One day ahead of a key status conference that could finally establish the trial schedule in the alleged nationwide racehorse doping conspiracy case, lawyers for the 14 defendants filed a “motion to recuse” letter asking United States District Judge Mary Kay Vyskocil to remove herself from overseeing the case because she once bred Thoroughbred racehorses in New York, an industry connection the defendants believe will prevent them from getting a fair and impartial trial.
“Our understanding is that Your Honor bred racehorses for a number of years,” the May 13 letter stated. “For 15 years, you were also a member of New York Thoroughbred Breeders, Inc. [NYTB]. Based on our review of racing databases, we have identified at least four instances in which one of your horses competed directly against horses trained by defendants Jason Servis or Jorge Navarro….
“Here, given the Court's connection to the horse racing industry–specifically as a breeder of racehorses for many years–coupled with its relationships with owners, breeders and other industry representatives, we believe an objective observer might reasonably question the Court's impartiality.”
TDN has independently verified that Vyskocil, in an undated 90-page questionnaire for judicial nominees posted online by the U.S. Senate Committee on the Judiciary, previously disclosed that she was a member of the NYTB between 2000 and 2015.
Thursday's legal filing in U.S. District Court (Southern District of New York) gave four specific examples of race results that the defendants believe constitute a conflict of interest.
“In Race 9 at Aqueduct on Jan. 14, 2006, Jason Servis's horse (Bettor to Receive) raced against your horse (Here's Ya Souvenir). Yours finished 5th, and Mr. Servis's finished 8th.
“In Race 5 at Aqueduct on Jan. 14, 2007, Mr. Servis's horse (Watchtheatlantic) raced against your horse (Here's Ya Souvenir). Mr. Servis's finished in 5th, and yours finished in 10th.
“In Race 10 at Tampa Bay Downs on Jan. 27, , Mr. Navarro's horse (Manolo Manolo) raced against your horse (Here's Ya Souvenir). Yours finished 2nd, and Mr. Navarro's finished in 10th.
“In Race 2 at Monmouth Park on July 3, 2009, Mr. Servis's horse (Placid Waters) raced against your horse (Last Boat Home). Mr. Servis's placed 3rd, and your horse finished in 10th.”
According to Equibase, both Here's Ya Souvenir and Last Boat Home were bred in partnership by Barry Ostrager and Mary Kay Vyskocil. But she was not listed as an owner for either of them in the charts that were referenced.
Instead, the motion is alleging that Vyskocil's role as a breeder means she could be a victim of the alleged crimes based on a breeder's eligibility to receive bonus awards under some circumstances.
“To the extent Your Honor had a financial interest in the outcome of horse races that the Government contends may have been diluted by competing horses allegedly under the
influence of performance enhancing drugs, you would fall into the category of putative victims alleged in the Superseding Indictment,” the document stated.
The defendants also stated that “In the past, and at a time Your Honor was a member, the NYTB advocated for proposals that would impose stricter regulations in respect of Clenbuterol in the horse racing industry, a drug at the core of certain allegations in the indictment.”
The document continued: “On a call with defense counsel last night [May 12], the government agreed that, if the Court is a putative victim, recusal would be appropriate. There are several ways in which the Court's history as a horse breeder may make it a putative victim–if not now, then in the future.
“First, during recent conversations with the government, it reiterated that it continues to actively investigate this case and that it may supersede the indictment to add charges or defendants or to expand the timeframe of the conspiracy.
“Second, given the government's ongoing investigation, in calculating loss for sentencing purposes, the government may argue relevant conduct dating back to the period when horses bred by Your Honor raced against horses trained by Jason Servis or Jorge Navarro. In that case, Your Honor would be called upon to rule on the relevance to loss of races in which the Court may have had a financial interest.
“Third, the government said [Wednesday] night that it may seek to introduce pre-2016 evidence of positive drug tests against defendant Jorge Navarro…as direct proof of the conspiracy….”
“In sum, Your Honor has numerous overlapping relationships with the racehorse industry…. Standing alone, or in combination, these facts would cause a reasonably objective observer to question the Court's impartiality.”
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 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 to Thoroughbreds and Standardbreds across America and in international races.
The recusal motion, made by Navarro's attorney, was joined by counsel for defendants Servis, Alexander Chan, Rick Dane Jr., Seth Fishman, Jordan Fishman, Erica Garcia, Lisa Giannelli, Michael Kegley, Jr., Rebecca Linke, Christopher Oakes, Kristian Rhein, Michael Tannuzzo and Marcos Zulueta.