United States v. Ronald Kielar

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 14-1390

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RONALD KIELAR,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:10-cr-00691-1 — Robert M. Dow, Jr., Judge.

____________________

ARGUED DECEMBER 4, 2014 — DECIDED JUNE 29, 2015

____________________

Before BAUER, RIPPLE, and SYKES, Circuit Judges.

RIPPLE, Circuit Judge. Ronald Kielar was convicted in the

United States District Court for the Northern District of Illi-

nois on charges arising out of a scheme to defraud two

health insurance companies by submitting fraudulent claims

for the prescription drug Procrit. He now appeals his convic-

tion, alleging several procedural and evidentiary errors. For

the reasons set forth in this opinion, we affirm the judgment

of the district court.

2 No. 14-1390

I

BACKGROUND

Ronald Kielar was a licensed pharmacist at the Cartagena

Pharmacy in Chicago, Illinois. Many of Mr. Kielar’s patients

came from the medical practice of Dr. Camilo Barros, whose

office was located in the same building as the Cartegena

Pharmacy. Starting in November 2004, Mr. Kielar began de-

frauding two health insurance companies, Blue Cross and

Blue Shield of Illinois (“BCBS”) and United Food and Com-

mercial Workers Union and Employers Midwest Health

Benefit Fund (“UFCW”), by submitting fraudulent claims for

the prescription drug Procrit. 1 In particular, Mr. Kielar

forged prescriptions for Procrit under Dr. Barros’s name and

then submitted those prescriptions to BCBS and UFCW for

payment. He knew at the time that Procrit had neither been

prescribed, nor provided, to any of the individuals under

whose policies he sought reimbursement. His scheme con-

tinued over roughly six years and resulted in losses to BCBS

and UFCW of approximately $1,678,549.

In August 2010, Mr. Kielar was indicted on five counts of

health care fraud in violation of 18 U.S.C. § 1347. This in-

dictment also contained a forfeiture allegation, pursuant to

18 U.S.C. § 982(a)(7), for any proceeds of Mr. Kielar’s fraudu-

lent scheme. This allegation specifically identified three of

Mr. Kielar’s properties as subject to forfeiture, including a

property located at 12786 NW 75th Street, Parkland, Florida

(the “Florida Property”).

1 Procrit is an intravenous drug used to treat patients suffering from

chronic kidney failure, cancer, or HIV infection.

No. 14-1390 3

Later that month, the Government filed a notice of lis

pendens for the Florida Property based on the indictment’s

forfeiture allegation. Shortly thereafter, Mr. Kielar filed a

motion requesting permission to sell the Florida Property,

stating that he needed the proceeds of the sale in order to

pay his attorneys’ legal fees. In its response, the Government

stated that it did not object to the sale, provided that

Mr. Kielar deposit the sale proceeds in an escrow account

with the United States Marshals Service.

In October 2010, the district court granted Mr. Kielar’s

motion to release the lis pendens and allow for the sale of his

Florida Property. Consistent with the Government’s request,

however, the court ordered that the proceeds of the sale be

placed in an escrow account with the United States Marshals

Service. Shortly after doing so, Mr. Kielar filed another mo-

tion asking the district court to vacate its earlier order and

allow him to use the sale proceeds “for taxes, legal fees and

other expenses.” 2 After several rounds of briefing, the dis-

trict court denied Mr. Kielar’s request and, shortly thereafter,

also denied his motion for reconsideration.

In March 2013, a grand jury returned a ten-count super-

seding indictment against Mr. Kielar, charging him with six

counts of health care fraud, in violation of 18 U.S.C. § 1347;

three counts of aggravated identify theft, in violation of 18

U.S.C. § 1028A(a)(1); and one count of using false records to

impede a federal investigation, in violation of 18 U.S.C.

§ 1519. Like the initial indictment, the superseding indict-

ment also contained a forfeiture allegation pursuant to 18

U.S.C. § 982(a)(7).

2 R.36 at 2.

4 No. 14-1390

Following a week-long jury trial, Mr. Kielar was convict-

ed on all charges. 3 He timely appealed. 4

II

DISCUSSION

Mr. Kielar contends that the district court erred on three

separate grounds: (1) by failing to hold an evidentiary hear-

ing on his request to release his escrowed funds, (2) by limit-

ing his cross-examination of Dr. Barros, a key government

witness, and (3) by preventing him from calling Fernando

Perez as a defense witness. We address these issues in turn.

A.

We begin with Mr. Kielar’s contention that the district

court erred by failing to hold an evidentiary hearing on his

request to release his escrowed funds. Because this conten-

tion concerns the scope of Mr. Kielar’s rights under the Due

Process Clause, our review is de novo. United States v.

Kirschenbaum, 156 F.3d 784, 792 (7th Cir. 1998).

1.

Mr. Kielar first requested that the district court release

his escrowed funds in November 2010, shortly after the sale

of his Florida Property. In particular, Mr. Kielar filed a mo-

tion asserting that the restraint on his access to those funds

3 The district court’s jurisdiction was premised on 18 U.S.C. § 3231.

4 Our jurisdiction over this appeal is secure under 28 U.S.C. § 1291.

No. 14-1390 5

impeded his ability to pay his attorneys’ legal fees in viola-

tion of his Sixth Amendment right to counsel. Notably, this

motion contained neither documentary evidence nor specific

factual allegations demonstrating Mr. Kielar’s need for the

sale proceeds to finance his defense.

The Government opposed the motion. It submitted that

the restraint on Mr. Kielar’s assets did not violate his Sixth

Amendment right to counsel because he had not shown,

“beyond the conclusory statements in his reply,” a “bona

fide need” for the assets. 5 The Government’s brief also ex-

plained how it could trace the proceeds of Mr. Kielar’s

fraudulent scheme from the corporate bank account of the

Cartegena Pharmacy to mortgage payments on the Florida

Property.

In December 2010, the district court held a status hearing

at which defense counsel stated that Mr. Kielar’s motion

“may require a more detailed hearing.” 6 Counsel then re-

quested that the district court allow for additional briefing

on the issue. The district court granted the request.

In January 2011, Mr. Kielar submitted a brief in support

of his November 2010 motion. Although the brief contained

several legal arguments, the only allegations in the brief con-

cerning Mr. Kielar’s need for the funds to pay his legal fees

were as follows:

Over the past four and a half months, De-

fendant Kielar has fallen behind in payments

to his attorneys and is now in arrears for a sub-

5 R.40 at 4.

6 R.168 at 4.

6 No. 14-1390

stantial sum. Defendant Kielar’s inability to

pay is due to the forfeiture clause which the

Government included in the Indictment.…

….

…Defendant Kielar has demonstrated a bona

fide need for those funds because his attorneys

can no longer afford to represent him on an es-

sentially pro bono basis. Defendant Kielar’s

counsel has invested immense time and sub-

stantial money in his defense. To prevent the

release of funds in escrow to Defendant

Kielar’s attorneys would be to force them to

withdraw from this case. As such, the court is

essentially depriving Defendant Kielar of his

Sixth Amendment right to the counsel of his

choice and such a deprivation cannot stand.

This Court must allow the release of sale pro-

ceeds from the Florida Property in order to al-

low the defendant to continue to retain his

chosen counsel.[ 7]

Mr. Kieler did not submit any documentary evidence to sub-

stantiate these claims.

In response, the Government again submitted that

Mr. Kielar’s motion should be denied because he had failed

to demonstrate a bona fide need for the assets at issue. The

Government further asserted that, assuming that Mr. Kielar

had shown a bona fide need, it had already demonstrated

adequately the basis for its forfeiture allegation.

7 R.42 at 2, 4 (emphasis in original).

No. 14-1390 7

In reply, Mr. Kielar submitted a one-and-a-half-page af-

fidavit in which he swore to the following facts: (1) that the

combined pharmacy salaries for him and his ex-wife (with

whom he lived) were only enough to pay minimal living ex-

penses, (2) that he derived the down payment for the Florida

Property from refinancing his house in Illinois, which was

purchased in 1999, (3) that he owned a 2002 automobile with

200,000 miles, (4) that he owned two Met Life insurance pol-

icies with limited equity, and (5) that he was unable to pay

his attorneys’ fees without the release of funds. Mr. Kielar

did not submit any further documentary evidence to sub-

stantiate these assertions.

In February 2011, the district court denied Mr. Kielar’s

request to release the proceeds from the sale of his Florida

Property. In doing so, the district court relied on our deci-

sion in United States v. Moya-Gomez, 860 F.2d 706 (7th Cir.

1988), as setting forth the relevant legal standard for as-

sessing Mr. Kielar’s claim:

[A] defendant whose assets may be subject to

forfeiture may make out a Sixth Amendment

right-to-counsel claim only if (1) he can estab-

lish “a bona fide need to utilize assets subject to

the restraining order to conduct his defense”

and (2) the Government fails to “demonstrate

the basis for its assertion, contained in the in-

dictment, that the assets are subject to forfei-

ture.”[ 8]

8R.46 at 2 (quoting United States v. Moya-Gomez, 860 F.2d 706, 730 (7th

Cir. 1988).

8 No. 14-1390

With regard to the first prong of this test, the district

court noted that the only evidence of a bona fide need sub-

mitted by Mr. Kielar was his one-and-a-half-page affidavit.

Although the court acknowledged that this “affidavit

lack[ed] detail and [was] not supported by any additional

materials (e.g., bank statements, pay stubs, etc.) that might

make a more convincing showing of need,” it nonetheless

“assume[d], without deciding, that Defendant [had] shown a

bona fide need for the restrained assets to support his de-

fense.” 9 From there, the court went on to conclude that the

Government had offered sufficient evidence to show that the

seized assets at issue were subject to forfeiture and, accord-

ingly, that Mr. Kielar was not entitled to the release of his

escrowed funds. In a footnote to this discussion, the court

noted that Mr. Kielar had “not requested a formal eviden-

tiary hearing on this issue,” yet concluded that such a hear-

ing was unnecessary given that Mr. Kielar had been afforded

“ample opportunity to present argument (in four briefs) and

evidence (in the form of his affidavit).” 10

At a subsequent status hearing, Mr. Kieler requested that

the district court reconsider its February 2011 order. The dis-

trict court agreed to do so and suggested additional briefing.

Shortly afterward, Mr. Kielar filed a written motion for re-

consideration. However, he still did not submit any further

evidence to substantiate his need for the escrowed funds to

finance his defense, nor did he request an evidentiary hear-

ing on the issue. Notably, however, his motion did state that

he, as the defendant, did “not bear the burden to request a

9 Id. at 3.

10 Id. at 4 n.1.

No. 14-1390 9

formal evidentiary hearing on this issue as the court [previ-

ously had] indicate[d].” 11

In May 2011, the district court again denied Mr. Kielar’s

request to release his escrowed funds. Once again, the court

assumed without deciding that Mr. Kielar had established a

bona fide need for the assets at issue. Turning to the second

step of the Moya-Gomez analysis, the court determined that

the Government adequately had demonstrated the factual

basis for its forfeiture assertion and that “[a]t no time in any

of the written submissions or hearings before the

Court…ha[d the] Defendant come forward either with ar-

gument or evidence to rebut the Government’s conten-

tions.” 12 Further, the court again noted that Mr. Kielar had

not “at any time, including at the most recent status hear-

ing…, requested an evidentiary hearing to challenge the

Government’s analysis or develop the factual basis for a

counterargument.” 13

At a subsequent status hearing, defense counsel asserted

that the district court’s order “le[ft] open a couple of ques-

tions” including “whether [Mr. Kielar] would be seeking an

evidentiary hearing.” 14 In response, the district court noted

that Mr. Kielar had neither previously requested a hearing

nor offered any argument or evidence to dispute the Gov-

ernment’s showing of traceability. This being the case, the

court asked what would happen at a hearing beyond the

11 R.52 at 3.

12 R.55 at 2.

13 Id.

14 R.165 at 3.

10 No. 14-1390

Government’s simply presenting the same evidence that it

already had provided in its briefs. Defense counsel initially

responded that if an evidentiary hearing were held,

Mr. Kielar would not present any evidence because it was

not his burden to do so. Defense counsel then acknowledged

that he and Mr. Kielar had not yet decided how to pursue

this issue and therefore asked for “some time to go over this

with Mr. Kielar.” 15 The district court granted this request

and gave defense counsel thirty days to confer with his cli-

ent.

At the next status hearing on July 8, 2011, defense coun-

sel stated that he had conferred with Mr. Kielar and that

they would “not be asking for an evidentiary hearing con-

cerning the funds.” 16

2.

Mr. Kielar now contends that the district court erred by

failing to order, sua sponte, an evidentiary hearing on his

request to release his escrowed funds. Specifically, he con-

tends that the court’s failure to do so “violated his Fifth

Amendment due process rights by depriving [him of] his

liberty interest under the Sixth Amendment to obtain coun-

sel of his choice.” 17

With regard to certain federal criminal offenses, includ-

ing the health care fraud offense at issue here, a district

15 Id. at 11.

16 R.166 at 2.

17 Appellant’s Br. 12.

No. 14-1390 11

court, upon the filing of an indictment containing a forfei-

ture allegation, may enter a protective order to preserve the

availability of a defendant’s assets that are subject to forfei-

ture. See 18 U.S.C. § 982(a)(7), (b)(1); 21 U.S.C. § 853(e)(1)(A).

In Moya-Gomez, 860 F.2d at 730, we held that a defendant in

such circumstances has a limited due process right to contest

the Government’s forfeiture allegation if the pretrial seizure

of his assets would prevent him from hiring the counsel of

his choice. In particular, Moya-Gomez held that if “the de-

fendant presents a bona fide need to utilize assets subject to

the restraining order to conduct his defense” and “the dis-

trict court finds that the defendant does not have other as-

sets from which such payments can be made,” the court

“then must require the government to demonstrate the basis

for its assertion, contained in the indictment, that the assets

are subject to forfeiture.” Id. With regard to the specific pro-

cess that was due, we held that such a defendant was enti-

tled to “an immediate, postrestraint, adversary hearing” up-

on making the requisite showing of bona fide need. Id. at

731. In subsequent cases, we have clarified that in order to

demonstrate a “bona fide need” a defendant must do more

than “submit[] a bare-bones affidavit asserting that he per-

sonally lack[s] sufficient funds to obtain counsel of his

choice.” Kirschenbaum, 156 F.3d at 792.

The Government submits that Mr. Kielar waived his

right to a hearing under Moya-Gomez when, on July 8, 2011,

his counsel informed the district court that Mr. Kielar would

“not be asking for an evidentiary hearing concerning the

funds.” 18 Further, the Government contends that, waiver

18 R.166 at 2.

12 No. 14-1390

aside, Mr. Kielar was not entitled to an evidentiary hearing

because he never presented sufficient evidence to establish a

bona fide need for the assets at issue.

The Government’s assertion of waiver is correct. Indeed,

the waiver here hardly could have been clearer. After having

thirty days to confer with his counsel over whether to re-

quest an evidentiary hearing, Mr. Kielar expressly declined to

request one. The record contains, moreover, no indication

that this decision was not a knowing and voluntary one. Nor

does Mr. Kielar contend otherwise. This decision thus falls

squarely within the definition of waiver: it was “the inten-

tional relinquishment of a known right.” United States v. Ro-

driguez-Gomez, 608 F.3d 969, 972 (7th Cir. 2010).

Mr. Kielar now attempts to avoid this conclusion by as-

serting that the hearing right described in Moya-Gomez is

mandatory and nonwaivable. In his view, any time a crimi-

nal defendant is entitled to an evidentiary hearing under

Moya-Gomez, the district court must hold such a hearing on

its own initiative even in the absence of a request from the

defendant. Mr. Kielar offers no reason why any value pro-

tected by the Due Process Clause would require a mandato-

ry hearing in this context. Rather, he merely contends that

our decision in Moya-Gomez mandates this result.

This argument is without merit. The defendant in Moya-

Gomez specifically requested a pretrial evidentiary hearing.

See 860 F.2d at 717. Nowhere in our opinion did we state or

suggest that the due process right that we acknowledged

was immune from the ordinary rules of waiver. “Constitu-

tional rights like other rights can be waived, provided that

the waiver is knowing and intelligent, as it was here.” United

No. 14-1390 13

States v. Barnett, 415 F.3d 690, 691 (7th Cir. 2005). We there-

fore consider the issue waived.

Even if this objection had been preserved, Mr. Kielar has

not presented sufficient evidence to demonstrate a bona fide

need for the assets at issue. He has offered no documentary

evidence, other than an unsubstantiated affidavit, to demon-

strate that the restrained assets were needed to conduct his

defense. In Moya-Gomez, we stressed that the right to a hear-

ing was “very limited” and required as a prerequisite that

“the district court find[] that the defendant does not have

other assets from which” he could pay for his defense. 860

F.2d at 730. Mr. Kielar’s one-and-a-half-page affidavit does

not provide enough information, much less enough reliable

information, to allow the district court to make this finding.

See Kirschenbaum, 156 F.3d at 792. Accordingly, even if we

were to presume that Mr. Kielar had preserved this objec-

tion, he still would not have been entitled to an evidentiary

hearing. 19

19 In his opening brief, Mr. Kielar offers a secondary argument concern-

ing his right to a post-indictment hearing on the pretrial restraint of his

assets. He contends that, regardless of his right to counsel of choice, he

nonetheless has a “general right” to a post-indictment, pretrial hearing

before being deprived of his property.

This issue need not detain us long. Because Mr. Kielar did not raise

this issue before the district court, our review is for plain error. See Unit-

ed States v. Borostowski, 775 F.3d 851, 865 (7th Cir. 2014). “An error is

plain if it is clear or obvious.” Id. Here, Mr. Kielar has acknowledged that

whether the Due Process Clause requires a hearing in this context is an

“open question.” Appellant’s Br. 18 (internal quotation marks omitted).

Because any error, therefore, was not obvious, the plain error standard

has not been met. See Borostowski, 775 F.3d at 865.

14 No. 14-1390

B.

We turn now to Mr. Kielar’s contention that the district

court impermissibly limited his cross-examination of

Dr. Barros.

1.

Dr. Barros was one of the Government’s key witnesses at

trial. Prior to trial, the Government had produced records

showing that the Illinois Department of Public Aid (“IDPA”)

had recommended that Dr. Barros be terminated from par-

ticipating in IDPA’s Medical Assistance Program, which

consisted of Medicaid and other associated programs.

Among the reasons cited for Dr. Barros’s termination were

that he (1) had failed to obtain and document adequately pa-

tient histories and physical examinations and (2) had pre-

scribed medications without appropriate indications.

In July 2013, the Government filed a motion in limine in

which it sought two limitations on the cross-examination of

Dr. Barros. First, it wanted to restrict any examination con-

cerning his termination from the IDPA program to the sole

ground of his recordkeeping. Second, it requested that cross-

examination on Dr. Barros’s recordkeeping be permitted on-

ly if the Government sought to introduce his records. In the

Government’s view, the other grounds for Dr. Barros’s ter-

mination were not probative of his character for truthfulness

but rather only went to his qualifications and competency as

a physician. In response, Mr. Kielar submitted that he should

be able to cross-examine Dr. Barros about all of the grounds

for termination from these programs because the infor-

No. 14-1390 15

mation was “relevant to show bias and self-interest in falsely

testifying that he did not prescribe Procrit in this case.” 20

The district court denied in part and granted in part the

Government’s motion in limine. It precluded the introduc-

tion of extrinsic evidence if that evidence was intended sole-

ly to impeach Dr. Barros with regard to his character for

truthfulness. The court, however, “decline[d] to categorically

bar any cross-examination of [Dr. Barros] concerning the

IDPA recommendations,” noting that some of Mr. Kielar’s

“proposed lines of cross-examination may demonstrate bias

or self-interest on the part of [Dr. Barros].” 21

On the first day of trial, the Government and defense

counsel informed the district court that they had “worked

out a solution” in which Dr. Barros would “testify that he

was terminated from Medicare and Medicaid in the early

2000–2001 time period” “and then that [would] be the end of

the issue as far as defense counsel and the government

[were] concerned.” 22

When asked by the district court whether this compro-

mise would “essentially substitute” for any use of the IDPA

recommendation to impeach Dr. Barros, defense counsel re-

sponded, “We believe it will, Judge.” 23

On direct examination, Dr. Barros testified that he had

never written a prescription for Procrit and that all of the

20 R.100 at 6.

21 R.107 at 5–6.

22 R.151 at 2.

23 Id. at 3.

16 No. 14-1390

prescriptions submitted under his name to BCBS and UFCW

contained forged signatures. He further testified that he was

terminated as a provider by Medicaid in 2000 and Medicare

in 2001.

On cross-examination, defense counsel asked Dr. Barros

a series of questions about these terminations. At that point,

the Government objected. At a sidebar, it stated its under-

standing that defense counsel had agreed not to cross-

examine Dr. Barros on this topic. Defense counsel replied

that he had “never agreed not to ask any questions on this

issue.” 24 The court then inquired whether this was defense

counsel’s last question on the topic. Counsel responded that

all he wanted to do was to clarify the dates when Dr. Barros

was terminated from Medicaid as opposed to Medicare be-

cause he believed that the doctor had confused those dates

during his direct testimony. The court then stated, “How

about one last question, all it would establish is that as of

2001 he could no longer submit whatever it is, Medicare to

the state or Medicaid to the federal or whatever the right

way to go and just tie up and then move on. Fair enough?” 25

Defense counsel did not object to this proposed solution.

Upon resuming his cross-examination, defense counsel clari-

fied the correct dates of Dr. Barros’s termination and moved

on to another line of questioning.

24 R.153 at 29.

25 Id. at 30.

No. 14-1390 17

2.

Mr. Kielar now contends that, by limiting his cross-

examination of Dr. Barros, the district court violated both

Federal Rule of Evidence Rule 608(b) as well as his right to

confrontation guaranteed by the Sixth Amendment. He con-

tends that the district court should not have prevented him

from further inquiring about the doctor’s termination from

Medicare and Medicaid. In his view, further inquiry into the

circumstances of the doctor’s termination was necessary to

show that Dr. Barros had a motive to “falsely testify[] that he

did not prescribe Procrit,” so as to “maintain[] his medical

license” and “regain[] eligibility for Medicaid.” 26

Before proceeding to the merits of Mr. Kielar’s argument,

we first must address the Government’s contention that

Mr. Kielar waived, or at least forfeited, this objection by fail-

ing to raise it before the district court. “Waiver is the inten-

tional relinquishment of a known right, whereas forfeiture is

the failure to timely assert a right.” Rodriguez-Gomez, 608

F.3d at 972. “Forfeited errors may still be reviewed for plain

error, while waived errors are extinguished and cannot be

reviewed on appeal.” United States v. Berg, 714 F.3d 490, 494

n.1 (7th Cir. 2013) (alterations omitted) (internal quotation

marks omitted).

Here, the Government first points out that, other than

precluding the admission of extrinsic impeachment evidence

against Dr. Barros (which Mr. Kielar does not challenge), the

district court never restricted Mr. Kielar’s right to cross-

examine Dr. Barros about his termination from Medicare or

Medicaid, or any other issue for that matter. Thus, the only

26 Appellant’s Br. 24.

18 No. 14-1390

reason why these questions were not asked, the Government

submits, was because “defendant’s trial counsel made the

strategic decision not to ask [them].” 27

The Government’s assessment is correct. As the record

clearly demonstrates, Mr. Kielar reached an agreement with

the Government about how the parties would handle

Dr. Barros’s termination from Medicare and Medicaid.

When the Government objected that defense counsel’s cross-

examination of Dr. Barros was treading beyond the scope of

that agreement, the district court merely asked defense

counsel whether this was his last question on the matter. In

response, defense counsel stated that all he wanted to do

was clarify the dates on which Dr. Barros was terminated

from Medicaid as opposed to Medicare, because he believed

that the witness had confused those dates during his direct

examination. The court allowed defense counsel to clarify

this issue, suggesting that he “tie it up” in “one last ques-

tion” “and then move on.” 28 Notably, the court concluded its

suggestion by asking the parties, “Fair enough?”, to which

defense counsel expressed no objection. 29 In light of the par-

ties’ earlier acknowledgement that they had “worked out a

solution” in which Dr. Barros would “testify that he was

terminated from Medicare and Medicaid in the early 2000–

2001 time period” and “then that [would] be the end of the

issue,” 30 defense counsel’s decision not to object to the

court’s proposed solution, or to otherwise attempt to further

27 Appellee’s Br. 41.

28 R.153 at 30.

29 Id.

30 R.151 at 2.

No. 14-1390 19

question Dr. Barros on this issue, was intentional. Accord-

ingly, we conclude that Mr. Kielar has waived any objection

concerning this issue. 31

In any event, even if the district court had precluded

Mr. Kielar from questioning Dr. Barros about his termination

from Medicare and Medicaid, that decision would not have

constituted reversible error under either Rule 608(b) or the

Confrontation Clause. Rule 608(b) bars the admission of ex-

trinsic evidence “to prove specific instances of a witness’s

conduct in order to attack or support the witness’s character

for truthfulness.” Fed. R. Evid. 608(b). Under this rule, how-

ever, a district court may permit, in its discretion, a party to

cross-examine a witness about such prior conduct so long as

it is probative of the witness’s character for truthfulness. Id.

Rule 608(b) operates subject to the limitations imposed by

the Confrontation Clause of the Sixth Amendment, which

protects the right of a criminal defendant “to be confronted

with the witnesses against him.” U.S. Const. amend. VI.

As a general matter, we review a district court’s limita-

tion on the scope of cross-examination for abuse of discre-

tion. United States v. Sasson, 62 F.3d 874, 882 (7th Cir. 1995).

31 See United States v. Cooper, 243 F.3d 411, 418 (7th Cir. 2001) (holding

“that a defendant’s attorney can waive his client’s Sixth Amendment

confrontation right so long as the defendant does not dissent from his

attorney’s decision, and so long as it can be said that the attorney’s deci-

sion was a legitimate trial tactic or part of a prudent trial strategy” (in-

ternal quotation marks omitted)); see also United States v. Donelli, 747 F.3d

936, 939, 941 (7th Cir. 2014) (concluding that a defendant waived any

objection concerning the district court’s failure to consider adequately

his mitigation arguments at sentencing by not raising that objection

when the court asked the parties “whether they had any objection to the

sentence or required ‘any further elaboration’ of the judge’s reasons”).

20 No. 14-1390

Where, however, a limitation “directly implicates the core

values of the Confrontation Clause,” our review is de novo.

United States v. Recendiz, 557 F.3d 511, 530 (7th Cir. 2009) (in-

ternal quotation marks omitted). In determining the appro-

priate standard of review, it is important, therefore, to “dis-

tinguish between the core values of the confrontation right

and more peripheral concerns which remain within the am-

bit of the trial judge’s discretion.” United States v. Degraffen-

ried, 339 F.3d 576, 581 (7th Cir. 2003) (quoting United States v.

Saunders, 973 F.2d 1354, 1358 (7th Cir. 1992)).

It is well established that “[e]xposing witness bias lies

within the protected core of the Confrontation Clause.” Unit-

ed States v. Sanders, 708 F.3d 976, 990 (7th Cir. 2013) (internal

quotation marks omitted). We also have recognized, howev-

er, that the constitutional guarantee is limited to the oppor-

tunity to expose the bias: “a limitation on cross-examination

implicates the core of the Confrontation Clause when the de-

fense is completely forbidden from exposing the witness’s

bias.” Id. (internal quotation marks omitted). “So long as the

accused is given the opportunity to expose bias, further cross

examination is at the discretion of the district court.” United

States v. Smith, 308 F.3d 726, 738 (7th Cir. 2002); see also Re-

cendiz, 557 F.3d at 530 (“[O]nce a trial court permits a de-

fendant to expose a witness’s motivation, it is of peripheral

concern to the Sixth Amendment how much opportunity de-

fense counsel gets to hammer that point home to the jury.”

(internal quotation marks omitted)).

In this case, the fact that Dr. Barros was terminated from

participating in Medicare and Medicaid was exposed to the

jury; both the Government and defense counsel questioned

the doctor on this topic. Thus, because Mr. Kielar was “given

No. 14-1390 21

the opportunity to expose [this potential ground for] bias,

further cross examination [was] at the discretion of the dis-

trict court.” Smith, 308 F.3d at 738. A district court does not

abuse its discretion in this context so long as “the jury had

sufficient information to make a discriminating appraisal of

the witness’s motives and biases.” Recendiz, 557 F.3d at 530

(internal quotation marks omitted). Here, the fact of

Dr. Barros’s termination alone gave the jury enough infor-

mation to appraise the witness’s motive to lie. Mr. Kielar’s

counsel could well have argued forcibly to the jury that

Dr. Barros’s removal from the government programs gave

him a strong motive to deny writing the prescriptions in

question because any such admission might have resulted in

further problems with federal or state regulatory authorities.

Indeed, an examination of the transcript at closing argument

indicates that his counsel made some attempt to do so. 32 In

any event, assuming for the sake of argument that this issue

was not waived, it is clear that the cross-examination that

did take place gave defense counsel enough opportunity to

make his point.

Therefore, assuming the district court had restricted

Mr. Kielar’s cross-examination of Dr. Barros, that limitation

would not have been an abuse of discretion. See Sanders, 708

F.3d at 991 (noting that just because “[t]he jury might not

have possessed all the information [the defendant] wanted it

to have” does not mean that the jury lacked “sufficient in-

formation to evaluate [the witness’s] testimony”). Accord-

32See R.154 at 148 (“And Dr. Barros. [The prosecutor] also asked what

does Dr. Barros have to gain. Well, what Dr. Barros has to gain is he is

not sitting right here.”).

22 No. 14-1390

ingly, waiver aside, Mr. Kielar’s evidentiary challenge fails

on its merits.

C.

Finally, Mr. Kielar contends that the district court erred

by preventing him from calling Fernando Perez as a defense

witness. We review the district court’s evidentiary rulings

for abuse of discretion. United States v. Khan, 771 F.3d 367,

377 (7th Cir. 2014).

1.

Prior to trial, the Government listed Fernando Perez as a

potential witness. Perez, a former patient of Dr. Barros and a

customer at the Cartagena Pharmacy, was slated to testify

that Dr. Barros never had prescribed Procrit for him. When

the Government later elected not to call Perez, defense coun-

sel informed the Government of his intent to call the witness.

In response, the Government moved to preclude Mr. Kielar

from calling Perez. When asked by the district court why he

intended to call Perez, defense counsel explained that he in-

tended to impeach the witness’s credibility. In particular, de-

fense counsel stated that, when called, Perez would “deny

that he was ever prescribed Procrit, [or] that he ever got any

Procrit,” and that defense counsel would then impeach the

witness by asking whether he had stolen his cousin’s identi-

ty and whether he was an illegal alien (both of which de-

fense counsel believed were true). 33

33 R.153 at 126.

No. 14-1390 23

The Government objected to this proffer, asserting that

defense counsel was “calling [Perez] solely for the purpose

of impeaching him.” 34 In response, the court asked defense

counsel whether “that[ was] all there [was] to it,” to which

defense counsel responded, “That’s all there is to it,

Judge.” 35

When asked whether he intended to ask Perez any other

questions, defense counsel responded that he also might ask

the following: “The government told you that they were go-

ing to call you as a witness and then sometime during the

trial you were—on a certain date you were interviewed and

the government told you that they were not going to call you

as a witness.” 36

The next day, the court granted the Government’s oral

motion in limine. Relying on our decision in United States v.

Giles, 246 F.3d 966 (7th Cir. 2001), the district court ruled that

Mr. Kielar’s counsel could not call Perez as a defense witness

because his only reason for doing so was to impeach him.

2.

It is well established that “a party may not call a witness

for the sole purpose of impeaching him.” Id. at 974. In Giles,

as here, a defendant sought to call as a witness an individual

who was slated to testify for the Government but whom the

Government chose not to call at trial. Id. We affirmed the dis-

34 Id.

35 Id. at 127.

36 Id.

24 No. 14-1390

trict court’s decision to preclude the defendant from calling

this individual, concluding that the defendant’s “true de-

fense reason…for wanting to put [this witness] on the stand

was to expose his warts to the jury and float the inference

that the [Government] should not play footsie with a sleaze-

ball.” Id.

Mr. Kielar attempts to avoid Giles’s clear holding by as-

serting that impeachment was not the “only reason” that he

wanted to call Perez as a witness. 37 In particular, he contends

that although “trial counsel believed Mr. Perez would likely

testify that he was never prescribed Procrit by

Dr. Barros…[,] trial counsel was willing to make the tactical

decision that under oath Mr. Perez may testify that he was

prescribed Procrit.” 38

Mr. Kielar never communicated to the district court this

reason for permitting Perez’s testimony. We therefore refuse

to consider this theory of admissibility for the first time on

appeal. See United States v. Biesiadecki, 933 F.2d 539, 544 n.1

(7th Cir. 1991); United States v. Marrera, 768 F.2d 201, 209 (7th

Cir. 1985); see also Stephens v. Miller, 13 F.3d 998, 1008 n.5 (7th

Cir. 1994) (en banc) (Rovner, J., concurring) (“A defendant

cannot advance one reason for admitting evidence during

trial and then advance a wholly separate basis for admis-

sion…on appeal. An evidentiary rationale not raised before

the trial judge at the time of ruling is waived.”). Because

Mr. Kielar’s only proffered reason for calling Perez as a de-

fense witness was to impeach him, we conclude that the dis-

37 Appellant’s Br. 26 (emphasis in original).

38 Id. at 26–27 (emphasis in original).

No. 14-1390 25

trict court’s decision to grant the Government’s motion in

limine was proper.

Conclusion

The judgment of the district court is affirmed.

AFFIRMED