U.S. v. Fishman

OPINION AND ORDER DENYING RULE 29 MOTION FOR ACQUITTAL After a ten-day jury trial, the defendant, Seth Fishman, was convicted of two counts of conspiracy to commit drug adulteration and misbranding with intent to defraud. The jury found that Fishman participated in two distinct conspiracies in which he manufactured and distributed untestable performance enhancing drugs (“PEDs”) that would be used to “dope” racehorses and that would evade detection by racing authorities and drug regulators. Count One charged Fishman with joining a conspiracy run by a prominent thoroughbred racehorse trainer named Jorge Navarro. Count Two charged Fishman with running his own longstanding conspiracy through his business Equestology. Fishman now moves pursuant to Rule 29 of the Federal Rules of Criminal Procedure for acquittal on Count One, arguing that Count One is multiplicitous of Count Two. That motion is DENIED because a rational trier of fact could find, based on the evidence at trial, that Fishman participated in two distinct conspiracies. I. BACKGROUND In November 2020, a grand jury returned a superseding indictment, S6, charging Seth Fishman in two counts of conspiracy to commit drug adulteration and misbranding with intent to defraud [ECF No. 283 ("Indictment")]. Both counts charged Fishman under the general federal conspiracy statute, 18 U.S.C. §371, and alleged that Fishman agreed, with others, to distribute adulterated and misbranded drugs that were intended to enhance the performance of racehorses and to evade detection by racing authorities and drug regulators, in violation of 21 U.S.C. §§331 and 333. Each count charged a distinct conspiracy, with different leaders, conspirators, timeframes, and goals. Count One charged Seth Fishman with agreeing to participate in “the Navarro Doping Program” from about 2016 through March 2020. Indictment

5, 16, 20. The Indictment alleged that the prominent thoroughbred racehorse trainer Jorge Navarro “orchestrated” a notorious scheme of obtaining “a wide variety” of “adulterated and misbranded PEDs” from various sources and administering them “to the racehorses under his control.” Indictment