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
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
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 dismiss an indictment by
leave of the court. United States v. Olson, 846 F.2d 1103 (7th
Cir. 1988). The primary purpose of the leave of court
requirement is to protect the defendant's rights and to prevent
harassment of a defendant by charging, dismissing and
re-charging the defendant with a crime. United States v. Olson,
846 F.2d at 1113; United States v. Salinas, 693 F.2d 348 (5th
Cir. 1982); United States v. Strayer, 846 F.2d 1262 (10th Cir.
1988). The courts have recognized that prosecutors can abuse
their powers and harass defendants by repetitively filing,
dismissing and recharging defendants with crimes. Strayer, 846
F.2d at 1265; Rinaldi v. United States, 434 U.S. 22, 98
S.Ct. 81, 54 L.Ed.2d 207 (1977). In determining whether to
allow the dismissal, the court should inquire as to the good
faith of the Government. If the court finds that the Government
has offered a vague reason for its motion to dismiss an
indictment without prejudice, it may dismiss the indictment
with prejudice. Strayer, 846 F.2d at 1265; United States v.
Derr, 726 F.2d 617 (10th Cir. 1984).
Likewise, the court, in its discretion, may dismiss the
indictment with prejudice if it determines that a retrial is
against the concept of fundamental fairness. United States v.
Ingram, 412 F. Supp. 384 (D.D.C. 1976). In determining whether a
dismissal is warranted under these circumstances, the court
should consider the strain on the defendant, that prosecutorial
discretion in choosing to indict and proceed has resulted in
multiple mistrials, that retrials tend to be unsatisfactory,
that witnesses are subjected to repeated inconveniences by
retrials, and the urgency of more significant court business.
Ingram, at 385-86. In addition, the court should be mindful
that if the trials have resulted in an indication of reasonable
doubt in the minds of a substantial majority of the jury
members who have heard the evidence, to permit a retrial is to
ignore the reasonable doubt standard. Ingram, at 386.
The Court agrees with the reasoning of the Ingram opinion and
believes that its principles are in like token applicable to
this case. Dr. Rossoff is 71 years of age and in poor health.
He has had heart surgery, suffers from severe anemia and at the
time of the second trial was on experimental treatment. He has
been under great physical and emotional strain as the result of
these repeated trials and was even hospitalized immediately
following the second trial. But, such health considerations
alone would not be sufficient to warrant a dismissal of the
indictment. Yet, this factor does not exist in a vacuum. It is
coupled with these additional compelling circumstances: 1) the
majority of jurors in both cases found Dr. Rossoff Not Guilty;
2) if not for the allegedly biased juror in the second trial,
Dr. Rossoff would have been acquitted on all counts; 3) the two
trials have taken over one solid month of the Court's time, and
since the conclusion of the second trial, this Court's criminal
case load has nearly tripled; 4) witnesses would be placed
under great burden to be required to again travel to Illinois
for this matter; and 5) the Government makes a somewhat vague
statement that it does not wish to pursue its prosecution of
Dr. Rossoff in this district.
All of these factors — in context — warrants the finding
that the Government is not entitled to a dismissal without
After considering the above mentioned factors, this Court
finds that Dr. Rossoff is entitled to a final resolution of
this case. Although the Court wishes to commend counsel on both
sides of the case for their diligence and demeanor, the Court
nevertheless concludes that the Government should not be given
continued bites at the apple in the hopes that a conviction
will eventually result.
Ergo, The Government's motion for dismissal of the remaining
counts in the superseding indictment without prejudice is
Defendant's motion for judgment of acquittal is DENIED.
Counts 3, 4, 6, 7 and 8 of the superseding indictment are
DISMISSED WITH PREJUDICE.
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