FDCA | Horse Racing Free Tips

The United States solicitor general on Sept. 17 filed a brief recommending that the U.S. Supreme Court review the case of Thoroughbred trainer Murray Rojas, who was convicted in June 2017 on multiple charges of drug misbranding, that the judgment by the Court of Appeals to affirm the conviction be vacated and the case remanded to the trial court for further proceedings.

The brief was filed by Brian H. Fletcher, acting solicitor general of the United States; Brian M. Boynton, acting assistant U.S. attorney general and two attorneys from the U.S. Department of Justice.

The recommendation that the Supreme Court review the case was made on the basis that the trial judge in U.S. District Court for the Middle District of Pennsylvania and the Court of Appeals for the Third Circuit erred in their definition of misbranding in both the jury instructions for the Rojas trial and in the appellate decision.

Rojas was sentenced to 27 months in federal prison after a jury convicted her on 13 counts of misbranding animal prescription drugs and one count of conspiracy to misbrand. She was found not guilty on six counts of wire fraud and one count of conspiracy to commit wire fraud. Rojas received a stay on the sentence while the case was being appealed. The case was part of an FBI investigation into corruption and illegal drugging of horses at Penn National racetrack in Grantville, Pa. A number of trainers, veterinarians and racing officials pleaded guilty to various offenses. The case against Rojas is the only one that went to trial.

Robert E. Goldman, attorney for Rojas, said the “government confessed an error” in how prosecutors, the District Court judge and the Court of Appeals interpreted the Federal Food, Drug and Cosmetic Act (FDCA), a 1938 law that gives authority to the U.S. Food and Drug Administration to oversee the safety of food, drugs and cosmetics.

Judge Sylvia H. Rambo denied Goldman's request for jury instructions to differentiate between “administering” and “dispensing” of drugs under the FDCA, and the Court of Appeals affirmed her denial.

According to the brief filed by the office of the solicitor general, “The government now acknowledges that a veterinarian who personally injects a drug into an animal under her direct care in the course of her professional practice, without first issuing a written or oral order (i.e., prescription), has not engaged in misbranding under the FDCA.

“The FDCA permits a covered animal drug to be 'dispensed only by or upon the lawful written or oral order of a licensed veterinarian in the course of the veterinarian's professional practice,'” the brief states. “If the drug is dispensed in that manner, misbranding does not occur. The plain text of that provision indicates that an animal drug may lawfully be dispensed via two different methods: either 'by a licensed veterinarian in the course of the veterinarian's professional practice' or 'upon the lawful written or oral order of a licensed veterinarian in the course of the veterinarian's professional practice. Therefore, if a veterinarian follows the first method and personally dispenses a covered animal drug in the course of the veterinarian's professional practice, no written or oral order is required.”

The jury instructions from Rambo “permitted the jury to find that the government carried its burden of proof on the third element solely by showing that the veterinarians injected covered animal drugs into petitioner's horses with a written or oral order, and without the jury considering whether the drugs were injected 'in the course of the veterinarian's professional practice,” the brief states.

Rojas was accused of having veterinarians administer medications to horses within 24 hours of a race and then falsify the dates of the treatments in violation of state racing regulations. A fellow trainer and one of the veterinarians who pleaded guilty in the case said the practice was commonplace.

The petition by Rojas was supported by the Cato Institute, a Washington, D.C., public policy foundation created by billionaire libertarian Charles Koch, as well as by the American Conservative Union Foundation, which among other things hosts the annual Conservative Political Action Conference (CPAC). Their brief focused on what it said was “a particularly egregious example of an increasingly common and distressing phenomenon – the aggressive federal criminal prosecution of conduct that historically has been left to state and local regulatory enforcement.”

The solicitor general determines the cases for which Supreme Court review will be sought by the federal government and provides oral arguments before the Court. The recommendation for review will be moot if the Supreme Court opts not to review the case or return it to District Court for reconsideration with the amended definition for misbranding. According to a government website for the federal court system, the Supreme Court “accepts 100-150 of the more than 7,000 cases that it is asked to review each year.”

Goldman, the attorney for Rojas, said the solicitor general's brief “is not a complete victory yet, but is going in the right direction” for his client.

Solicitor General brief

The post U.S. Solicitor General Urges Supreme Court To Review Murray Rojas Conviction appeared first on Horse Racing News | Paulick Report.

Source of original post

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.

The post Feds Slam Alleged Dopers’ Assertion That HISA Creates Loophole appeared first on TDN | Thoroughbred Daily News | Horse Racing News, Results and Video | Thoroughbred Breeding and Auctions.

Source of original post