United States District Court, Southern District of Illinois, S. D
December 5, 1973
UNITED STATES OF AMERICA
VERNON L. COCKERILL.
The opinion of the court was delivered by: Harlington Wood, Jr., District Judge.
The Defendant, Vernon L. Cockerill, D.V.M., was charged and
tried pursuant to an eight count information alleging
violations of the Federal Food, Drug and Cosmetic Act,
21 U.S.C. § 331(a). At the conclusion of the Government's case,
the Court granted the Defendant's Motion for a Judgment of
Acquittal made pursuant to Rule 29 of the Federal Rules of
Criminal Procedure, as to Counts I, II, V, VI, VII, and VIII,
but denied the motion as to Counts III and IV. The Motion was
renewed at the close of all the evidence as to Counts III and
IV and the Court reserved its decision. The case was then
submitted to the jury which found the Defendant guilty of the
violations charged in Counts III and IV.
On a Motion for a Judgment of Acquittal, the sole duty of
the trial judge is to determine whether substantial evidence
taken in the light most favorable to the Government tends to
show the Defendant is guilty beyond a reasonable doubt. United
States v. McCall, 148 U.S.App.D.C. 444, 460 F.2d 952 (1972),
United States v. Andrews, 431 F.2d 952 (5th Cir. 1970).
It is also well settled that the Court must not permit the
jury to rely on conjecture or speculation in arriving at their
decision. In referring to the test which must be applied by
the trial judge in considering whether the evidence has proven
guilt beyond a reasonable doubt, the Court of Appeals for the
District of Columbia Circuit stated:
"Should the judge determine that prudent jurors
might have no such doubt, or might disagree as to
its existence, the matter lies within the jury's
province and the motion must be denied. But, very
`Guilt, according to a basic principle in our
jurisprudence, must be established beyond a
reasonable doubt. And, unless that result is
possible on the evidence, the judge must not
let the jury act; he must not let it act on
what would necessarily be only surmise and
conjecture, without evidence.'"
Bailey v. United States, 135 U.S.App. D.C. 95,
416 F.2d 1110, 1113 (1969) quoting Cooper v.
United States, 94 U.S.App.D.C. 343, 218 F.2d 39,
The relevant instruction given in the present case, No. 20,
is as follows:
"In order to find the defendant guilty on
either count, you must find beyond a reasonable
doubt for that count:
"1. . . .
"2. . . .
"3. . . .
"4. . . .
"5. . . .
"6. That the defendant, Vernon L. Cockerill,
D.V.M., was not acting within the scope of his
licensed practice as a veterinarian, when he
shipped the drug in interstate commerce."
In addition, Instruction No. 21 was given as follows:
"You are instructed that, although not licensed
in Georgia, the defendant did not violate that
state's law if you find that the drug was shipped
there for bona fide research."
Both of these instructions were given without objection by
the Government. The second instruction leaves the matter of
veterinary practice incomplete. There were no objections made
by the Government to any of the instructions as given nor did
the Government object to any instructions offered by the
Government and not given. All instructions given or not given
met with the approval of both parties. The instructions quoted
above were the standard by which the jury was required to
weigh the case against the Defendant on the element of
veterinary practice. There was, in fact, no proof whatsoever
on this one essential element; what constituted the practice
of veterinary medicine in Georgia or Illinois? For present
purposes there is no need to determine whether the law of
Georgia or Illinois applies to the present situation since
there was no proof as to the law of either state. If there is
a failure to prove an essential element, the Defendant is
entitled to an acquittal. United States v. Blattel,
340 F. Supp. 1140 (N. D.Iowa 1972).
In its memorandum in opposition, the Government asserts:
"There is no need to dwell at length on the
various facets of veterinary medicine that
constitute the practice of veterinary medicine
since the acts performed by Dr. Cockerill in
Georgia are so universally within the scope of
the practice of veterinary medicine that the jury
was afforded a full factual basis for making a
determination as to whether defendant was or was
not engaged in the licensed practice of
veterinary medicine in connection with the
Bismuth Premix referred to in Counts III and IV."
The Government's contention is not well taken. The practice
of veterinary medicine in the States of Illinois and Georgia
is defined by the statutes of these states. Collins v. Texas,
223 U.S. 288
, 296, 32 S.Ct. 286, 56 L.Ed. 439 (1912) (opinion
of Holmes, J.) There was no request by either party to take
judicial notice of the applicable statutes and none was taken.
An attempt by the Government to have the Court take judicial
notice of the applicable statutes after the verdict is
inappropriate, nor do discussions during the trial with
counsel in chambers about the law on this subject serve to
instruct the jury in its deliberations.
It is clear that the jury received no evidence as to the law
of Georgia or Illinois nor was the jury instructed by the
Court as to the law in either jurisdiction except to the
limited extent noted above. The jury received no evidence as
to this essential element of the offense.
There is no need to decide issues raised by the Defendant as
to Count IV of the Information dealing with labeling. The
Court's decision on this issue makes it unnecessary to reach
the labeling issue.
The Government has failed to prove all the elements of the
offense charged in both Counts III and IV of the information
in that it failed to prove what constituted the practice of
veterinary medicine in Illinois or Georgia.
The Defendant's Motion for a Judgment of Acquittal as to
Counts III and IV of the information against him made pursuant
to Rule 29 of the Federal Rules of Criminal Procedure, coming
on for hearing, the Court being briefed and fully advised in
the premises, is hereby Granted. The Defendant is discharged.
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