United States v. Kock

• Decision Date: 13 April 2023
• Docket Number: 22-1368,22-1576
• Parties: United States of America Plaintiff - Appellee v. Jeffrey Allan Kock Defendant-Appellant United States of America Plaintiff - Appellant v. Jeffrey Allan Kock Defendant-Appellee
• Court: U.S. Court of Appeals — Eighth Circuit

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United States of America Plaintiff - Appellee
v.
Jeffrey Allan Kock Defendant-Appellant

United States of America Plaintiff - Appellant
v.
Jeffrey Allan Kock Defendant-Appellee

Nos. 22-1368, 22-1576

United States Court of Appeals, Eighth Circuit

April 13, 2023

Submitted: January 10, 2023

Appeal from United States District Court for the Southern District of Iowa - Central

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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...