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Judge in Navarro, Servis Case Denies Motion to Recuse

Judge Mary Kay Vyskocil of the U.S. District Court for the Southern District of New York angrily dismissed a motion from attorneys representing defendants in the wide-ranging doping scandal involving Jason Servis and Jorge Navarro that she recuse herself from the case. The lawyers had brought up conflict of interest concerns because she was the co-breeder of two horses that competed a total of four times against horses trained by Navarro and Servis between 2006 and 2009.

Vyskocil lashed out at the lawyers Friday, calling the motion “frivolous” and “meritless.”

“This meritless motion appears to be calculated to divert attention from the serious crimes with which the defendants have been accused and to obstruct and delay the orderly administration of the case,” she said. “The motion is denied as frivolous, an obvious tactful gambit to delay the determination of the defendants' motion to dismiss.”

Vyskocil's comments came during a status conference held Friday morning. The conference was intended to update attorneys from both sides on the status of discovery evidence and to pin down a date for trail. But the first 15 minutes or so of the conference involved only the motion to recuse and Vyskocil's forceful retort.

“The bad-faith motion is frivolous and was clearly calculated to generate diversionary press coverage, which it clearly already has,” Vyskocil said. “The motion contained multiple, plainly false statements which officers of the court should not have made in a public filing and which are not entitled to be dignified with point-by-point commentary.”

Equibase records list Vyskocil, a former member of New York Thoroughbred Breeders Inc., as the co-breeder, along with Barry Ostrager, of horses who had faced Servis and Navarro trainees during their careers. The defendants argued that because of her role in the industry Vyskocil could be biased and should step down. She was never listed as the owner or co-owner of the horses in question.

“There is no conflict here and no reasonable person would perceive one,” she said.

The case has slowly worked its way through the system since March, 2020 when indictments were announced against 27 individuals for their role in a scheme to dope horses with performance-enhancing drugs. Vyskocil made it clear that she was eager for the matter to proceed and head to trail. She called for the defendants to be divided into three separate groups with the trial for the first group to commence during the fourth quarter of 2021 with the other two trials set to begin early next year.

“We need this case to be moving toward a trial,” she said.

The possibility of superceding indictments that would include additional charges for those already indicted or, perhaps, charge individuals not yet named was discussed. Vyskocil addressed that possibility with Andrew Adams, the lead prosecutor in the case, who did not give a precise answer.

“With respect to new people who may or may not be added , as I have said all along, as the government continues to investigate this case and to investigate other related cases, there may well be other people who are charged,” Adams said. “There may be co-conspirators in this case, but the government would not expect that somebody added to the case today would be on the same schedule as the people who have been in the case. But that, again, would have no impact on the defendants that are currently in the case…It's also speculative. It is not our intention to announce a superceder next week or next month. As we sit here today I am not able to say that we are certainly or even likely to add charges in this case. It is all speculation and it need not delay moving the case forward.”

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Judge Denies Defendant Motions To Dismiss, Request For Recusal In Federal Drugs Case

Ever since March of last year, when more than two dozen trainers, veterinarians, and others were indicted for using or selling misbranded and adulterated drugs, racing fans everywhere have been asking – when is the next round of federal indictments coming? A May 14 status conference in the case provided no more clarity on whether or when a new indictment could be filed.

U.S. District Judge Mary Kay Vyskocil pressed prosecutors on the question Friday, since they – and The Jockey Club, which claims responsibility for part of the federal investigation – have talked about the possibility of a superseding indictment for months. The topic has come up in court before, since defense counsel argue they can't reasonably prepare a defense when they don't know if there are new twists coming for their clients. (A superseding indictment would replace an older indictment, and could include new charges for existing defendants, as well as the addition or removal of defendants.)

“It's certainly not our intention to announce a superseder next week or next month,” said Assistant U.S. Attorney Andrew Adams. “As we sit here today I am not able to say that we are certainly or even likely to add charges in this case. This is all speculation and it need not delay moving the case forward.”

“At some point the government needs to get real and stop speculating here,” replied Vyskocil. “This case is moving forward, and I'm certainly not going to hold anything up for the government.”

Vyskocil was asked by defense attorneys to stretch out the schedule outlining when motions and responses needed to be filed in the case, as they say they're still awaiting documentation on the wire taps used by the FBI. She declined to delay things further.

Previous discussions in the case suggested that the defendants may be split into three groups and tried in three separate trials, and Vyskocil hopes the first one can begin later this year, with the other two in early 2022.

Vyskocil also reacted to a letter motion from defense attorneys requesting she recuse herself from the case, expressing frustration and disgust over the motion, which she said contained “multiple plainly false statements.” Among other things, the defense had claimed Vyskocil could not be objective because she had previously had a financial interest in the outcome of four races, in which horses she co-bred ran against trainees of indicted trainers Jorge Navarro and Jason Servis. Vyskocil pointed out that she did not own the two horses making those four starts by the time they started their careers, and that none of those four starts could have resulted in breeder awards for her.

“All of the information upon which the defense relies has been publicly available since the case was assigned to me,” she said. “This meritless motion appears to be a calculated attempt to divert attention from the serious crimes with which the defendants have been accused and to obstruct and delay the orderly administration of the case. The motion is denied as frivolous, and obvious tactical gambit to delay the determination of the defendants' motion to dismiss.”

Vyskocil said she had been close to ruling on several defendants' motions to dismiss just before receiving notification they were about to ask her to recuse herself. At Friday's hearing, she denied those motions to dismiss.

Attorneys on both sides were given 30 days to confer about the proposed defendant groupings for trial and about the expert witness list each will call. Vyskocil anticipated the next status conference would be held in early September.

The post Judge Denies Defendant Motions To Dismiss, Request For Recusal In Federal Drugs Case appeared first on Horse Racing News | Paulick Report.

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Federal Defendants File Motion Asking Judge To Recuse

The defendants in the ongoing federal drug adulteration and misbranding case have filed a letter motion asking the presiding judge in the case to recuse herself. U.S. District Judge Mary Kay Vyskocil will consider the motion during a previously-scheduled status update in the case on May 14.

Attorneys for the defendants say Vyskocil has previously bred Thoroughbred racehorses and on four occasions was the breeder of a horse which ran against starters from defendants Jason Servis or Jorge Navarro. Court documents indicate that in two of those four races, the horse bred by Vyskocil finished better than the defendant's starter. Three of those starts were made by one horse, Here's Ya Souvenir, who was sold at auction as a 2-year-old and apparently no longer belonged to Vyskocil at the time of those starts. The other start came from Last Boat Home, who made the start in question while owned by Dreamland Racing.

Vyskocil bred both horses in partnership with Barry Ostranger, who the defense points out is a member of The Jockey Club. Jockey Club principals have been outspoken about the organization's role in the investigations which led to these indictments, and of their desire for serious punishment for the defendants.

Those races took place, according to court documents, between 2006 and 2009 — well before Vyskocil took the bench in the Southern District of New York.

Prosecutors filed a motion in opposition of the defense's request this week, questioning why it took the defense a year to make these connections between Vyskocil and hinting that this revelation could be related to a number of motions that had not gone in the defendants' favor. The government argues that judges do not have to recuse themselves from cases simply because they have some interest in a relevant industry, but only if those interests directly involve a person or legal issue at play. They also point out that Vyskocil didn't stand to gain financially from any of the four races in question against Navarro and Servis because they either took place outside New York state (where the horses were bred) or involved a horse that was not registered with the New York breeder incentive program anyway.

Vyskocil is expected to address the recusal motion during Friday's conference.

The post Federal Defendants File Motion Asking Judge To Recuse appeared first on Horse Racing News | Paulick Report.

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Alleged Dopers Want Recusal Based On Judge’s Past As Racehorse Breeder

One day ahead of a key status conference that could finally establish the trial schedule in the alleged nationwide racehorse doping conspiracy case, lawyers for the 14 defendants filed a “motion to recuse” letter asking United States District Judge Mary Kay Vyskocil to remove herself from overseeing the case because she once bred Thoroughbred racehorses in New York, an industry connection the defendants believe will prevent them from getting a fair and impartial trial.

“Our understanding is that Your Honor bred racehorses for a number of years,” the May 13 letter stated. “For 15 years, you were also a member of New York Thoroughbred Breeders, Inc. [NYTB]. Based on our review of racing databases, we have identified at least four instances in which one of your horses competed directly against horses trained by defendants Jason Servis or Jorge Navarro….

“Here, given the Court's connection to the horse racing industry–specifically as a breeder of racehorses for many years–coupled with its relationships with owners, breeders and other industry representatives, we believe an objective observer might reasonably question the Court's impartiality.”

TDN has independently verified that Vyskocil, in an undated 90-page questionnaire for judicial nominees posted online by the U.S. Senate Committee on the Judiciary, previously disclosed that she was a member of the NYTB between 2000 and 2015.

Thursday's legal filing in U.S. District Court (Southern District of New York) gave four specific examples of race results that the defendants believe constitute a conflict of interest.

“In Race 9 at Aqueduct on Jan. 14, 2006, Jason Servis's horse (Bettor to Receive) raced against your horse (Here's Ya Souvenir). Yours finished 5th, and Mr. Servis's finished 8th.

“In Race 5 at Aqueduct on Jan. 14, 2007, Mr. Servis's horse (Watchtheatlantic) raced against your horse (Here's Ya Souvenir). Mr. Servis's finished in 5th, and yours finished in 10th.

“In Race 10 at Tampa Bay Downs on Jan. 27, [2009], Mr. Navarro's horse (Manolo Manolo) raced against your horse (Here's Ya Souvenir). Yours finished 2nd, and Mr. Navarro's finished in 10th.

“In Race 2 at Monmouth Park on July 3, 2009, Mr. Servis's horse (Placid Waters) raced against your horse (Last Boat Home). Mr. Servis's placed 3rd, and your horse finished in 10th.”

According to Equibase, both Here's Ya Souvenir and Last Boat Home were bred in partnership by Barry Ostrager and Mary Kay Vyskocil. But she was not listed as an owner for either of them in the charts that were referenced.

Instead, the motion is alleging that Vyskocil's role as a breeder means she could be a victim of the alleged crimes based on a breeder's eligibility to receive bonus awards under some circumstances.

“To the extent Your Honor had a financial interest in the outcome of horse races that the Government contends may have been diluted by competing horses allegedly under the

influence of performance enhancing drugs, you would fall into the category of putative victims alleged in the Superseding Indictment,” the document stated.

The defendants also stated that “In the past, and at a time Your Honor was a member, the NYTB advocated for proposals that would impose stricter regulations in respect of Clenbuterol in the horse racing industry, a drug at the core of certain allegations in the indictment.”

The document continued: “On a call with defense counsel last night [May 12], the government agreed that, if the Court is a putative victim, recusal would be appropriate. There are several ways in which the Court's history as a horse breeder may make it a putative victim–if not now, then in the future.

“First, during recent conversations with the government, it reiterated that it continues to actively investigate this case and that it may supersede the indictment to add charges or defendants or to expand the timeframe of the conspiracy.

“Second, given the government's ongoing investigation, in calculating loss for sentencing purposes, the government may argue relevant conduct dating back to the period when horses bred by Your Honor raced against horses trained by Jason Servis or Jorge Navarro. In that case, Your Honor would be called upon to rule on the relevance to loss of races in which the Court may have had a financial interest.

“Third, the government said [Wednesday] night that it may seek to introduce pre-2016 evidence of positive drug tests against defendant Jorge Navarro…as direct proof of the conspiracy….”

“In sum, Your Honor has numerous overlapping relationships with the racehorse industry…. Standing alone, or in combination, these facts would cause a reasonably objective observer to question the Court's impartiality.”

A judge facing a recusal motion can ask another judge to rule on it, and a recusal would mean an alternate judge gets assigned. Motions to recuse that are deemed to be delaying tactics are expressly forbidden, but not unheard of.

The federal case against the alleged network of racehorse dopers is the result of a March 2020 spate of arrests in relation to a purported years-long conspiracy to manufacture, mislabel, rebrand, distribute and administer performance-enhancing drugs to Thoroughbreds and Standardbreds across America and in international races.

The recusal motion, made by Navarro's attorney, was joined by counsel for defendants Servis, Alexander Chan, Rick Dane Jr., Seth Fishman, Jordan Fishman, Erica Garcia, Lisa Giannelli, Michael Kegley, Jr., Rebecca Linke, Christopher Oakes, Kristian Rhein, Michael Tannuzzo and Marcos Zulueta.

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