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Feds Fight Fishman Attempt to Merge Convicted Counts

Federal prosecutors on Wednesday filed a formal opposition to convicted veterinarian Seth Fishman's recent attempt to dismiss Count One of his two racehorse doping convictions. Fishman is arguing that he was essentially tried twice for the same crime, because the first count was contained within the second, much broader conspiracy.

The feds see it differently: “While there are notable foundational similarities between the two conspiracies, namely, the aim of moving drugs interstate to corruptly improve racehorse performance, the focus and scale of each conspiracy differed significantly,” stated the government's Mar. 30 filing in United States District Court (Southern District of New York).

Fishman was convicted Feb. 2 and faces 20 years in prison upon sentencing May 5. His “multiplicity“ motion from Mar. 8 aims to get his two convictions merged so that only a single sentence will be imposed.

Fishman, along with six other veterinarians, 11 trainers, and nine others, was charged in 2020 with being a key figure in an international network of purported performance-enhancing drug (PED) suppliers who allegedly conspired to dope racehorses in New York, New Jersey, Florida, Ohio, Kentucky, and the United Arab Emirates.

Count One alleged a four-year conspiracy (2016-20) with Jorge Navarro, Erica Garcia, Marcos Zulueta, Michael Tannuzzo, Christopher Oakes and unnamed others. Count Two alleged a broad, 18-year conspiracy (2002-20) with Lisa Giannelli, Jordan Fishman, Rick Dane, Jr., and unnamed others based on Fishman's Florida online drug-peddling portal.

“The Fishman and Navarro conspiracies differed in many major aspects,” the filing stated. “In short, the Navarro Conspiracy was focused on the administration and success of Navarro's doped racehorses, which were drugged using PEDs from a multitude of sources. The Fishman Conspiracy, by contrast, centered on Fishman's business operations through his company, Equestology, through which he created, produced, marketed, and sold a multitude of drugs…“

“Fishman's role was different in each conspiracy,“ the feds explained. “Fishman was a supporting player in the Navarro Conspiracy; he was not Navarro's sole supplier, as Navarro procured drugs from a number of different individuals, both veterinarians and laypeople. Nor did Fishman occupy a leadership role in the Navarro Conspiracy, as shown by all the evidence adduced at trial.

“Conversely, Fishman undeniably helmed the Fishman Conspiracy, with substantial direction and support from Giannelli, who independently managed significant aspects of the Fishman Conspiracy, and played no role in the Navarro conspiracy. Thus, any overlap in participants is of minimal relevance considering the leadership and membership of Counts One and Two.“

The timing of the crimes is another issue raised by prosecutors.

“The Fishman Conspiracy lasted for approximately two decades, while the Navarro Conspiracy took place in just a few years of that time period. The Government charged both conspiracies simultaneously; as such, this factor does not meaningfully support a double jeopardy challenge,“ the opposition filing stated.

“Even basic similarities in operations or goals–i.e., racehorse doping–do not necessarily collapse two separate counts into one where there are such striking differences in the goals and personnel involved in these operations.“

Fishman had argued differently: “As relevant here, a multiplicitous indictment 'charges the same crime in two counts,' when 'only one crime has been committed' in 'law and fact,“ his Mar. 8 filing stated. “The government thus presented an integrated, 'overall' agreement with one primary object–trafficking in prohibited substances designed to boost racehorse performance and avoid regulatory detection–that violated a 'single statute' over a lengthy period.“

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Harness Trainer Dane Accepts Government Plea Deal

Harness trainer Rick Dane Jr., one of the 27 people indicted by the federal government on charges of doping racehorses, has accepted a plea offer from the government and his case will now not go to trial.

The news was delivered in a Friday, Feb. 11 letter from United States attorney Damian Williams to Judge Mary Kay Vyskocil.

“The Government writes on behalf of the Government and defense counsel for Rick Dane, Jr., the defendant in the above-captioned case, to alert the Court that the defendant has accepted a plea offer extended by the Government. Consequently, the parties respectfully request that the Court schedule a change of plea hearing for a date next week; the parties are available any day except Thursday, February 17, 2022. The parties further request that the Court adjourn the deadlines for all trial-related submissions sine die, in light of the anticipated change of plea proceeding.”

The hearing is set for February 18 at 1 p.m.

Several of the defendants who originally pled not guilty and who were awaiting trial have changed their plea to guilty, including Jorge Navarro, Kristian Rhein, Jordan Fishman, Marcos Zulueta, and Christopher Oakes, who, like Dane, was a harness racing trainer. Dane's New Jersey Horse Racing license was revoked in March, 2020, two days after the indictments were announced.

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Prosecution Rests, Defense Calls No Witnesses In Fishman Case; Closing Arguments Set For Jan. 31

New York federal prosecutors in the horse-doping trial of Dr. Seth Fishman neared the finish line Jan. 28, bringing their case to a close after calling 11 witnesses and presenting evidence from FBI wiretaps.

“At this time the government rests its case,” prosecutor Anden Chow told U.S. District Court Judge Mary Kay Vyskocil on the trial's eighth day.

A short time later, the defense rested their case without calling any witnesses or putting the accused veterinarian on the stand to testify.

Without the jury present in the Manhattan courtroom, Vyskocil told Fishman he had a right to testify but was under no obligation.

“So, it's your decision not to testify Dr. Fishman?” the judge asked.

“That is correct,” Fishman said.

“And it's your decision alone not to testify?”

“That is correct,” Fishman said.

The conclusion of testimony sets the stage for the next phase of the trial: closing arguments followed by jury deliberations after the judge issues instructions on the law. Eight women and four men comprise the jury.

Vyskocil told both sides that summations would commence Jan. 31.

Fishman, 50, was one of 27 horse racing insiders arrested in March 2020 in the biggest horse doping bust in U.S. history. Those charged included two prominent trainers, Jason Servis, who is awaiting trial, and Jorge Navarro, who pleaded guilty and was sentenced to five years in prison. Fishman is the first to go to trial in the case.

Prosecutors have accused Fishman of manufacturing illegal performance-enhancing drugs that harness and Thoroughbred trainers, including Navarro, administered to their horses to win lucrative purses and enhance their reputation. Prosecutors say those charged acted without regard to horse welfare, risking breakdowns and death.

Prosecutors allege that Fishman was especially sought after because he claimed that his products wouldn't appear in customary post-race testing.

Fishman is charged with two counts of conspiring to violate adulteration and misbranding laws. If convicted, he faces a maximum of 15 years in prison.

He went on trial Jan. 19 with Lisa Giannelli, who worked with him for 18 years. Vyskocil granted her a mistrial after her lawyer tested positive for COVID-19 Jan. 24.

Fishman contends that he carried out the accused activities in the good faith belief that he was practicing veterinary medicine.

On Friday, prosecutors set up a table in front of the jury box with dozens of boxes and bins containing vials of substances worth tens of thousands of dollars, seized at the time of Fishman's initial arrest in 2019. Prosecutors say the vials contained PEDs.

Additionally, Federal Bureau of Investigation agent Jarrett Concannon testified that during a search of Fishman's business in South Florida last month, he took photos of the same products stored on shelves.

Prosecutors say the search showed Fishman was in possession of PEDs in violation of his bail conditions.

The government's witnesses were a varied assortment. They included a woman who worked for Fishman and his Equestology business in South Florida for five years and testified after agreeing to a non-prosecution agreement with prosecutors.

They further included Ross Cohen, a defendant in March 2020 indictments. He agreed to flip as part of a cooperation deal with the feds.

Also testifying were two current trainers, Adrienne Hall who has small stable of harness horses in Florida, and Jamen Davidovich, who ran principally in Ohio in 2021 and has a start this year in New York.

Each testified Fishman supplied them with PEDs for their horses after reaching out to the veterinarian a few years ago.

Jurors also heard testimony from three FBI agents and two experts in veterinary medicine.

As part of their case, prosecutors played excerpts from more than two dozen wiretaps that captured Fishman discussing horse doping and bragging that his products weren't “testable.”

“Don't kid yourself,” Fishman is heard saying to an unidentified male individual on the other end of the line in a wiretap from April 15, 2019. “If you're giving something to a horse to make it better, and you're not supposed to do that, that's doping. You know, whether or not it's testable that's another story.”

The Thoroughbred industry's leading publications are working together to cover this key trial.

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Ahead Of Trial, Fishman Gives Interview To Post: ‘I Believe I’m Practicing Sound Medicine’

Against the advice of his attorneys, Dr. Seth Fishman gave an extended interview to The Washington Post ahead of the start of his criminal trial in U.S. District Court, which begins Jan. 19. He said, among other things, that he has been unfairly targeted in the case.

Fishman portrayed himself to reporter Gus Garcia-Roberts as an animal lover whose products were therapeutic substances designed to help horses, and that the laws used to indict him are obscure and outdated.

“If I'm providing a safe alternative to what's in use — and will be used unless I provide a safe alternative — I believe I'm practicing sound medicine … And the fact that they may or may not be able to test for it as easily, I don't know how that makes it a crime,” Fishman told the Post, speaking of an EPO mimetic.

Fishman also said he believed he was targeted in the investigation, which many reports have indicated was spearheaded by a private investigative firm hired by The Jockey Club. He claimed that other guilty parties had been “spared” to “create an illusion of reform that can distract from more entrenched corruption.” Fishman claimed his connection to co-defendant Jorge Navarro was fairly tenuous compared to that of other veterinarians, and that two probably spoke for less than a collective hour in the time they knew each other.

Fishman has been involved in a federal case before, when he was called upon to testify against former Standardbred owner and client David H. Brooks. Brooks was indicted in 2007 for fraud, and court records revealed a conversation between Brooks and Fishman in which Brooks asked Fishman to create a pill that would create amnesia in a key witness in the case. An FBI report indicated Fishman had admitted he had sold drugs to Brooks for the purposes of pre-race doping, though Fishman contends that his words were misconstrued.

Fishman, who said he has stage three thyroid cancer, told the Post he's willing to take his chances in the case, though at times he becomes discouraged about his odds of beating the charges against him.

“My number got punched,” Fishman said. “So it's either real corrupt people trying to make an example out of me or God really hates me that much that it's, 'Hey, it's my lottery ticket to die.' ”