Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 07 CR 750-02--Virginia M. Kendall, Judge.
The opinion of the court was delivered by: Posner, Circuit Judge.
ARGUED SEPTEMBER 30, 2011
Before EASTERBROOK, Chief Judge, and POSNER and WILLIAMS, Circuit Judges.
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.
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 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), 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.
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.
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 ...