Judge: 'Wiretapping Is Appropriate to Investigate Conspiracies'

The judge in the federal doping conspiracy case used words like “frivolous” and “weak” to swat away motions made by seven defendants to suppress wiretap and other electronic evidence in trails that are expected to commence in 2022.

The opinion and order filed Dec. 8 by Judge Mary Kay Vyskocil in United States District Court (Southern District of New York) follows a verbal ruling she made Nov. 4 during a status conference that denied all of the related motions made during the late summer by Jason Servis, Seth Fishman, Lisa Giannelli, Erica Garcia, Michael Tannuzzo, Alexander Chan and Rick Dane, Jr.

“The Court has considered all of the arguments raised in all of the suppression motions filed in this case and has concluded that none warrants the suppression of evidence or a hearing,” Vyskocil wrote. “To the contrary, based on the Court's careful review of the application for each challenged wiretap order and search warrant, there is no question that the issuing judicial officer in each instance had a substantial basis for the finding of probable cause.”

Some of the challenged evidence included conversations recorded off the phone of now-barred trainer Jorge Navarro, who has since pleaded guilty to one count in the years-long Thoroughbred drugging conspiracy.

Intercepted calls included statements about Navarro obtaining and/or using purported performance-enhancing equine drugs, such as an unregulated version of clenbuterol, “trays of red acid,” and “24 bottles” of a substance. Other evidence included Navarro discussing the “doping and hiding” of a horse, the use of a “shock machine,” and even the now-infamous Monmouth Park video recorded by a bar patron in which Navarro celebrated a 2017 win by boasting about “juicing” horses.

“In challenging the Navarro wiretaps, the defendants unpersuasively attempt to 'dissect' the affidavits and argue that individual pieces of evidence did not establish probable cause,” Vyskocil wrote. “Garcia, joined by Tannuzzo and Servis, argues that the government did not establish that the aforementioned '24 bottles' were a prohibited substance. The government was not required to prove, in an application for a wiretap, that when Navarro said, 'Grab me…24 bottles,' he conspired to purchase and use a prohibited substance. Rather, it was required to offer evidence that, in a 'totality-of-circumstances' analysis, there was a 'fair probability' that Navarro was involved in a horse doping fraud scheme.”

Vyskocil also noted the extensive review process that was required before numerous other judges originally signed off on those wiretaps, which occurred over the course of 18 months prior to the March 2020 arrests of several dozen alleged conspirators.

“At least 13 judges independently found probable cause to authorize 15 different applications to begin or renew wiretaps,” Vyskocil wrote. “At least 10 magistrate judges found probable cause for search warrants.”

The order continued: “The defendants also challenge the Navarro wiretaps and other wiretaps that incriminated them on the ground that the government had failed to exhaust alternative investigative techniques. Their arguments are wholly unpersuasive…. The law in this Circuit is clear that wiretapping is appropriate to investigate conspiracies where 'the clandestine nature of alleged conspiracies makes them relatively less susceptible to normal investigative techniques'…

“Moreover, the government explained, none of the confidential sources had gotten close to Navarro and approaching him at that point was more likely to raise his suspicions than yield information. Affidavits in support of other wiretap applications cited this and additional evidence that the conspirators were cognizant of the need to maintain secrecy.”

Vyskocil summed up: “Certain defendants insist that the government should have been required to do more drug testing or more extensively investigate financial records. However, the government is not required to exhaust any particular avenue of investigation before seeking a wiretap. Moreover, as various affidavits made clear, the conspirators were using drugs that were designed to be undetectable by racing industry drug tests and went to great lengths to avoid creating financial or other records.”