Judge Dismisses Motions To Suppress Wiretap Evidence In Federal Case, First Trial Date Set

Evidence gathered by the FBI, including wiretaps, may be used at trial against the trainers, veterinarians, and others charged with federal drug adulteration and misbranding. U.S. District Court Judge Mary Kay Vsykocil made the ruling at an in-person hearing conducted Nov. 4. The judge has not yet filed a full legal opinion detailing her reasoning for denying the motions, which alleged the FBI had attained the wiretaps using misleading information on its application.

Several defendants, including trainer Jason Servis, had filed their own motions to suppress or joined together on existing motions. Motions from Jordan Fishman, Marcos Zulueta, and Christopher Oakes had been withdrawn when those defendants entered guilty pleas in recent weeks.

Judge Vyskocil also moved forward with trial scheduling. Attorneys had already agreed that the remaining defendants would be clustered in three groupings for trial purposes, according to who seemed to have worked together in the relevant, alleged criminal activities. The first group will consist of Dr. Seth Fishman, who is accused of making a number of performance-enhancing substances, and Lisa Giannelli, who is accused of helping to distribute those products. An order from the judge entered Nov. 4 stated the first trial is expected to begin on or about Jan. 19, 2022.

Defendants in the second group could see a trial toward the latter part of the first quarter of 2022, though a date range was not included in the Nov. 4 order. That grouping includes Rick Dane Jr. and Dr. Rebecca Linke.

The remaining defendants include Dr. Erica Garcia, Jason Servis, Michael Tannuzzo, and Dr. Alex Chan. Prosecutors have expressed a desire to try those four defendants together, although the judge left the door open this week that she may hear severance motions if any of the defendants move to be tried separately.

The next status conference in the case is scheduled for Jan. 13, 2022.

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Harness Trainer, Alleged Navarro Co-Conspirator Oakes Pleads Guilty To PED Charges

Harness trainer Christopher Oakes pled guilty to one count of misbranding and drug adulteration with intent to defraud or deceive on Wednesday, when he appeared before federal judge Mary Kay Vyskocil via teleconference. According to the Thoroughbred Daily News, Oakes is the 10th of the original 27 indicted in March 2020 to plead guilty in a scheme to use performance-enhancing drugs in racehorses.

Oakes was allegedly overheard on wire taps speaking to Jorge Navarro (who was also indicted and pled guilty) about the distribution and use of performance-enhancing drugs to Thoroughbreds. Specifically, the TDN reported that Oakes and Navarro were overheard making plans to administer performance-enhancing substances to X Y Jet, who later died suddenly.

Navarro changed his plea from not guilty to guilty this summer, but has not yet been sentenced.

Oakes told Vyskocil on Wednesday: “I purchased medications from Dr. Seth Fishman and Dr. Gregor Skelton and his assistant Ross Cohen and administered the medications to the horses in my care to gain an unfair advantage.”

Oakes will be sentenced on Feb. 17, and faces up to three years in prison.

Read more at the Thoroughbred Daily News.

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Jordan Fishman Scheduled For Change Of Plea Hearing On Oct. 6

Jordan Fishman, a defendant in the federal horse doping case who was indicted on charges related to drug adulteration and misbranding last March, will enter a change of plea before Judge Mary Kay Vyskocil in United States District Court, Southern District of New York, on Oct. 6, according to the Thoroughbred Daily News.

“From at least in or about 2002 through at least in or about March 2020, Seth Fishman, Lisa Giannelli, Jordan Fishman, and Rick Dane, Jr., the defendants, and others known and unknown, engaged in a corrupt scheme to create, manufacture, and distribute adulterated and misbranded PEDs to racehorse trainers and others in a systematic effort to improve race performance of racehorses, and obtain prize money as a result,” reads the indictment. “The defendants, created, marketed, and distributed a variety of PEDs, which were manufactured in an unregistered facility, mislabeled, and/or administered with no valid prescription.”

Several other defendants in the case have entered changes of plea from “not guilty” to “guilty” in recent months, including Jorge Navarro, Kristian Rhein, and Michael Kegley, Jr.

Read more at the Thoroughbred Daily News.

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First Trial In Federal Drug Misbranding Case Will Likely Come In January

After a long series of delays, it seems the first trial in the federal drug adulteration and misbranding case may now come sometime in January 2022, per a status conference held on Sept. 15. Attorneys and defendants gathered both in person in the Southern District of New York and telephonically to coordinate scheduling for the first in a series of trials.

The defendants who remain in the active case (excluding those who have changed their pleas to guilty or those left off the superseding indictment in November 2020) have been divided into four groups delineating which will be tried together.

According to a document filed June 11, the groups are–

Group 1: Seth Fishman, Lisa Giannelli, Jordan Fishman
Group 2: Christopher Oakes, Marcos Zulueta, Rick Dane Jr.
Group 3: Dr. Erica Garcia, Michael Tannuzzo, Dr. Rebecca Linke
Group 4: Jason Servis, Dr. Alexander Chan

The case has been dogged with delays due in large part to the amount of evidence provided from federal investigators to the defendants, which now exceeds many terabytes and thousands of pages of information.

U.S. District Judge Mary Kay Vyskocil heard arguments from defense counsel regarding the projected date for the first trial. Originally, she had expressed a desire to conduct the first trial sometime in late 2021, but attorneys for Group 1 had conflicts with other trials being held in December. She suggested a gap had opened up in her calendar for Nov. 3 of this year, but defense attorneys balked at the fast-approaching date, leading to some testy exchanges with Vyskocil. At one point, an unidentified man using the telephonic conference option to attend the hearing could be heard saying, “I don't like this judge” before being asked to mute his line.

Defense counsel moved that the trial be conducted sometime in January 2022, pointing out that the court had already agreed they would have 60 days prior to trial to review the list of the prosecution's expert witnesses. A Nov. 3 trial date would not allow 60 days to elapse as previously ordered.

Patrick Joyce, attorney for Jordan Fishman, also registered concerns about the amount of time defense would have to review the voluminous evidence.

“As this court is aware, this is an extremely complicated case,” said Joyce. “There are a lot of issues … we're not asking for an adjournment into infinity. We're not saying next July. We're asking for two months.”

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Vyskocil dismissed that concern, saying it was “not a valid reason to kick this trial” but the 60-day period of review already outlined was a good reason to delay until January. An exact date will be determined when the federal court releases its calendar.

“I do not control the trial calendar if we're still operating under these COVID-19 protocols, so I am telling you now that this case is going to trial in the first quarter,” she said. “I will request the earliest slot we can be given in the first quarter and we are going to trial. I am not going to listen to, 'Well I have something that's backed up.' … You are all on notice.”

Vyskocil did not rule on the various motions before her to exclude wiretap evidence collected by the FBI during Wednesday's status conference. Although she acknowledged considerable interest in the contents of exhibits traded in those motions, she said she could not make a determination on whether intercepted phone calls, emails, and text messages will be game at trial until the defense has had a chance to submit formal replies regarding the motions. Typically, a motion submitted by defense counsel generates a response from prosecutors, and then defense attorneys have a chance to file a formal response to the prosecution before it's considered that all arguments have been made. Vyskocil said the deadline for defense replies will be later this month, and she will endeavor to make a ruling as soon as all the arguments are in.

Read more about what we learned from new wiretap evidence in the U.S. Attorneys' response here.

A new status conference has been scheduled for Nov. 4 to allow attorneys to check in with the court regarding any remaining issues with discovery evidence.

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