murray rojas | Horse Racing Free Tips

Taking Stock: Misbranding Case Doomed By Fed Error

Expeditiously I be on my Grizzly
Feds try to creep me somehow always miss me
–Mr. Fantastik, from the MF DOOM song “Anti-Matter” on the King Geedorah album “Take Me To Your Leader”

If you're not hip to the slang in the lyrics above, Mr. Fantastik is essentially saying that the Feds are after him while he's on his grind, but they can't quite get him. There's an implication in there that the Feds are incompetent, but that's more evident from Mr. Fantastik's delivery.

Trainer Murray Rojas can probably relate to that sentiment now, after a Supreme Court decision was handed down in her favor last week on the Monday before the Breeders' Cup races. It didn't get much publicity in the racing press, perhaps because of the anticipation of the Breeders' Cup, but it should have, because the decision may have ramifications for horse racing-related misbranding cases working their way through the judicial system. Also, the larger issues of “federal overreach” addressed in an amicus brief filed in support of her petition are in the playbook of conservative federal judges, and some of them may hear cases challenging the constitutionality of HISA (the federal Horseracing Integrity and Safety Act, which was signed into law almost a year ago and is meant to oversee the sport at a federally mandated level but is being challenged by the attorneys general of several red states and the National Horsemen's Benevolent and Protective Association {NHBPA}).

A Penn National-based trainer, Rojas had been convicted on 14 felony charges by a jury in federal court on June 30, 2017, for misbranding drugs and conspiracy to misbrand in violation of the Federal Food, Drug, and Cosmetic Act (FDCA), relating to the administering of drugs to horses in her care within 24 hours of races. That act alone was against the rules of racing in Pennsylvania.

The FBI had led a sweeping law enforcement investigation of trainers and personnel at Penn National, and others were prosecuted as well by the U.S. Attorney's Office of the Middle District of Pennsylvania, but Rojas's case was the icing on the cake. On May 16, 2019, Rojas was sentenced to 27 months in prison and two years of supervised release, plus a fine of $5,000–the most severe sentence handed down in this roundup.

Rojas convinced the sentencing judge to grant bail while mounting an appeal, but the U.S. Court of Appeals for the Third Circuit, on January 11 of this year, affirmed the district court conviction and sentence. Things looked bleak for Rojas at that point.

Rojas, however, fired off a Hail Mary pass. On May 13, she filed a petition for a writ of certiorari, or a hearing in the Supreme Court. The highest court grants only about 1% of petitioners a hearing, but Rojas got two important briefs of support to get hers.

Coady photo

One was the aforementioned amicus brief filed on June 17 by the American Conservative Union Foundation (ACUF), which bills itself as an organization that “opposes the increasing application of federal law to matters that are more appropriately addressed by state and local authorities.” ACUF, a nonprofit, is the fundraiser for the American Conservative Union (ACU), which hosts the Conservative Political Action Conference (CPAC).

Joining the ACUF on the brief was The Cato Institute, another organization advocating limited government.

Their brief essentially agreed with the Rojas petition that the lower courts in this case had blurred long-held distinctions in case law between the “dispensing” and “administering” of drugs. Rojas had been convicted by a jury that was instructed that both dispensing and administering amounted to the same thing, and this line of thought had been affirmed in the Third Circuit appeal that she'd lost. The dispensing or sale of drugs is federally regulated in interstate commerce in the FDCA, the brief noted, but the administering of drugs by a veterinarian or medical practitioner in the course of his practice is not. This is what Rojas, who wasn't dispensing drugs, had been arguing all along in fighting the federal charges against her, and it was the centerpiece of her petition.

The brief was a classic conservative treatise on federalism. It disparaged “the aggressive federal criminal prosecution…that historically has been left to state and local regulatory enforcement,” because the alleged crimes that took place were infractions of state law. The Feds, however, had tried to pigeonhole them through a “liberal” reading of FDCA, according to the brief, to fit federal felony laws.

Believe it or not, the second brief supporting Rojas came from the respondent, The United States, in a filing Sept. 17 by the Acting Solicitor General, an Acting Assistant Attorney General, and two Deptartment of Justice attorneys. Perhaps they were convinced by some of the arguments in the ACUF and Cato Institute brief, because they also agreed that misbranding did not occur in this case and Rojas's conviction should be vacated. All said and done, it was a stunning defeat for the Feds, although their brief appears to be constructed in a narrow manner applicable only to this case–perhaps because of the larger Southern District of New York (SDNY) case of misbranding pending against trainer Jason Servis.

Rojas filed a reply Oct. 6 addressing some of these specific concerns, plus larger conservative issues of federalism and states' rights. On Nov. 1, the Supreme Court granted the petition, vacated the judgment against Rojas, and remanded the case “for further consideration in light of the confession of error by the Solicitor General.”

Conservatives vs. Conservatives

Conservatives and libertarians came to Rojas's defense and flexed ideologies that resonated with a conservative court. Someone tweeted recently that racing is a right-wing industry, which may be going a bit too far, but it's probably safe to say that most of the stakeholders in the game are conservatives who would support concepts of federalism and states' rights, as well as vote for the same type of people advocated by organizations like ACUF and the Cato Institute. Yet two notable conservative factions, one led by The Jockey Club (TJC) and the other by the NHBPA, are on opposite sides of HISA, which brings federal heft into racing like never before.

This anomaly is essentially pitting racing people of the same overall political philosophy against each other at the same time as they're probably supporting the same people in political office or in the voting booths.

Both factions, for instance, likely would have supported Donald Trump's three appointments to the Supreme Court that have shifted it to the right.

It's only a matter of time before there's a collision between conservative principles of federalism and HISA. Those that support HISA are likely to end up at odds with high-powered and influential conservative intellectuals outside of racing like those that came to support the Rojas petition. And if a challenge to HISA were to get to the Supreme Court, opponents of it could possibly prevail. For instance, even before two of Trump's three appointees were on the Supreme Court, it ruled in its May 2018 decision that the Professional and Amateur Sports Protection Act (PASPA) was unconstitutional because the “anti-commandeering principle” of the 10th Amendment recognizes limitations of congressional authority over state governments, and there are parts to this that could possibly apply to HISA as well.

A few years ago, while writing in this space about one of the earlier versions of the bill that eventually became HISA, I wrote: “But if it did somehow become law, the constitutional challenges to it in court–certainly in the way it's now written–could set off another round of battles, and in the end, the industry would probably find itself exactly where it is now: battling itself.”

More specifically, I should have warned that it would be a battle of conservatives versus conservatives, and that's something to think about, because mostly liberal lawmakers supported the passage of HISA–it was co-sponsored by 206 Democrats in the House versus 55 Republicans–and liberal and progressive-minded people are mostly the ones behind groups that generally don't support racing.

I'm going to end this with another verse from “Anti-Matter,” this one from MF DOOM himself, because the last line is an apt warning:

Yeah, It's neither here nor there, black
Warfare in your ear, clack-clack-clack-clack-clack
What's that? You're hearing things! Tat-tat-tat-tat-tat
Be wearing your thinking hat

Sid Fernando is president and CEO of Werk Thoroughbred Consultants, Inc., originator of the Werk Nick Rating and eNicks.

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U.S. Solicitor General Urges Supreme Court To Review Murray Rojas Conviction

The United States solicitor general on Sept. 17 filed a brief recommending that the U.S. Supreme Court review the case of Thoroughbred trainer Murray Rojas, who was convicted in June 2017 on multiple charges of drug misbranding, that the judgment by the Court of Appeals to affirm the conviction be vacated and the case remanded to the trial court for further proceedings.

The brief was filed by Brian H. Fletcher, acting solicitor general of the United States; Brian M. Boynton, acting assistant U.S. attorney general and two attorneys from the U.S. Department of Justice.

The recommendation that the Supreme Court review the case was made on the basis that the trial judge in U.S. District Court for the Middle District of Pennsylvania and the Court of Appeals for the Third Circuit erred in their definition of misbranding in both the jury instructions for the Rojas trial and in the appellate decision.

Rojas was sentenced to 27 months in federal prison after a jury convicted her on 13 counts of misbranding animal prescription drugs and one count of conspiracy to misbrand. She was found not guilty on six counts of wire fraud and one count of conspiracy to commit wire fraud. Rojas received a stay on the sentence while the case was being appealed. The case was part of an FBI investigation into corruption and illegal drugging of horses at Penn National racetrack in Grantville, Pa. A number of trainers, veterinarians and racing officials pleaded guilty to various offenses. The case against Rojas is the only one that went to trial.

Robert E. Goldman, attorney for Rojas, said the “government confessed an error” in how prosecutors, the District Court judge and the Court of Appeals interpreted the Federal Food, Drug and Cosmetic Act (FDCA), a 1938 law that gives authority to the U.S. Food and Drug Administration to oversee the safety of food, drugs and cosmetics.

Judge Sylvia H. Rambo denied Goldman's request for jury instructions to differentiate between “administering” and “dispensing” of drugs under the FDCA, and the Court of Appeals affirmed her denial.

According to the brief filed by the office of the solicitor general, “The government now acknowledges that a veterinarian who personally injects a drug into an animal under her direct care in the course of her professional practice, without first issuing a written or oral order (i.e., prescription), has not engaged in misbranding under the FDCA.

“The FDCA permits a covered animal drug to be 'dispensed only by or upon the lawful written or oral order of a licensed veterinarian in the course of the veterinarian's professional practice,'” the brief states. “If the drug is dispensed in that manner, misbranding does not occur. The plain text of that provision indicates that an animal drug may lawfully be dispensed via two different methods: either 'by a licensed veterinarian in the course of the veterinarian's professional practice' or 'upon the lawful written or oral order of a licensed veterinarian in the course of the veterinarian's professional practice. Therefore, if a veterinarian follows the first method and personally dispenses a covered animal drug in the course of the veterinarian's professional practice, no written or oral order is required.”

The jury instructions from Rambo “permitted the jury to find that the government carried its burden of proof on the third element solely by showing that the veterinarians injected covered animal drugs into petitioner's horses with a written or oral order, and without the jury considering whether the drugs were injected 'in the course of the veterinarian's professional practice,” the brief states.

Rojas was accused of having veterinarians administer medications to horses within 24 hours of a race and then falsify the dates of the treatments in violation of state racing regulations. A fellow trainer and one of the veterinarians who pleaded guilty in the case said the practice was commonplace.

The petition by Rojas was supported by the Cato Institute, a Washington, D.C., public policy foundation created by billionaire libertarian Charles Koch, as well as by the American Conservative Union Foundation, which among other things hosts the annual Conservative Political Action Conference (CPAC). Their brief focused on what it said was “a particularly egregious example of an increasingly common and distressing phenomenon – the aggressive federal criminal prosecution of conduct that historically has been left to state and local regulatory enforcement.”

The solicitor general determines the cases for which Supreme Court review will be sought by the federal government and provides oral arguments before the Court. The recommendation for review will be moot if the Supreme Court opts not to review the case or return it to District Court for reconsideration with the amended definition for misbranding. According to a government website for the federal court system, the Supreme Court “accepts 100-150 of the more than 7,000 cases that it is asked to review each year.”

Goldman, the attorney for Rojas, said the solicitor general's brief “is not a complete victory yet, but is going in the right direction” for his client.

Solicitor General brief

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Court Of Appeals Upholds Murray Rojas Felony Conviction On Drug Misbranding At Penn National

The United States Court of Appeals for the Third Circuit on Monday upheld the 2017 felony conviction of trainer Murray Rojas, who was found guilty in a jury trial on 14 counts of misbranding prescription drugs over a 13-year period from 2002-14 at Penn National racetrack in Grantville, Pa.

Rojas was subsequently sentenced to 27 months of imprisonment, two years of supervised released, a $5,000 fine and $1,400 special assessment.

She was found not guilty at the trial on charges of wire fraud.

Rojas was charged as part of an FBI investigation into corruption at Penn National that yielded guilty pleas from four veterinarians, a clocker, trainer and racing office employee. Rojas is the only person charged that went to trial.

Witnesses testified that Rojas instructed veterinarians to administer medication to her horses within 24 hours of a race in violation of Pennsylvania law or that she administered the drugs herself. Veterinarians admitted they misdated treatment sheets and billing records to cover up the violations.

Rojas was denied an opportunity during the trial to put forth an expert witness who would testify that the drugs Rojas was having administered were therapeutic and not performance enhancing, but Judge Rambo ruled that was irrelevant because state law bars all drugs within 24 hours with a limited exception.

After her conviction, Rojas filed a motion for acquittal with District Court Judge Sylvia Rambo, but that motion was denied. Her attorney, Robert E. Goldman, then filed an appeal on the following grounds:

That the District Court failed to instruct the jury properly on a distinction between “administering” drugs or “dispensing” them.
That the government's evidence to convict on misbranding charges was insufficient because it did not establish Rojas dispensed drugs rather than have them administered.
That the District Court erred in permitting a Stewards Ruling to be entered into evidence
That Rojas should have been permitted to provide evidence that the drugs were therapeutic rather than performance enhancing.
That the government did not present evidence that Rojas engaged in fraud or attempted to cover up her activities, which her attorneys said was required to convict on felony charges

The Court of Appeals judges who heard the case disagreed on all five counts. Because the full court did not participate, the ruling is considered non-precedential.

The case was heard by Circuit Judges Michael A. Chagares, Anthony J. Scirica and Jane R. Roth. The government was represented by William A. Behe from the United States Attorney's Office in Harrisburg, Pa.

Rojas has the right to file for a rehearing before the Court of Appeals. If that fails, she may petition to the United States Supreme Court.

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