United States v. Cromar

• Court: Court of Appeals for the Tenth Circuit
• Decided: September 2, 2025
• Docket: 25-4002
• Status: Unpublished

Opinion

Appellate Case: 25-4002 Document: 35-1 Date Filed: 09/02/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT September 2, 2025 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 25-4002 (D.C. No. 2:23-CR-00159-HCN-1) PAUL KENNETH CROMAR, (D. Utah)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before HARTZ, MORITZ, and ROSSMAN, Circuit Judges. _________________________________

Paul Kenneth Cromar, proceeding pro se, appeals his convictions for tax

evasion under 26 U.S.C. § 7201 and forcible rescue of seized property in violation of

21 U.S.C. § 7212(c). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

* 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). The case is therefore ordered 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 and 10th Cir. R. 32.1. Appellate Case: 25-4002 Document: 35-1 Date Filed: 09/02/2025 Page: 2

Background and Procedural History1

Subscribing to the legal theories associated with the sovereign-citizen and tax-

protester movements, Cromar failed to pay taxes or file a tax return from 1999 to

2005. In 2017, the United States sued Cromar seeking to recover the unpaid income

taxes and to foreclose tax liens through a sale of his real property in Cedar Hills,

Utah. Cromar never answered the complaint but filed numerous motions challenging

the court’s subject-matter jurisdiction and the government’s taxing authority. The

court denied the motions and ultimately entered default judgment against Cromar,

determining he owed more than $1 million in back taxes and penalties, a liability that

generated statutory liens on his property. Following an unsuccessful interlocutory

appeal to this court, the district court entered an order of foreclosure and judicial

sale, requiring Cromar and his wife to vacate the property by April 5, 2019. Cromar

appealed that order, and we affirmed, specifically rejecting his constitutional

challenges to the government’s taxing authority. See United States v. Cromar,

807 F. App’x 821, 824-25 (10th Cir. 2020).2

1 We relay the facts in the light most favorable to the government as appropriate when reviewing the sufficiency of the evidence to uphold a conviction. United States v. Goldesberry, 128 F.4th 1183, 1191 (10th Cir. 2025). 2 While the tax case was unfolding, the Cromars filed a collateral action in Utah state court against the United States and certain IRS officials and government attorneys, accusing the defendants of conspiring to implement an unconstitutional federal income tax with the aim of stealing the Cromars’ property. The government removed that case to federal court, and it was ultimately dismissed. This court affirmed. See Cromar v. United States, 816 F. App’x 235, 240 (10th Cir. 2020). 2 Appellate Case: 25-4002 Document: 35-1 Date Filed: 09/02/2025 Page: 3

In May 2019, Gary Chapman, the IRS agent assigned to handle the sale of the

Cedar Hills property, discovered that Cromar and his wife were still living there. He

enlisted the help of law enforcement who removed the Cromars from the property on

June 25, 2019, and then changed the locks. That September, Chapman sold the

property at auction to Copper Birch LLC. Copper Birch recorded the deed of transfer

on April 29, 2020. Days before, on April 23, Cromar had broken into the house and

moved back in along with his wife. Upon learning this, Copper Birch retained

counsel and sued the Cromars for unlawful detainer in state court.

After two occupancy hearings, the state court sided with Copper Birch and

ordered the Cromars to vacate the premises by September 5, 2020. The order

authorized law enforcement to forcibly remove them if they failed to comply. They

did not comply, so on September 24, law enforcement returned to the house to

forcibly remove them. Nobody answered the door or heeded the officers’ calls to

come outside. Around the same time, however, separate law enforcement officers

encountered Cromar at a shopping center and convinced him to call his wife, who

was in the house. Eventually Cromar convinced his wife to peacefully leave the

premises. When police officers cleared the house, they found sandbags, a cache of

weapons and ammunition, and wooden boards placed tactically throughout the house.

In April 2023, Cromar was indicted on one count of tax evasion under § 7201,

one count of obstruction under § 7212(a), and one count of forcible rescue of seized

property under § 7212(b). He chose to represent himself, although the district court

appointed the public defender as standby counsel. Over the course of an eight-day

3 Appellate Case: 25-4002 Document: 35-1 Date Filed: 09/02/2025 Page: 4

jury trial, the government called sixteen witnesses and Cromar called fourteen. After

three days of deliberations, Cromar was convicted on the tax evasion and forcible

rescue counts and acquitted on the obstruction count. The district court sentenced

him to 72 months’ incarceration followed by three years of supervised release. This

appeal followed.

Analysis

Cromar raises a plethora of issues on appeal, many of which are not

sufficiently developed to allow for meaningful review, notwithstanding the liberal

construction we have accorded his pro se filings. See Garrett v. Selby Connor

Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (court construes pro se briefs

liberally but will not act as litigant’s attorney); Kelley v. City of Albuquerque,

542 F.3d 802, 819 (10th Cir. 2008) (inadequately briefed issues do not invoke

appellate review). He has adequately presented four issues: (1) the district court

lacked subject matter jurisdiction; (2) the evidence was insufficient to sustain a

conviction on both counts; (3) the district court’s conduct of the case violated his due

process rights; and (4) the government was not entitled to restitution. We address

each of these arguments in turn.

I.

The overarching theory of Cromar’s defense is that the district court lacked

subject-matter jurisdiction to adjudicate any criminal charge against him based on his

failure to pay a “non-apportioned direct income tax that was assessed by the IRS

under authority of the 16th Amendment.” Aplt. Opening Br. at 18. This argument is

4 Appellate Case: 25-4002 Document: 35-1 Date Filed: 09/02/2025 Page: 5

a common refrain in tax protester cases. It goes like this: (1) the Constitution

requires direct taxes3 to be apportioned among the states according to each state’s

population, see Art. I, § 9, cl. 4; (2) income taxes are not so apportioned; but

(3) income taxes have been referred to as “direct” taxes by this court, see United

States v. Collins, 920 F.2d 619, 629 (10th Cir. 1990)4; accordingly (4) federal courts

lack jurisdiction to enforce the collection of such non-apportioned direct taxes.

As we observed in Collins, “[e]fforts to argue that federal jurisdiction does not

encompass prosecutions for federal tax evasion have been rejected as either ‘silly’ or

‘frivolous’ by a myriad of courts throughout the nation.” 920 F.2d at 629 (collecting

cases); see also United States v. Hansen, 929 F.3d 1238, 1245 (10th Cir. 2019);

United States v. Gerhard, 615 F.3d 7, 25 n.9 (1st Cir. 2010); United States v.

Drachenberg, 623 F.3d 122, 124 (2d Cir. 2010); United States v. Cooper, 170 F.3d

691, 691 (7th Cir. 1999). Yet Cromar argues the Supreme Court’s recent decision in

Moore v. United States, 602 U.S. 572 (2024), upends this line of authority because it

makes clear that income taxes are indirect taxes, not direct taxes like we said in

3 “Generally speaking, direct taxes are those taxes imposed on persons or property.” Moore v. United States, 602 U.S. 572, 582 (2024). Because direct taxes must be apportioned among the states according to population, Congress has enacted a direct tax only rarely and not since the Civil War. Id. “[I]ndirect taxes are the familiar federal taxes imposed on activities or transactions. That category of taxes includes . . . incomes taxes.” Id. at 582-83. Indirect taxes are not subject to the apportionment clause. Id. at 583. 4 Collins was superseded on other grounds by the Paperwork Reduction Act of 1995, as noted in Lewis v. C.I.R., 523 F.3d 1272, 1276-77 (10th Cir. 2008). 5 Appellate Case: 25-4002 Document: 35-1 Date Filed: 09/02/2025 Page: 6

Collins. According to Cromar, this means Collins was wrongly decided and the

district court was therefore not entitled to rely on it in adjudicating his criminal case.

We reject this argument for the same reasons we explained in Cromar’s civil

tax case when we declined his invitation to “delve into the difficult question of the

distinction between direct and indirect taxes.” Cromar, 807 F. App’x at 824 (internal

quotation marks omitted). To reiterate what we said then, since ratification of the

Sixteenth Amendment, whether an income tax is a direct tax or indirect tax is

immaterial. It is beyond dispute that “Congress has the power to tax the income of

individuals.” United States v. Stillhammer, 706 F.2d 1072, 1077 (10th Cir. 1983).

Further, in this case as “in every federal criminal prosecution, subject-matter

jurisdiction comes from 18 U.S.C. § 3231. That’s the beginning and the end of the

jurisdictional inquiry.” United States v. Tony, 637 F.3d 1153, 1158 (10th Cir. 2011)

(internal quotation marks, brackets, and ellipsis omitted). Moore, a civil case that

upheld the constitutionality of the Mandatory Repatriation Tax, is simply inapposite.5

5 Cromar refines his jurisdiction argument in his reply brief, claiming his misplaced reliance on Collins’s characterization of income tax as a direct tax negated the willfulness element of the tax evasion offense. This court does not ordinarily consider arguments raised for the first time in a reply brief, and there is no reason to do so here. See United States v. Walker, 85 F.4th 973, 989 n.13 (10th Cir. 2023). Moreover, Cromar fails to cite in the record where he raised this issue in the district court, as required by our local rules. See 10th Cir. R. 28.1(A) (“For each issue raised on appeal, all briefs must cite the precise references in the record where the issue was raised and ruled on.”). Cromar objected repeatedly to the district court’s subject matter jurisdiction and tendered numerous theories in defending against the tax evasion count. But he did not advance this one. And “our general rule against considering new arguments on appeal applies equally when a litigant changes to a new theory on appeal that falls under the same general category as an argument 6 Appellate Case: 25-4002 Document: 35-1 Date Filed: 09/02/2025 Page: 7

II.

A.

Cromar challenges the sufficiency of the evidence to support his conviction of

forcible rescue of seized property under 26 U.S.C. § 7212(b). We review sufficiency

of the evidence de novo. United States v. Davis, 995 F.3d 1161, 1166 (10th Cir.

2021). “Evidence is sufficient to support a conviction if, viewing the evidence and

all reasonable inferences from it in the light most favorable to the government, a

rational trier of fact could find the defendant guilty beyond a reasonable doubt.” Id.

(internal quotation marks omitted).

Section 7212(b) criminalizes the forcible rescue of “any property after it shall

have been seized under this title.” “This title” refers to Title 26, the Internal Revenue

Code. The essential elements of the offense are seizure and rescue. United States v.

Oliver, 421 F.2d 1034, 1036 (10th Cir. 1970). Cromar argues the government failed

to prove the seizure element because his house was seized under Title 28, not Title

26.

This argument is both factually and legally incorrect. Title 28 sets forth

the procedures to be used when selling real estate pursuant to a court order. See

28 U.S.C. § 2001(a) (requiring public sale) and (b) (requiring notice and a hearing).

The district court in the civil tax case invoked these provisions in ordering Cromar’s

property to be auctioned at a public sale. Cromar, 807 F. App’x at 825. But that

presented at trial.” United States v. Nelson, 868 F.3d 885, 891 n.4 (10th Cir. 2017) (internal quotation marks omitted). 7 Appellate Case: 25-4002 Document: 35-1 Date Filed: 09/02/2025 Page: 8

doesn’t mean the property was seized under Title 28. It is clear from the order of

foreclosure and judicial sale that the property was seized under section 7403 of

Title 26, which empowers the IRS to seize the property of delinquent taxpayers.

See R. vol. 3 at 276 (“Under 26 U.S.C. § 7403, the United States is entitled to enforce

its liens against the Subject Property in order to apply the proceeds towards the tax

liabilities of Paul Kenneth Cromar.”). The jury was shown the order of foreclosure

and judicial sale. R. vol. 4 at 612-13. And several IRS revenue officers testified

regarding the nature of the federal tax lien and how it led to the foreclosure order.

E.g., id. at 492-97. We agree with the government this evidence was sufficient to

establish that Cromar’s property was seized under Title 26.

B.

Cromar argues the government “was wrongfully and prejudicially allowed to

improperly substitute Form [4549s] which are not actual or real tax returns, for the

required evidence of a ‘subscribed’ tax return for each tax year in dispute.” Aplt.

Opening Br. at 29 (emphasis omitted). We construe this argument as a challenge to

the sufficiency of the evidence on the tax evasion count.

“To prove evasion under § 7201, the government must show (1) a substantial

tax liability, (2) willfulness, and (3) an affirmative act constituting evasion or

attempted evasion.” United States v. Hoskins, 654 F.3d 1086, 1090 (10th Cir. 2011)

(internal quotation marks omitted). Cromar appears to argue the government failed

to establish a tax liability because, having no tax returns as evidence, it relied instead

on an audit report prepared by a revenue agent and submitted on Form 4549. We

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reject this argument. A filed tax return is not an element of tax evasion under § 7201.

As the government points out, tax evaders often do not file tax returns. And this

court has acknowledged that the government’s evidence in tax evasion cases typically

is circumstantial precisely because “direct proof is often unavailable.” United States

v. Thompson, 518 F.3d 832, 850 (10th Cir. 2008) (internal quotation marks omitted).

In this case, the government’s proof consisted of an IRS audit of Cromar’s

finances. The auditor gave meticulous testimony about the audit process, including

his collection of bank records and other financial information and his interview of

Cromar. The auditor explained how he used that information to calculate Cromar’s

“deficiency amounts” for each tax period at issue. R. vol. 4 at 360. He also testified

that Cromar was advised of the “taxpayer bill of rights,” including his right to protest

the deficiency amount. Id. at 362-64. Cromar did not file a protest or otherwise

lodge any formal objection to the auditor’s calculations. Accordingly, the auditor

explained that his certification ultimately became a “substitute for return,” which the

IRS creates when the taxpayer fails to file a tax return. Id. at 378. This evidence was

sufficient for a reasonable juror to find that Cromar owed a substantial tax liability.

III.

Cromar’s due process argument encompasses a host of alleged errors by the

district court, but his arguments are either frivolous or not sufficiently developed to

invoke this court’s review. Cromar accuses the district court of an “improper and

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invalid use of the ‘Touhy’ decision” 6 to deprive him of his Sixth Amendment right to

compulsory process. Aplt. Opening Br. at 38. He claims the court blocked

subpoenas to “almost all” of his prospective witnesses and “refus[ed] to issue

essential subpoenas to critical desired defense witnesses like Mark Chapman and

Mr. Scambos.” Id. As the government points out, both those witnesses testified at

trial, and Cromar examined them without restriction. Cromar identifies no other

witnesses or documents as to which he was denied a subpoena, and he provides no

description of the evidence lost as a result. As we noted earlier, perfunctory

allegations of error that fail to frame and develop an issue are insufficient to invoke

appellate review. Kelley, 542 F.3d at 819. Cromar has not sufficiently developed

this argument for our consideration.

He next argues his due process rights were violated by the court’s issuance of

oral rulings rather than formal “Orders of the Court.” Aplt. Opening Br. at 50

(emphasis omitted). He does not identify any particular ruling here but seems

generally to contest the court’s conduct of the case. The district court was not

required to reduce to writing every ruling that it made over the course of a multi-year

prosecution and week-long jury trial. District courts frequently rule from the bench.

In this case, such oral rulings resulted in minute orders and written transcripts to

which Cromar plainly has access. This argument is frivolous.

6 See United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). 10 Appellate Case: 25-4002 Document: 35-1 Date Filed: 09/02/2025 Page: 11

Finally, Cromar generally takes issue with the jury instructions but again fails

to identify any particular instruction that was requested and denied or given over his

objection. This issue is not sufficiently developed to invoke appellate review.

IV.

Cromar objects to the restitution award to the United States on the grounds that

the government is not a statutory person and therefore cannot be a victim. This

argument lacks merit. It’s well settled that the government can be a victim for

purposes of restitution. United States v. Quarrell, 310 F.3d 664, 677 (10th Cir.

2002).

Conclusion

Based on the evidence presented at trial, a rational jury could readily find that

Cromar committed tax evasion and forcibly rescued seized property in violation of

the internal revenue code. Cromar has failed to show any due process violations or

other reversible errors by the district court. The district court’s judgment is therefore

affirmed.

Entered for the Court

Nancy L. Moritz Circuit Judge