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Navarro, Others, Ask Federal Judge to Recuse Herself

Lawyers for banned trainer Jorge Navarro and six other defendants in the alleged nationwide racehorse doping conspiracy informed United States District Judge Mary Kay Vyskocil late on Thursday that a “Motion to Recuse” filing is imminent that will ask her to step away from handling their cases.

A motion to recuse is a formal request for a judge to remove him/herself based on prejudice or conflict.

Either side in a case can make this motion, but the moving party bears the burden of proving that there are reasonable grounds that the judge would not act fairly and/or objectively, and any alleged prejudices must be outlined in an affidavit.

A judge facing a recusal motion can ask another judge to rule on it, and a recusal would mean an alternate judge gets assigned. Motions to recuse that are deemed to be delaying tactics are expressly forbidden, but not unheard of.

The request from Navarro, which was joined by defendants Seth Fishman, Jordan Fishman, Erica Garcia, Christopher Oakes, Michael Tannuzzo and Lisa Giannelli, was filed eight days before the first status hearing in the case since November is scheduled to be held. That May 14 hearing is expected to include the judge's long-awaited timeline for the trial.

In the form of a letter filed May 6 in U.S. District Court (Southern District of New York), Navarro and the other defendants stated, “We write to advise your Honor that, following a joint conference amongst counsel for the Defendants, Defendants are contemplating a Motion to Recuse your Honor. The issue was raised with the government [May 6] on a telephone conference.”

In light of the expected motion to recuse, the defendants are also asking that the judge “hold in abeyance any rulings” that might be forthcoming with regard to the defendants' previously filed motion to dismiss the case entirely.

The federal case against the alleged network of racehorse dopers is the result of a March 2020 spate of arrests in relation to a purported years-long conspiracy to manufacture, mislabel, rebrand, distribute and administer performance-enhancing drugs (PEDs) to Thoroughbreds and Standardbreds across America and in international races.

There are seven other defendants whose cases are also being adjudicated by Vyskocil; others under the auspices of different judges.

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Prince Bandar Addresses Maximum Security 2020 Purse Issue

Interviewed on the world feed coverage of the Saudi Cup, Prince Bandar Bin Khalid Al Faisal, chairman of the Jockey Club of Saudi Arabia, said that he expected there to be “movement” on the U.S. case against Jason Servis which had been holding up the payment of last year's Saudi Cup purse.

Servis was the trainer of 2020's inaugural winner of the Saudi Cup, Maximum Security (New Year's Day), who has never been awarded prize money for the victory. Two weeks after the race, Servis was one of 27 people named in a criminal indictment for “widespread, corrupt scheme by racehorse trainers, veterinarians, PED distributors and others to manufacture, distribute, and receive adulterated and misbranded PEDs and to secretly administer those PEDs to racehorses under scheme participants' control,” by the U.S. Attorney's Office for the Southern District of New York.

While the rest of the field was paid their share of the purse, including runner-up Midnight Bisou (Midnight Lute), Maximum Security's $10-million winning payout has been withheld.

Nick Luck, the host of the program, asked Prince Bandar about the issue.

“It was a wonderful night last year,” said Luck. “We all left here with a real spring in our step. It was a terrific horse race between Maximum Security and Midnight Bisou, but racefans around the world are familiar with what has happened since, because Maximum Security's then-trainer was indicted on very serious illegal medication charges, just a couple of weeks later. What is your position at the moment, because you have withheld the purse money from Maximum Security's owners up to this point?”

“That is true,” said Prince Bandar, “and we are sort of in a hold position now waiting for the U.S. authorities to move forward with that case. We understand in the coming six weeks there will be some kind of movement on it which will allow us to move forward and bring this to a close. I feel we don't have long to wait for it, but as you said, it's an unfortunate situation. I had a soft spot for that horse. I thought he got a raw deal in the Kentucky Derby. It was fair, but he was the best horse on the day. Here, he was the best horse on the day and he was a victim of circumstances that have nothing to do with the horse himself, but we have to abide by the international rules and regulations and somebody will get the prize money. We have paid out all of the other positions, and I feel that within six weeks, hopefully, we'll put this issue to a close.”

Jim Gagliano, the president and chief operating officer of The (American) Jockey Club, said that he had not been informed on any movement on the case. “These are government proceedings and they don't provide updates,” said Gagliano.

The most recent news on the case came on February 5, when Jorge Navarro and Seth Fishman, DVM, the trainer and veterinarian indicted on the same charges, both filed motions to dismiss the drug alteration and misbranding conspiracy charges levied against them in United States District Court (Southern District of New York).”

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Navarro Among Handful Of Federal Defendants Filing Motions To Dismiss Drug Charges

Jorge Navarro, Dr. Seth Fishman, Jordan Fishman, Lisa Gianelli, Dr. Erica Garcia, Rick Dane Jr., Christopher Oakes, and Michael Tannuzzo have all entered documents in U.S. District Court asking a judge to dismiss charges against them related to drug adulteration and misbranding conspiracy.

Defendants Seth Fishman and Gianelli filed a motion to dismiss various counts of the superseding indictment last week, which was followed by letters of intent from attorneys for Navarro, Garcia, Jordan Fishman and Dane stating their intent to join in. The motion from Fishman and Giannelli's attorneys site a few different bases for the motion, particularly that the counts as written don't allege illegal actions under the Food Drug and Cosmetic Act, which is the basis for the criminal charges.

According to texts and phone calls intercepted by the FBI, Navarro requested misbranded or adulterated drugs from Fishman for administration to horses in his care, including X Y Jet, who died suddenly of an apparent heart attack in January 2020.

Their motion also casts doubt on who was supposedly deceived by their alleged activities involving misbranded drugs. The indictment stated that the drugs were designed to evade detection by state racing officials or tracks, but the defendants claim that misleading state officials and racetracks isn't a federal crime under the Act.

Oakes' motion includes similar language, while Tannuzzo's states that the first count of the superseding indictment “fail[s] to state an offense as applied to him.”

The government has not yet responded to those motions and letters of intent, filed Feb. 5.

The federal case includes five total counts — four charges of drug adulteration and misbranding conspiracy and one count of mail and wire fraud — with different groups of defendants attached to each, dependent upon their alleged actions and relationship with each other. Charges were originally filed in March 2020 accusing more than two dozen people in the Thoroughbred and Standardbred industries of doping racehorses with adulterated or misbranded drugs or supplying such materials to horsemen. A superseding indictment was filed in November 2020 and left off a number of the original defendants from the March indictment, including Gregory Skelton, Ross Cohen, Nick Surick, Chris Marino and Henry Argueta, though it's unclear whether that means those defendants have taken deals with prosecutors. Their case files remain open with no plea change as of this writing.

According to a status conference last summer, discovery in this case is not expected to be completed before late fall, as attorneys for the Southern District of New York have provided voluminous evidence collected by a lengthy FBI investigation to defense counsel. That status conference set dates by which various motions and subsequent responses would be due by both sides in the case, and those deadlines stretch on through the spring.

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Navarro, Alleged Doping Co-Conspirators File Motions to Dismiss

Jorge Navarro and Seth Fishman, DVM, the federally indicted trainer and veterinarian whose alleged litanies of racehorse doping date to at least 2002, both filed Feb. 5 motions to dismiss the drug alteration and misbranding conspiracy charges levied against them in United States District Court (Southern District of New York).

According to federal prosecutors, one of their alleged conspiracies involved Navarro allegedly dosing elite-level sprinter X Y Jet “with 50 injections [and] through the mouth” of a performance-enhancing drug (PED) allegedly manufactured and distributed by Fishman before a big win in the 2019 G1 Golden Shaheen in Dubai.

According to wiretaps, Navarro allegedly texted immediate thanks to Fishman for his role in the victory, then four days later allegedly requested “1,000 pills ASAP,” purportedly for use on other horses in his 29% three-year-average win-rate stable.

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

And two months after that, in March 2020, the feds swooped in.

In a multi-state simultaneous sting, they arrested Navarro, Fishman, and 27 others in an alleged “widespread, corrupt scheme” that centers on Navarro, the 2019 GI Kentucky Derby-disqualified trainer Jason Servis, and a vast network of co-conspirators who allegedly manufactured, mislabeled, rebranded, distributed and administered PEDs to racehorses all across America and in international races.

On Nov. 6, a superseding indictment replaced the version from March, adding wire fraud charges against Servis and two veterinarians involved in the scheme to allegedly drug race horses. Five individuals named in the original indictment were not included in the superseding indictment, raising speculation that the five were cooperating with law enforcement authorities and could testify against the remaining defendants.

A motion to dismiss Counts 1 and 2 of the superseding indictment (both of which deal with drug alteration and misbranding conspiracies) got filed Feb. 5 on behalf of Fishman and Lisa Giannelli. Her role allegedly involved using Fishman's veterinary license to distribute prescription drugs without a valid prescription.

Soon after the Friday filing, Navarro's attorney tacked on a letter announcing his client was legally joining the motion to dismiss.

It is possible other defendants will also legally join that original motion. As of Friday night's deadline for this story, no related filings were apparent on the federal court database–but there were inaccessible files marked “sealed document placed in vault.”

Fishman is charged in both Counts 1 and 2. Navarro is charged in Count 1, and is charged in Count 3, another alleged drug conspiracy. Giannelli is charged in Count 2.

According to the Feb. 5 memorandum of law in support of the motion to dismiss filed jointly by Fishman and Giannelli's attorneys, there are three independent grounds for the motion:

“First, Counts 1 and 2 fail to allege that Dr. Fishman, Ms. Giannelli, and their alleged co-conspirators committed acts or conduct that are within the scope of the applicable federal criminal statute, Section 333(a)(2) of the Food Drug and Cosmetic Act (FDCA).

“As discussed…an agreement aimed at the distribution of misbranded and/or adulterated products with the intent to mislead or defraud state racehorse commissions and racetracks is not a federal crime within the scope of the felony provisions of the FDCA.

“Second, application of the rule of lenity bars prosecution of Dr. Fishman and Ms. Giannelli for the conduct alleged in Counts 1 and 2.

“Third, Section 333(a)(2) is unconstitutionally vague as applied to the conduct alleged in Counts 1 and 2.”

One of the supporting sub-points seemingly argues that the yet-to-be-implemented regulatory body borne out of the Horseracing Safety and Integrity Act (HISA) is actually the proper arm of the federal law that should be handling the case.

The memorandum states: “The HISA of 2020 Gives the FTC Plenary Authority over Horse Racing.”

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