US v. Rossoff, 91-30053.
| Decision Date | 13 November 1992 |
| Docket Number | No. 91-30053.,91-30053. |
| Parties | UNITED STATES of America, Plaintiff, v. Irving S. ROSSOFF, Defendant. |
| Court | U.S. District Court — Central District of Illinois |
Patrick J. Chesley, Asst. U.S. Atty., Springfield, Ill., Henry LaHaie, William Zoffer, U.S. Dept. of Justice, Washington, D.C., for plaintiff.
Ronald Spears, Thomas W. Lacy, Taylorville, Ill., for defendant.
Two criminal jury trials — two hung juries — coupled with not guilty verdicts on some of the counts.
Should this Court put an end to this criminal prosecution?
Yes.
Defendant moves for judgment of acquittal.
The Government opposes, but moves for dismissal without prejudice, which in turn, is opposed by the Defendant.
The Court will do neither.
The Court dismisses the remaining five counts with prejudice.
The Food and Drug Administration (FDA) is charged with the responsibility of protecting the health and safety of the American public by ensuring that drugs used for the diagnosis, cure, mitigation, treatment, or prevention of disease in animals are safe and effective. However, as the Seventh Circuit has noted, there are no effective drugs approved by the FDA to combat significant animal diseases. United States v. 9/1 KG Containers, 854 F.2d 173 (7th Cir.1988). For years, the FDA looked the other way while veterinarians mixed their own general anesthetic for use in field surgery on food animals, and drugs to fight diseases such as salmonella and acute mastitis. 9/1 KG Containers, 854 F.2d at 175. In order to mix these drugs, veterinarians purchased the active ingredients from others engaged in the sale of bulk drugs. 9/1 KG Containers, 854 F.2d at 175.
Before 1988, there were no court decisions interpreting the FDA's regulations concerning the sale of bulk animal drugs which determined that such sales were illegal. In fact, in 1987, this Court was the first to render a related decision, finding bulk drugs supplied to veterinarians for use within the scope of their practice were exempt from condemnation. United States v. 9/1 KG Containers, 674 F.Supp. 1344 (C.D.Ill.1987). However, the reviewing court did not agree and that decision was reversed by the Seventh Circuit in 9/1 KG Containers, 854 F.2d 173. Consequently, the door was opened for the FDA to begin civil and criminal prosecutions against the sellers of bulk animal drugs used in mixtures not approved by the FDA.
Dr. Irving Rossoff, the defendant here, holds a Doctor of Veterinary Medicine degree from Cornell University, is a practicing veterinarian licensed in Illinois, and is a seller of bulk animal drugs. In July of 1991, the Government brought a thirteen count indictment against Dr. Rossoff charging him with:
Dr. Rossoff was first tried in March, 1992, and after a three week trial, the jury was unable to reach a unanimous verdict on any count. The jury was hung and a mistrial was declared. With permission of the Court, counsel interviewed the jurors and found that the final votes on the respective counts were: Count 1, 11-1 Not Guilty; Count 2, 10-2 Not Guilty; Count 3, 10-2 Not Guilty; Count 4, 10-2 Not Guilty; Count 5, 11-1 Not Guilty; Count 6, 9-3 Guilty; Count 7, 8-4 Not Guilty; Count 8, 8-4 Not Guilty; Count 9, 6-6; Count 10, 7-5 Not Guilty; Count 11, 7-5 Not Guilty; Count 12, 7-5 Not Guilty; and Count 13, 8-4 Not Guilty.
The Government decided to retry Dr. Rossoff and on May 7, 1992, it filed an 8 count superseding indictment, eliminating 5 of the original counts. A second trial began on August 10, 1992 and took seven full days. After two days of deliberation, the jury reached a unanimous verdict of Not Guilty on three counts and hung on the remaining five. During deliberation, the jury's foreman sent a note stating that they had discovered that one of the jurors was biased. The Court had the jurors sign the verdicts for the three counts (1, 2 and 5) on which they had unanimously agreed that Dr. Rossoff was Not Guilty. Of the remaining counts, Counts 3 and 4 charge Dr. Rossoff with introducing misbranded drugs into interstate commerce in Seneca, Kansas. Counts 6, 7 and 8 allege that Dr. Rossoff sent false invoices to veterinarians in Seneca, Kansas, and Algona and Washington, Iowa. On these five counts, the jury voted 11-1 Not Guilty with the allegedly biased juror being the sole Guilty vote.
Dr. Rossoff moved for judgment of acquittal on the grounds that: 1) the evidence was insufficient to sustain a conviction because for Counts 6-8 the Government failed to show the materiality of the allegedly false statements, and for Counts 3 and 4 the Government presented uncorroborated testimony concerning the misbranding of some chemicals; 2) fairness dictates acquittal since Dr. Rossoff has been tried twice; 3) a judgment of acquittal is not appealable; 4) if the Court had excused the allegedly biased juror, there would have been a unanimous verdict of Not Guilty by the remaining jurors on all counts.
The Government opposed the motion for judgment of acquittal, but moved to dismiss the remaining counts, without prejudice, because the juries were unable to reach unanimous verdicts, and "after due consideration, the United States has decided not to pursue further prosecution of the defendant on those charges which are now pending in this judicial district." Dr. Rossoff opposes the Government's motion for the reasons stated above and because he views the Government's motion as a "thinly veiled effort at forum shopping in which the Government, unsuccessful with two juries in Illinois, goes around the country to a chosen venue where it believes the jury or judge would be more receptive to its evidence."
Under Rule 48, the Government may...
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