The jury in the federal horse-doping trial of Seth Fishman on Tuesday, Jan. 25, heard a portion of a Federal Bureau of Investigation wiretap in which the veterinarian discusses whether the drugs he sold to horse trainers involved doping.
On the call with Fishman was an unidentified individual who wants to know more about the drugs.
“But it's not doping, yeah?” that person asks, according to a transcript of the April 5, 2019, intercepted call.
“Of course, it's doping. The question is, is it testable doping?” Fishman responds according to a transcript.
“Ah test,” says the individual.
“No, no, no, what I'm trying to say is, any time you give something to a horse, that's doping,” Fishman responds. “Whether or not they test for it is another story. This is stuff people are using all the time, so no, they're not testing for it. You know, but don't kid yourself. If you're giving something to a horse to make it better and you're not supposed to do that.”
“Yeah sure,” the individual says.
“That's doping,” Fishman says in response. “You know, whether or not it's testable, that's a different story.”
The conversation began with Fishman asking the caller about his plans to purchase more “stuff.”
Fishman then says, “You know, I have people that set world records using stuff, and then their competition uses the same stuff and the horse doesn't even show up to the track.”
The wiretap was played in court on the fifth day of the trial as testimony resumed after a day's interruption. On Jan. 24, Judge Mary Kay Vyskocil declared a mistrial in the case of Fishman co-defendant Lisa Giannelli. Giannelli's attorney tested positive for COVID-19 before court on Monday, warranting the mistrial.
As the day began Tuesday, Vyskocil announced a ruling rejecting a motion for a mistrial by Fishman's attorneys. They moved for a mistrial because of the positive COVID-19 test they believed upset the flow of the trial and because of remarks the attorney for Giannelli made during openings statements last week that they said could prejudice the jury against their client.
That attorney, Louis Fasulo, had described his client as the “proverbial sheep” to Fishman's “sheep master.”
Vyskocil countered that Fishman had not been prejudiced. “Dr. Fishman has received a fair trial so far and will continue to receive a fair trial,” Vyskocil said.
Fishman was one of more than two dozen members of the horse racing community charged in sweeping indictments in March 2020 with conspiring to dope horses at race tracks across the country with illicit performance-enhancing drugs that wouldn't show up in post-race testing. Those charged included top trainers Jason Servis, who awaits trial, and Jorge Navarro, who pleaded guilty to conspiring with others to dope horses and was sentenced to five years in prison.
Fishman is charged with two counts of conspiring to violate drug adulteration and misbranding laws. He faces a maximum of 15 years in prison if convicted.
As part of their case, prosecutors allege Fishman accepted tens of thousands of dollars from Navarro in exchange for untestable drugs.
On Tuesday, prosecutors called Dr. Jean Bowman, veterinary medical officer in the division of surveillance for the FDA, as a government expert witness.
During her testimony, prosecutor Sarah Mortazavi introduced into evidence photos taken on the day of Navarro's arrest in 2020 that showed him in possession at his Florida home of four alleged PEDs that came from Fishman.
Mortazavi drilled down on those drugs, named BB3. The indictment described BB3 as a customized “blood building” PED that when combined with intense physical exertion thicken a horse's blood. A horse doped with BB3 ran the risk of a heart attack, the indictment said.
The photo of BB3 seized by the FBI from the Navarro residence shows only the product's name on the bottle.
Bowman testified that BB3 had not been approved by the FDA and that she could find no studies in an FDA database about BB3 and its effectiveness and safety to horses.
Bowman also told the jury that the label on the BB3 bottle should have contained more information to pass muster with the FDA. She said the label should have contained the name of the prescribing veterinarian, how and when it should be administered, the identity of the manufacturer, and what precautions should be taken before administering it.
The doctor testified that BB3 and the other drugs Fishman sold should only be prescribed after a physical examination of the animal.
Prosecutors contend Fishman never did that before shipping his PEDs to buyers.
At one point during questioning, Mortazavi had Bowman read from an email Fishman sent to Giannelli on Jan. 5, 2019, that contained a list of drugs available from Fishman's South Florida business Equestology.
“BB3: would only let trusted clients have this,” Bowman quoted the email as saying.
Fishman's lawyers Maurice Sercarz and Marc Fernich will have an opportunity to cross-examine the FDA expert when the trial resumes Jan. 26.
The Thoroughbred industry's leading publications are working together to cover this key trial.
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