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Jury Hears Wiretaps in Fishman Trial

The jury in the federal horse-doping trial of Seth Fishman heard Jan. 25 a portion of a Federal Bureau of Investigation wiretap in which the veterinarian discusses whether the drugs he sold to horse trainers involved doping.

“Any time you give something to a horse, that's doping,” Fishman says in the conversation recorded by the FBI Apr. 5, 2019. “Whether or not they test for it is another story.”

On the call with Fishman was an unidentified individual who had wanted to know more about the drugs.

“But it's not doping, yeah?” that person asks.

“Don't kid yourself,” Fishman also tells him. “If you're giving something to a horse to make it better, and you're not supposed to do that, that's doping. You know, whether or not it's testable that's another story.”

The wiretap was played in court on the fifth day of the trial as testimony resumed after a day's interruption. On Jan. 24, Judge Mary Kay Vyskocil declared a mistrial in the case of Fishman co-defendant Lisa Giannelli. Giannelli's attorney tested positive for COVID-19 before court on Monday, warranting the mistrial.

As the day began Tuesday, Vyskocil announced a ruling rejecting a motion for a mistrial by Fishman's attorneys. They moved for a mistrial because of the positive COVID-19 test they believed upset the flow of the trial and because of remarks the attorney for Giannelli made during openings statements last week that they said could prejudice the jury against their client.

That attorney, Louis Fasulo, had described his client as the “proverbial sheep” to Fishman's “sheep master.”

Vyskocil countered that Fishman had not been prejudiced.

“Dr. Fishman has received a fair trial so far and will continue to receive a fair trial,” Vyskocil said.

Fishman was one of more than two dozen members of the horse racing community charged in sweeping indictments in March 2020 with conspiring to dope horses at race tracks across the country with illicit performance-enhancing drugs that wouldn't show up in post-race testing. Those charged included top trainers Jason Servis, who awaits trial, and Jorge Navarro, who pled guilty to conspiring with others to dope horses and was sentenced to five years in prison.

Fishman is charged with two counts of conspiring to violate drug adulteration and misbranding laws. He faces a maximum of 15 years in prison if convicted.

As part of their case, prosecutors allege Fishman accepted tens of thousands of dollars from Navarro in exchange for untestable drugs.

On Tuesday, prosecutors called Dr. Jean Bowman, veterinary medical officer in the division of surveillance for the FDA, as a government expert witness.

During her testimony, prosecutor Sarah Mortazavi introduced into evidence photos taken on the day of Navarro's arrest in 2020 that showed him in possession at his Florida home of four alleged PEDS that came from Fishman.

Mortazavi drilled down on those drugs, named BB3. The indictment described BB3 as a customized “blood building” PED that when combined with intense physical exertion thicken a horse's blood. A horse doped with BB3 ran the risk of a heart attack, the indictment said.

The photo of BB3 seized by the FBI from the Navarro residence shows only the product's name on the bottle.

Bowman testified that BB3 had not been approved by the FDA and that she could find no studies in an FDA database about BB3 and its effectiveness and safety to horses.

Bowman also told the jury that the label on the BB3 bottle should have contained more information to pass muster with the FDA. She said the label should have contained the name of the prescribing veterinarian, how and when it should be administered, the identity of the manufacturer, and what precautions should be taken before administering it.

The doctor testified that BB3 and the other drugs Fishman sold should only be prescribed after a physical examination of the animal.

Prosecutors contend Fishman never did that before shipping his PEDs to buyers.

At one point during questioning, Mortazavi had Bowman read from an email Fishman sent to Giannelli on Jan. 5, 2019, that contained a list of drugs available from Fishman's South Florida business Equestology.

“BB3: would only let trusted clients have this,” Bowman quoted the email as saying.

Fishman's lawyers Maurice Sercarz and Marc Fernich will have an opportunity to cross-examine the FDA expert when the trial resumes Jan. 26.

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

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Mistrial Declared For Giannelli In Horse Doping Trial Due To COVID-19 Positive

COVID-19 temporarily upended Jan. 24 the horse doping trial of Dr. Seth Fishman and Lisa Giannelli — who are among the 27 race horse professionals, including prominent trainers, charged in the case.

As the trial's second week began, testimony was delayed after it was revealed that Giannelli's trial attorney had tested positive for the disease before the trial was to resume Monday.

Judge Mary Kay Vyskocil then declared a mistrial on Giannelli's behalf because her attorney Louis Fasulo wouldn't be able to return to court for at least ten days.

“I can't have a jury on ice for ten days,” she said.

Fishman's attorneys also requested a mistrial but Vyskocil didn't rule on their motion right away. She said she was considering resuming the trial with Fishman as the only defendant.

The judge said in any event there would be no testimony in the case Monday.

The trial opened Jan. 19 with jury selection followed by two days of opening statements and testimony from three witnesses. Prosecutor Anden Chow told the jury Fishman and Giannelli had for two decades operated a “black market drug business” that peddled to horse trainers around the country performance enhancing drugs that were administered to horses on race days and that couldn't be detected by horse racing commissions in post-race testing.

Most of the testimony the jury has heard came from the government's first witness, a 34-year-old woman named Courtney Adams who worked at Fishman's South Florida business for five years until 2017. She said Fishman was fixated on creating drugs that were untestable.

FIshman attorney Maurice Sercarz told the jury his client's actions were in accordance with his veterinary oath to protect the safety and welfare of animals. Fasulo said Giannelli didn't believe she was doing anything wrong while working for Fishman.

Giannelli is facing one count of misbranding conspiracy, and Fishman is charged with two counts of conspiracy to commit drug adulteration and misbranding. Prosecutors say the 11 trainers charged in the case acted to win lucrative purses without regard to the health of their horses.

Both Fishman and Giannelli are out on bail and were in court Monday.

The U.S. District Court in New York has implemented numerous COVID-19 protocols to avoid outbreaks. The witness stand has been outfitted with a HEPA-filtered plexiglass box. There's also a HEPA-filtered plexiglass box for lawyers to use when they question witnesses. Masks are required of everyone in the courtroom, including the judge, but witnesses and lawyers can remove them if they are using those boxes.

Over the weekend courthouse officials implemented a new protocol, requiring that lawyers and witnesses needed to take a rapid PCR test if they intended to remove their masks while using the boxes.

It was when Fasulo took the test in accordance with the new protocol that he learned of the positive result.

He showed up the courtroom briefly and then left. He spoke to the judge via an audio hookup.

His symptoms appeared mild. He told Vyskocil he had a “tickle in his throat.”

“I don't know what we're going to do. I feel terrible,” Fasulo said before consenting to the mistrial.

Giannelli's new trial date hasn't been set.

Fishman attorney Marc Fernich said a mistrial was warranted for his client given the positive COVID test. He said the trial's start had revealed differences between Fishman and Giannelli regarding their defense strategies.

“The defense has a right to have a trial with a clean slate,” Fernich said.

Still awaiting trial is Jason Servis whose horse Maximum Security finished first in the 2019 Kentucky Derby only to be taken down for interfering with another horse. Prosecutors have accused Servis of doping dozens of horses in his barn, including Maximum Security.

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

The post Mistrial Declared For Giannelli In Horse Doping Trial Due To COVID-19 Positive appeared first on Horse Racing News | Paulick Report.

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Mistrial Declared in Giannelli Case Due to Covid

Covid-19 temporarily upended Jan. 24 the horse doping trial of Dr. Seth Fishman and Lisa Giannelli–who are among the 27 horse racing professionals, including prominent trainers, charged in the case.

As the trial's second week began, testimony was delayed after it was revealed that Giannelli's trial attorney had tested positive for the disease before the trial was to resume Monday.

Judge Mary Kay Vyskocil then declared a mistrial on Giannelli's behalf because her attorney Louis Fasulo wouldn't be able to return to court for at least 10 days.

“I can't have a jury on ice for 10 days,” she said.

The jury never heard any witnesses Monday and Vyskocil sent them home after lunch with the resumption of the trial in doubt.

In the courtroom and without the jury present Fishman's attorneys also moved for a mistrial. Vyskocil reserved decision on the motion until Jan. 25 in the morning but during back and forth with the Fishman defense team she hinted she was considering having the trial resume with only Fishman. The trial continues Tuesday at 9:30 a.m.

The trial opened Jan. 19 with jury selection followed by two days of opening statements and testimony from three witnesses.

Prosecutor Anden Chow told the jury Fishman and Giannelli had for two decades operated a “black-market drug business” that peddled to horse trainers around the country performance enhancing drugs that were administered to horses on race days and that couldn't be detected by horse racing commissions in post-race testing.

Most of the testimony the jury has heard came from the government's first witness, a 34-year-old woman, Courtney Adams, who worked at Fishman's South Florida business for five years until 2017. She said Fishman was fixated on creating drugs that were untestable.

They are charged with conspiracy to violate drug adulteration and misbranding laws in the doping horses. Prosecutors say the 11 trainers charged in the case acted to win lucrative purses without regard to the health of their horses.

Both Fishman and Giannelli are out on bail and were in court Monday.

The U.S. District Court in New York has implemented numerous Covid protocols to avoid outbreaks. The witness stand has been outfitted with a HEPA-filtered plexiglass box. There's also a HEPA-filtered plexiglass box for lawyers to use when they question witnesses. Masks are required of everyone in the courtroom, including the judge, but witnesses and lawyers can remove them if they are using those boxes.

Over the weekend courthouse officials implemented a new protocol. It required that lawyers and witnesses needed to take a rapid PCR test if they intended to remove their masks while using the boxes.

It was when Fasulo took the test in accordance with the new protocol that he learned of the positive result.

He showed up the courtroom briefly and then left. He spoke to the judge via an audio hookup.

His symptoms appeared mild. He told Vyskocil he had a “tickle in his throat.”

“I don't know what we're going to do. I feel terrible,” Fasulo said before consenting to the mistrial.

Giannelli's new trial date hasn't been set.

Fishman's other attorney Marc Furnich argued a mistrial was warranted given the positive Covid test. He also said it was warranted given that the trial's beginnings had exposed a conflict in defense strategy with Fasulo.

As proof Fernich and Sercarz pointed to Fasulo'a opening statement.

“Mr. Fasulo's second line was'we sit here after hearing the government say Lisa Giannelli was a lone wolf in a herd of sheep. What she was was more the proverbial sheep herded by the sheep master' a clear reference to Dr. Fishman,” Sercarz said.

He and Fernich argued that it would be difficult to convince the jury otherwise after they heard that and Giannelli was no longer part of the case.

Vyskocil said she didn't see what the problem was.

“Opening statements are not evidence and the jury has been told that,” she said.

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The Week in Review: Fishman’s Defense is Hard to Swallow

Indicted veterinarian Seth Fishman started to tell his story last week, both to a jury and to the Washington Post. Fishman, currently on trial in a federal courtroom in Manhattan for his role in a widespread scheme to dope racehorses, wants you to believe that he is an animal lover who was devoted to working for the benefit and health of the horses he treated. He wants you to believe that the drugs he dispersed were given to help and heal and not to improve performance.

“It will be for the government to prove that his intent and purpose was something other than limiting animal suffering.” Fishman's attorney Maurice Sercarz told the jury during opening arguments of Fishman's trial, which also includes his associate Lisa Giannelli.

The government has said otherwise, that he was a relentless horse doper, had close ties to Jorge Navarro and was obsessed with winning races and manufacturing drugs that were undetectable.

From Fishman's team, it's textbook stuff. Our client is misunderstood. There are two sides to every story. It's really horse racing that is dirty and not Seth Fishman.

The problem is, they don't have anything to back it up. The government has done its job and done it well. The original indictment includes a trove of evidence that Fishman was cold and calculating, cared nothing about the animal and would inject a horse with anything he could find if he thought it would help the horse win a race and collect a purse. Their claims are backed by a treasure trove of evidence.

According to the original indictment, after X Y Jet (Kantharos) won the G1 Dubai Golden Shaheen, Fishman sent a text congratulating Navarro. Navarro replied: “Thank u boss u are a big part of it.” The reference, allegedly, is to Fishman's role in procuring drugs for Navarro to use on X Y Jet, who later dropped dead.

There's more, and, from the indictment, the government's conclusion is that treating and healing horses were not a part of Fishman's play book, despite his position as a veterinarian. The indictment charges that Fishman “did not perform medical examinations, provide a diagnosis, or otherwise evaluate the medical necessity of providing PEDs in advance of selling PEDs. Indeed, the administration of those PEDs was not intended to be therapeutic, but rather to increase the chances of winning horse races.”

Sunday, we learned that the government is requesting to enter into evidence charges that Fishman was investigated in Delaware more than a decade ago after a standardbred died after being injected with one of his products.

Yet, it appears that Fishman is intent on portraying himself as a heroic figure. In a Washington Post story that ran Wednesday, the reporter writes that Fishman depicts himself as “a sort of racetrack St. Francis of Assisi.” He also told the Post that the reason he continued to fight the charges was because “I'm going to take one for the team of veterinarians.”

According to the Post, Fishman defied his lawyer's wishes when granting an interview to the paper. No doubt, his legal team can't be pleased with what was a rambling, strange interview in which he did himself no favors and didn't present any credible evidence that has been wrongly accused. Rather, he stuck to the “I'm really an animal lover, please believe me” defense.

He goes on to claim that what this is really all about is the sport trying to make itself more attractive to bettors by offering a cleaner product…as if that is a bad thing.

From the Post story: “Fishman claimed that the real motive of those seeking regulatory reform was to make the sport more palatable for bettors by eradicating any foreign substances–at the expense of the animals. “I don't think the veterinary world should have to answer to a gambling product that seems to be getting more and more corrupt, not less corrupt,” Fishman said. “The animals' needs need to be put before the gamblers' needs.”

In another weird exchange with the Post, Fishman said that in another case, the feds had asked him to wear a wire in an attempt to catch racetrack cheats. He refused to do so, telling the paper that “to make them happy I would have had to violate two of the Ten Commandments. Just say for biblical reasons I couldn't do it.”

The trial will continue Monday, and unless his attorney has some sort of unforeseen trick up his sleeve, it appears that the defense strategy will be more of the same. Their defense is weak, but that's likely because it's all that they have.

It means they are hoping the jury will ignore the evidence presented by the government and buy into Fishman's claims that he's, well, not such a bad guy. According to Pew Research, fewer than 1% of all federal criminal cases result in the defendant taking their case to trial and winning. The most likely scenario is that the self-described animal lover will come out on the losing end here and his future includes a stint in a federal prison.

In Doping Trial, Are New Names About to Surface?

The opening day of testimony in the Fishman-Gianelli trial included what may turn out to be a bombshell, courtesy of the government lawyers. Prosecutor Anden Chow told jurors that the government's case would include the testimony of trainers who bought Fishman's drugs.
It was unclear what exactly that means, but what if it means that trainers who were not included in the original indictment are about to step forward and admit they bought PEDs from Fishman? Surely, Fishman sold his goods to many others not included in the indictment. If any new trainers do come forward, it's likely they worked out a deal with the government to avoid prosecution. But if anyone comes forward and admits using illegal PEDs, they would surely face sanctions from tracks and racing commissions, which, very well, could mean a lifetime ban.
Stay tuned.

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