Fishman Claims $13.5M Forfeiture is ‘Unlawful in its Entirety’

The veterinarian Seth Fishman, who is currently imprisoned but appealing his 11-year sentence for two felony drug-supplying convictions in a decades-long international racehorse doping conspiracy, has filed legal paperwork objecting to the $13.5-million forfeiture that was also imposed upon him, claiming the judge's order was illegal.

“The forfeiture sought here is not authorized by statute and is therefore unlawful in its entirety,” Fishman's attorney, Steven Kessler, stated in a Sept. 12 filing in United States District Court (Southern District of New York).

“The Preliminary Order of Forfeiture (POF) seeks a money judgment equal to the alleged value of the misbranded or adulterated products that form the basis for the criminal charges,” the filing continued. “It further seeks an order forfeiting substitute assets–i.e., property having no relationship to any criminal activity–up to the value of the money judgment.

“[But] the [relevant] statute does not authorize a money judgment equal in value to the misbranded products. Nor does it authorize the forfeiture of substitute assets if the misbranded products are no longer available….” the filing stated.

“Thus, the government's statutory remedy for the manufacture or introduction into interstate commerce of misbranded or adulterated products is limited to the confiscation of the products themselves. The POF exceeds and contravenes the statute. It is therefore unlawful and must be rejected….

“If the POF actually sought 'forfeiture…of any and all drugs that were adulterated or misbranded by the Defendant' for introduction into the stream of interstate commerce, the POF would be lawful….” Fishman's filing stated.

“Misbranding is not a forfeiture crime. The misbranding statute under which the government seeks forfeiture against Dr. Fishman, 21 U.S.C. § 334, only permits the government to confiscate the misbranded or adulterated products themselves and any equipment used to manufacture those products. Nothing more,” the filing stated.

Fishman's filing further argued that “Congress has prescribed monetary penalties for introducing misbranded and adulterated products into the stream of interstate commerce. Those penalties, however, are fines, not forfeitures of proceeds,” and are capped at $1 million for certain violations.

Fishman was indeed fined $250,000 after prosecutors introduced evidence showing that his drug-peddling business earned millions of dollars a year. Fishman is also jointly responsible for $25 million in restitution along with other convicted co-conspirators. Neither of those monetary orders were questioned in Fishman's formal objection to the forfeiture.

The filing continued: “On a few occasions, a court has permitted forfeiture of proceeds or facilitating property or a money judgment forfeiture where there is an allegation of a misbranding violation. Those decisions, however, permitted such relief based on other criminal charges, bundled with the misbranding violations, that specifically authorize forfeiture, such as wire fraud or money laundering, none of which were even alleged against Dr. Fishman, let alone proven, here.”

In summation, the filing stated, “It has never been alleged or shown that Dr. Fishman 'actually acquired' any tainted property as a result of any crime, let alone more than $13 million.”

A separate legal filing from Sept. 8 noted that Fishman has been in transit within the federal prison system from New York to Florida, and that because of COVID-19 restrictions related to his movement, his attorney has been largely unable to speak with him.

“He has [been in transit to] Philadelphia and Tallahassee (and possibly other venues) before arriving [Sept. 7] in Miami. As the Court knows, upon reaching each facility, a prisoner is quarantined and must go through strict COVID protocols before being permitted phone privileges, even with his counsel.

“Because of this, I have been able to speak to Dr. Fishman just once while he was in transit, and that call was brief. We have made substantial efforts to speak with him since, but, through no fault of mine or the Bureau of Prisons, that has not yet happened. I am hopeful that, now that Dr. Fishman has arrived at his destination, communication will be easier to facilitate,” the Sept. 8 filing stated.

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Harness Trainer Dane Gets 30 Months in Prison

Former harness trainer Richard Allen “Rick” Dane Jr., was sentenced to 30 months in a federal prison Sept. 9. He had previously entered a guilty plea to one felony count related to the 2020 international racehorse doping conspiracy sting that has already netted two dozen related convictions or guilty pleas.

Dane, 41, has additionally been ordered to pay a monetary judgement of $33,912. As part of a plea bargain, a second felony charge against Dane was dropped.

Dane is to report to prison Jan. 9, 2023-the same day that the last remaining high-profile defendant in the case, the barred trainer Jason Servis, is set to begin his trial.

But with respect to the plea bargaining that took place, federal prosecutors and Dane differed as to how useful to the government his cooperation actually was.

United States attorneys detailed in a court filing that after his March 2020 arrest, Dane made initial attempts to cooperate with them by providing information related to the cases of other defendants.

But by early 2022, the feds wrote, “The Government determined that the defendant was not completely forthcoming, and thus was unable to provide 'substantial assistance.'”

On that basis, prosecutors did not extend a cooperation agreement to Dane, who then pleaded guilty on Feb. 18.

According to the government's sentencing submission, Dane “joined in a conspiracy with Lisa Giannelli and, by extension, Seth Fishman and others at Equestology that he knew was wrong and illegal.

“The defendant not only purchased performance-enhancing drugs (PEDs) and prescription drugs from Giannelli that he was using to dope his horses, the defendant also served as a trusted resource for Giannelli by providing background on potential new clients who could be considered 'trustworthy.'

“One of the means by which Dane's co-conspirators evaded detection was by vetting buyers to ensure they would be discreet and would not report Equestology to relevant racing and drug regulatory authorities, or otherwise act recklessly and invite scrutiny of Equestology's drugs,” prosecutors wrote.

“Dane facilitated these efforts by providing Giannelli with background information on such individuals. The defendant consistently purchased adulterated and misbranded PEDs from Giannelli and others, all in efforts to corruptly dope his racehorses and earn hundreds of thousands of dollars in purse winnings,” the feds wrote.

The government had recommended that “a sentence slightly below the Guidelines Sentence of 36 months' imprisonment is appropriate to serve the purposes of sentencing when balancing all the factors relevant to the defendant's guilt, including the relatively limited role he played in facilitating Equestology's operations as compared to Seth Fishman and Lisa Giannelli, both of whom had more extensive involvement in the promotion and sale of Equestology's drugs, and who partook in their offense conduct for a significantly longer period of time.”

Fishman was sentenced in July to an 11-year prison stint, and an appeal is in the works. The day prior to Dane's sentencing, on Sept. 8, the same federal judge sentenced Giannelli to 3 1/2 years behind bars.

Dane's own sentencing submission written by his legal team offered a different perspective, while asking for a more lenient sentence “that is below the guidelines due to the extraordinary mitigation present in Mr. Dane's life.”

Dane's lawyers wrote that, “Since he was 16 years old, Mr. Dane has worked with at various tracks as a farrier and horse trainer. He loves working with horses and is passionate about his career. Mr. Dane always put the horses before himself and worked hard to ensure that his horses were cared for.”

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Trial Date for Servis Pushed Back to Early ’23

The trial of alleged doping conspirator Jason Servis got pushed back to early 2023 at a status conference in federal court on Thursday.

Robert Gearty of the Blood-Horse first broke the Feb. 24 story from United States District Court (Southern District of New York).

Gearty reported that the former trainer's trial will take place in the first quarter of 2023 along with that of veterinarian Alexander Chan.

Previously, Judge Mary Kay Vyskocil had been aiming for a mid-2022 trial for Servis, the most prominent name among the remaining defendants asserting innocence.

“Vyskocil blamed the postponement on the courthouse's coronavirus restrictions that have made it more difficult to schedule trials in a timely manner,” Gearty wrote. “When scheduling criminal trials preference goes to defendants awaiting trial behind bars. Servis and Chan are free on bond.”

Servis amassed gaudily high win percentages during the 2010s decade prior to getting arrested on three felony drug misbranding and conspiracy to commit fraud charges in March 2020.

According to a trove of wiretaps the government has produced as evidence against him (and other defendants), Servis allegedly doped almost all the horses under his control in early 2019, including MGISW Maximum Security, who crossed the wire first in the GI Kentucky Derby but was DQ'd for in-race interference.

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