United States v. Jeffrey Kock ( 2023 )

United States Court of Appeals
For the Eighth Circuit
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No. 22-1368
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United States of America
Plaintiff - Appellee
v.
Jeffrey Allan Kock
Defendant - Appellant
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No. 22-1576
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United States of America
Plaintiff - Appellant
v.
Jeffrey Allan Kock
Defendant - Appellee
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Appeal from United States District Court
for the Southern District of Iowa - Central
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Submitted: January 10, 2023
Filed: April 13, 2023
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Before KELLY, ERICKSON, and STRAS, Circuit Judges.
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ERICKSON, Circuit Judge.
A jury convicted Jeffrey Kock on thirteen charges stemming from a fraud and
tax evasion scheme. Kock raises four issues on appeal: (1) his waiver of the right to
counsel was not knowing, intelligent, and voluntary; (2) the evidence was
insufficient to sustain the convictions; (3) the district court erred in refusing to admit
evidence of the Internal Revenue Service’s (“IRS”) lack of diligence; and (4) the
district court improperly applied a two-level sentencing enhancement for obstruction
of justice. In a cross-appeal, the government contends the district court erred in
refusing to award costs of prosecution. We affirm the convictions but vacate the
judgment and remand to the district to consider the government’s request for costs
of prosecution.
I. FACTUAL BACKGROUND
Jeffrey Kock was indicted in April 2021 on five counts of failure to file a tax
return, in violation of 26 U.S.C. § 7203; two counts of making false claims against
the United States, in violation of 18 U.S.C. § 287; wire fraud, in violation of 18
U.S.C. § 1343; mail fraud, in violation of 18 U.S.C. § 1341; three counts of money
laundering, in violation of 18 U.S.C. § 1957; and concealment of an asset, in
violation of 18 U.S.C. § 2232(a).
We view the facts in a light most favorable to the jury’s verdict. Kock’s
troubles with the IRS were ongoing for more than a decade prior to trial. After filing
personal federal tax returns for 20 years, Kock stopped filing returns in 2009, even
though his employers provided him with W-2 forms each year. In 2019, Kock
electronically filed a fraudulent Form 1041 (Tax Return for Estates and Trusts) in
the name of the Jeffrey Allan Kock Trust (the “Trust”), claiming a refund of
$20,671.00. The IRS issued a Treasury check in the amount of $20,671.00, which
Kock deposited into an account at Bankers Trust. A few months later, in early 2020,
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Kock used the United States mail to file a second fraudulent Form 1041 in the name
of the Trust. In this return, Kock sought an additional refund of $10,921,192.00.
The IRS issued a check in the amount of $10,921,192.00, which Kock also deposited
into his Bankers Trust account.
In February 2020, Kock used some of the money to purchase two Mercedes
Benz vehicles: a 2020 E63 sedan (the “E63 sedan”) for $146,271.80 and a 2017 G63
SUV (the “G63 SUV”) for $122,556.05. The car salesman who sold Kock the cars
testified that Kock stated the money to buy the cars came “possibly [from] the sale
of some business.” The following month, Kock unsuccessfully attempted to apply
$75,000.00 from the Bankers Trust account to Iowa Realty on a purchase of a multi-
million-dollar home. Kock also purchased a third Mercedes Benz car, a 2019 coupe
(the “SL coupe”) for $117,581.70 using the proceeds of his false claims to the IRS.
Concerned by Kock’s unusual banking activity, Bankers Trust arranged a
meeting with Kock. During the meeting, Kock acknowledged receiving the
Treasury checks and described the tax system as “a game of monopoly.” Armed
with these unusual responses, bank officials contacted the IRS and law enforcement
about their conversations with Kock. The IRS determined that the refunds had been
paid in error and asked Bankers Trust to return the funds. Bankers Trust froze
Kock’s account and later returned to the IRS the amount in the account, which was
$10,462,422.15. In June 2020, IRS agents obtained seizure warrants for the three
Mercedes. Agents seized the G63 SUV and the SL coupe and when they attempted
to seize the E63 sedan, Kock told them that he “hid” it. The district court held a
hearing and ordered Kock to turn over the keys to the E63 sedan, which agents later
recovered from his parents’ home.
II. PROCEDURAL BACKGROUND
During Kock’s initial appearance, he asked to represent himself. On May 27,
2021, the magistrate judge convened a Faretta v. California, 422 U.S. 806 (1975),
hearing to address the request to proceed pro se. After confirming that Kock wanted
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to proceed pro se, the court offered him standby counsel. Kock refused standby
counsel stating, “I didn’t hire her. I don’t need her assistance.” The court informed
Kock that it did not believe it was a wise choice for him to proceed pro se. During
the Faretta examination the court inquired about Kock’s education, employment
history, and lack of any formal legal education. Kock stated that he had not finished
college and had no legal training but he “read[s] quite a bit.”
When the court inquired about Kock’s criminal history, he claimed not to
recall details of relatively recent charges. When asked about any prior federal
charges, Kock responded that he believed he had some. Kock was likewise evasive
when the court asked about prior representation on state charges, stating he did not
recall if he was represented by counsel on charges in 1997 and 2018. Kock also
could not remember whether his 2018 conviction was by trial or plea. The court
pushed Kock noting that 2018 was not very long ago, but Kock insisted that he did
not remember. Kock’s answers about the pending federal charges resulted in a
discussion about the meaning of the phrase “nature of the charges” but ended with
Kock insisting “I can comprehend what’s going on.”
When the court advised Kock on the statutory maximum penalties, supervised
release terms, and monetary penalties for each count, Kock indicated that he
understood the penalties he was facing. In response to the court’s question about his
experience with the Sentencing Guidelines, Kock initially stated that he was not
worried about the Sentencing Guidelines. When the court made further inquiry,
Kock indicated the Guidelines were not what he was focused on.
The court asked Kock why he wanted to represent himself and Kock replied,
“Well, I don’t think there’s any controversy anymore. I registered a bond condition
to answer any judgment from the court on May 18th.” The court informed Kock
that there was still a live controversy and inquired whether he had any other reason
for requesting to proceed pro se. Kock then quoted from Corpus Juris Secundum:
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Attorney and Client. His first duty is to the courts and the public, not
to the clients, and wherever the duties to his client conflict with those
he owes as an officer of the court in the administration of justice, the
former must yield to the latter.
Kock expressed dissatisfaction with that statement of an attorney’s duties.
During the hearing, Kock was also told that he would be required to follow
the rules of evidence and procedure and that the court would be unable to provide
assistance. Kock indicated he understood, which caused the court to caution him
about the dangers of self-representation. Kock replied:
Well, I don’t know how I can represent myself when I am myself. I
know I’m not the defendant. I know the defendant is a fiction. I will
come in here and present myself, but I will not hire a lawyer. I do not
need their assistance, and if one is appointed, I will terminate them.
The court asked one last time whether Kock still wanted to proceed pro se and he
said, “I don’t want you to appoint somebody.” The court confirmed Kock’s decision
was voluntary, made of his own free will, and granted his request.
Kock failed to appear for a hearing on an alleged pretrial release violation.
Kock was again warned of the hazards of proceeding pro se by the presiding
magistrate judge. Kock persisted in his decision to proceed pro se.
The district judge raised the issue of Kock’s self-representation a third time at
a status conference about a month prior to trial. Kock once again reasserted his
concern about the divided loyalties of lawyers, stating “any attorney that would be
appointed to me would be a bar member, and it puts you guys all on the same team.
It terrifies me, to be honest.” The court pointed out that Kock’s views of the role of
counsel were misguided, explaining:
[T]he concept of one team is inaccurate. There is no one monolithic
team of attorneys. There are standards that govern everyone who
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practices law, and they, under those standards, are required to zealously
represent the clients that they work with. And there are standards of
conduct that govern every judge, state or federal, that require us to be
independent and to not have a bias in favor of one side or the other.
And those are the standards of conduct that would apply to this Court,
to the prosecutor, and to any defense attorney that would appear in this
case.
Kock responded, “I hear what you’re saying. I still don’t think it’s in my best interest
to take representation.”
Kock’s decision to proceed pro se was raised again at the final pretrial
conference on September 24, 2021. Kock reiterated, “I don’t want an attorney
speaking for me or brokering deals behind my back, no.” The district judge asked
Kock if he was waiving his right to counsel “knowingly and voluntarily because you
want to be the person speaking for yourself in court?” Kock replied, “Yeah, I do.”
The court appointed standby counsel on the morning of trial with Kock’s consent.
Kock accepted appointment of counsel following the guilty verdicts.
At sentencing, the district court determined Kock had a total offense level of
30 and a criminal history category of I, resulting in an advisory Sentencing
Guidelines range of 97 to 121 months’ imprisonment. In calculating Kock’s offense
level, the court added a two-level adjustment for obstruction of justice under
U.S.S.G. § 3C1.1, based on Kock’s concealment of the E63 sedan after the IRS
attempted to execute the seizure warrants. Kock objected to this enhancement,
arguing his concealment conviction should have been counted as a separate “group,”
which would have reduced his total offense level to 28. The district court overruled
Kock’s objection and sentenced Kock to 97 months’ imprisonment followed by three
years of supervised release.
III. DISCUSSION
Kock raises four issues on appeal and the government has filed a cross-appeal
raising one issue. We consider each in turn.
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A. Right to Self-Representation
We review a district court’s decision to accept a waiver of the right to counsel
de novo. United States v. Stanley, 891 F.3d 735, 738 (8th Cir. 2018). The Sixth
Amendment guarantees the accused the right to self-representation, even if such
representation is to the accused’s detriment. Faretta, 422 U.S. at 818-21, 834.
Before accepting a waiver of counsel, “[w]arnings of the pitfalls of proceeding to
trial without counsel . . . must be ‘rigorous[ly]’ conveyed.” Iowa v. Tovar, 541 U.S.
77, 89 (2004) (second alteration in original) (quoting Patterson v. Illinois, 487 U.S.
285, 298 (1988)).
Before accepting a defendant’s request to proceed pro se, the district court
“must be satisfied that the waiver of counsel is knowing and voluntary.” United
States v. Turner, 644 F.3d 713, 720-21 (8th Cir. 2011) (internal citation omitted).
“The adequacy of the waiver depends on the particular facts and circumstances of
each case, including the background, experience, and conduct of the accused.” Id.(internal citations omitted). We will uphold “the grant of a defendant’s motion to
represent himself if the record shows either that the court adequately warned him or
that, under all the circumstances, he knew and understood the dangers and
disadvantages of self-representation.” United States v. Tschacher, 687 F.3d 923,
932 (8th Cir. 2012) (internal quotations and citation omitted).
A review of the judges’ colloquies with Kock reveal that Kock made the
choice to represent himself at trial with eyes open, after being advised of the risks
and disadvantages of proceeding pro se. See Faretta, 422 U.S. at 835 (“Although a
defendant need not himself have the skill and experience of a lawyer in order
competently and intelligently to choose self-representation, he should be made
aware of the dangers and disadvantages of self-representation, so that the record will
establish that he knows what he is doing and his choice is made with eyes open.”
(internal quotation and citation omitted)). When Kock first moved to represent
himself, the magistrate judge recognized his right to do so but proceeded to question
Kock about his understanding of the dangers and disadvantages of his decision. The
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court informed Kock that his decision must be knowing and voluntary and warned
him that “it really isn’t a very good idea in federal court for an individual to represent
themselves in a federal criminal case because of the complexities and the issues that
can come up.” The court highlighted several other risks Kock faced if he insisted
on proceeding pro se, including the lengthy penalties he faced; his lack of experience
and knowledge of federal rules and procedures; and other potential pitfalls, such as
unintentionally giving up or waiving issues. Despite the exhaustive interchange
about the risks of self-representation, the role of standby counsel, the rules that Kock
would be expected to familiarize himself with and follow, Kock repeatedly
expressed a desire to represent himself at trial. Later a different magistrate judge
and the district judge reiterated these warnings and Kock continued to insist on his
right to self-representation.
While Kock claims that the transcripts of the discussions about his decision to
proceed pro se demonstrate that he lacked understanding and the court failed to
adequately explain the court-appointed counsel’s ethical duty of zealous
representation, “neither the Supreme Court nor this court has ever adopted a list of
essential points that must be conveyed to a defendant in order for a waiver of counsel
to be deemed knowing and voluntary.” Turner, 644 F.3d at 722. The “key inquiry”
is “whether the accused was made sufficiently aware of his right to have counsel and
of the possible consequences of a decision to forgo the aid of counsel.” United States
v. Kiderlen, 569 F.3d 358, 364 (8th Cir. 2009) (internal quotation omitted). This
was manifestly done by the court over the course of four separate hearings.
In our judicial system, a defendant is allowed to make choices to his own
detriment because he has a right “based on the fundamental legal principle that a
defendant must be allowed to make his own choices about the proper way to protect
his own liberty.” Weaver v. Massachusetts, 137 S. Ct. 1899, 1908 (2017). Here,
Kock indicated he understood the court’s concerns, but he wanted to represent
himself and did not want the assistance of counsel. The record reflects that after
assessing Kock’s competence and adequately informing Kock of the risks and
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dangers of self-representation, Kock knowingly and voluntarily waived his right to
counsel.
B. Sufficiency of the Evidence
We review de novo the denial of a motion for acquittal under Federal Rule of
Criminal Procedure 29. United States v. Little, 961 F.3d 1035, 1037 (8th Cir. 2020).
“We will affirm unless, viewing the evidence in the light most favorable to the
Government and accepting all reasonable inferences that may be drawn in favor of
the verdict, no reasonable jury could have found the defendant guilty.” Id. (citation
omitted). While reviewing Kock’s claims, we are not empowered to weigh evidence
or assess the credibility of witnesses. United States v. Garcia-Hernandez, 530 F.3d
657, 661 (8th Cir. 2008).
Kock claims the evidence is insufficient to sustain any of his counts of
conviction. On the failure to file tax returns counts, Kock contends the prosecution
failed to establish he knew of his obligation to file tax returns or that his failure to
file tax returns was willful. The evidence in the record refutes Kock’s contention.
Kock filed returns for 20 consecutive years and then stopped. We have held that
properly filing tax returns in the past may be evidence of willfulness of failure to file
in the years charged. United States v. Francisco, 614 F.2d 617, 618 (8th Cir. 1980).
The prosecutor also presented evidence that Kock received a Form W-2 each year,
which should have served as a reminder of the filing requirements, as well as
testimony from a bank official who recounted Kock’s statement that the tax system
was like “a game of monopoly.” On this evidence, a reasonable jury could conclude
that Kock knowingly and willfully failed to file tax returns for the charged years.
Kock next claims the prosecution failed to establish both that he knew the two
returns he filed on behalf of the Trust were false and that he had an intent to deceive
the IRS. A review of the record demonstrates that each fraudulent return contains
Kock’s name, and one was signed by Kock; Kock admitted he deposited the refund
checks in his Bankers Trust account; and Kock’s modest earnings and financial
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condition made it highly implausible that he believed he was in control of a trust that
was owed millions of dollars. Kock told the car salesman handling the purchase of
the Mercedes vehicles that he was using money from the sale of a business—not
from a trust tax refund. This evidence is sufficient for a reasonable jury to find Kock
knew the claims he submitted were false and he intended to deceive the IRS.
Kock also asserts that evidence to support the mail and wire fraud charges is
insufficient because the prosecutor failed to present evidence that Kock devised a
scheme to fraudulently obtain the money—claiming the evidence only demonstrated
that Kock’s refund claims were incorrect. “A scheme to defraud includes acts taken
to conceal, create a false impression, mislead, or otherwise deceive in order to
prevent the other party from acquiring material information.” United States v. Kidd,
963 F.3d 742, 747 (8th Cir. 2020) (internal quotation and citation omitted). Here,
the evidence is sufficient to meet this evidentiary standard. Kock sought tax refunds
even though there was no record that the IRS withheld money from the Trust or that
the Trust made any tax payments to the IRS. Given the large amount of the refunds
requested and the lack of any evidence that withholding or other payments were
made to the IRS, a jury could reasonably conclude that the filing of the refund
requests constituted an attempt to mislead the IRS or to create a false impression that
the IRS owed Kock refunds. The false statements on the returns were material
because without them, the IRS would not have issued refunds to Kock. Finally, even
though Kock claims any misstatement “would not deceive someone,” a reasonable
jury could find that Kock’s claims did in fact deceive the IRS into issuing refunds.
Kock’s claim that his money laundering convictions should be overturned
because the prosecutor failed to prove the mail and wire fraud charges is also
unavailing. As discussed above, the evidence presented at trial was sufficient for a
reasonable jury to find that Kock committed mail and wire fraud. Likewise, there
was sufficient evidence for a reasonable jury to find that Kock knew the monies he
deposited were proceeds of criminal activity. Kock sought tax refunds despite the
undisputed evidence that: (1) the IRS never withheld any amount of money from
the Trust or that the Trust made any payments to give rise to a refund, (2) Kock
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personally deposited the refund checks, and (3) after depositing the checks in his
account, he used the money to make multiple luxury purchases during which he lied
to the sales representative about the source of the money. From this evidence a
reasonable jury could find that Kock knew the cashier’s checks were proceeds from
wire and mail fraud.
Finally, Kock asserts the evidence is insufficient on the concealment count
because the prosecutor failed to establish both that the IRS had lawful authority to
seize the E63 sedan and that Kock knowingly prevented its seizure. Evidence in the
record supports a finding that the seizure warrant was lawfully issued by a magistrate
judge with authority in the district and that Kock was served with the warrant.
Seizure was attempted by an IRS agent authorized to make the seizure. Kock asserts
that he did not knowingly prevent the seizure, but questioned the validity of the
warrant because it had an incorrect date (the year was written as 3020 rather than
2020). There is evidence in the record that shows otherwise: a reasonable jury could
find that Kock knowingly took action to prevent the IRS from seizing the vehicle,
based on the IRS agent’s testimony that Kock stated he “hid” it.
In sum, the evidence presented at trial was sufficient to sustain the jury’s
verdicts on all counts.
C. Evidentiary Ruling and Jury Instructions
We review the district court’s evidentiary rulings for an abuse of discretion.
United States v. Wright, 993 F.3d 1054, 1061 (8th Cir. 2021). A challenge to a jury
instruction is also reviewed for an abuse of discretion. Stanley, 891 F.3d at 739.
Kock believes a victim’s diligence is relevant in determining whether a
misrepresentation has been made and contends the district court erred by excluding
evidence of the IRS’s lack of diligence in reviewing the filings made by Kock. He
also claims that the court erroneously compounded this error when it provided the
jury the following instruction: “It is not relevant, and not a defense, that the Internal
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Revenue Service failed to detect the fraudulent nature of the scheme, nor is it
relevant that the Internal Revenue Service might have acted with greater diligence.”
Kock claims this instruction is inconsistent with the court’s other instruction that the
scheme to defraud must include some sort of fraudulent representation or promise
reasonably calculated to deceive a reasonable person. Kock further claims we have
recognized that the government is required to show that “the accused intended to
defraud his victim and that his or her communications were reasonably calculated to
deceive persons of ordinary prudence and comprehension.” United States v. Louper-
Morris, 672 F.3d 539, 556 (8th Cir. 2012).
We agree with several of our sister circuits which have held that a fraud
victim’s negligence is not a defense to criminal charges under the federal fraud
statutes. See, e.g., United States v. Lindsey, 850 F.3d 1009, 1014-15 (9th Cir. 2017);
United States v. Svete, 556 F.3d 1157, 1165 (11th Cir. 2009) (en banc); United States
v. Colton, 231 F.3d 890, 903 (4th Cir. 2000); United States v. Allen, 201 F.3d 163,
167 (2d Cir. 2000) (per curiam); United States v. Coyle, 63 F.3d 1239, 1244 (3d Cir.
1995); United States v. Kreimer, 609 F.2d 126, 132 (5th Cir. 1980). The “ordinary
prudence” standard that Kock raises focuses on the defendant, not the victim. To
hold otherwise would invite “con men to prey on people of below-average judgment
or intelligence, who are anyway the biggest targets of such criminals and hence the
people most needful of the law’s protection.” United States v. Thomas, 377 F.3d
232, 244 (2d Cir. 2004) (citation omitted). Because the IRS’s diligence is immaterial
in this prosecution, the court did not abuse its discretion in refusing to admit the
proffered evidence or in the jury instructions.
D. Obstruction of Justice Enhancement
Kock challenges the district court’s adjustment of his offense level for
obstruction of justice. The obstruction of justice guideline provides for a two-level
upward adjustment “[i]f the defendant willfully obstructed or impeded, or attempted
to obstruct or impede, the administration of justice with respect to the investigation,
prosecution, or sentencing of the instant offense.” U.S.S.G. § 3C1.1. The district
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court applied this enhancement, finding that Kock concealed the E63 sedan to further
Kock’s ultimate criminal objective of unlawfully maintaining the assets that he
fraudulently received from the IRS.
A district court has broad discretion to apply the obstruction of justice
provision of U.S.S.G. § 3C1.1. United States v. Shinder, 8 F.3d 633, 635 (8th Cir.
1993). When a defendant is convicted of both an obstruction offense and an
underlying offense, the former is grouped with the latter. U.S.S.G. § 3C1.1 cmt n.8.
We review de novo the determination that § 3C1.1 applies to specific conduct and
review the court’s factual findings for clear error. United States v. Hare, 49 F.3d
447, 453 (8th Cir. 1995).
Kock purchased the E63 sedan with fraudulently obtained refunds from the
IRS and by his own admission hid the vehicle when IRS agents attempted to seize it
pursuant to a facially valid warrant. The record supports the district court’s factual
findings that the car was hidden in an attempt to maintain the proceeds he obtained
as a result of the false tax returns. The district court did not clearly err in finding
that Kock hid the car in a vain attempt to secret away some of his ill-gotten gains.
Given that the concealment-of-asset count “involve[d] the same victim” as his other
offenses, it was correctly grouped with the other counts. U.S.S.G. § 3D1.2 (defining
closely related counts). Kock’s self-serving statement that he was merely concerned
about the date on the warrant does not make the court’s determination an error. The
court’s findings support application of an obstruction of justice enhancement.
E. Cross-Appeal
The United States cross appeals, arguing the district court erred by failing to
impose the costs of prosecution in light of Kock’s convictions for failing to file tax
returns. 26 U.S.C. § 7203 states that anyone convicted of failing to file a tax return
“shall . . . be guilty of a misdemeanor and, upon conviction thereof, shall be fined
not more than $25,000 . . . or imprisoned not more than 1 year, or both, together with
the costs of prosecution.” Kock contends the costs should not be imposed because
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there was no verification of costs to support an award and Kock lacks the ability to
pay. Because this is an issue of statutory interpretation, we review de novo. United
States v. Zaic, 744 F.3d 1040, 1042 (8th Cir. 2014).
In United States v. Wyman, this Court determined that upon conviction for
failure to file a tax return, the trial court “does not have discretion to fail to award
costs.” 724 F.2d 684, 688 (8th Cir. 1984). A few years later, we reaffirmed that
costs of prosecution are mandatory. United States v. May, 67 F.3d 706, 707 (8th
Cir. 1995) (“Costs of prosecution must be included in the punishment imposed for a
violation of 26 U.S.C. § 7203.”). But the May Court stated that § 7203 “treats costs
of prosecution as a fine, and a defendant’s ability to pay must be considered in
determining the amount of a criminal fine.” Id. at 708. And in United States v.
Tindall, an unpublished opinion, the Court determined that May required the district
court to consider a defendant’s ability to pay in assessing the costs of prosecution.
221 F.3d 1345 (8th Cir. 2000) (unpublished table decision). The government asserts
that May is incorrect under Wyman and United States v. Hiland, 909 F.2d 1114,
1141 (8th Cir. 1990), in which we distinguished the costs of prosecution from fines.
See Hiland, 909 F.2d at 1141 (stating Ҥ 1918(b) permits the court to assess costs of
prosecution in addition to the maximum fine permitted by the statute, even if that
statute does not specifically provide for such an assessment”).
Under our prior panel rule, Wyman, which held that costs of prosecution are
mandatory, and Hiland, which distinguished costs of prosecution from fines, are
controlling. See Mader v. United States, 654 F.3d 794, 800 (8th Cir. 2011). Because
we are bound by the prior panel rule, the district court erred in failing to award costs
of prosecution.
Kock’s other argument that the district court properly refused to award costs
based on the lack of a verified bill of costs is unavailing. Section 7203 must be read
in conjunction with 28 U.S.C. § 1920, which lists the expenses that may be taxed as
costs in both civil and criminal cases. Hiland, 909 F.2d at 1142. Section 1920 states
that “[a] bill of costs shall be filed in the case.” Section 1924 also requires cost items
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to be verified by affidavit. 28 U.S.C. § 1924. While this language is mandatory,
there is no provision setting forth the timing for submission. Hiland, 909 F.2d at
1142.
Though Kock contends the government missed its chance to recover costs of
prosecution because it failed to file a verified bill of costs, the plain language of the
statutes is silent as to the time limit for submitting a verified bill of costs. This Court
has previously remanded a district court’s assessment of costs of prosecution for
redetermination because the government did not file a verified bill of costs. See id.(remanding for “redetermination of taxable costs” where the government failed to
file a verified bill of costs). On the other hand, in Reece v. Bank of New York
Mellon, the Court refused to allow a defendant in a civil case to cure his failure to
file a bill of costs on remand “because any affidavit verifying the bill of costs now
would be unreasonable—well over a year late—and thus untimely.” 760 F.3d 771,
779 n.8 (8th Cir. 2014). Then, in Barcomb v. General Motors LLC, our Court
allowed the defendant to cure its failure to submit a bill of costs, noting, Reece held
“that it is error to award costs when counsel never complies with the affidavit
requirement. The statute only requires that an affidavit be filed before any bill of
costs is taxed.” 978 F.3d 545, 550 (8th Cir. 2020) (cleaned up). The government
argues in this case that we should remand because, like in Barcomb, no costs have
yet been taxed, and an affidavit can be filed as part of the proceedings on remand.
We see no reason not to exercise the remedy from Hiland and Barcomb under
the circumstances of this case. Our decision is limited to the facts before us and
should not be interpreted as deciding a broader issue, not implicated here, of whether
it is permissible for the government to file a verified bill of costs at any time
following a guilty verdict. On remand, the government shall submit a verified bill
of costs for the district court to consider.
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IV. CONCLUSION
For the foregoing reasons, we affirm Kock’s convictions. We vacate the
judgment and remand so that the district court may determine taxable costs in
accordance with this opinion.
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