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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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Feds, Fishman Spar in Bail Revocation Hearing

Federal prosecutors and the legal team for Seth Fishman continue to spar over allegations by the government that the indicted Florida veterinarian should have his bail revoked for allegedly still selling purportedly performance-enhancing drugs (PEDs) while awaiting trial in the international racehorse doping conspiracy case.

The latest legal salvo, fired Dec. 17 by prosecutors in the form of a letter, comes three days before Fishman's Dec. 20 bail revocation hearing in United States District Court (Southern District of New York).

This latest plot twist in the case began Dec. 6, when prosecutors told the judge that Fishman's administrative assistant permitted Federal Bureau of Investigation agents to search her workplace, and the search allegedly yielded evidence that Fishman is still selling drugs.

One week later, Fishman replied with a court filing of his own that stated that employee “had little choice but to succumb to the demand by agents that they be permitted to search the premises” because at the time her consent to the search was obtained “she was at risk of prosecution for the very offenses with which Dr. Fishman was charged.”

Friday's new filing made three points:

“First, Fishman attempts to justify his continued manufacture of drugs by claiming a 'good faith' effort to meet the requirements of the 'export exemption' set forth in 21 U.S.C. § 381(e),” the Dec. 17 filing stated.

“Second, the defendant suggests that the Government has implicitly condoned his ongoing criminal activity insofar as Fishman and/or his former counsel have claimed that Fishman holds an intention to continue his drug sales in conformity with the foreign sales exemption of 21 U.S.C. § 381(e),” the filing stated.

“Finally, the Government notes that Fishman points to no authority for the proposition that a proffering witness cannot provide voluntary consent to a search,” the filing stated.

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

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Fishman: Lab Employee Had ‘Little Choice But to Succumb’ to FBI Search

The legal team for Seth Fishman responded to allegations by federal prosecutors that the indicted Florida veterinarian is still selling purportedly performance-enhancing drugs (PEDs) while awaiting trial in the international racehorse doping conspiracy case by telling the court Monday that the government “cannot meet its burden in demonstrating that the defendant's bail should be revoked.”

In a Dec. 13 filing in United States District Court (Southern District of New York), Fishman's attorney, Maurice Sercarz, wrote that the administrative assistant who permitted Federal Bureau of Investigation (FBI) agents to search Fishman's place of business where drug evidence was seized Dec. 1 “had little choice but to succumb to the demand by agents that they be permitted to search the premises.”

That's because, “At the time that her consent to the search was sought and obtained, she had participated in [two previous interviews] in which she revealed her involvement, over a seven-year period, in the manufacture and distribution” of Fishman's products.

“In other words,” the filing continued, “at the time her consent to the search was obtained 1) she was at risk of prosecution for the very offenses with which Dr. Fishman was charged; and, (2) subject to a proffer agreement that allowed ample opportunity to use her statements against her both at trial and at sentencing.”

Fishman is charged with two felony counts related to drug alteration, misbranding, and conspiring to defraud the government. The employee, unnamed in court documents, is not known to be facing any charges. Fishman's trial is tentatively expected to start in mid-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 “Employee-1 informed the Government, in substance and in part, that Fishman's business was creating 'energy drinks' for foreign distribution and that Employee-1 remained tasked, by Fishman, with continuing to create a 'bleeder' paste [that] Employee-1 also described as being for foreign distribution,” the Dec. 6 filing stated.

“The drugs found in Fishman's offices continue to be manufactured through the same unregistered, unlicensed business that forms the basis of the charged offense,

and include the drug 'HP Bleeder' previously obtained from multiple searches of premises controlled by Jorge Navarro, Lisa Giannelli, Christopher Oakes, as well as [other defendants],” the Dec. 6 filing stated.

The Dec. 13 reply by the defense alleged that the move by the feds to get Fishman's bail revoked was a ploy to undermine his legal preparation.

“[T]he Government now seeks to have the defendant detained four weeks before his trial is scheduled to begin, when his ongoing contact with defense counsel will be most necessary in order to prepare his defense for trial,” Monday's filing stated.

The defense filing also pointed out that, “Dr. Fishman has never made a secret of his intention, following his arrest, to continue exporting his products while redoubling his efforts to comport with the requirements of the export exemption to the adulteration and misbranding statutes. He expressly advised the Government of this fact as part of his application for a deferred prosecution agreement.”

The Dec. 13 filing also stated that the government's motion “glosses over” the “voluntariness” of Fishman's employee's consent to the Dec. 1 search of the workplace.

“The agents noted that upon arriving at the premises, the Administrative Assistant had to unlock the door to let the agents into the premises,” Fishman's filing stated. “The fact that the door was locked indicates that the premises did not function as an office, open to the public; but rather, as a location devoted to the manufacture and shipment of Dr. Fishman's products.

“The [FBI] report reflects that upon entering the premises, the agents and Administrative Assistant held a conference call with [federal prosecutor] Sarah Mortazavi and [the employee's] attorney to discuss the parameters of the search. No comparable effort was made to contact counsel for the defendant,” the filing stated.

A Dec. 20 hearing on the bail revocation request is the next step in the process.

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Feds: Fishman Still Selling PEDs Even as Trial Date Looms

An employee of Florida veterinarian Seth Fishman last week permitted Federal Bureau of Investigation (FBI) agents to search her workplace, and the inside tip has allegedly yielded evidence that Fishman is still selling purportedly performance-enhancing drugs (PEDs) while awaiting an expected January start to his trail in the international racehorse doping conspiracy case.

“Remarkably, despite having been arrested in October 2019 and indicted in 2020 in connection with his sale of misbranded and adulterated drugs designed to be 'untestable' by various antidoping authorities, Fishman apparently persists in touting the efficacy of his drugs in evading antidoping testing regimes, labeling his new batches of HP Bleeder so as to indicate to his clientele that they contain no known 'testable' ingredients,'” stated a Dec. 6 court filing by the prosecution that asked a judge to consider revoking the bail terms of Fishman's pretrial release.

Fishman is charged with two felony counts related to drug alteration, misbranding, and conspiring to defraud the government. His case is being heard in United States District Court (Southern District of New York).

According to the filing, in the course of proffering an unnamed potential trial witness who has been a “long-time employee of Fishman's illegal drug distribution business” (variously operating under the names Equestology, Camelology, Equi-Tech and other monikers), the government was informed on Nov. 9 by “Employee-1” that Fishman's business “continued to operate in a purportedly limited” capacity.

“More specifically, Employee-1 informed the Government, in substance and in part, that Fishman's business was creating 'energy drinks' for foreign distribution and that Employee-1 remained tasked, by Fishman, with continuing to create a 'bleeder' paste (itself a drug containing active pharmaceutical ingredients), which Employee-1 also described as being for foreign distribution,” the filing stated.

“As charged in the Indictment, Fishman's drug operation is not registered or licensed with the Food and Drug Administration (FDA) to create, manufacture, and distribute drugs, including the 'bleeder' paste reportedly in continued production,” the filing stated.

After initially providing this information, Employee-1 and her attorney consented for FBI agents to accompany her to where she works for Fishman on Dec. 3.

“At that time, the FBI agents (accompanied throughout by Employee-1) discovered that Fishman is continuing to produce and distribute not only the paste identified by Employee-1 and the purported 'energy drinks,' but additional injectable, misbranded and adulterated PEDs, including the injectable drugs 'HP Bleeder' and 'PSDS: Pain Shot DS.'

“Labeling on certain of the vials discovered during this consent search reflect that Fishman continues to create and distribute these drugs today, including 'date of manufacture' markings reflecting activity even into 2021,” the filing stated.

The filing stated that “shipping material for 'E.G.H.' appears to be recently created packaging for equine growth hormone, a substance that, like HP Bleeder and various pain shots, were also sold by Fishman during and as part of the charged conspiracies.”

In asking the judge to consider revoking Fishman's bail, the filing stated that, “In addition to constituting evidence of the charged offenses and reflecting continued violation of federal law, the recent search reflects Fishman's failure to comply with the most basic term of his pretrial release, namely that he not 'violate federal, state, or local law while on release.'

“The drugs found in Fishman's offices continue to be manufactured through the same unregistered, unlicensed business that forms the basis of the charged offense, and include the drug 'HP Bleeder' previously obtained from multiple searches of premises controlled by Jorge Navarro, Lisa Giannelli, Christopher Oakes, as well as [other defendants],” the filing stated.

“As such, there is ample basis for a finding of probable cause that Fishman has flagrantly violated the terms of his pretrial release by committing an ongoing federal crime,” the filing stated.

The judge in the case immediately ordered a Dec. 20 hearing on the bail revocation request.

Fishman's attorney, Maurice Sercarz, told TDN in an email that “We will vigorously oppose any effort by the Government to modify Dr. Fishman's bail on the theory that he has engaged in continuing criminal conduct.”

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