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Doping Trial Pauses for Weekend, But Court Filings Don’t

Although the federal racehorse doping conspiracy trial for veterinarian Seth Fishman and his assistant, Lisa Giannelli, paused for the weekend, attorneys for both sides remained busy on Saturday and Sunday, filing requests with the court over the admissibility of evidence regarding an equine fatality and the way witnesses must testify while wearing masks as a pandemic precaution.

On Sunday morning, the prosecution filed a motion in United States District Court (Southern District of New York) that asked for permission to present evidence related to Fishman being investigated in Delaware more than a decade ago when a Standardbred died after being injected with one of his prescribed products.

“The Government moves for the admission of evidence regarding Fishman and Giannelli's knowledge of the death of the horse 'Louisville' in light of the defendants' opening statements and lines of cross-examination,“ prosecutors wrote in the Jan. 23 motion.

“The Government is entitled to fairly rebut the joint defense theory that the defendants lacked criminal intent because they sought only to help animals. Given that defense counsel has placed the safety and welfare of animals squarely at issue with respect to the defendants' intent to defraud or mislead in distributing these drugs, the Rule 403 balancing has shifted significantly,“ the filing continued.

Rule 403 pertains to a judge's discretion to exclude certain evidence if it is outweighed by the potential danger of unfair prejudice to defendants or could cause confusion among jury members.

In this case, prosecutors had previously been told that the evidence related to Louisville would not be permitted. But now the feds are saying that based upon the defense's strategy presented in the first few days of the trial, the evidence related to that equine death and its investigation by the state is newly relevant and should be allowed.

“The defendants each have advanced the theory that Seth Fishman was acting only in the best interest of the animal, and that Lisa Giannelli acted in reliance upon Seth Fishman's so-called veterinary expertise,“ the motion stated.

“A defendant suffers unfair prejudice only where evidence 'lure[s] the factfinder into declaring guilt on a ground different from proof specific to the offense charged,'” the motion argued. “But defense counsel cannot have it both ways: they cannot raise the defense that the defendants were concerned with the welfare of horses (or had no reason to believe they risked the safety of horses), then exclude highly probative evidence to the contrary…

“Countervailing evidence that Seth Fishman and Lisa Giannelli were aware of the risks of Pentosan, in particular, and IV drugs, generally, yet still distributed those drugs directly to racehorse trainers without prescriptions from or the oversight by a veterinarian is now highly relevant to the defendants' state of mind—the central point of contention as a result of defense counsel's arguments and questioning,“ the filing stated.

“By giving trainers and other non-medical personnel access to prescription and custom injectable drugs, Fishman and Giannelli provided the means by which trainers could do serious injury to their horses, and both defendants were aware of that fact at least as a result of the complaint lodged against them…

“There is no question that Giannelli and Fishman were aware of these risks as of at least 2010 when the complaint was filed with the Delaware Division of Professional Responsibility. That they continued to distribute Pentosan, and other IV medications to trainers, grooms, and others, has significant relevance in light of the arguments now raised to the jury,“ the filing stated.

Fishman is charged with two felony counts related to drug alteration, misbranding, and conspiring to defraud the government. Giannelli, who worked under Fishman (her exact role is disputed) faces similar charges.

In a separate letter to the judge filed by Fishman's attorney on Saturday, the defense took umbrage with a courthouse COVID-19 safety protocol requiring witnesses to testify while wearing masks despite already being sequestered in a HEPA-filtered plexiglass box.

“In our respectful view, adding a mask requirement to the current precautions hampers adequate assessment of witness demeanor and credibility, impermissibly impairing defendants' Fifth and Sixth Amendment rights to confrontation, due process and fair trial,“ Fishman's lawyer wrote.

“Granted, balancing those essential guarantees against public health considerations is no easy task. But even amid an ongoing pandemic, an additional witness mask requirement seems unwarranted overkill, a belt-and-suspenders approach,“ the Jan. 22 letter stated.

“Conversely, the prevailing lesser restrictions–including ample distancing and continuously masking all trial participants and spectators save a single testifying witness and speaking lawyer, each sequestered in their own HEPA-filtered plexiglass box–appear more than sufficient,“ the defense stated.

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Horse-Doping Trial: Former Fishman Employee Cites Non-Testable Products

A New York jury heard a full day of testimony Jan. 21 in the federal horse doping trial of Dr. Seth Fishman and Lisa Giannelli.

The entire morning and most of the afternoon featured a second day of testimony from a woman who worked for Fishman at his Florida business Equestology for five years.

Courtney Adams, 34, testifying from Florida via video conference, told jurors that Fishman and Equestology were all about “testability.” That meant creating “product” that couldn't be detected in post-race testing by horse racing authorities, she said.

During her testimony in U.S. District Court in Manhattan, prosecutors showed an email in which a veterinarian who was a client of Equestology asked about one of the products, equine growth hormone, and whether it was testable.

“That was our biggest selling point, that he specialized in making product that wasn't testable,” Adams testified, referring to Fishman.

The witness, who had been an Equestology office manager and then a sales rep, said that Fishman told her there was a risk of regulators coming up with a test to detect the substance. If that happened, Fishman said he would have to create another product that would be undetectable, she said.

“That was the whole point of that product to be not testable,” Adams testified.

Fishman and Giannelli face conspiracy charges in a wide-ranging scheme to dope horses with performance-enhancing drugs to boost the treated horses' chances of winning races. Those charged include prominent trainer Jason Servis, who has maintained a not guilty plea and is awaiting trial. Others, such as trainer Jorge Navarro, have pled guilty and been sentenced.

Prosecutors say the accused were motivated by greed to win races and acted without regard to the welfare and safety of horses.

While on the stand, Adams admitted helping to mislabel products that Fishman created for clients around the country and in the United Arab Emirates. She said she also shipped vials of product without any labels.

Under questioning by prosecutor Andrew Adams, the witness said that she knew “in general terms” that some of those who purchased Fishman's drugs were horse trainers.

“He would discuss why they wanted them and why they were being used by them,” she testified.

“And did he say why they were being used by trainers?” the prosecutor asked.

“He said they were being used because they were untestable,” Adams replied.

The jury also heard the witness cite the names of some of the drugs Equestology sold.

Those products included Endurance, Bleeder, Hormone Therapy Pack, HP Bleeder Plus, and PSDS.

Adams testified that PSDS stood for Pain Shot Double Strength, describing it as a “double strength product for pain.”

She indicated she didn't know what the other substances were for.

Adams said she stopped working for Equestology in 2017.

“I was over it to be honest,” Adams testified. “I didn't want to do it anymore.”

As she left, Fishman asked her not to discuss their business with anyone, Adams noted.

“I said okay,” she said.

She said in 2018 investigators with the Food and Drug Administration approached her to ask about Fishman. She said she wasn't comfortable talking to them without a lawyer.

After Fishman, Giannelli, Servis, and about two dozen others connected to horse racing were indicted in March 2020 in the doping case, Adams said a friend sent her a link with a story about the arrests.

She said after reading it she contacted law enforcement.

“I read the story, and I realized they didn't have the whole story, and I felt obliged to give it to them,” Adams told the jury.

She said as a result of the information she provided, government lawyers offered her a non-prosecution agreement.

During cross-examination, Fishman's attorney Maurice Sercarz sought to suggest that Adams was motivated to contact law enforcement out of personal animosity against Fishman.

She admitted that before she left Equestology, Fishman had accused her of theft and using Equestology funds to purchase personal items.

She told Sercarz she was upset about those accusations “because they were false.”

During his cross-examination, Giannelli's attorney, Louis Fasulo, questioned Adams about whether she would work at a place that put horses in danger.

No was her response.

Adams also said she didn't think she was breaking the law when labeling products she said were mislabeled.

Toward the end of the day, Long Island retired Federal Bureau of Investigation agent Angela Jett took the stand to read from notes of an interview she conducted with Fishman in 2010.

Jett said she had interviewed Fishman as a potential government witness in a $190 million securities fraud case. That case involved a magnate named David Brooks and a body-armor company he owned on Long Island. Fishman worked for Brooks, an owner of Standardbred racehorses that competed in New York and elsewhere.

According to the notes, Fishman told Jett that he had supplied performance-enhancing drugs to Brooks, who administered them to horses before racing.

Brooks was found guilty in 2010 of charges connected to the fraud and died in prison while serving a 17-year prison sentence.

Under cross-examination by Sercarz, Jett acknowledged that her notes don't say whether Fishman learned of the doping at the time it occurred or “after the fact.”

He also pointed out that Jett's notes show that when Brooks asked Fishman to dope a horse, Fishman refused.

Fishman's admissions to Jett never led to charges.

The trial resumes Jan. 24.

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

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Prosecutor: Fishman Trial Will Include Testimony of Trainers

A New York federal jury heard opening statements Jan. 20 as the horse doping conspiracy trial of Dr. Seth Fishman and Lisa Giannelli got underway.

Prosecutor Anden Chow began by telling jurors that the defendants had operated a black market drug conspiracy for two decades.

He said Fishman and Giannelli created hundreds of drugs that were used to secretly dope race horses.

The drugs they produced were undetectable in post-racing testing, Chow said, so that trainers who were their customers could increase their chances of winning races by committing fraud.

“For two decades they did their best to avoid getting caught,” the prosecutor said. “They were successful until today.”

Fishman and Giannelli went on trial on charges of conspiring to misbrand and adulterate drugs, including performance-enhancing drugs used to dope horses at tracks across the country.

The opening statements came after a jury of eight women and four men was seated in U.S. District Court in Manhattan.

Fishman and Giannelli were among more than two dozen trainers, veterinarians, and others busted in 2020 in what prosecutors say is the most far-reaching prosecution of racehorse doping in U.S. Justice Department history. Among those charged was prominent trainer Jason Servis whose Maximum Security finished first in the 2019 GI Kentucky Derby Presented by Woodford Reserve but was disqualified for interference. Servis has maintained a not-guilty plea and is awaiting trial.

Fishman and Giannelli listened attentively as Chow and their attorneys addressed the jury. Each is free on $100,000 bail.

Chow was the first to address the jury.

He said that the world of horse racing was a highly lucrative business, making it tempting for some to dope horses to get an edge. He said to guard against this, regulators established rules on what substances can be administered to horses and when.

“Fishman and Giannelli sold drugs to get around these rules,” Chow said.

The prosecutor said Fishman and Giannelli, who was his associate, had “hundreds of clients” and were “paid millions of dollars.”

One of the drugs Fishman manufactured boosted red blood cells in horses to increase endurance, Chow said.

He said Fishman described this drug as “the Holy Grail” of drugs.

The prosecutor said Fishman was also obsessed with manufacturing drugs that would be undetectable in post-race testing.

Chow added one of Fishman's clients was trainer Jorge Navarro. He described Navarro as one of the sport's most successful trainers who ran a doping program that relied on Fishman and others.

Navarro has pleaded guilty for his role in the case and has been sentenced to five years in prison.

Chow told jurors that the government's case would include the testimony of trainers who bought Fishman's drugs, text messages, items seized as part of search warrants, and “the words of the defendants on wiretaps.”

During his opening statement, Fishman's attorney Maurice Sercarz said that when Fishman became a veterinarian, he swore an oath promising to always work for the benefit and health of horses.

“This is the calling he answered,” Sercarz said.

He added, “It will be for the government to prove that his intent and purpose was something other than limiting animal suffering.”

The defense attorney told jurors there is great beauty in racing, but there is an ugly side with too many owners and trainers willing to cheat.

Sercarz said it wasn't his client's intention to defraud or mislead anyone.

“The individuals who purchased substances and products from Dr. Fishman knew what they were getting,” he said.

Giannelli attorney Louis Fasulo said his client didn't do anything wrong. She believed the products Fishman manufactured were okay to deliver to others, he said.

He said Giannelli was a high school graduate dedicated to the well-being of horses.

“She went to work and fulfilled her responsibility,” Fasulo said.

After the opening statements, prosecutors called their first witness, Courtney Adams, for limited testimony before the trial wrapped up Thursday. She worked for Fishman's business Equestology in South Florida from 2012 to 2016.

She said that during that time she saw Fishman treat animals “maybe once or twice.”

Prosecutors contend that Fishman's business was more about selling drugs than taking care of horses.

Her testimony resumes Jan. 21.

The leading horse racing industry publications are covering the Fishman-Giannelli trial via pool reporting.

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‘Holy Grail’ Of Drugs: Horse Doping Trial Of Veterinarian Fishman, Associate Begins

A New York federal jury heard opening statements Jan. 20 as the horse doping conspiracy trial of Dr. Seth Fishman and Lisa Giannelli got under way.

Prosecutor Anden Chow began by telling jurors that the defendants had operated a black market drug conspiracy for two decades.

He said Fishman and Giannelli created hundreds of drugs that were used to secretly dope race horses.

The drugs they produced were undetectable in post-racing testing, Chow said, so that trainers who were their customers could increase their chances of winning races by committing fraud.

“For two decades they did their best to avoid getting caught,” the prosecutor said. “They were successful until today.”

Fishman and Giannelli went on trial on charges of conspiring to misbrand and adulterate drugs, including performance-enhancing drugs used to dope horses at tracks across the country.

The opening statements came after a jury of eight women and four men was seated in U.S. District Court in Manhattan.

Fishman and Giannelli were among more than two dozen trainers, veterinarians, and others busted in 2020 in what prosecutors say is the most far-reaching prosecution of racehorse doping in U.S. Justice Department history. Among those charged was prominent trainer Jason Servis, whose Maximum Security finished first in the 2019 Kentucky Derby (G1) but was disqualified for interference. Servis has maintained a not guilty plea and is awaiting trial.

Fishman and Giannelli listened attentively as Chow and their attorneys addressed the jury. Each is free on $100,000 bail.

Chow was the first to address the jury.

He said that the world of horse racing was a highly lucrative business, making it tempting for some to dope horses to get an edge. He said to guard against this regulators established rules on what substances can be administered to horses and when.