Fishman Asks Court to Focus Sentencing on One Charge

Convicted Florida veterinarian Dr. Seth Fishman is seeking to reduce his prison time by arguing the separate two counts on which he was tried for the manufacturing of misbranded, adulterated, and untestable performance-enhancing drugs used in racehorses are actually one crime.

Marc Fernich, Fishman's attorney, argues in a motion filed March 8, that his client's indictment charges the same crime with two counts and therefore qualifies as a multiplicitous indictment—improperly charging multiple offenses for one crime committed.

Count one of Fishman's indictment accused him of a four-year conspiracy to sell adulterated and misbranded drugs to trainers Jorge Navarro, Marcos Zulueta, Christopher Oakes, Michael Tannuzo, and veterinarian Erica Garcia. Count two alleged an 18-year conspiracy during 2002-20 with Lisa Giannelli, Rick Dane Jr., Jordan Fishman, and others.

During Fishman's trial, which was held from Jan. 19 through Feb. 2, Fernich argues that federal prosecutors framed their case as "a single, ongoing conspiratorial" agreement.

"Rather than 'two separate' schemes 'operating independently' to 'achieve distinct purposes,' the government thus presented an integrated, 'overall' agreement with one primary object—trafficking in prohibited substances designed to boost racehorse performance and avoid regulatory detection—that violated a 'single statute,'" Fernich's motion said.

"Fragmenting such a unified 'offense ' … merely 'compound[s]' artificially Dr. Fishman's maximum punishment, foundering on multiplicity shoals," it continued.

"The only plausible conclusion is that the lesser conspiracy charged in count one was 'simply a species' or subset of the greater one alleged in count two," the motion concluded, asking specifically for an acquittal on count one and Fishman's sentence to be based solely on count two.

Fishman, 50, is facing up to 20 years in prison. U.S. District Judge Mary Kay Vyskocil is scheduled to sentence him May 5.

Fishman and Giannelli operated for 20 years a drug manufacturing company called Equestology that allegedly peddled dozens of potentially dangerous and illegal compounds for the purpose of enhancing performance in racehorses.

Giannelli was to be tried at the same time as Fishman but Jan. 24, Vyskocil declared a mistrial in her case after her attorney tested positive for COVID-19.

Fishman is the first person to face trial in a sweeping horse-doping case that documented the widespread use of illegal and undetectable performance-enhancing drugs at tracks across the country. A jury of eight women and four men in U.S. District Court in Manhattan found Fishman guilty of two counts of conspiring to violate adulteration and misbranding laws and the manufacture of PEDs administered to racehorses by corrupt trainers for money and fame.