United States Court of Appeals

For the Eighth Circuit 

___________________________

No. 22-1368

___________________________ 

United States of America

 Plaintiff - Appellee

v.

Jeffrey Allan Kock

 Defendant - Appellant

___________________________

No. 22-1576

___________________________ 

United States of America

 Plaintiff - Appellant

v.

Jeffrey Allan Kock

 Defendant - Appellee

____________

Appeal from United States District Court 

for the Southern District of Iowa - Central 

____________ 

Submitted: January 10, 2023

Filed: April 13, 2023

____________ 
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Before KELLY, ERICKSON, and STRAS, Circuit Judges. 

____________

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 multimillion-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. LouperMorris, 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 “§ 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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