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 sentenced 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.
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 hospital’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 recording nine nonexistent speeches given by Muoghalu
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 allegations 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),
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 Services 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 withholding of exculpatory material unless the HHS investigators 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.
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 thrombosis (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); Ironworkers 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 fibrillation, 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 incentive to cooperate with the prosecution by testifying that

Muoghalu had received kickbacks; thus the evidence

potentially had impeachment value.
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 requested the results.

Even if the confirmation of patient deaths would have

had an incremental impeachment value in the crossexamination 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 prescribed 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 adjudication. 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
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); Williams, “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 accident 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 goodness or badness of an act.

This effect is embedded in the criminal code and sentencing 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-
8 No. 10-3873

niary gain Muoghalu had refused to replace a drug implicated 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 possibility 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 defendants. 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 truthfulness 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
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-examination 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-
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 considered 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
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