United States v. Wesley Jacobs and Santokh Singh Takhar

855 F.2d 652 UNITED STATES of America, Plaintiff-Appellant, v. Wesley JACOBS and Santokh Singh Takhar, Defendants-Appellees. No. 87-1082. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 18, 1987. Decided Aug. 31, 1988. David F. Levi, U.S. Atty., Sacramento, Cal., for plaintiff-appellant. Eric K. Fogderude, Fletcher & Fogderude, Fresno, Cal., for defendant-appellee Jacobs. George A. McKray, San Francisco, Cal., for defendant-appellee Takhar. Appeal from the United States District Court for the Eastern District of California. Before ALARCON and O'SCANNLAIN, Circuit Judges, and STEPHENS, * District Judge. PER CURIAM: 1 The government appeals the district court's dismissal for prosecutorial misconduct of an indictment against Wesley Jacobs and Santokh Singh Takhar. The government contends that (1) no prosecutorial misconduct occurred and therefore the district court lacked a legal or factual basis for its dismissal, and (2) if reversed the case should be reassigned to another judge. We agree and we reverse and remand with instructions. FACTS AND PROCEEDINGS 2 The indictments at issue here result from the Food and Drug Administration's efforts to prevent…

The government appeals the district court’s dismissal for prosecutorial misconduct of an indictment against Wesley Jacobs and Santokh Singh Takhar. The government contends that (1) no prosecuto-rial misconduct occurred and therefore the district court lacked a legal or factual basis for its dismissal, and (2) if reversed the case should be reassigned to another judge. We agree and we reverse and remand with instructions.

FACTS AND PROCEEDINGS

The indictments at issue here result from the Food and Drug Administration’s efforts to prevent the use of the drug chlo-ramphenicol in animals that produce food. As part of this effort, in 1984 the FDA sent one of its agents, Robert Anderson, to investigate large purchases of chlorampheni-col made by the animal hospital which Jacobs and Takhar owned and operated. Based on the evidence Anderson discovered, in 1986 the grand jury indicted Jacobs and Takhar for mislabeling and adulterating chloramphenicol in violation of 21 U.S. C. §§ 331(k) and 333(a). In addition, the grand jury charged Jacobs with making false statements in violation of 18 U.S.C. § 1001 because he allegedly lied to Anderson.

On February 10, 1987, just an hour before the…

concurring in part and dissenting in part:

I concur in part A of the Discussion section of the majority opinion, but I dissent from part B because it is unnecessary and unfair to order reassignment of this case to another judge on remand.

DISCUSSION

A. The Appearance of Justice Dictates that Judge Price Try this Case

I am in complete agreement with my colleagues when they express their confidence that Judge Price would put out of his mind his previously expressed views in light of part A of the majority opinion if we were to remand this case to him. I must part company from my colleagues when they state that they must order reassignment to preserve the appearance of justice. If we are all sure that Judge Price could try the case fairly and impartially, the appearance of justice is best preserved by allowing Judge Price to try the case. This would demonstrate that district judges can and do conform their actions to appellate decisions.

B. The Circuit’s Method of Reassignment is Unjust

Even if I did agree with the majority that the appearance of justice required that Judge Price not hear this case, I would still point out that the way Ninth Circuit panels order cases…