Prosecutors plan to use intent as argument in Navarro/Servis drug case

U.S. attorneys who are prosecuting a case alleging a wide-ranging conspiracy among manufacturers, distributors, and administrators of illegal substances in the Thoroughbred and Standardbred racing industries intend to argue that the substances are “performance-enhancing” even if they have no impact on the horse, the attorneys said during a status conference on Tuesday.

Andrew Adams, the lead prosecutor in the case, told the judge during the status conference that charges in a superseding indictment filed earlier this month would be based on the government’s interpretation that any drug advertised as performance-enhancing or administered under that belief would be treated as such.

“A drug that is promoted and intended to be a performance-enhancing drug but is a dud is nevertheless a misbranded and adulterated drug for the purposes of the indictment,” Adams told judge Mary Kay Vyskocil of the U.S. District Court for the Southern District of New York during the two-hour telephonic status conference.

The statement by Adams appears to indicate that attorneys for the defendants, which include the top Thoroughbred trainers Jason Servis and Jorge Navarro, may be planning to argue that the substances contained in the indictment did not have clear pharmacological impacts on the horses that were allegedly administered the substances.

Several substances identified in the indictment, including a substance known as SGF-1000, have been analyzed by racing chemists in the years prior to the first indictment being issued in March. Those analyses have failed to identify specific efficacies for the substances, racing officials have said.

Tuesday’s status conference was held 12 days after prosecutors filed a superseding indictment in the case adding charges to the initial indictment. All 14 of the defendants in the superseding indictment issued not-guilty pleas during the arraignment phase of the conference, including Servis and Navarro.

The brunt of the conference dealt with setting schedules for attorneys to file motions in the case, a task that has been complicated by what all involved in the case have described as “voluminous” productions of discovery materials. The records administrator in the case said that the latest production of discovery material, issued in late September, totaled eight terabytes of data, or “43 times” the size of all productions prior to that date.

“The volume of discovery has been incredible,” said Robert Baum, who is the counsel for Alexander Chan but spoke on the conference call on behalf of most of the defendants. “I’ve been a federal defender for 20 years … and this is the greatest volume of discovery I have seen.”

The materials in the discovery productions include transcriptions of wiretapped conversations and the contents of cell phones, computer hard drives, and billing records, prosecutors said.

Although Adams said on the conference call that the government has “largely, but not entirely” completed its production of discovery, he also said that “we do continue to investigate and continue to look into all aspects of the case” and could not rule out the filing of another superseding indictment or charges against other individuals.

“There may well be other crimes in regards to other defendants in this case,” Adams said. “And the government is continuing to look at people who are not currently charged.”

By the end of the conference, Judge Vyskocil put in place a Feb. 5 deadline for counsel for the defendants to file any motions seeking to dismiss the case. The government will have until March 5 to respond to those motions, and counsel will then have three weeks to reply to the government’s filings.

A second round of motions dealing with suppression of evidence will be required to be filed by May 24 under the schedule set during the conference.

Judge Vyskocil also set May 14 as the date for the next status conference in the case. She ordered that the time from Nov. 17 through May 14 be set aside for the purposes of fulfilling requirements under the law to conduct a “speedy trial,” noting the amount of discovery materials and the ongoing investigation.