett was indicted and charged for a violation of the

criminal laws 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 Mr. 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). Mr. Crockett does not deny that the government successfully

proved each of these elements. 

In his COA application, Mr. 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 Mr.

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). 

We therefore DENY Mr. Crockett’s request for a COA and DISMISS this

appeal. Petitioner’s motion to proceed in forma pauperis is also DENIED.

Entered for the Court,

Michael W. McConnell

Circuit Judge