The opinion of the court was delivered by: Richard Mills, District Judge:
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?
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
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