Federal Judge Upholds ‘Misbranding’ Conviction Of Trainer Murray Rojas

by | 03.15.2018 | 8:49am

Judge Sylvia Rambo has denied a motion by the attorney for Murray Rojas to overturn a federal jury's conviction of the Penn National-based trainer on 14 felony counts of misbranding prescription drugs over a 13-year period from 2002-14.

Rojas was found not guilty of wire fraud.

The crimes involved Rojas directing veterinarians to administer drugs on race day in violation of track rules and state law. During the trial, veterinarians testified that, at the request of Rojas, they systematically provided illegal race-day treatment to dozens of horses in her stable with a variety of therapeutic drugs. Part of the scheme involved backdating invoices and other records.

Following the June 30, 2017, conviction in United States District Court for the Middle District of Pennsylvania, attorney Robert Goldman filed a motion for acquittal under procedure 29 of the federal rule of criminal procedure. That motion was denied, but Goldman filed a renewed motion for acquittal, claiming that the crime of misbranding did not apply in this case. Under the Federal Drug and Cosmetic Act, the “dispensing of a prescription drug to an animal in contravention of Section 353(f)(1)(A) causes the drugs to become misbranded.”

Procedure 29, often called Rule 29, provides that a court may set aside a verdict and enter an acquittal for any offense for which the evidence is insufficient to sustain a conviction, according to Rambo's March 14 decision.

The motion to acquit, Rojas wrote in her memorandum, “can be distilled into a single argument: the words ‘administer' and ‘dispense' have different meanings under the Federal Drug and Cosmetic Act; only dispensing and not administering, can support a charge for misbranding.” Goldman argued the government did not establish that Rojas caused the drugs to be “dispensed” under the Act.

“It is without question that the drugs that were impermissibly administered to horses within 24 hours of a race, at defendant's direction, were not administered pursuant to a valid prescription of order from a veterinarian,” Rambo wrote. “The only question for the court, then, is whether the drugs that were administered were also dispensed.”

Kevin Brophy, one of four veterinarians who pleaded guilty in the investigation, offered testimony that “administering” was the act of injecting substances into the horse and that “dispensing” would have occurred if he sold medication to a client for later use.

“However, the court sees nothing in the Act to suggest that there is some temporal element required between the selling of a drug and its administration for a misbranding offense to be possible,” Rambo wrote. “Thus, the court simply must determine whether the jury had before it reliable evidence that Brophy or the other veterinarians sold prescription drugs to defendant. …

“The court sees no basis for distinguishing between a hypothetical situation where the veterinarians would have dispensed the drugs to defendant for her to then inject the horses, which defendant appears to concede would be misbranding, and what occurred here, where the veterinarians would both dispense and administer the drugs themselves. Such a distinction would lead to an absurd and almost certainly unintended result that would allow those involved in the illegal scheme to skirt a misbranding charge by having veterinarians inject the drugs rather than the trainers or owners of horses. This seems to be in obvious contravention of the Act's plain language, which causes a drug to become misbranded after it has moved in interstate commerce and while it is held for sale.”

In ordering that the motion to acquit be denied, Rambo set a May 9 deadline for the probation officer to disclose a presentence investigation report. The maximum sentence for each count of the conviction is up to three years in prison. The Pennsylvania State  Horse Racing Commission has revoked Rojas' licenses.

The conviction of Rojas was part of an ongoing FBI investigation into illegal activity at Penn National that led to guilty pleas, convictions or accelerated rehabilitative dispositions of nine others, including a clocker, racing official, four veterinarians and three trainers.

More charges may be coming. During the trial, veterinarians who had pleaded guilty provided records to the prosecution showing that a number of other trainers were also having drugs illegally given to horses on race-day.

Trainer Stephanie Beattie, who was never charged in the case and was a cooperating witness for the government, testified that “almost everybody” at Penn National broke the rules by administering drugs on race day. “Ninety-five to 98%,” Beattie said. “It was a known practice. We wanted to win and they weren't testing for those drugs at that time.”

On March 9, according to multiple sources familiar with the case, as many as 12 trainers who had been subpoenaed were brought before a state grand jury. Sources said those individuals refused to answer questions and invoked the Fifth Amendment of the U.S. Constitution against self-incrimination.

The National Horsemen's Benevolent and Protective Association formed a legal defense fund to help Rojas with legal costs.

Click here to read Judge Rambo's Memorandum

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