By T. D. Thornton
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.”