Feds Slam Alleged Dopers' Assertion That HISA Creates Loophole


Jorge Navarro | Bill Denver/Equi-Photo


Prosecutors in the racehorse doping conspiracy case that ensnared 29 racetrackers, veterinarians and pharmaceutical brokers one year ago tried to convince a federal judge Friday that recent motions made by some of the defendants to dismiss drug alteration and misbranding charges are “without merit” and represent “an effort to invent a statutory limitation where none exists.”

The government's memorandum of law filed Mar. 5 in United States District Court (Southern District of New York) addresses a number of alleged legal flaws in the defendants' motions to dismiss, including several that prosecutors state would be more appropriately argued when the case goes to trial, not before it.

The defendants' motions, prosecutors allege, “do not actually seek the dismissal of the Indictment, but are more accurately described as premature motions regarding the sufficiency of the Government's evidence to be presented at trial…. The Second Circuit makes clear that a challenge to whether a statutory element has been satisfied is a matter for trial.”

The government's filing continues: “Defendants Seth Fishman, Lisa Giannelli, Jordan Fishman, Rick Dane, Jr., Christopher Oakes, Jorge Navarro, and Erica Garcia each ask that this Court insert novel, unsupported, and self-serving language into the text of [federal drug laws] in an effort to avoid felony liability for their illegal misbranding conspiracies.” The memo notes that a dismissal motion filed by defendant Michael Tannuzzo on different grounds should also not be granted.

The filing takes aim at the defendants' creative assertion that government prosecutors are overstepping their legal boundary by bringing charges under the applicable federal statute–the Food Drug and Cosmetic Act (FDCA)–when instead, the defendants argue, the case should instead fall under the authority of the Federal Trade Commission (FTC).

Back on Feb. 5, the defendants made the somewhat surprising legal argument that the Horseracing Integrity and Safety Act of 2020 (HISA)–which was signed into law a full nine months after the arrests were made–allegedly gives “plenary authority,” or absolute regulatory power, to the FTC in all federal matters pertaining to horse racing.

The government's Mar. 5 filing laced into that assertion: “The defendants' respective discussions of the passage of what is commonly referred to as [HISA] in the Fishman Motion and the Oakes Motion shed no light on the purpose or application of the FDCA. That is because the 116th Congress's passage of the HISA in 2020 has no bearing upon the intent of the 75th Congress's passage of the FDCA in 1938, and no implication for the plain language of the FDCA's provisions criminalizing misbranding and adulteration of animal drugs.

“As an initial matter, the Supreme Court disfavors reliance on subsequent legislative history in assessing the language and meaning of prior statutes,” the government's filing continues. “In particular, while 'subsequent legislation can of course alter the meaning of an existing law for the future' and 'can even alter the past operation of an existing law' (constitutional objections aside) if it makes that retroactive operation clear…it cannot inferentially amend the purpose behind passage of a prior statute, as defendants wish.

“The dangers of such post-hoc analysis are plain here. Congress did not–in either the FDCA or the HISA–indicate its intent either to acknowledge or create a 'racehorse industry' exception to the criminal prohibition against the distribution of adulterated and misbranded drugs with the intent to defraud or mislead in the FDCA, nor did it so indicate with respect to any other federal criminal law.

“The defendants' arguments in this respect reflect what seems to be a purposeful misreading of both the HISA and the charges against them: the defendants are not charged with violating state racing anti-doping rules and regulations, for which no federal analogue existed prior to the passage of the HISA; they are charged with felony misbranding and adulteration of drugs in interstate commerce in violation of the FDCA. No interpretative gymnastics are required to 'make sense' of one statute in light of the other.”

The government's filing sums up: “The HISA contains no criminal penalties because Congress determined sufficient criminal penalties were already provided for in existing federal criminal laws, laws which the HISA expressly does not modify. Ultimately, though, no reading of the Congressional tea leaves is required. There is no contradiction between the FDCA and the HISA, and no retrospective ambiguity in the text of the former arises from the text of the latter.”

Other counts of the government's case against the alleged dopers are not affected by this recent series of motion to dismiss, and trials are expected to begin in the second half of 2021. But one defendant, Scott Robinson, who has already pleaded guilty to conspiring to unlawfully distribute adulterated and misbranded drugs for the purpose of doping racehorses, has a sentencing hearing scheduled Mar. 9.

The multi-state simultaneous sting netted the high-profile arrests of trainers Navarro and the 2019 GI Kentucky Derby-disqualified trainer Jason Servis, plus a vast network of co-conspirators who allegedly manufactured, mislabeled, rebranded, distributed and administered PEDs to racehorses all across America and in international races.

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