Mary Kay Vyskocil | Horse Racing Free Tips

Jury Hears Wiretaps in Fishman Trial

The jury in the federal horse-doping trial of Seth Fishman heard Jan. 25 a portion of a Federal Bureau of Investigation wiretap in which the veterinarian discusses whether the drugs he sold to horse trainers involved doping.

“Any time you give something to a horse, that's doping,” Fishman says in the conversation recorded by the FBI Apr. 5, 2019. “Whether or not they test for it is another story.”

On the call with Fishman was an unidentified individual who had wanted to know more about the drugs.

“But it's not doping, yeah?” that person asks.

“Don't kid yourself,” Fishman also tells him. “If you're giving something to a horse to make it better, and you're not supposed to do that, that's doping. You know, whether or not it's testable that's another story.”

The wiretap was played in court on the fifth day of the trial as testimony resumed after a day's interruption. On Jan. 24, Judge Mary Kay Vyskocil declared a mistrial in the case of Fishman co-defendant Lisa Giannelli. Giannelli's attorney tested positive for COVID-19 before court on Monday, warranting the mistrial.

As the day began Tuesday, Vyskocil announced a ruling rejecting a motion for a mistrial by Fishman's attorneys. They moved for a mistrial because of the positive COVID-19 test they believed upset the flow of the trial and because of remarks the attorney for Giannelli made during openings statements last week that they said could prejudice the jury against their client.

That attorney, Louis Fasulo, had described his client as the “proverbial sheep” to Fishman's “sheep master.”

Vyskocil countered that Fishman had not been prejudiced.

“Dr. Fishman has received a fair trial so far and will continue to receive a fair trial,” Vyskocil said.

Fishman was one of more than two dozen members of the horse racing community charged in sweeping indictments in March 2020 with conspiring to dope horses at race tracks across the country with illicit performance-enhancing drugs that wouldn't show up in post-race testing. Those charged included top trainers Jason Servis, who awaits trial, and Jorge Navarro, who pled guilty to conspiring with others to dope horses and was sentenced to five years in prison.

Fishman is charged with two counts of conspiring to violate drug adulteration and misbranding laws. He faces a maximum of 15 years in prison if convicted.

As part of their case, prosecutors allege Fishman accepted tens of thousands of dollars from Navarro in exchange for untestable drugs.

On Tuesday, prosecutors called Dr. Jean Bowman, veterinary medical officer in the division of surveillance for the FDA, as a government expert witness.

During her testimony, prosecutor Sarah Mortazavi introduced into evidence photos taken on the day of Navarro's arrest in 2020 that showed him in possession at his Florida home of four alleged PEDS that came from Fishman.

Mortazavi drilled down on those drugs, named BB3. The indictment described BB3 as a customized “blood building” PED that when combined with intense physical exertion thicken a horse's blood. A horse doped with BB3 ran the risk of a heart attack, the indictment said.

The photo of BB3 seized by the FBI from the Navarro residence shows only the product's name on the bottle.

Bowman testified that BB3 had not been approved by the FDA and that she could find no studies in an FDA database about BB3 and its effectiveness and safety to horses.

Bowman also told the jury that the label on the BB3 bottle should have contained more information to pass muster with the FDA. She said the label should have contained the name of the prescribing veterinarian, how and when it should be administered, the identity of the manufacturer, and what precautions should be taken before administering it.

The doctor testified that BB3 and the other drugs Fishman sold should only be prescribed after a physical examination of the animal.

Prosecutors contend Fishman never did that before shipping his PEDs to buyers.

At one point during questioning, Mortazavi had Bowman read from an email Fishman sent to Giannelli on Jan. 5, 2019, that contained a list of drugs available from Fishman's South Florida business Equestology.

“BB3: would only let trusted clients have this,” Bowman quoted the email as saying.

Fishman's lawyers Maurice Sercarz and Marc Fernich will have an opportunity to cross-examine the FDA expert when the trial resumes Jan. 26.

The Thoroughbred industry's leading publications are working together to cover this key trial.

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Mistrial Declared in Giannelli Case Due to Covid

Covid-19 temporarily upended Jan. 24 the horse doping trial of Dr. Seth Fishman and Lisa Giannelli–who are among the 27 horse racing professionals, including prominent trainers, charged in the case.

As the trial's second week began, testimony was delayed after it was revealed that Giannelli's trial attorney had tested positive for the disease before the trial was to resume Monday.

Judge Mary Kay Vyskocil then declared a mistrial on Giannelli's behalf because her attorney Louis Fasulo wouldn't be able to return to court for at least 10 days.

“I can't have a jury on ice for 10 days,” she said.

The jury never heard any witnesses Monday and Vyskocil sent them home after lunch with the resumption of the trial in doubt.

In the courtroom and without the jury present Fishman's attorneys also moved for a mistrial. Vyskocil reserved decision on the motion until Jan. 25 in the morning but during back and forth with the Fishman defense team she hinted she was considering having the trial resume with only Fishman. The trial continues Tuesday at 9:30 a.m.

The trial opened Jan. 19 with jury selection followed by two days of opening statements and testimony from three witnesses.

Prosecutor Anden Chow told the jury Fishman and Giannelli had for two decades operated a “black-market drug business” that peddled to horse trainers around the country performance enhancing drugs that were administered to horses on race days and that couldn't be detected by horse racing commissions in post-race testing.

Most of the testimony the jury has heard came from the government's first witness, a 34-year-old woman, Courtney Adams, who worked at Fishman's South Florida business for five years until 2017. She said Fishman was fixated on creating drugs that were untestable.

FIshman attorney Maurice Sercarz told the jury his client's actions were in accordance with his veterinary oath to protect the safety and welfare of animals. Fasulo said Giannelli didn't believe she was doing anything wrong while working for Fishman.

They are charged with conspiracy to violate drug adulteration and misbranding laws in the doping horses. Prosecutors say the 11 trainers charged in the case acted to win lucrative purses without regard to the health of their horses.

Both Fishman and Giannelli are out on bail and were in court Monday.

The U.S. District Court in New York has implemented numerous Covid protocols to avoid outbreaks. The witness stand has been outfitted with a HEPA-filtered plexiglass box. There's also a HEPA-filtered plexiglass box for lawyers to use when they question witnesses. Masks are required of everyone in the courtroom, including the judge, but witnesses and lawyers can remove them if they are using those boxes.

Over the weekend courthouse officials implemented a new protocol. It required that lawyers and witnesses needed to take a rapid PCR test if they intended to remove their masks while using the boxes.

It was when Fasulo took the test in accordance with the new protocol that he learned of the positive result.

He showed up the courtroom briefly and then left. He spoke to the judge via an audio hookup.

His symptoms appeared mild. He told Vyskocil he had a “tickle in his throat.”

“I don't know what we're going to do. I feel terrible,” Fasulo said before consenting to the mistrial.

Giannelli's new trial date hasn't been set.

Fishman's other attorney Marc Furnich argued a mistrial was warranted given the positive Covid test. He also said it was warranted given that the trial's beginnings had exposed a conflict in defense strategy with Fasulo.

As proof Fernich and Sercarz pointed to Fasulo'a opening statement.

“Mr. Fasulo's second line was'we sit here after hearing the government say Lisa Giannelli was a lone wolf in a herd of sheep. What she was was more the proverbial sheep herded by the sheep master' a clear reference to Dr. Fishman,” Sercarz said.

He and Fernich argued that it would be difficult to convince the jury otherwise after they heard that and Giannelli was no longer part of the case.

Vyskocil said she didn't see what the problem was.

“Opening statements are not evidence and the jury has been told that,” she said.

Still awaiting trial is Jason Servis whose horse Maximum Security finished first in the 2019 Kentucky Derby only to be taken down for interfering with another horse. Prosecutors have accused Servis of doping dozens of horses in his barn, including Maximum Security.

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Citing Pandemic, Defense Asks for Delay in Doping Trial

Attorneys for Seth Fishman and Lisa Giannelli, the first two defendants scheduled to face trial on Jan. 19 in the years-long alleged international horse doping conspiracy, Wednesday asked the judge in the case to delay the trial over concerns related to the COVID-19 pandemic.

In a highly-redacted document filed Jan. 12 in the United States District Court (Southern District of New York), Fishman's attorney, Maurice Sercarz, wrote that he and Giannelli's lawyer “respectfully submit that the present trial should be adjourned until there has been a substantial reduction in the prevalence of this variant of the virus.”

Fishman, a Florida veterinarian, is charged with two felony counts related to drug alteration, misbranding, and conspiring to defraud the government. Giannelli faces a related charge that has to do with an online business called Equestology that was closely tied to Fishman's venture.

A footnote within the request is the most substantial part of the document that survived redaction.

It states that conducting a “trial before masked jurors implicates the Sixth Amendment right to effective assistance of counsel from gauging jurors' facial reactions to questions and arguments counsel may advance and tailoring them accordingly.

“Insofar as the pandemic will reduce or eliminate the number of unvaccinated individuals available for jury service-and to the extent it disproportionately cognizable groups like the elderly and people of color-forcing a trial under these conditions may also implicate Dr. Fishman's right to a jury drawn from a fair cross-section of the community. The former prospect is especially fraught in a case instigated by the Food and Drug Administration.

“Finally, significant disruptions may ensue should key trial participants contract an infection [redacted] or another participant, creating substantial trail management problems and risking potential mistrial,” the footnote states.

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Judge Modifies, But Does Not Revoke Fishman’s Bail Conditions

After federal prosecutors alleged that indicted Florida veterinarian Seth Fishman is still selling purportedly performance-enhancing drugs (PEDs) while awaiting trial in the international racehorse doping conspiracy case, the judge in the case Wednesday ordered new bail modification conditions after hearing both sides of the issue at a Monday hearing that could have–but didn't–result in Fishman's bail being revoked.

Judge Mary Kay Vyskocil of United States District Court (Southern District of New York) wrote in a Dec. 22 order that the following added terms shall apply to Fishman's pretrial release:

“The defendant shall surrender all drugs and/or substances now stored at [the address for his Boca Raton business] to an agent of the Federal Bureau of Investigation, the Food and Drug Administration, or the designee of either the FBI or the FDA, within two weeks of Dec. 20. At all times prior to the surrender of the drugs or substances … the defendant, his agents, and any employees of any business controlled by the defendant shall refrain from entering the [Boca Raton business]. For the duration of the period of his pretrial release, the defendant, and all entities that he controls, shall refrain from the manufacture and/or distribution of any drug or substance, and from the administration of any drug or substance, apart from the drugs and substances that the defendant may administer to himself in the course of self-treatment for his own medical conditions.”

Fishman is charged with two felony counts related to drug alteration, misbranding, and conspiring to defraud the government. His trail is tentatively expected to begin in January.

On Dec. 6, federal prosecutors asked the judge overseeing the case to consider revoking the bail terms of Fishman's pretrial release. The basis for that request was that an employee of Fishman's had informed the government that Fishman was still allegedly creating pharmaceuticals for foreign distribution, and an FBI search of Fishman's business permitted by that employee allegedly turned up some of the same drugs that had formed the basis of Fishman's originally charged offenses.

One week later, Fishman's legal team denied the charges while alleging that the move by the feds to get Fishman's bail revoked was a ploy to undermine his legal preparation for the upcoming trial.

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