Week in Review: Debate Over 'PED' Devolves Into Theater of the Absurd

When former pharmacist Scott Mangini was sentenced to 18 months in prison last Friday for his admitted role in the federal doping case, it provided another piece to the puzzle in terms of how other offenders might later get sentenced for their roles in the same alleged conspiracy.

Specifically, almost everyone in the Thoroughbred industry wants to know what will happen to the highest-profile defendants at the very end of the supply chain: The barred trainer Jorge Navarro, who has already pled guilty to one felony count in the conspiracy and faces a maximum prison term of five years; plus the similarly ruled-off trainer Jason Servis, who is still fighting his charges even though the feds allegedly have him recorded on wiretapped phone conversations repeatedly discussing his administration of performance-enhancing drugs (PEDs) to horses.

Theoretically, the end-user defendants who put needles into horseflesh should be the ones who get penalized the harshest.

Here's the sentencing hierarchy so far: Mangini's 1 1/2 years behind bars matched the sentence handed down in March by the same judge to Scott Robinson, who pled guilty to charges related to marketing and selling the illicit pharmaceuticals that Mangini (and others) created.

Sarah Izhaki, considered a bit player for selling misbranded versions of Epogen on a much smaller scale, has already been sentenced to the time she had served plus three years of supervised release. But Izhaki had extenuating health circumstances that affected her relatively lenient penalty, which was described by the judge as a “one-off” sentence that other defendants should not expect to receive.

The sentencing stakes could be raised a little bit higher for the next two defendants on the court calendar. One is Michael Kegley Jr., an independent contractor for the Kentucky-based company MediVet Equine, who pled guilty to one count of drug adulteration and misbranding. Kristian Rhein, a suspended veterinarian formerly based at Belmont Park, pled guilty to a similar felony charge “for use in the covert doping of Thoroughbreds.”

But beyond the issue of jail time, the back-and-forth sparring between federal prosecutors and the defense at Mangini's

Sept. 10 sentencing hearing revealed another bizarre aspect of the alleged conspiracy: Even after pleading guilty back in April, Mangini still claimed–right up until the moments before his sentencing–that he had neither created nor sold PEDs.

United States District Judge J. Paul Oetken at one point termed those contentions “semantic issues” that were not really material to Mangini's sentencing. But as federal prosecutors put it when filing pre-sentencing documents that addressed this issue, Mangini's “continued refusal to contend with the basic facts of his offense speaks poorly of this defendant's character and to the continued danger posed by a man who refuses to acknowledge the core of his wrongdoing.”

Mangini's reasoning went something like this: Yes, he committed a felony by conspiring to distribute adulterated and misbranded drugs. But allegedly, the overwhelming portion of the online businesses that he was involved in simply sold knock-off versions of therapeutic products that were not approved by the Food and Drug Administration.

Mangini had argued that many of the buyers of the drugs he created were pet owners and veterinary clinics that just wanted cheaper versions of regulated pharmaceuticals, like omeprazole paste to reduce gastric acid, which he claimed was the primary focus of his e-commerce websites.

Mangini's attorney, Bill Harrington, argued on Friday that out of the 27,600+ product sales that the prosecution had presented as evidence, only a “tiny sliver” under 1% could possibly be considered PEDs, and even then only under very narrow circumstances.

Harrington said it was important for the court documentation in his client's case to reflect that Mangini did not “flood the supply side of the market” with PEDs as prosecutors have written in some press releases, because such allegedly false assertions will harm Mangini's reputation forever and “make the case sound more grave than it is.”

Harrington told the judge that “the U.S. Attorney's office is trying to say this is a crime where Mr. Mangini was corrupting the horse racing industry. And they don't have the evidence of that. The drugs don't support that.”

United States Attorney Andrew Adams begged to differ, and he confidently swatted aside any attempts to characterize Mangini's conduct as not involving the doping of racehorses.

“Mr. Mangini's position that none of these drugs were designed, marketed, intended to be PEDs is just ludicrous,” Adams said in court. “It's belied by the marketing materials. It's belied by the materials that were components of the drugs themselves. And it's belied by the methods by which these drugs were being sold, and the people to whom they were being marketed.”

The feds came armed with plenty of evidence. First, consider the names of the two chief websites Mangini was involved with: One was called racehorsemeds.com. The other was named horseprerace.com.

Next check out the names of some of the products peddled openly on those sites: Blood Building Explosion. Pre-Race Explosion. Growth Factor 5000. Horse Power! Equine Growth Hormone. Numb It Purple Pain Injection. Plug It Bleeder Injection. Blast Off Breather Injection.

One product called White Lightning was described as something that would “increase stamina and performance in racehorses, greyhounds, and camels.”

Another named Ice Explosion–described on the website as “one of our top selling products”–was advertised as a substance that “works to improve both sprint and endurance performance and reduce the perception of pain.”

Many of these products were stamped “WILL NOT TEST.” And some were instructed to be administered “4-6 hours prior to event,” according to the inventory list provided by the feds.

“The point of this operation was to assist people in getting an illegal edge in horse racing,” Adams said. “To find otherwise would ask the court to ignore essentially everything that was ever written, both in the [product] formulas and in the marketing materials for both websites that Mr. Mangini was a part of.”

The prosecutor continued: “The recommended dosages on [the websites], they're all aimed at horses. If you were to take what is on the website as the recommended dosage and applied it to a dog, you'd be seriously endangering the dog. The idea that this is therapeutic, [that] it could be for your house pet, is again, completely absurd. These were aimed at horses, aimed at racing horses, and aimed to do exactly what the marketing materials said they were aimed to do: To make your racehorse run faster.”

Mangini's contention, according to one pre-sentencing court filing, was that such products were allegedly “dietary supplements that contain different combinations of vitamins, amino acids, electrolytes, and minerals. Some dietary supplements say they 'will not test' because their ingredients are not prohibited by varied racing rules.”

With specific reference to the blood builders, Harrington held his ground in Mangini's defense.

“We dispute that any of those are PEDs,” Harrington said. “The only basis for saying that they're PEDs is the way they were advertised.”

So essentially, Mangini's attorney was saying that the websites were only engaging in hyperbole that is reflective of a society in which consumers aren't supposed to take claims of alleged performance enhancement at face value. Harrington made the analogy that human athletes who go to the mall to purchase gaudily advertised dietary supplements at a store like GNC know there's really nothing illicit in them.

“My argument is that even those non-injectable dietary supplements sold to people by GNC are advertised the same way,” Harrington said. “We all agree those are not PEDs. Yet they use the same language–'explode,' 'enhancement.'”

Adams didn't buy that line of reasoning.

“There's no dietary supplement that comes with a syringe,” Adams said, noting that many of Mangini's products did.

“The court should not accept the facile argument that dietary supplements at GNC…or a box of Wheaties, none of which are sold with a syringe included, is the same thing as what Mr. Mangini was doing,” Adams said.

Yet in the end, Oetken did end up making a concession to Mangini's semantics argument.

The judge ordered that Mangini's sentencing documentation be amended to strike references to PEDs, instead replacing that descriptor with the phrase, “animal drugs, including drugs that may enhance animals' performance or horses' performance.”