By TD Thornton
Thirty-four days after being found guilty by jury trial of two counts of conspiracy to violate tampering and misbranding laws in the national racehorse doping case, the Florida-based veterinarian Seth Fishman has filed a motion in federal court seeking the first of those counts. to be dismissed on the grounds that it is allegedly “multiplice” (already contained within) the second, much larger plot.
Fishman’s March 8 filing in United States District Court (Southern District of New York) is likely the first of several legal steps leading to a formal appeal of his convictions. He faces 20 years in prison after being sentenced on May 5.
“As relevant here, a multiple indictment ‘charges the same crime on two counts,'” Fishman’s motion said, “when ‘a single crime has been committed’ in ‘law and in fact.’ “
Fishman’s case – nearly two years from the date of his arrest on March 9, 2020 – argued that the double counts could lead to “multiple sentences for the same offence” and that the two counts prosecution could have “undue hardship[d] a jury by suggesting that a defendant committed not one but several crimes.
Fishman, along with six other veterinarians, 11 trainers and nine others, has been accused of being a key figure in an international network of alleged performance-enhancing drug (PED) suppliers who allegedly conspired to dope racehorses in New York, New Jersey, Florida, Ohio, Kentucky and the United Arab Emirates.
“The indictment in this case accused Dr. Fishman of participating in overlapping but seemingly unrelated conspiracies to illegally distribute a variety of personalized PEDs – untestable, adulterated and mislabeled – to owners and trainers of racehorses in America and abroad,” Fishman’s motion said.
“Count Two alleged an extensive 18-year conspiracy – which spanned from 2002 to 2020 – with Lisa Giannelli, Jordan Fishman, Rick Dane Jr. and other unnamed individuals. The First Earl alleged a four-year side plot – lasting from 2016 to 2020 – with Jorge Navarro, Erica Garcia, Marcos Zulueta, Michael Tannuzzo, Christopher Oakes and others unnamed…
“Yet throughout the trial – from the start of the prosecutor’s opening to the summons – the government presented the case as involving ‘a single ongoing conspiracy agreement’: namely, an 18-year comprehensive agreement between Dr. Fishman, his employees, suppliers, and customers to manufacture, buy, and sell the same menu of adulterated and mislabeled PEDs through Dr. Fishman’s company, Equestology LLC, rather than “two separate systems operating independently…”
“The government thus presented an integrated and ‘comprehensive’ agreement with one main object – the trafficking of banned substances intended to enhance the performance of racehorses and avoid regulatory detection – which violated a ‘single law’ over a long period.”
The filing continued: “Perhaps most importantly, the government summons graphically confirmed his blending and matching of the accused conspiracies – his blending of their vague outlines, blurring their fuzzy boundaries and otherwise presenting the two as an intertwined whole and indivisible…
“Even more strikingly, prosecutors chose to approach the charges ‘backwards’, starting with the sprawling conspiracy alleged in count two. [before finally getting around to] Count one…
“On this record – even when interpreted most favorably to the government and drawing all the conclusions in its favor – the only plausible conclusion is that the lesser conspiracy charged in the first count was ‘merely a species’ or sub- set of the presumed greatest in count two.”
Fishman’s motion for multiplicity suggested a remedy of merging his two convictions so that a single sentence would be imposed.