Servis's attorneys seek to suppress wiretap evidence

Attorneys for the indicted trainer Jason Servis have asked a judge to throw out evidence collected through wiretaps of his phone because prosecutors “materially misled” courts that authorized the wiretaps.

Attorneys Rita Glavin and Michael Considine said in papers filed with the U.S. District Court for the Southern District of New York that an FBI agent signed a sworn affidavit in pursuit of the authorization for the wiretaps that “contained deliberately or recklessly false statements and the material omission of statutorily and constitutionally required information.” The attorneys are seeking to suppress all of the evidence collected from the wiretaps, which were extended three times, according to the filing, after the initial wiretap was authorized in the spring of 2019.

Servis and 26 other individuals were indicted in March 2020 on charges related to the administration of illegal substances to horses. Several indicted individuals, including Kristian Rhein, a veterinarian who called Servis his “client” during a hearing on Tuesday, have entered guilty pleas in the case.

“Mr. Servis’s communications were unlawfully obtained as a result of those wiretaps, and he is an aggrieved party with standing to bring this motion,” the filing says.

Specifically, the filing states that the FBI agent misrepresented the efficacy of a substance, SGF-1000, when seeking the authorization for the wiretaps. SGF-1000 is among a class of substances marketed by compounding pharmacies that routinely employ dubious claims of potency, and the filing states that racing regulators tested the substance on multiple occasions from 2014 to 2019 and found that it contained nothing more than “ovine [sheep] collagen.”

Multiple racing regulators have said since the indictment was released that samples of SGF-1000 were obtained and tested beginning in 2014 because of concerns about its use in horse racing. Those regulators have contended that the testing of the samples did not turn up any performance-enhancing ingredients.

According to the indictment, Servis told another indicted trainer, Jorge Navarro, during a wiretapped conversation in 2019 that he used SGF-1000 on “almost everything” in his barn. Navarro’s attorneys have told the court that he plans to change his not guilty plea during a hearing scheduled for Aug. 11.

The filing also states that the government misled the court about state regulations regarding the use of clenbuterol, a bronchial dilator that can have steroid-like effects when administered regularly to horses. Clenbuterol is tightly regulated in racing, but the drug is approved by the FDA to treat chronic pulmonary disease.

The filing quotes from the affidavit signed by the FBI agent, which states that clenbuterol is “prohibited or banned under the New Jersey or New York rules, absent certain exceptions.” The filing contends that that statement is “false and misleading, and material facts to put those statements in proper context were omitted,” while noting that Servis’s horses did not test positive for clenbuterol at any time prior to the wiretaps being authorized.

Following the release of the indictments, which led to Servis and Navarro being banned, New York regulators pulled samples from their horses and discovered that the vast majority had traces of clenbuterol in their systems. Many racing regulators have contended privately that they believe that trainers are using micro-doses of clenbuterol to evade detection and achieve the anabolic effect of the drug to improve performance. Those fears have led racing states across the U.S. to tighten regulation of the drug over the past two years, and many racing states now require treatments with clenbuterol to be filed with state regulators and for horses to test free and clear of the medication before they are allowed to race.

The government’s case against the indicted individuals rests heavily on allegations regarding the distribution and administration of SGF-1000, and prosecutors in the case have already told the presiding judge that they intend to treat the substance as “performance-enhancing” even if it was a “dud.”

On Tuesday, Rhein, the veterinarian who counted Servis as a client, entered a guilty plea for one felony count of adulterating and misbranding of drugs, and he told the judge in the case that he provided Servis and other trainers and veterinarians with SGF-1000 and clenbuterol during a four-year period running from 2016 to 2020. When asked by the judge if he knew that what he was doing was “illegal,” Rhein paused and replied, “I’m under oath, your honor.” After conferring with his attorney, Rhein answered the same question with the response, “Yes, your honor, I did.”