By T. D. Thornton
The legal team for Seth Fishman responded to allegations by federal prosecutors that the indicted Florida veterinarian is still selling purportedly performance-enhancing drugs (PEDs) while awaiting trial in the international racehorse doping conspiracy case by telling the court Monday that the government “cannot meet its burden in demonstrating that the defendant's bail should be revoked.”
In a Dec. 13 filing in United States District Court (Southern District of New York), Fishman's attorney, Maurice Sercarz, wrote that the administrative assistant who permitted Federal Bureau of Investigation (FBI) agents to search Fishman's place of business where drug evidence was seized Dec. 1 “had little choice but to succumb to the demand by agents that they be permitted to search the premises.”
That's because, “At the time that her consent to the search was sought and obtained, she had participated in [two previous interviews] in which she revealed her involvement, over a seven-year period, in the manufacture and distribution” of Fishman's products.
“In other words,” the filing continued, “at the time her consent to the search was obtained 1) she was at risk of prosecution for the very offenses with which Dr. Fishman was charged; and, (2) subject to a proffer agreement that allowed ample opportunity to use her statements against her both at trial and at sentencing.”
Fishman is charged with two felony counts related to drug alteration, misbranding, and conspiring to defraud the government. The employee, unnamed in court documents, is not known to be facing any charges. Fishman's trial is tentatively expected to start in mid-January.
On Dec. 6, federal prosecutors asked the judge overseeing the case to consider revoking the bail terms of Fishman's pretrial release.
The basis for that request was that “Employee-1 informed the Government, in substance and in part, that Fishman's business was creating 'energy drinks' for foreign distribution and that Employee-1 remained tasked, by Fishman, with continuing to create a 'bleeder' paste [that] Employee-1 also described as being for foreign distribution,” the Dec. 6 filing stated.
“The drugs found in Fishman's offices continue to be manufactured through the same unregistered, unlicensed business that forms the basis of the charged offense,
and include the drug 'HP Bleeder' previously obtained from multiple searches of premises controlled by Jorge Navarro, Lisa Giannelli, Christopher Oakes, as well as [other defendants],” the Dec. 6 filing stated.
The Dec. 13 reply by the defense alleged that the move by the feds to get Fishman's bail revoked was a ploy to undermine his legal preparation.
“[T]he Government now seeks to have the defendant detained four weeks before his trial is scheduled to begin, when his ongoing contact with defense counsel will be most necessary in order to prepare his defense for trial,” Monday's filing stated.
The defense filing also pointed out that, “Dr. Fishman has never made a secret of his intention, following his arrest, to continue exporting his products while redoubling his efforts to comport with the requirements of the export exemption to the adulteration and misbranding statutes. He expressly advised the Government of this fact as part of his application for a deferred prosecution agreement.”
The Dec. 13 filing also stated that the government's motion “glosses over” the “voluntariness” of Fishman's employee's consent to the Dec. 1 search of the workplace.
“The agents noted that upon arriving at the premises, the Administrative Assistant had to unlock the door to let the agents into the premises,” Fishman's filing stated. “The fact that the door was locked indicates that the premises did not function as an office, open to the public; but rather, as a location devoted to the manufacture and shipment of Dr. Fishman's products.
“The [FBI] report reflects that upon entering the premises, the agents and Administrative Assistant held a conference call with [federal prosecutor] Sarah Mortazavi and [the employee's] attorney to discuss the parameters of the search. No comparable effort was made to contact counsel for the defendant,” the filing stated.
A Dec. 20 hearing on the bail revocation request is the next step in the process.
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