Marcos Zulueta | Horse Racing Free Tips

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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Fishman Wants Court to Merge Two Convictions

Thirty-four days after being found guilty by jury trial on two felony counts of conspiring to violate adulteration and misbranding laws in the nationwide racehorse doping case, the Florida-based veterinarian Seth Fishman made a motion in federal court asking for the first of those counts to be dismissed on the basis that it is allegedly “multiplicitous of” (already contained within) the second, much broader conspiracy.

Fishman's Mar. 8 filing in United States District Court (Southern District of New York) is likely the first of several legal steps leading to a formal appeal of his convictions. He faces 20 years in prison upon sentencing May 5.

“As relevant here, a multiplicitous indictment 'charges the same crime in two counts,'” Fishman's letter motion stated, “when 'only one crime has been committed' in 'law and fact.'”

Fishman's filing–almost two years to the date of his Mar. 9, 2020, arrest–argued that the dual counts could lead to “multiple sentences for the same offense,” and that the two counts might have “improperly prejudice[d] a jury by suggesting that a defendant has committed not one but several crimes.”

Fishman, along with six other veterinarians, 11 trainers, and nine others, was charged 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.

“The indictment in this case accused Dr. Fishman of participating in overlapping but ostensibly independent conspiracies to illegally distribute a variety of customized PEDs–untestable, adulterated and misbranded–to racehorse owners and trainers in America and abroad,” Fishman's motion stated.

“Count Two alleged a broad, 18-year conspiracy–lasting from 2002 through 2020–with Lisa Giannelli, Jordan Fishman, Rick Dane Jr. and unnamed others. Count One alleged a subsidiary, four-year conspiracy–lasting from 2016 through 2020–with Jorge Navarro, Erica Garcia, Marcos Zulueta, Michael Tannuzzo, Christopher Oakes and unnamed others…

“Yet throughout the trial–from the start of the prosecutor's opening to summation–the government framed the case as one involving 'a single, ongoing conspiratorial' agreement: namely, an encompassing 18-year arrangement among Dr. Fishman, his employees, suppliers and customers to manufacture, buy and sell the same menu of adulterated and misbranded PEDs through Dr. Fishman's company, Equestology LLC, rather than 'two separate schemes operating independently…'

“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.”

The filing continued: “Perhaps most significant, the government's summations graphically confirmed its mixing and matching the charged conspiracies–its blending their vague contours, blurring their fuzzy boundaries and otherwise presenting the two as an interwoven, indivisible whole…

“Even more striking, the prosecutors opted to address the charges in 'reverse,' starting with the sprawling conspiracy alleged in Count Two [before finally getting around to] Count One…

“On this record–even when construed most favorably to the government and drawing all inferences in its favor–the only plausible conclusion is that the lesser conspiracy charged in Count One was 'simply a species' or subset of the greater one alleged in Count Two.”

Fishman's multiplicity motion suggested a remedy of merging his two convictions so that only a single sentence will be imposed.

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Zulueta Gets 33 Months in Prison

Marcos Zulueta, the former mid-Atlantic-based trainer with an abnormally high win percentage who was caught on wiretaps procuring drugs for and boasting about Thoroughbred performance-enhancing regimens with the convicted horse doper Jorge Navarro, was sentenced to 33 months in federal prison on Thursday.

Zulueta, 53, had pleaded guilty in October to one felony count of adulterating and misbranding drugs with the intent to defraud or mislead.

As part of a plea agreement, he had previously agreed to forfeit $47,525.

At his Feb. 24 sentencing, the remaining two open felony charges against him were dropped, which was also part of the agreement.

At the time of his guilty plea in in United States District Court (Southern District of New York), it was announced that Zulueta faced up to five years in prison. But because the statutory maximum for his crime was three years, prosecutors and the defense ended up agreeing that based on federal sentencing guidelines, his actual range called for 30 to 36 months.

However, subsequent to that agreement, when a routine presentence investigation report revealed (unbeknownst to prosecutors) that Zulueta got convicted in 2018 for driving while intoxicated while already on probation for another offense, it triggered an increase in his criminal history calculation for the doping offense, so his minimum sentence based on the guidelines got bumped up to 33 months instead of 30.

The feds had advocated for a sentence within that range; the defense argued for a variance that would allow for a sentence below the guidelines. Judge Mary Kay Vyskocil gave the minimum allowable sentence.

'I got creative'

A separate presentencing report issued by the feds included snippets of secretly recorded phone conversations between Zulueta and Navarro.

In some of those starkly candid discussions, Zulueta admitted to fears that he was admitting purportedly performance-enhancing drugs (PEDs) so recklessly that he was afraid he was going to kill his own horses, either by injecting medications improperly or performing nasogastric tubing that went into the lungs instead of the stomach.

“I didn't want to tell you because you were going to [expletive] scold me,” Zulueta admitted to Navarro in an intercepted May 5, 2019, phone call. “I got creative, I gave them more medicine but I drown them–I drown them instead…. I didn't tell you about it because I knew you were going to get on my back…. I lost [expletive] lots [of] money. But, well, forget it–that's done.”

According to the government, Navarro had already warned Zulueta at least once to tone down his doping.

“Marcos, we need to clean up things because they are going to [expletive] us up. They are going to kick us out of the business if we keep up with the craziness,” Navarro said in a Mar. 10, 2019, call.

Zulueta agreed with Navarro, and Navarro persisted, “You have already made money…. Stop inventing [new ways to drug horses].”

Yet on other occasions, it was Zulueta who cautioned Navarro about keeping a lower profile.

“Yeah, you should be happy–happy–happy that you are not winning all of them,” Zulueta said, according to a wiretap transcript. “Otherwise, you will be arrested.”

Zulueta's words ended up being prophetic: On March 9, 2020, both trainers, plus several dozen others, were taken into federal custody in a coordinated series of arrests related to an international racehorse doping conspiracy. Listed below are the Thoroughbred-related guilty pleas and convictions that have resulted so far:

In March 2021, the guilty-pleading Scott Robinson, a veterinarian, got 18 months in prison and had to forfeit $3.8 million in profits.

In June, Sarah Izhaki was sentenced to time already served for selling misbranded versions of Epogen.

In September, Scott Mangini, a pharmacist who had pleaded guilty to one felony count related to creating custom drugs for racehorses, got sentenced to 18 months in prison and a forfeiture of $8.1 million.

In December, Navarro wept in court after getting the maximum sentence of five years imprisonment. Navarro had pleaded guilty to one count of conspiring to administer non-FDA-approved, misbranded and adulterated drugs, including PEDs. Navarro was also ordered to pay $25.8 million in restitution (an amount he will likely never be able to pay) and could face deportation to Panama.

On Jan. 5, 2022, Kristian Rhein, a veterinarian formerly based at Belmont Park, got sentenced to the maximum three years in prison after pleading guilty to one felony drug charge. Rhein must forfeit $1.02 million and pay $729,716 in victims' restitution.

On Jan. 6, Rhein's brother-in-law, Michael Kegley Jr., the former sales director for a Kentucky-based company that marketed and sold the alleged PED known as SGF-1000, got sentenced to 30 months in prison and a $3.3 million forfeiture.

The Florida-based veterinarian Seth Fishman faces 20 years in prison after being found guilty Feb. 2 on two counts of conspiring to violate adulteration and misbranding laws.

'Success story' gone wrong

Although not a “headline” trainer like the graded stakes-winning conditioners Navarro or Jason Servis (who maintains he is not guilty and has a trial date looming), Zulueta won an outsized number of races on smaller circuits. In early 2020, just prior to his arrest, Zulueta's horses were winning at a gaudy 31% clip, primarily at Parx.

“Until the time of his involvement in the activity charged in the Indictment, Marcos Zulueta was an American success story,” his legal team wrote in a presentencing report.

“Born in Cuba in 1968, he experienced a very difficult and impoverished childhood,” the defense report continued. “His father left his family when Marcos was one. As the oldest of his brothers and sisters, it fell on Marcos' shoulders to work to support his family. He engaged in all forms of manual labor and finally became proficient in working with horses, with the money he earned going straight back to his family.

“With the goal of escaping the restrictions and deprivation of freedom in Cuba, Marcos emigrated to the United States in 1994 [and in 2011] became a successful horse trainer. Aside from a DUI and two summary offenses committed in a brief time frame, Marcos led a crime free life…”

The feds framed Zulueta's story differently in their own presentencing report:

“Although Zulueta did not earn as much in purse winnings as other defendants in this matter, including his co-conspirator Jorge Navarro, he nonetheless engaged in precisely the same conduct as Navarro: (1) procuring a variety of PEDs with which to dope his racehorses, including blood builders; (2) redistributing certain PEDs to other trainers, such as Navarro; (3) experimenting with novel PEDs by administering them to the horses under his care; (4) 'cleaning' the livers of horses he had doped to counteract the deleterious effects of his doping; and (5) using dangerous methods of administration, such as 'drenching.'”

The prosecution's report continued: “Zulueta was so attuned to the dangers of his conduct that he was reluctant to tell even Navarro–his co-conspirator, a trusted friend, and a prolific doper–that he had over-medicated his horses. Zulueta's private conversations underscore the callousness he displayed to the horses under his care…”

The feds further argued that “As with other defendants in this matter, it is not the case that the defendant's crime was the result of a single lapse in judgment, nor is it the case that he ceased his criminal conduct of his own volition. Zulueta continued to order and receive PEDs up until shortly before his arrest, and there is no indication that he would have otherwise stopped.”

Zulueta reports to prison May 24. The judge has recommended he be incarcerated at Fairton, a medium-security facility in New Jersey.

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The Week in Review: Time to Bring the Hammer Down on The Juice Man

The Jorge Navarro case was back in the news last week as lawyers representing the federal government submitted a sentencing letter regarding the disgraced trainer to Judge Mary Kay Vyskocil. They recommended that Navarro get the maximum allowable sentence for doping racehorses under his care, five years. He will be sentenced Friday.

The government lawyers did their job and they did it well, and they want no mercy for the Juice Man. Read the sentencing letter and the first conclusion you will come to is probably the same one I had–that five years is not nearly enough.

We already knew what Navarro was doing. He was pumping every toxic chemical he could find into every horse he had, all in an effort to win more races and collect more purse money, never once concerned about the welfare of the animal.

“Jorge Navarro's case reflects failings, greed, and corruption at virtually every level of the world of professional horse racing. For money and fame, corrupt trainers went to increasing extremes to dope horses under their care,” the filing begins.

It continues: “Navarro's aggressive pursuit of PEDs–and his eagerness to use racehorses under his care to test the potency of novel PEDs–displayed a particularly callous disregard for the well-being of the horses under his care and control.”

What we didn't know until the latest court filing was released was just how brazen and unrepentant he was. It may not seem possible, but Navarro's core was even more rotten than we had thought.

The government maintains that Navarro “considered his prolific doping campaign a badge of honor.” How else do you explain why he owned a pair of shoes emblazoned across the front with the words “#JUICE MAN.”? Or that in 2018 he sent a text to trainer Marcos Zulueta that included pictures of monkeys, rockets, syringes, horses and pills, apparently a reference to a drug he was using called “monkey.” The pictures were proceeded by the words “Te encanta,” Spanish for “You love it.” Or that he received via text a GIF from an unnamed associate that showed a syringe loaded with money?

“The intensity of Navarro's doping was matched by his apparent glee in this illicit conduct,” the government writes.

The government also wants Navarro to pay $25.8 million in restitution to those he cheated out of purse money. It's not clear how they came up with that number or who exactly is entitled to the money. It's also highly unlikely that Navarro has $25.8 million, or anywhere close to that. So this part of his punishment may not go anywhere, but it's good to see that the government is also going after whatever money he has.

Then there was the prediction from Navarro's lawyer in a filing that the trainer will most likely be deported to his native Panama after serving his sentence. Good riddance.

Earlier this month, in a pre-sentencing report of their own, Navarro's defense team asked the judge to limit his sentence to 3 1/2 years. In doing so, they painted a much different picture of their client. They say he loved his horses and that his insatiable desire to win tainted his judgment.

Their filing included statement from several individuals who vouched for his character. One came from veterinarian Joel Lugo, who recalled Navarro's reaction to the death of star sprinter XY Jet (Kantharos). The horse died in January, 2020 from what Navarro said was a heart attack.

“I remember the day when XY Jet passed away,” Lugo wrote. “Jorge called me crying to tell me directly the news. I know Navarro was devastated because he truly loved XY Jet.”

Jockey Jose Ferrer wrote of Navarro that he “admired his hard work ethic and love for both the sport and the animal.”

Such sentiments are laughable. Anyone who can do to these animals what Navarro did does not love their horses. Navarro abused his horses.

“These are among some of the factors that put the lie to Navarro's submission and his multiple letters of support quoted in and appended to Navarro's sentencing submission, in which third parties claim that Navarro made decisions for the health and well-being of his horses,” the government wrote. “That notion simply does not comport with the hundreds of conversations wherein Navarro sought PEDs to use on his horses, discussed administering novel PEDs on his horses, pushed horses in poor physical shape to compete, and displayed indifference at the physical ramifications of administering PEDs to horses.”

One can only hope that Vyskocil agrees. Send him to prison for five years. Deport him. Take away his money. It's time for the Juice Man to get what he deserves.

And What About Navarro's Owners?

The government's sentencing letter includes a recapping of a conversation with the owner of a horse named Nanoosh (Paytner). The unnamed owner and Navarro discuss the horse's recent poor form and the owner asks him if he was “giving them [Nanoosh] all the shit?” The owner also asked Navarro, “Is this horse jacked out? Is he on fucking pills or what or are we just fucking -,” Navarro responded, “Everything…he gets everything.”

The same exchange was also referred to 21 months ago when Navarro was originally indicted. According to Equibase, the horse was owned by the partnership of Rockingham Ranch, Zayat Stables LL and David A. Bernsen LLC. Rockingham Ranch and Bernsen are still active owners. Zayat, due to problems unrelated to Nanoosh, is not active in the sport.

Doesn't anyone in the sport want to get to the bottom of this? It can't be that hard to find out who the owner was that had the discussion with Navarro. Once the name is revealed, that person should be barred from the sport immediately and permanently.

The Remsen Fiasco

Protests seeking to overrule stewards' decisions usually don't get very far, but the case of this year's GII Remsen S. is one where the New York Gaming Commission should absolutely reverse the order of finish. The Aqueduct stewards got this one wrong.

The race came down to Mo Donegal (Uncle Mo) and Zandon (Upstart), who were noses apart as they headed toward the wire. Aboard race winner Mo Donegal, jockey Irad Ortiz, Jr. appeared to go out of his way to intimidate his rival. The two bumped near the wire with, according to the Equibase chart, Ortiz throwing “repeated exaggerated crosses with the left rein near the face of the runner-up…”It got so bad that Ortiz appeared to strike Zandon with his elbow.

Mo Donegal won by a nose.

Zandon's owner Jeff Drown filed his protest last week and maintained that his horse would have won if not for Ortiz's antics. He's not wrong.

It's not just that the stewards blew this decision. That it involved Ortiz was not a surprise. A day earlier, riding a horse named Gran Casique (Algorithms), he dropped another rider when, down the backstretch, he came over several paths on his way to trying to maintain a position on the rail. For that ride, he was hit with a 30-day careless riding suspension.

For months, Ortiz's critics have been calling him out for his overly aggressive riding style and, in particular, his penchant for herding other horses and riders. Yet, until the Gran Casique race, the NYRA stewards had more or less looked the other way. That appeared to embolden Ortiz.

Yes, the stewards did the right thing when they gave Ortiz the 30-day suspension. But they reverted to form in the Remsen. They didn't take Mo Donegal down and they didn't suspend or fine Ortiz for his ride. Once again, when it came to Ortiz, the wrong message was sent.

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