United States v. Ronald Kielar, 2015 U.S. App. LEXIS 11141

Ronald Kielar, a Chicago pharmacist, was convicted after a jury trial for submitting forged Procrit prescriptions and defrauding Blue Cross/Blue Shield of Illinois and UFCW, causing about $1.68 million in losses.
Initial and superseding indictments included forfeiture allegations under 18 U.S.C. § 982(a)(7); the Government filed a lis pendens on Kielar’s Florida property.
Kielar sold the Florida property but the court ordered the proceeds placed in U.S. Marshals escrow; he repeatedly sought release of those funds to pay defense counsel.
The district court denied release after concluding (assuming without deciding that Kielar showed bona fide need) the Government had adequately traced the funds to proceeds of the fraud; Kielar declined to request an evidentiary hearing after conferring with counsel.
At trial, defense counsel reached an agreement limiting cross-examination of Dr. Camilo Barros about his termination from Medicaid/Medicare; the court allowed limited clarification but the defense did not press further.
The court precluded calling Fernando Perez as a defense witness because the sole purpose proffered was to impeach him after the Government chose not to call him.

Issue	Kielar's Argument	Government's Argument	Held
District court’s failure to order a sua sponte evidentiary hearing on release of escrowed sale proceeds	Due process / Sixth Amendment required an evidentiary hearing to protect his right to counsel of choice and liberty interest; hearing is mandatory under Moya-Gomez	Kielar waived any hearing when counsel declined to request one; and he never showed sufficient documentary evidence of bona fide need	Waiver was knowing; even if preserved, affidavit was insufficient to establish bona fide need so no hearing required — affirmed
Limitation on cross-examination of Dr. Barros about Medicaid/Medicare termination	Further inquiry was necessary to show bias/motive to lie and violated Rule 608(b) and Confrontation Clause	Parties had reached a limited agreement; defense counsel knowingly accepted scope; cross-examination that occurred exposed termination to jury	Waived by defense tactic; and, on merits, jury received sufficient information to assess bias — no reversible error
Preclusion of calling Fernando Perez as defense witness	Kielar sought to call Perez to deny Procrit prescriptions; later suggested Perez might testify otherwise under oath	Government: defendant cannot call a witness solely to impeach him after electing not to call the witness	Court correctly barred Perez because defense proffered him solely for impeachment; alternative theory not raised below is forfeited — affirmed

United States v. Moya-Gomez, 860 F.2d 706 (7th Cir. 1988) (establishes procedure for post-restraint adversary hearing when defendant shows bona fide need to use restrained assets to obtain counsel)
United States v. Kirschenbaum, 156 F.3d 784 (7th Cir. 1998) (a bare-bones affidavit is insufficient to show bona fide need for restrained assets)
United States v. Giles, 246 F.3d 966 (7th Cir. 2001) (party may not call a witness solely to impeach after the government elects not to call that witness)