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Jason Servis To Change Plea; Hearing Set for Friday

Trainer Jason Servis has been granted a change-of-plea hearing, which will be held Friday at 11 a.m. before Judge Mary Kay Vyskocil of United States District Court (Southern District of New York)., in which he is expected to plead guilty for his role in the highly publicized racehorse doping scandal.

Originally indicted in March of 2020, Servis represents the last domino to fall in the doping scandal that also involved trainer Jorge Navarro and more than two dozen others and sent shockwaves through the industry. Servis had appeared ready to fight the charges in court and had hired a high-profile attorney in Rita Glavin, who represented former New York Governor Andrew Cuomo when he faced allegations of sexual harassment. Servis's trial had been set to begin Jan. 9.

It was revealed last week that Servis and his attorney had begun the process of negotiating with prosecutors when a request was filed to the court asking for additional time to file motions prior to Servis's scheduled court date.

“The Government and counsel for defendant Jason Servis are currently in discussions regarding a potential pre-trial disposition, which may obviate the need for trial,” wrote United States Attorney Damian Williams in his letter to the court.

Servis was originally charged with three counts of felony drug misbranding. Some eight months after the original indictment was released, the charge of mail and wire fraud conspiracy was added in a superceding indictment. The maximum sentence under federal guidelines for that charge is 20 years.

It won't be known until Friday's hearing what charges Servis will plead guilty to. Like Servis, Navarro entered into a plea agreement with the government, pleading guilty to one count of conspiracy to commit drug adulteration or misbranding. He was sentenced to five years in prison. Unlike Servis, Navarro was never charged with conspiracy, which could mean that Servis will face more than five years.

In a related development, Alexander Chan, a veterinarian who had worked for Servis and was scheduled to be tried alongside the barred trainer in January, also changed his plea and plead guilty to one felony count of conspiracy to commit drug misbranding or adulteration. He will be sentenced April 13. Chan had also been facing three felony charges related to drug adulteration, misbranding, along with wire fraud conspiracies.

That Servis might be acquitted at trail always seemed like a longshot. The federal government had compiled numerous intercepted phone conversations between Servis and others in which he discussed his doping routines with Chan, Navarro and another vet, Kristian Rhein. When Rhein pled guilty in August of 2020 he implicated Servis. Rhein was sentenced to three years.

Servis's performance-enhancing drug of choice was allegedly SGF-1000, purported to be a performance-enhancing drug intended to promote tissue repair and increase a racehorse's stamina and endurance beyond its natural capability. The government charged that Servis administered SGF-1000 to “virtually all of the racehorses under his control.” The list includes Maximum Security (New Year's Day), who was first under the wire in the 2019 GI Kentucky Derby before being disqualified for interference.

The evidence included a conversation between Servis and Navarro in which Servis recommended SGF-1000 to his fellow trainer and said, “I've been using it on almost everything.”

In the original indictment it was charged that Servis and his co-conspirators “concealed the administration of PEDs from federal and state government agencies, racing officials, and the betting public by, among other things, concealing and covertly transporting PEDs between barns where Servis's racehorse were stabled, falsifying veterinary bills to conceal the administration of SGF-1000, and using fake prescriptions.”

Servis's sentencing may be the final chapter in a scandal that has hovered over the industry for nearly three years. With Chan having changed his plea and Servis about to do the same, the cases covering all the individuals originally indicted will have been adjudicated. Every person involved will have either pled guilty or been convicted in court.

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Citing Pandemic, Defense Asks for Delay in Doping Trial

Attorneys for Seth Fishman and Lisa Giannelli, the first two defendants scheduled to face trial on Jan. 19 in the years-long alleged international horse doping conspiracy, Wednesday asked the judge in the case to delay the trial over concerns related to the COVID-19 pandemic.

In a highly-redacted document filed Jan. 12 in the United States District Court (Southern District of New York), Fishman's attorney, Maurice Sercarz, wrote that he and Giannelli's lawyer “respectfully submit that the present trial should be adjourned until there has been a substantial reduction in the prevalence of this variant of the virus.”

Fishman, a Florida veterinarian, is charged with two felony counts related to drug alteration, misbranding, and conspiring to defraud the government. Giannelli faces a related charge that has to do with an online business called Equestology that was closely tied to Fishman's venture.

A footnote within the request is the most substantial part of the document that survived redaction.

It states that conducting a “trial before masked jurors implicates the Sixth Amendment right to effective assistance of counsel from gauging jurors' facial reactions to questions and arguments counsel may advance and tailoring them accordingly.

“Insofar as the pandemic will reduce or eliminate the number of unvaccinated individuals available for jury service-and to the extent it disproportionately cognizable groups like the elderly and people of color-forcing a trial under these conditions may also implicate Dr. Fishman's right to a jury drawn from a fair cross-section of the community. The former prospect is especially fraught in a case instigated by the Food and Drug Administration.

“Finally, significant disruptions may ensue should key trial participants contract an infection [redacted] or another participant, creating substantial trail management problems and risking potential mistrial,” the footnote states.

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Feds Slam Alleged Dopers’ Assertion That HISA Creates Loophole

Prosecutors in the racehorse doping conspiracy case that ensnared 29 racetrackers, veterinarians and pharmaceutical brokers one year ago tried to convince a federal judge Friday that recent motions made by some of the defendants to dismiss drug alteration and misbranding charges are “without merit” and represent “an effort to invent a statutory limitation where none exists.”

The government's memorandum of law filed Mar. 5 in United States District Court (Southern District of New York) addresses a number of alleged legal flaws in the defendants' motions to dismiss, including several that prosecutors state would be more appropriately argued when the case goes to trial, not before it.

The defendants' motions, prosecutors allege, “do not actually seek the dismissal of the Indictment, but are more accurately described as premature motions regarding the sufficiency of the Government's evidence to be presented at trial…. The Second Circuit makes clear that a challenge to whether a statutory element has been satisfied is a matter for trial.”

The government's filing continues: “Defendants Seth Fishman, Lisa Giannelli, Jordan Fishman, Rick Dane, Jr., Christopher Oakes, Jorge Navarro, and Erica Garcia each ask that this Court insert novel, unsupported, and self-serving language into the text of [federal drug laws] in an effort to avoid felony liability for their illegal misbranding conspiracies.” The memo notes that a dismissal motion filed by defendant Michael Tannuzzo on different grounds should also not be granted.

The filing takes aim at the defendants' creative assertion that government prosecutors are overstepping their legal boundary by bringing charges under the applicable federal statute–the Food Drug and Cosmetic Act (FDCA)–when instead, the defendants argue, the case should instead fall under the authority of the Federal Trade Commission (FTC).

Back on Feb. 5, the defendants made the somewhat surprising legal argument that the Horseracing Integrity and Safety Act of 2020 (HISA)–which was signed into law a full nine months after the arrests were made–allegedly gives “plenary authority,” or absolute regulatory power, to the FTC in all federal matters pertaining to horse racing.

The government's Mar. 5 filing laced into that assertion: “The defendants' respective discussions of the passage of what is commonly referred to as [HISA] in the Fishman Motion and the Oakes Motion shed no light on the purpose or application of the FDCA. That is because the 116th Congress's passage of the HISA in 2020 has no bearing upon the intent of the 75th Congress's passage of the FDCA in 1938, and no implication for the plain language of the FDCA's provisions criminalizing misbranding and adulteration of animal drugs.

“As an initial matter, the Supreme Court disfavors reliance on subsequent legislative history in assessing the language and meaning of prior statutes,” the government's filing continues. “In particular, while 'subsequent legislation can of course alter the meaning of an existing law for the future' and 'can even alter the past operation of an existing law' (constitutional objections aside) if it makes that retroactive operation clear…it cannot inferentially amend the purpose behind passage of a prior statute, as defendants wish.

“The dangers of such post-hoc analysis are plain here. Congress did not–in either the FDCA or the HISA–indicate its intent either to acknowledge or create a 'racehorse industry' exception to the criminal prohibition against the distribution of adulterated and misbranded drugs with the intent to defraud or mislead in the FDCA, nor did it so indicate with respect to any other federal criminal law.

“The defendants' arguments in this respect reflect what seems to be a purposeful misreading of both the HISA and the charges against them: the defendants are not charged with violating state racing anti-doping rules and regulations, for which no federal analogue existed prior to the passage of the HISA; they are charged with felony misbranding and adulteration of drugs in interstate commerce in violation of the FDCA. No interpretative gymnastics are required to 'make sense' of one statute in light of the other.”

The government's filing sums up: “The HISA contains no criminal penalties because Congress determined sufficient criminal penalties were already provided for in existing federal criminal laws, laws which the HISA expressly does not modify. Ultimately, though, no reading of the Congressional tea leaves is required. There is no contradiction between the FDCA and the HISA, and no retrospective ambiguity in the text of the former arises from the text of the latter.”

Other counts of the government's case against the alleged dopers are not affected by this recent series of motion to dismiss, and trials are expected to begin in the second half of 2021. But one defendant, Scott Robinson, who has already pleaded guilty to conspiring to unlawfully distribute adulterated and misbranded drugs for the purpose of doping racehorses, has a sentencing hearing scheduled Mar. 9.

The multi-state simultaneous sting netted the high-profile arrests of trainers Navarro and the 2019 GI Kentucky Derby-disqualified trainer Jason Servis, plus a vast network of co-conspirators who allegedly manufactured, mislabeled, rebranded, distributed and administered PEDs to racehorses all across America and in international races.

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