Judge Says No to Fishman Conviction Dismissal

A federal judge on Tuesday denied a request by prison-bound veterinarian Seth Fishman to dismiss Count One of his two racehorse doping conspiracy convictions.

Fishman, whose 26 months as a defendant have been hallmarked by minor courtroom dramas, various attempts to prevent or delay the trial, and accusations that he continued to peddle purported performance-enhancing drugs (PEDs) while free on bail, had argued that he was tried twice for the same crime because the first count was contained within the second, much broader conspiracy.

Judge Mary Kay Vyskocil of United States District Court (Southern District of New York) didn't see it that way. Her May 31 ruling against Fishman's motion paves the way for his June 30 sentencing, at which he faces up to 20 years in prison.

“Fishman now moves pursuant to Rule 29 of the Federal Rules of Criminal Procedure for acquittal on Count One, arguing that Count One is multiplicitous of Count Two,” Vyskocil wrote in her order. “That motion is DENIED because a rational trier of fact could find, based on the evidence at trial, that Fishman participated in two distinct conspiracies.”

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 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-selling portal.

Although a number of defendants in the wide-ranging racehorse doping conspiracy pleaded guilty prior to Fishman, he was the first to stand trial and to be found guilty by a jury.

“The defendant filed several pretrial motions, but he never argued that the Indictment was multiplicitous,” Vyskocil wrote. “The defendant also never raised the issue of multiplicity in connection with any of the Court's instructions to the jury at the trial. Indeed, the instructions relevant to this motion were jointly proposed by the defendant and the government…

“In charging the jury at the end of the case, the Court stressed that the Indictment contained two separate counts, that each count charged a 'separate' conspiracy, and that the jury was required to consider each count 'separately' and 'return a separate verdict on each count.' The Court explained that while there might be 'facts in common to different counts, each count must be considered separately.'

“The Court further explained that while '[m]uch of the law' applied to both counts, the Court would point out differences and 'provide specific instructions' about 'particular elements or findings,'” Vyskocil wrote. “The Court also instructed the jury that the Indictment charged the defendant with continuing the conspiracy charged in Count Two while he was released on bail.

“The Court stressed that whether the jury found Seth Fishman 'guilty or not guilty' of one charged conspiracy 'should not affect [the jury's] verdict' as to the other conspiracy charged in the Indictment. The defense consented to all of these instructions in advance, never objected to them during the trial, and never otherwise raised the issue of multiplicity with respect to the jury charges,” Vyskocil continued.

“The jury convicted Seth Fishman of both of the charged conspiracies, found that he had intent to defraud or mislead with respect to each conspiracy, and found that he continued the Count Two conspiracy after he was released on bail,” Vyskocil summed up.

Fishman's sentencing was supposed to be May 5, but got pushed back to May 26 when he claimed he did not receive financial forms from the feds that are necessary for his pre-sentencing report. Then he requested another new date after pandemic-related lockdown conditions were imposed upon the cell block where he is being detained in New York.

Previous legal maneuverings included the Florida-based veterinarian being inexplicably absent from court on the day that he was found guilty. A cryptic comment from Fishman's attorney to the judge during closing arguments led to speculation that Fishman had to be hospitalized.

In December 2021, Vyskocil had modified Fishman's bail conditions after federal prosecutors presented evidence that backed up allegations he was still selling PEDs while awaiting trial.

On two other occasions in 2020 and 2022, Fishman had unsuccessfully petitioned the court to adjust scheduling for pandemic-related reasons, at first arguing that his right to a speedy trial was being hindered, and then wanting to delay the trial over concerns related to not wanting to get sick with COVID-19.

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The Week in Review: Just What is Jason Servis Thinking

A Jan. 23 trial date for the Jason Servis case was announced last week, which means in about eight months there will be some closure and Servis will learn his fate. The way he has handled things, it seems that he is at least somewhat optimistic that he will be found not guilty. If so, he is deluding himself. Everything about this case says that he has virtually no chance of being acquitted.

Which raises a question: why is he fighting this when it makes far more sense to go to the government and cut a deal that will result in less prison time?

Has Servis not been paying attention? So far, the government is undefeated, unscored upon and running up the score. They have gotten a number of people to plead guilty, including Jorge Navarro, who is rotting away in prison. Seth Fishman and Lisa Giannelli fought and took their cases to court and in both cases the jury didn't have time to order lunch before convicting them. Judge Mary Kay Vyskocil, who is one tough cookie, has never shown so much as an ounce of sympathy for the dopers, alleged and otherwise.

Not that any of this should come as a surprise. Going to federal court and winning a criminal case brought by the federal government is nearly impossible. According to a survey by the Pew Research Center, 90% of those indicted in federal cases in 2018 pled guilty. Eight percent of all cases were dismissed and 2% went to trial. The end result is that in 2018, only 320 of 79,704 total federal defendants went to trial and won their cases, at least in the form of an acquittal.

The government's m.o. is to build cases against defendants that are so solid that a conviction is all but assured. That's the case with Servis. They say they have numerous wiretapped phone conversations in which he talks about drugging his horses. In one, he was allegedly caught saying that he gave the drug SGF-1000 to virtually all of the horses under his care. In court, when pleading guilty, veterinarian Kristian Rhein implicated Servis, testifying that he sold him illegal, performance-enhancing drugs. The prosecution has done an excellent job.

What, then, could possibly be Servis's defense? I can't even begin to think of one. I'm not a lawyer, but isn't this the very definition of being caught red-handed?

Then there's the matter of legal fees. Servis has hired a big-time lawyer in Rita Galvin, who represented former New York Governor Andrew Cuomo in his battle over sexual harassment charges. The meter has been running for a long time and there's no doubt that Lawyer Galvin gets a hefty fee for her services.

The longest sentence handed out so far has been the five years given to Navarro. But for Servis, it could be far worse. In a superceding indictment issued in November, 2020, the charges of mail and wire fraud conspiracy were added to the original charges of drug adulteration and misbranding. The maximum sentence for drug adulteration and misbranding is five years. The maximum sentence for wire and mail fraud is 20 years. Now facing a possible sentence of 25 years, the 65-year-old Servis may well spend the rest of his life in prison.

If he takes the case to trial, the government has no incentive to go easy on him. If he loses, he is going to go to prison for a long time. The 25 years, or something close to it, is a possibility. That's why he needs to cut a deal. Why not ask that the mail and wire fraud charges be dropped and agree to plead guilty to the drug adulteration and misbranding charges?

Yes, Servis is innocent until proven guilty. Yes, he is entitled to his day in court. But he's heading down a path that is no doubt going to dead-end in his being convicted. Does he not realize this? Did he, after so many years of allegedly doping horses and not getting caught, come to think he is a bulletproof? This is not going to end well for him.

Short Fields in Stakes Races

Six graded stakes races were conducted Saturday and four of them had five-horse fields. The other two were the GIII Peter Pan S., which featured eight runners, and the GIII Beaugay S., which had a field of seven. The average field size for the six races was 5.83.

The most glaring example was the GI Man o'War S. It had all the elements that normally attract decent sized fields. It's a Grade I, the purse is $700,000 and it's a grass race. Still, after a scratch, only five runners went to the post.

This is an on-going problem and it's getting worse all of the time. You're even seeing a race like the GI Apple Blossom H., worth $1 million, attract only five horses.

The foal crop keeps falling and the top horses have never raced more infrequently. But there's been no adjustment when it comes to stakes racing. We're left with a situation where there are too many stakes races and not enough horses to fill them. It might be a tough ask to ask tracks to eliminate a meaningful number of their stakes races, but that's exactly what needs to happen.

Alabama-Bred Siblings Duke It Out

You probably haven't been paying much attention to the Alabama breeding program, which has been hanging on by a thread since the Birmingham Turf Club closed years ago. But there still is such a thing as an Alabama-bred and with no racing in the state they occasionally show in special races carded just for them in Louisiana. That was the case Saturday night at Evangeline Downs, which produced a racing oddity. Three of the five starters in the $25,000 race were full-siblings. Two Mikes N Doc G, Liken It and Kellys the Boss are all by Doc N Bubba G out of the mare Ausbrook and were bred by Kent and Lisa Gremmels. They finished behind Foolish Steve (Mosquiot). Among the brothers and sisters, Two Mikes N Doc G fared best, finishing third.

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Guilty Verdict for Lisa Giannelli

The federal government's crackdown on horse doping notched another courthouse win May 6 with a jury finding Lisa Giannelli guilty of conspiracy to misbrand and adulterate drugs after an eight-day trial.

The jury of eight men and four women in U.S. District Court in New York returned the verdict after less than two hours of deliberations spanning two days.

Giannelli, 55, of Felton, Del., faces a maximum sentence of five years in prison at her sentencing Sept. 8 before Judge Mary Kay Vyskocil.

The jurors rejected Giannelli's testimony in which she defended her actions selling medications for veterinarian Dr. Seth Fishman when she was his employee for 18 years at Florida-based Equestology.

As part of their verdict, the jury also agreed that Giannelli's intent was to defraud and mislead.

New York U.S. Attorney Damian Williams said, “For almost two decades, Lisa Giannelli peddled untestable performance-enhancing drugs to give racehorse trainers the tools to dope racehorses. As a former standardbred racehorse trainer, Giannelli knew firsthand the dangers of selling illegal, injectable performance-enhancing drugs to trainers who were recklessly injecting horses to gain a competitive edge. The jury's swift conviction demonstrates the gravity of Giannelli's criminal scheme. This Office remains committed to holding accountable those who would engage in the kind of fraud and animal abuse exemplified by Giannelli's crimes.”

Giannelli stood at the defense table and turned towards the jury during the reading of the verdict. She was wearing a mask and had no visible reaction. She remains free on a $100,000 bond.

She rushed out of the courtroom with her husband.

“I'm disappointed,” defense attorney Louis Fasulo said. He plans to file a motion challenging the verdict.

The charges against Giannelli grew out of a lengthy FBI investigation into horse doping at Thoroughbred and harness race tracks two years ago that resulted in the indictments of more than two dozen people.

Just before announcing their verdict, the jury came to the courtroom to inspect a seized drug bottle that the government introduced into evidence during the trial.

The bottle was labeled BB3 which prosecutors said was a misbranded and adulterated PED designed to boost a horse's red blood cells.

Ten jurors walked past the bottle before two stopped to inspect the bottle with gloved hands.

“The government's case was very strong,” juror Joe Coughlan, 56, of Valley Cottage, N.Y., said after the verdict. “It was a preponderance of the evidence. I couldn't see any other verdict but guilty.”

Coughlan said it's “obviously not a good thing” that horses were being doped at race tracks.

“That amounts to cheating,” he said.

He said he had no idea how extensive the problem was until the trial.

“It's a sport and you've got bettors who are relying on everything being okay,” he said. “You want things to be above board. If they are not, what do you do?”

Prosecutors said the products Giannelli distributed for Fishman were illegal substances meant to enhance a horse's performance while being undetectable in tests conducted by racing authorities after races.

Fishman, a Florida veterinarian, was found guilty at his own trial in February. His sentencing is May 26.

Since the initial indictments, the number of defendants has grown to 31.

Of those 14 have pleaded guilty including two former harness trainers who became government witnesses against Giannelli.

Two other defendants agreed to deferred prosecution agreements.

Defendants with charges still pending include the prominent trainer Jason Servis, whose 3-year-old Maximum Security finished first in the 2019 Kentucky Derby presented by Woodford Reserve (G1) and then was disqualified for interfering with another horse during the race.

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Letter to the Editor: Jenine Sahadi

Since the FBI announced in 2020 that their years-long federal investigation into cheating allegations in horse racing had caught admitted “doper” Jorge Navarro, suspected “doper” Jason Servis and a host of other co-conspirators, the lines separating these criminals and most of the rest of the industry's participants with largely minor legal drug positives have been significantly blurred.

Fast forward to the 2021 Kentucky Derby, a full 14 months after Navarro and Servis were arrested and charged with federal conspiracy charges related to drugging of their horses, social media erupted with rumors that Medina Spirit had tested positive for a “banned substance.” The information leaked just days after his victory and seemingly before the colt's trainer, Bob Baffert, had been notified there was a post-race positive.

From that time until now, much of the information that has trickled out has come mostly from speculation or been based on half truths and information twisted to suit a negative agenda. Rarely have details involving Medina Spirit been based on fact. Factor in the press tour Bob Baffert went on defending himself and his position that nothing nefarious was in play–for better or worse–and the perfect storm had developed.

Baffert's record as a trainer–which by industry standards has been cleaner, safer and better than most–was attacked, twisted and manipulated. His personal life–especially his wife and children–came under an all-out assault and was subject to a sea of the most horrific hate imaginable. None of which had anything to do with a post-race positive of a legal therapeutic medication in the Kentucky Derby.

My history with Bob Baffert is well-documented and I haven't always been his biggest fan. However, I knew, in all likelihood, the people saying those things had never met the man. Strangers unconcerned by what it actually means to be a “doper” or “cheater” hurled those epithets as if they actually knew him not only as a person, but also as a trainer.

That said, my disdain for the behavior of his harshest critics is clear and I continue to have the same questions. What is the definition of a cheater? What does it mean?

In what has been one of the most bizarre scenes I've ever witnessed, racing media, political actors, paid social media trolls, disgruntled bettors, along with powerful horsemen's groups and others have perpetuated or fostered a false “Lance Armstrong” narrative about Baffert. They compare Medina Spirit's overage of a legal therapeutic medication to actual blood doping and cheating. I don't really understand why, though I have my suspicions, and for the life of me I cannot fathom how he became the worst thing about horse racing.

Perhaps if we define what a “cheater” or “doper” is, reckless and uninformed attacks on trainers would stop. Educating the media and public on what constitutes cheating versus what is an unintentional overage of a therapeutic medication might actually be a positive development for horse racing. Instead, the industry sits idly by as shows like Saturday Night Live call betamethasone, a medication the industry allows and regulates, to be portrayed as a performance enhancing anabolic steroid. There is never any industry pushback on false narratives.

We have heard from racing's leadership organizations and also from the federal government that untestable drugs may be in use daily. This may be true, although we have yet to see any proof of it up to this point. In the meantime, we have allowed anti-horse racing activists and those who want to end horse racing altogether to spew damaging lies and perpetuate false narratives. These extremists don't hold everyone to the same standards. In fact, some trainers with multiple significant violations seem to get a pass, while others are vilified.

What do I mean by not holding everyone to the same standards? For example, are multiple class 4C positives (e.g. betamethasone) as harmful as one Class 2 (e.g. metformin) positive? Is it a recency equation? If so, are multiple class 4C positives more harmful to both the horse and the image of racing in the public eye than one Class 2 positive? Are we certain that class 4C positives are

“masking” more powerful drugs like EPO, as some allege, and if that's the case, where is the science to support that? Where did this narrative originate? Even more confusing to me is why we even have classifications if we are going to lump all positives into the “doping” narrative? What purpose do the classifications serve, if not to protect the horse and integrity of the game in general?

For years, many of the industry's participants, including myself, have been begging the decision makers for uniform rules and penalties in all racing jurisdictions. This would certainly solve the double-standard issue. It is a daunting task for sure, but certainly one worth the effort from industry leaders–those actually in a position to be heard and effect change in the best interests of the industry. So why hasn't it happened? We have literally had decades to get our ducks in a row and those with the most strength, power, and influence have continued to bury their heads in the sand, or alternatively, added fuel to the fire that is swiftly burning down our industry.

That's not to say all leaders have ignored the issues.

In California, for example, horses are now routinely subject to the most exhaustive pre-race medication and soundness exams in the country. Out-of-competition and thorough testing has become standard and, in rare cases, trainers are being cited for drug overages in workout tests. Is there any other jurisdiction in the country that demands the same strict level of oversight and protocols that California does? If there is, I certainly don't know about it.

California doesn't get sufficient credit from the industry in this area. Critics appearing more concerned with field size than the safety of horses bang the loudest drum to drown out the state's accomplishments. We know equine safety can only help to grow field sizes, as well as, positive public perception. Again, racing industry leadership–or a lack thereof–has played a major role in getting us to this point.

Social media, mainstream and horse racing media, and “experts”, who harbor their own animosity for individuals and the industry, have taken us to a very dark place. Anonymous accounts on social media aim to destroy who and what they don't like. Anyone who presents a rational argument supported with facts is labeled an apologist or far worse. I personally know people who have received death threats. Others have been told they've had background checks run on them. Many have had profane slurs hurled at them. Some of these folks shouting the same vitriol every day are provided cover and support by leadership groups and members of the media who claim to be impartial and to want what's best for the industry. Attacks on owners, who have for decades lost their money with a smile on their face, have ramped up, as well. I will never be convinced this is a good strategy in the short or long run, yet here we are, with many passionate and well intentioned owners accused of being complicit criminals.  Interesting to note that the attackers usually have their own set of immoral behaviors that fly under the radar, but hypocrisy is in full view in 2022.

I don't know where this all ends, but I believe if we can't answer the simplest of questions, like what defines a cheater, or work to achieve uniform rules and regulations throughout the industry, then we are doomed. Change is needed, but we can't allow uninformed critics and activists, who would love nothing more than the collapse of racing to win.

The same standards need to be applied equally for all, in every jurisdiction, from coast to coast. In California, the lessons learned over the past few years have been plentiful. To the racing associations' credit they actually did something–many things–to help the horses and the industry as a whole. Meanwhile, virtually every other jurisdiction continues the status quo while hoping that the frenzy surrounding Bob Baffert will distract from their own breakdown rates and medication violations. Oddly enough, some states have almost no medication violations. Other states should learn from California's mistakes and implement the changes they made to move the industry in a positive direction for a change.

Bob Baffert isn't horse racing's problem, no matter how many times anonymous trolls armed with hatred and half-truths say so on Twitter. Cue the mob.

Sincerely,

Jenine Sahadi

Retired Trainer

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