United States of America v. Benjamin Muoghalu

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3873
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BENJAMIN MUOGHALU,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 CR 750-02—Virginia M. Kendall, Judge.
ARGUED SEPTEMBER 30, 2011—DECIDED NOVEMBER 21, 2011
Before EASTERBROOK, Chief Judge, and POSNER and
WILLIAMS, Circuit Judges.
POSNER, Circuit Judge. A jury convicted the defendant,
Muoghalu, of a variety of federal felonies relating to his
solicitation and receipt of kickbacks, and the judge sen-
tenced him to 22 months in prison. Muoghalu had been
indicted along with Joseph Levato, who had directed
the payment of the kickbacks by his firm, but Levato
pleaded guilty and testified against Muoghalu.

-- 1 of 11 --

2 No. 10-3873
Muoghalu was the pharmacy director of the Provena
St. Joseph Medical Center in Joliet, Illinois, and had
considerable, perhaps decisive, influence over the hospi-
tal’s decisions concerning which drugs to stock. Levato
was the local business manager of the pharmaceutical
company Aventis (now Sanofi, but we’ll stick with the
name that the company bore during the period in which
the events giving rise to this prosecution occurred). His
territory included St. Joseph. Learning that Muoghalu
was considering replacing Lovenox, a blood thinner
made by Aventis, with Pfizer’s blood thinner Fragmin,
Levato and an Aventis sales rep met with Muoghalu to
try to persuade him to retain Lovenox. Sales of Lovenox
to St. Joseph hospital amounted to almost $200,000 a year,
and Levato feared that if St. Joseph switched to Fragmin
so would other Provena hospitals.
Muoghalu told them at the meeting that he indeed
planned to switch the hospital to Fragmin. But later he
arranged to meet with Levato alone at a restaurant, and at
the meeting offered to make the issue of replacing
Lovenox “go away” if Levato would give him two Rolex
watches. Levato refused but said that Muoghalu could
earn the money to buy the Rolexes himself by giving
some speeches for Aventis. Muoghalu agreed. But
Aventis thought so ill of Muoghalu’s speaking ability
that he was never actually asked to give any speeches,
and so was paid nothing. Growing impatient, he
renewed his threat to replace Lovenox. Levato with
his supervisor’s concurrence agreed to pay Muoghalu
$18,000 not to switch, and made computer entries re-
cording nine nonexistent speeches given by Muoghalu

-- 2 of 11 --

No. 10-3873 3
for Aventis. Muoghalu was paid the $18,000 for the
fictitious speeches and later received another $14,000
from Aventis for seven additional fictitious speeches. He
held up his side of the bargain—never again did he
threaten to abandon Lovenox.
In 2006 an FDA agent who was investigating allega-
tions of misbranding and kickbacks by pharmaceutical
companies interviewed Muoghalu and showed him
copies of Aventis’s records listing the speeches he’d
supposedly given for the company. Muoghalu admitted
he’d given no speeches yet had received and cashed
checks from Aventis, ostensibly for speechmaking, totaling
$32,000. He said they were payments for informal talks
that he had given to nurses at the hospital during his
lunch hour, but he had no documentation to back up
the claim, such as notes, slides, or calendar entries.
At trial Muoghalu was the only witness for the defense;
none of the nurses who he said had attended talks by
him testified. He denied having told Levato that he was
considering replacing Lovenox, or having asked Levato
for Rolexes or other bribes. His guilt is so plain that
we might stop here; none of the alleged trial errors
could have affected the result of the trial, assuming, as
courts do when assessing trial error, that the jury was
reasonable (no one can predict what an unreasonable
jury would do). But we’ll trudge on.
Muoghalu asks us to reverse his conviction on two
grounds, the first being that the government withheld
Brady material, see Brady v. Maryland, 373 U.S. 83 (1963);
United States v. Gray, 648 F.3d 562, 566 (7th Cir. 2011),

-- 3 of 11 --

4 No. 10-3873
which is to say that it suppressed material exculpatory
evidence that it knew it had, specifically memoranda
prepared by the Department of Health and Human Ser-
vices summarizing the results of an investigation of
suspected misconduct by Aventis, including payment
of kickbacks—that is, bribes to employees of customers.
The memoranda fingered Muoghalu and Levato. The
U.S. Attorney’s office that was prosecuting Muoghalu
discovered the memoranda after the trial ended but
before Muoghalu was sentenced, and immediately
turned them over to his lawyer. So there was no with-
holding of exculpatory material unless the HHS investi-
gators should be considered part of the prosecutorial
team in this case. Kyles v. Whitley, 514 U.S. 419, 437-38
(1995); United States v. Gray, supra, 648 F.3d at 566; United
States v. Bhutani, 175 F.3d 572, 577 (7th Cir. 1999);
United States v. Wood, 57 F.3d 733, 737 (9th Cir. 1995). But
we’ll assume they should be.
The district judge rejected the Brady claim on the
ground that Muoghalu’s lawyer had known about the
HHS investigation, knew that its targets included not
only his client but also the government’s principal
witness (besides the FDA agent)—Levato—and could
have requested the investigatory records if he thought
they might undermine Levato’s credibility. That’s a
sound ground for the rejection of the claim.
Furthermore, the right created by the Brady decision
applies only to evidence favorable to the defense.
The documents in question would be unlikely to
have strengthened, and might well have weakened,
Muoghalu’s defense in the minds of jurors.

-- 4 of 11 --

No. 10-3873 5
The Food and Drug Administration had approved
Lovenox (enoxaparin sodium) as a blood thinner to be
used for the prevention and treatment of deep vein throm-
bosis (blood clots in veins that are deep inside the
body), and for the treatment of certain complications
of angina pectoris and of heart attacks. Physicians are
authorized to prescribe a drug for a non-approved use,
21 U.S.C. § 396; Buckman Co. v. Plaintiffs’ Legal Committee,
531 U.S. 341, 350 (2001)—the decision to do so being
deemed to be within their professional competence—but
the drug’s manufacturer is forbidden to promote that
use, directly or indirectly. 21 C.F.R. § 202.1(e)(6); Iron-
workers Local Union 68 v. AstraZeneca Pharmaceuticals, LP,
634 F.3d 1352, 1356 n. 5 (11th Cir. 2011). A qui tam
suit against Aventis alleged that the company had
violated the law by promoting—sometimes with fatal
consequences—Lovenox for non-approved uses, for
example for treating heart patients with atrial fibrilla-
tion, for use in cardiac catheterization on patients with
unstable angina, and for patients undergoing mechanical
heart-valve replacement.
All this Muoghalu’s lawyer knew; what he didn’t
know was that the investigation by the Department of
Health and Human Services had confirmed the deaths
and described them as “linked” to non-approved uses of
Lovenox. Muoghalu wanted to argue that these findings
by the investigators made Levato fear that he would be
prosecuted for homicide and so gave him a strong incen-
tive to cooperate with the prosecution by testifying that
Muoghalu had received kickbacks; thus the evidence
potentially had impeachment value.

-- 5 of 11 --

6 No. 10-3873
But did it have more impeachment value than the
unconfirmed allegations of patient deaths? Probably not,
because there is no indication that Levato knew more
than the allegations. And anyway, knowing about the
HHS investigation Muoghalu’s lawyer could have re-
quested the results.
Even if the confirmation of patient deaths would have
had an incremental impeachment value in the cross-
examination of Levato, Muoghalu’s lawyer surely didn’t
want to connect his client to a drug “linked” to patient
deaths. But it would have been impossible to connect
Levato but not Muoghalu, who had been paid $32,000
not to yank Lovenox from St. Joseph hospital. A jury
told about the patient deaths might think Muoghalu
and Levato little better than a pair of murderers. That
might not be a legitimate inference; for all we know,
Muoghalu was unaware that Lovenox was being pre-
scribed inappropriately, that Aventis had been accused
of encouraging such prescriptions, and that deaths
had resulted—the investigation by the Department of
Health and Human Services did not identify any deaths
at St. Joseph. And an investigative finding carries less
weight than a judicial determination after trial or an
agency’s determination after an adversarial adjudica-
tion. Muoghalu’s lawyer could have tried to explain all
this to the jury, but his explanation probably would not
have erased the inference that Levato and Muoghalu
had been endangering human life for financial gain.
As cases in this and other courts have noted, see, e.g.,
Payne v. Tennessee, 501 U.S. 808, 819 (1991); United States

-- 6 of 11 --

No. 10-3873 7
v. Alvarado-Tizoc, No. 10-1613, 2011 WL 3904083, at *2
(7th Cir. Sept. 7, 2011); Milner v. Apfel, 148 F.3d 812,
815 (7th Cir. 1998); United States v. Martinez, 16 F.3d 202,
205-06 (7th Cir. 1994); United States v. Tham, 118 F.3d 1501,
1507 (11th Cir. 1997); United States v. Smith, 27 F.3d 649,
652-53 (D.C. Cir. 1994), our moral code includes a form
of strict liability—what philosophers call “moral luck.” See
Thomas Nagel, “Moral Luck,” in Nagel, Mortal Questions
24 (1979); Bernard Williams, “Moral Luck,” in Williams,
Moral Luck: Philosophical Papers 1973-1980 20 (1981); Wil-
liams, “Moral Luck: A Postscript,” in his book Making Sense
of Humanity and Other Philosophical Papers 1982-1993
241 (1995). The concept has infiltrated the law. If two
drivers are equally careless, and one driver has an ac-
cident in which another person is killed and the other
driver has no accident, the first gets charged with
homicide and the second gets a ticket (maybe). Yet
they’d made identical choices and performed identical
acts, and the difference in consequences was a matter
purely of chance—but consequences even when
fortuitous have an effect on our evaluation of the good-
ness or badness of an act.
This effect is embedded in the criminal code and sen-
tencing guidelines. See, e.g., 18 U.S.C. § 1111(a); U.S.S.G.
§§ 5K2.1, 5K2.2, 5K2.3, 5K2.5; Kevin Cole, “Killings
during Crime: Toward a Discriminating Theory of Strict
Liability,” 28 Am. Crim. L. Rev. 73, 74 (1990). Despite all
the explaining away that Muoghalu or his lawyer
might have attempted had the jury been apprised of
patient deaths from non-approved uses of Lovenox, the
jury would have been likely to infer that for purely pecu-

-- 7 of 11 --

8 No. 10-3873
niary gain Muoghalu had refused to replace a drug im-
plicated in patient deaths as a result of misconduct
by Lovenox’s manufacturer; that he had risked patient
lives, though probably unwittingly; and that while
maybe no one had died at Muoghalu’s hospital the pos-
sibility of a patient’s death could not be excluded. So
moral luck favored Muoghalu in one sense: there was no
proof that he had caused any deaths. But it hurt him
in another sense: he may have contributed to creating a
risk of death. A risk of death is not a death, but it is a
consequence that weighs in people’s thinking even if it
was created unintentionally. Had Muoghalu’s lawyer
told the judge and jury about the risk that his client
had endangered lives, Muoghalu would now be arguing
for a new trial on the ground of ineffective assistance
of counsel.
A risk of patient deaths would make judge and jury
think worse of Levato as well, but the jury might well
have found him the more sympathetic of the two defen-
dants. He got off with probation, maybe because the
government and the judge believed that he was the
victim of extortion—which if so made Muoghalu the
extortionist.
Against all this it can be argued that to a “reasonable”
jury the patient deaths could be relevant only to Levato’s
credibility—they could not be relevant to the truthful-
ness of Muoghalu’s denial of extortion and claim to
have given the talks for which he was paid. But
evidence can of course be irrelevant yet prejudicial, and
a competent lawyer strives to exclude such evidence if
his client would be the victim of the prejudice. Even if

-- 8 of 11 --

No. 10-3873 9
the evidence of patient deaths was legally relevant only
to Levato’s credibility, its presentation to the jury
would have been prejudicial to Muoghalu by associating
him with patient deaths from illegal promotion of
Lovenox. It is doubtful that its prejudicial effect would
have been offset by its effect in undermining Levato’s
testimony, and if the effects were offsetting, the
evidence would not have been Brady material. In
deciding whether evidence is Brady material—that is,
whether if known to and used by the defense it would
have increased the chances of an acquittal—the court has
to determine the likely net impact of the evidence, with
realistic awareness of prejudice as well as probativeness.
In any event, as we said earlier, a distinct reason against
inferring a violation of Brady is that the government
had already armed Muoghalu with all the information
that his lawyer could have used to impeach Levato’s
testimony.
The second ground of appeal is that the judge should
have allowed the lawyer more leeway at trial to explore
the interview of his client by the FDA agent. The lawyer
wanted to be allowed to ask the agent on cross-examina-
tion whether Muoghalu had asked for the presence of a
lawyer during the interview. We don’t understand
the relevance of the question, and so we think the judge
was right to forbid it. Muoghalu was not under arrest
when he was interviewed, and so he could have refused
to be interviewed had the agent refused to interview
him in the presence of a lawyer.
Muoghalu’s lawyer also wanted his client to be
permitted to testify to what he had said during the inter-

-- 9 of 11 --

10 No. 10-3873
view. The agent testified to his own version of what
had been said, and that version included fatal admissions
by Muoghalu. Muoghalu could, without violating the
hearsay rule, have testified to what had been said at
the interview (which had not been recorded); but when
the judge rejected the request of Muoghalu’s lawyer
that his client be permitted to testify to what had been
said, the lawyer made no offer of proof—no indication
of what he thought such questioning would produce
that would be material. By failing to make an offer of
proof, he forfeited a challenge to the judge’s ruling.
Fed. R. Evid. 103(a)(2); United States v. Bartlett, 567 F.3d
901, 910 (7th Cir. 2009).
Anyway the challenge has no merit. Rule 106 of the
Federal Rules of Evidence provides that “when a writing
or recorded statement or part thereof is introduced by a
party, an adverse party may require the introduction
at that time of any other part or any other writing or
recorded statement which ought in fairness to be con-
sidered contemporaneously with it”; and under the
name “rule of completeness,” the principle of Rule 106
has been extended to nonrecorded statements. United
States v. Price, 516 F.3d 597, 604-05 (7th Cir. 2008);
United States v. Li, 55 F.3d 325, 329-30 (7th Cir.
1995); United States v. Range, 94 F.3d 614, 621 (11th
Cir. 1996). How rules proliferate in American law! One
doesn’t need a rule of “completeness” to allow a defendant
to testify, in the case of an unrecorded interrogation,
that the interrogator’s version of what the defendant
said is false, or was taken out of context; and in the
latter instance the defendant can testify to the context

-- 10 of 11 --

No. 10-3873 11
(“surrounding circumstances”). But Muoghalu’s counsel
has never indicated what his client would have said
had he been permitted to testify about the interview.
AFFIRMED.
11-21-11

-- 11 of 11 --