Navarro Among Handful Of Federal Defendants Filing Motions To Dismiss Drug Charges

Jorge Navarro, Dr. Seth Fishman, Jordan Fishman, Lisa Gianelli, Dr. Erica Garcia, Rick Dane Jr., Christopher Oakes, and Michael Tannuzzo have all entered documents in U.S. District Court asking a judge to dismiss charges against them related to drug adulteration and misbranding conspiracy.

Defendants Seth Fishman and Gianelli filed a motion to dismiss various counts of the superseding indictment last week, which was followed by letters of intent from attorneys for Navarro, Garcia, Jordan Fishman and Dane stating their intent to join in. The motion from Fishman and Giannelli's attorneys site a few different bases for the motion, particularly that the counts as written don't allege illegal actions under the Food Drug and Cosmetic Act, which is the basis for the criminal charges.

According to texts and phone calls intercepted by the FBI, Navarro requested misbranded or adulterated drugs from Fishman for administration to horses in his care, including X Y Jet, who died suddenly of an apparent heart attack in January 2020.

Their motion also casts doubt on who was supposedly deceived by their alleged activities involving misbranded drugs. The indictment stated that the drugs were designed to evade detection by state racing officials or tracks, but the defendants claim that misleading state officials and racetracks isn't a federal crime under the Act.

Oakes' motion includes similar language, while Tannuzzo's states that the first count of the superseding indictment “fail[s] to state an offense as applied to him.”

The government has not yet responded to those motions and letters of intent, filed Feb. 5.

The federal case includes five total counts — four charges of drug adulteration and misbranding conspiracy and one count of mail and wire fraud — with different groups of defendants attached to each, dependent upon their alleged actions and relationship with each other. Charges were originally filed in March 2020 accusing more than two dozen people in the Thoroughbred and Standardbred industries of doping racehorses with adulterated or misbranded drugs or supplying such materials to horsemen. A superseding indictment was filed in November 2020 and left off a number of the original defendants from the March indictment, including Gregory Skelton, Ross Cohen, Nick Surick, Chris Marino and Henry Argueta, though it's unclear whether that means those defendants have taken deals with prosecutors. Their case files remain open with no plea change as of this writing.

According to a status conference last summer, discovery in this case is not expected to be completed before late fall, as attorneys for the Southern District of New York have provided voluminous evidence collected by a lengthy FBI investigation to defense counsel. That status conference set dates by which various motions and subsequent responses would be due by both sides in the case, and those deadlines stretch on through the spring.

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Navarro, Alleged Doping Co-Conspirators File Motions to Dismiss

Jorge Navarro and Seth Fishman, DVM, the federally indicted trainer and veterinarian whose alleged litanies of racehorse doping date to at least 2002, both filed Feb. 5 motions to dismiss the drug alteration and misbranding conspiracy charges levied against them in United States District Court (Southern District of New York).

According to federal prosecutors, one of their alleged conspiracies involved Navarro allegedly dosing elite-level sprinter X Y Jet “with 50 injections [and] through the mouth” of a performance-enhancing drug (PED) allegedly manufactured and distributed by Fishman before a big win in the 2019 G1  Golden Shaheen in Dubai.

According to wiretaps, Navarro allegedly texted immediate thanks to Fishman for his role in the victory, then four days later allegedly requested “1,000 pills ASAP,” purportedly for use on other horses in his 29% three-year-average win-rate stable.

Ten months later, in January 2020, X Y Jet died suddenly, allegedly from cardiac distress that has never been fully documented.

And two months after that, in March 2020, the feds swooped in.

In a multi-state simultaneous sting, they arrested Navarro, Fishman, and 27 others in an alleged “widespread, corrupt scheme” that centers on Navarro, the 2019 GI Kentucky Derby-disqualified trainer Jason Servis, and a vast network of co-conspirators who allegedly manufactured, mislabeled, rebranded, distributed and administered PEDs to racehorses all across America and in international races.

On Nov. 6, a superseding indictment replaced the version from March, adding wire fraud charges against Servis and two veterinarians involved in the scheme to allegedly drug race horses. Five individuals named in the original indictment were not included in the superseding indictment, raising speculation that the five were cooperating with law enforcement authorities and could testify against the remaining defendants.

A motion to dismiss Counts 1 and 2 of the superseding indictment (both of which deal with drug alteration and misbranding conspiracies) got filed Feb. 5 on behalf of Fishman and Lisa Giannelli. Her role allegedly involved using Fishman's veterinary license to distribute prescription drugs without a valid prescription.

Soon after the Friday filing, Navarro's attorney tacked on a letter announcing his client was legally joining the motion to dismiss.

It is possible other defendants will also legally join that original motion. As of Friday night's  deadline for this story, no related filings were apparent on the federal court database–but there were inaccessible files marked “sealed document placed in vault.”

Fishman is charged in both Counts 1 and 2. Navarro is charged in Count 1, and is charged in Count 3, another alleged drug conspiracy. Giannelli is charged in Count 2.

According to the Feb. 5 memorandum of law in support of the motion to dismiss filed jointly by Fishman and Giannelli's attorneys, there are three independent grounds for the motion:

 

  • “First, Counts 1 and 2 fail to allege that Dr. Fishman, Ms. Giannelli, and their alleged co-conspirators committed acts or conduct that are within the scope of the applicable federal criminal statute, Section 333(a)(2) of the Food Drug and Cosmetic Act (FDCA).

 

  • “As discussed…an agreement aimed at the distribution of misbranded and/or adulterated products with the intent to mislead or defraud state racehorse commissions and racetracks is not a federal crime within the scope of the felony provisions of the FDCA.

 

  • “Second, application of the rule of lenity bars prosecution of Dr. Fishman and Ms. Giannelli for the conduct alleged in Counts 1 and 2.

 

  • “Third, Section 333(a)(2) is unconstitutionally vague as applied to the conduct alleged in Counts 1 and 2.”

 

One of the supporting sub-points seemingly argues that the yet-to-be-implemented regulatory body borne out of the Horseracing Safety and Integrity Act (HISA) is actually the proper arm of the federal law that should be handling the case.

The memorandum states: “The HISA of 2020 Gives the FTC Plenary Authority over Horse Racing.”

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What It Takes For A Reporter To Call Out A Cheating Trainer

We received a frustrated letter to the editor this past weekend with a familiar tune. A horse had won a graded stakes race in impressive fashion, continuing a trend of improved form that had started after the horse left the barn of one trainer for another. Why, the reader asked, did they not see coverage of the race dotted with warnings or aspersions about the trainer and his horse's meteoric rise?

It's a question we've heard before when a trainer has what a horseplayer considers an unusually high win percentage or when a horse turns in a dominant performance.

'Why are you too scared to just say the guy is cheating?' people will ask, usually with too many exclamation points. 'Why do you promote these trainers all the time?' they'll write at the end of a race preview or recap.

There are a few reasons we elected not to run that letter, and a few reasons we're not going to put out articles accusing someone of illegal activity based on suspicions or statistics.

First of all, it's important to understand there are different types of coverage on this and other publications. In our case, stories fall into the basic categories of news, features, and investigations.

If a trainer who readers are suspicious of wins a big race, we cannot pretend they didn't win it. We have to report on the results of that race. Likewise, when a trainer has a top contender for an upcoming race, we have to acknowledge that. These types of stories tend to come with quotes from owners, jockeys, and yes, trainers. Quotes may or may not ring as genuine to us or to our readers, but our job as reporters is to report those quotes and that information accurately. It is not for us to opine on them in those spaces.

Secondly, we get a lot of questions about why we don't “expose” a trainer for what a reader may believe is obvious cheating. Many readers may not realize how difficult that is to do – or how much work goes into an investigation of any kind. For us to report on an illegal drug program, we need details. What substance is being given, how it's given, to which horses, when, and where it comes from. We need proof of all those details, and we need to be able to verify that proof independently. There are relatively few people with access to those details in a barn. Probably, it comes down to the trainer, the trainer's supplier, and some number of staff.

There's a reason it took FBI wire taps to reveal the web of connections between indicted trainers Jorge Navarro and Jason Servis and their alleged doping rings – it's because they believed they were giving horses a performance advantage that would benefit their connections financially, but only if they kept their programs a secret.

One section of the government's evidence included in the March 2020 federal indictment included a mention that Servis warned Navarro via text message about the presence of a racing official in the barn area where the two trainers allegedly stored and administered performance-enhancing drugs to horses. In a call later intercepted between Navarro and co-defendant Michael Tannuzzo, Navarro said “[H]e would've caught our assess [expletive] pumping and pumping and fuming every [expletive] horse [that] runs today.”

But he didn't catch them.

Trainers who are giving horses an illegal edge know how to evade testing, and they know to avoid being caught red-handed by the racing investigators who walk the barns daily in some (but not all) states. Their careers depend on keeping that a secret. They and their suppliers have financial incentive to make sure they leave no proof – in sales records, in the feed room, or, as we saw in the indictment, in veterinary records. They have power over their staff members, who would certainly lose their jobs if they reported their bosses and who may legitimately fear they'd never find work on the backstretch again if they crossed someone powerful.

A reporter like me – with limited access to barns, no subpoena power, and no wire taps – has two choices: call and ask a trainer if they're cheating, or hope someone on the inside can help me get the proof I need. The former isn't likely to help much, since they will either truthfully tell me they're not or lie. It will put them on notice, and if they're doing something they shouldn't be, they're probably going to take that activity more underground than it already was, making it harder for me or anyone else to catch them. The latter is extremely unlikely, but my inbox is always open.

I like to think the Paulick Report has gained the reputation it has for investigative reporting because of how carefully we verify our information before it's published. When pursuing something controversial, we try to not only report the story as fairly as we can, but to verify and reverify every detail to ensure our confidence in the facts we have. Sometimes that means leaving out salacious details, and sometimes it means passing on stories altogether if we can't get the evidence we need. We approach stories this way, yes, partly because we don't want to be hit with a libel suit, but also because we believe these standards foster trust in our readers.

None of this is to say that we don't have our own opinions about what we see out there – just that we can't base a true investigative story on an opinion and a win percentage. Opinions, after all, are like … well, you know the phrase.

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Shancelot Retired

GSW Shancelot (Shanghai Bobby–True Kiss, by Is It True) has been retired from racing after exiting his breeze Monday with a soft tissue injury. The story was originally reported by the Daily Racing Form.

A $50,000 FTSAUG buy turned $245,000 OBSMAR juvenile purchase, the Crawford Farms Racing colorbearer opened his career with a trio of impressive wins, including Saratoga’s GII Amsterdam S. in 2019. Third in the GI H. Allen Jerkens S. there next out, he was second in the GI Santa Anita Sprint Championship S. and completed the exacta behind champion Mitole (Eskendereya) in the GI Breeders’ Cup Sprint S. that term.

Benched after that effort, Shancelot was transferred from Jorge Navarro to Steve Asmussen after Navarro was served a federal indictment for doping. Suffering another setback as he trained up to a comeback this summer, Shancelot returned to the worktab at Fair Grounds in November. He was being aimed toward the Saudi Sprint, but was injured during a five-panel breeze in 1:01.20 (1/28) in NOLA Monday. The dark bay retires with a record of 6-3-2-1 and earnings of $624,300.

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