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Feds Skewer Fishman’s Attempt to Avoid $13.5M Forfeiture

Federal prosecutors told a judge Friday that convicted veterinarian Seth Fishman's recent claim of illegality regarding the $13.5 million forfeiture imposed upon him “is predicated on a number of unfounded and easily disprovable presumptions.”

Fishman, who is currently imprisoned in Florida but appealing his 11-year sentence for two felony drug-supplying convictions in a decades-long international racehorse doping conspiracy, had stated in a Sept. 12 filing that the forfeiture order signed by the judge back on July 11 “is not authorized by statute and is therefore unlawful in its entirety.”

A response filing Sept. 30 by the legal team that successfully prosecuted Fishman stated that, “In arguing that the Food, Drug, and Cosmetic Act (FDCA) does not authorize forfeiture, the defendant elevates form over substance, ignores past precedent, and, in so doing, deliberately misreads the FDCA and several applicable forfeiture provisions to reach the defendant's desired outcome of avoiding forfeiture altogether.”

The filing by the feds also noted that at the time of his sentencing, “then-counsel for Seth Fishman contended that he wished to contest the amount of the forfeiture money judgment, not the basis for forfeiture itself.”

But shortly after his sentencing date, Fishman hired a new lawyer who now “wishes to revisit the availability of forfeiture entirely.” That new legal tactic has no merit, prosecutors contended.

“The defendant's strained reading of the law provides no support for his view that forfeiture is 'unlawful' in this case,” the government attorneys wrote.

Forfeiture “is lawful and mandatory; consequently the Court's forfeiture order entered at Fishman's sentencing should be left undisturbed,” the prosecutors wrote.

“The defendant argues in passing that the Government has not demonstrated that Fishman 'actually acquired' any forfeitable property,” the feds wrote. “The evidence that Fishman, the owner-operator of [the drug company] Equestology, controlled the adulterated and misbranded drugs subject to the forfeiture action is undisputable. So long as the defendant had control over the forfeitable property, which he did, he has acquired that property…”

Fishman had argued otherwise, writing in the Sept. 12 filing that “Misbranding is not a forfeiture crime. The misbranding statute under which the government seeks forfeiture against Dr. Fishman…only permits the government to confiscate the misbranded or adulterated products themselves and any equipment used to manufacture those products.”

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Navarro Wants Variance to Cut Five-Year Max Sentence By 30%

The barred trainer Jorge Navarro, who faces a five-year maximum prison term after pleading guilty in August to one count in a years-long Thoroughbred drugging conspiracy in exchange for having a similar second count against him dismissed, on Friday asked the federal judge who will sentence him Dec. 17 for a variance that could bring the most time he would spend behind bars down to about 3 1/2 years.

Navarro, through a sentencing submission report filed by his legal team Dec. 3 in United States District Court (Southern District of New York), is claiming that he executed a plea agreement July 29 with prosecutors that should reduce his adjusted offense level under federal sentencing guidelines by three levels based on his “complete and timely acceptance of responsibility.”

However, because of the way Navarro's pre-sentence investigation report (PSR) and the authorized statutory maximum guidelines have been calculated, Navarro “does not benefit from this adjustment.”

Navarro's lawyers put it this way: He pled guilty to one felony count of conspiring with others to administer non-Food and Drug Administration (FDA))-approved misbranded and adulterated drugs, including performance-enhancing drugs (PEDs) that Navarro believed would be untestable and undetectable by racing authorities.

The PSR pegged his total offense level to 35, with a criminal history of category I, which yields a guideline imprisonment range of 168 to 210 months.

However, the authorized statutory maximum sentence in his case is only 60 months, which is “less than the minimum of the applicable guideline range.” This means that regardless of what the felony offense level directs, it is trumped by the five-year maximum stated in the applicable law, the court filing states.

But here's where Navarro's defense team thinks the adjustment needs to be tweaked further: “Although the PSR correctly calculates the advisory guideline range as 60 months, it fails to provide a three-level reduction for acceptance of responsibility,” the request for a variance states.

“In actuality, Jorge Navarro was assured a sentence of no more than five years regardless of whether he affirmatively accepted responsibility in this case…. Navarro satisfied the criteria…and he timely notified the government of his intention to enter a plea, thereby permitting the government to avoid preparing for trial and allowing the Court and the government to allocate their resources more efficiently.

“Because this guideline range exceeds the statutory maximum,…this Court is asked to adopt the rationale [in a precedent] and apply the three-level adjustment for acceptance of responsibility beginning at level 25, (57 to 71 months),” the filing continues. “This application would afford Mr. Navarro the full three-level reduction as agreed to in the written plea agreement, producing a total offense level of 22, and yielding an advisory guideline range of 41 to 51 months…

“Furthermore, while on pretrial release for over 21 months, Jorge Navarro has abided by all the terms and conditions of his bond without issue,” the filing states. “Additionally, the stipulated forfeiture of $70,000 will be satisfied prior to sentencing.”

Additionally, Navarro on Aug. 11 agreed to pay $25,860,514 in restitution to a list of victims whose identities won't be divulged until the government's final prosecutorial paperwork is due next week. It is unclear if he will have the resources to ever start paying down that amount.

Navarro had admitted in court when he pled guilty that restitution is correctly based on ill-gotten gains from the purse winnings of his trainees. That massive dollar amount equates to nearly 75% of all the purse winnings Navarro's horses amassed during his 15-year training career.

Navarro, 46, already admitted in open court that between 2016 and his arrest on Mar. 9, 2020, “I administered, and, at times, directed [others] working under my direction to administer non-Food and Drug Administration (FDA) approved, misbranded, adulterated drugs to increase performance of racehorses under my custody and care…

“[Drugs] were administered to horses without a valid prescription,” Navarro said when he entered his plea four months ago. “The drugs [were] blood-building substances, vasodilators, and imported, misbranded bronchodilators, 'bleeder' pills, and SGF-1000,” which is purported to be a customized PED intended to promote tissue repair and increase a horse's endurance.

Navarro also was the second guilty-pleading conspirator to specifically implicate fellow defendant and ruled-off trainer Jason Servis, for whom Navarro said he procured an “imported, misbranded bronchodilator” intended be used as a PED to help horses run faster.

Also back in August, Navarro admitted to administering illicit substances to the stakes stars of his stable during the 2010s decade, specifically citing X Y Jet, War Story, Shancelot and Sharp Azteca as examples.

MGSW Sharp Azteca ran huge Beyer Speed Figures of 112 and 115 in 2017. In 2019, Shancelot unleashed a 121 Beyer in a 12 1/2-length romp in a Saratoga Race Course Grade II stakes–a speed figure that represented the highest Beyer by any 3-year-old sprinter in the three-decade published history of those numbers.

Among the wiretapped interceptions the feds said they could have used as evidence against Navarro had his case gone to trial, one conversation allegedly involved Navarro admitting to dosing elite-level sprinter X Y Jet “with 50 injections [and] through the mouth” before a win in the Mar. 30, 2019, G1 Golden Shaheen in Dubai.

Ten months later, in January 2020, X Y Jet died suddenly, allegedly from cardiac distress that has never been fully documented or explained.

In Friday's sentencing submission by the defense team, Joel Lugo, a surgeon at Ocala Equine Hospital, was among the list of friends and family members who vouched for Navarro's character by providing a letter of reference on the admitted doper's behalf.

“I consulted in many cases as well as treated many of his horses including the famous horses X Y Jet and Sharp Azteca,” Lugo wrote. “When we discussed the health of his horses, he always considered the health and well-being of his horses. Decisions and treatments were made as animal lovers and not for any financial considerations or personal ambitions.

Lugo wrote that he had been in “constant communication” with Navarro about X Y Jet, although he did not shed any light about the exact circumstances of the sprinter's sudden death.

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

Jockey Jose Ferrer also wrote to the judge on the ruled-off trainer's behalf, stating that he “admired his hard work ethic and love for both the sport and animals.”

Rene Douglas, a former jockey who formed an ownership partnership for the MGISW Private Zone, said he chose Navarro to train the horse based on the conditioner's “knowledge and care as a horseman and character as a person.”

Yet even the sentencing submission by Navarro's own legal team acknowledges that Navarro's horsemanship wasn't ideal.

“Jorge recognizes that his conduct in this case calls into question his care for his horses,” the court filing states.

The strain of maintaining a far-above-average winning percentage that hovered around 28% in tandem with his reputation as a conditioner who could get horses to improve dramatically was also indirectly cited in the court filing as a circumstance related to Navarro's pending imprisonment.

“Unfortunately, the pressure associated with professional horse racing and managing a 140-racehorse stable coupled with his insatiable desire to win tainted his judgment and led to his downfall, for which he takes full and complete responsibility,” the filing states. “Rather than stepping back and reevaluating, Jorge made life-altering choices that will haunt him forever.”

Navarro's lawyers noted in the filing that he is facing “an almost certain deportation” back to Panama, where he was born but currently has no family ties.

“In addition to a potential lengthy prison sentence, Jorge Navarro faces permanent separation from his family and an end to life as he has known it in the United States, despite the fact that he has been lawfully residing here for the last 35 years,” the filing states.

“Jorge's immigration status will also not allow him to benefit from an early release to a community corrections facility. He may even serve a longer incarceration term than ordered by the Court as a result of the collateral consequences of separate Department of Homeland Security deportation proceedings….

“Moreover, the conditions of confinement at the Immigration and Customs Enforcement deportation facility are known to be extremely poor in comparison to those at a Bureau of Prison's minimum security camp facility which Jorge would otherwise be designated to,” the filing states.

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Navarro to Change ‘Not Guilty’ Plea in Doping Scandal

Barred trainer Jorge Navarro, the most notorious and prominent defendant in the international racehorse doping scandal that rocked the racing industry when the feds arrested 28 alleged conspirators in March 2020, has just been granted an Aug. 11 change-of-plea hearing at which he is expected to alter his initial “not guilty” plea from last year.

This bombshell change in the case could mean a new pleading of “guilty” is in the pipeline for Navarro, perhaps as part of a sentencing bargain that has played out behind the scenes between federal prosecutors and defense attorneys.

Within the past week, two other alleged co-conspirators—a veterinarian and a drug distributor—have either already changed their pleas to guilty or are expected to do so at an upcoming hearing.

The news about Navarro's change-of-plea hearing arrived in the form of a July 30 court order signed by Judge Mary Kay Vyskocil that landed on the electronic docket for United States District Court (Southern District of New York) around 5 p.m. Friday afternoon.

Five separate counts are included within the government's series of indictments that allegedly involve a vast network of co-conspirators who purportedly manufactured, mislabeled, rebranded, distributed, and administered performance-enhancing drugs (PEDs) to Thoroughbred and Standardbred racehorses all across America and in international races. Navarro is named in two of the counts.

Count One is being referred to in court documents as the “Navarro Conspiracy,” which alleges

a years-long doping program organized and executed by Navarro on horses that he trained and controlled.

Count Three alleges a similar conspiracy organized by now-barred trainer Jason Servis, who is accused of doping nearly all of the racehorses under his control in a similar time frame during the 2010s decade, including the disqualified 2019 GI Kentucky Derby winner Maximum Security.

That third count, the “Servis Conspiracy,” further implicates Navarro, Michael Kegley Jr., Kristian Rhein, and Alexander Chan.

Rhein and Chan are veterinarians who practiced at racetracks during the time of their alleged conspiracy. Kegley was an independent contractor for a company, MediVet Equine.

Kegley just changed his plea to guilty July 23. In doing so, he told the judge that he “sold a variety of products,” including the PED known as SGF-1000. “I sold these products to veterinarians, horse trainers,” Kegley said at last week's hearing. “When I did that I knew there was no medical prescription for those products. Also at the time, I knew that the product was not manufactured in an FDA approved facility, nor was it approved for sale by the FDA.”

On July 28—five days after Kegley's blunt admission in open court—Rhein asked for and was granted a change-of-plea hearing, which is coming up Aug. 3. The feds allegedly have him taped in a wiretapped conversation stating that he sold “assloads” of SGF-1000 to trainers, presumably then-clients at his Belmont Park base.

In other intercepted phone calls and texts between Navarro and Servis that are to be used as evidence, the two trainers allegedly coordinated the procurement and administration of SGF-1000 and purportedly warned each other about the presence of racetrack regulators and law enforcement officials at Gulfstream Park, where the two were stabled during winter meets.

According to the indictment, on Feb. 18, 2019, “Servis warned Navarro, via text message, of the presence of a racing official in the barn area where Servis and Navarro stored and administered PEDs to their respective racehorses.”

Later that same day, Navarro allegedly recounted the brush with the regulator to Michael Tannuzzo, another defendant: “He would have caught our asses [expletive] pumping and pumping and fuming every [expletive] horse [that ran] today,” Navarro allegedly said.

On March 5, 2019, another intercepted phone call between Servis and Navarro allegedly revealed their attempts to procure and administer SGF-1000.

“I've been using it on everything, almost,” Servis allegedly said in the wiretapped conversation..

Navarro allegedly replied that he's “got more than 12 horses on” that drug, but he ends the call by adding, “Jay, we'll sit down and talk about this shit. I don't want to talk about this shit on the phone, OK?”

Another alleged criminal incident involved Navarro dosing elite-level sprinter X Y Jet “with 50 injections [and] through the mouth” before a big win in the Mar. 30, 2019, GI Golden Shaheen in Dubai.

Ten months later, in January 2020, X Y Jet died suddenly, allegedly from cardiac distress that has never been fully documented or explained.

Two months after that, on Mar. 9, 2020, the feds swooped in and made multi-state arrests of the 28 alleged conspirators.

One defendant, the veterinarian Scott Robinson, has already pled guilty to conspiring to unlawfully distribute adulterated and misbranded drugs for the purpose of doping racehorses. In March 2021 he was sentenced to 18 months in prison, and also had to forfeit $3.8 million he gained from illicit actions.

Sarah Izhaki, whose role in the alleged conspiracy involved selling misbranded versions of Epogen, pled guilty to the same charge as Robinson and in June 2021 was sentenced to time served plus three years of supervised release.

Vyskocil could have sentenced Izhaki to a prison term of 12 to 18 months, but opted for the more lenient punishment due to extenuating circumstances that included Izhaki's poor health.

At Izhaki's sentencing, Vyskocil warned other defendants that the light sentencing in Izhaki's case was a “one-off” that should not be construed as a benchmark for other defendants.

“I want to say on the record, if you are [thinking] that, you are making a mistake,” Vyskocil warned.

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