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Watching the cheaters cheat
Monday, November 3, 2014 - by Chris E. Wittstruck, Esq.

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Chris Wittstruck
During the last few months, a handful of unscrupulous southern bass fishermen got much more than they bargained for when they told tall tales about the ones that didn’t get away.

In September, anglers Gary Lee Minor Jr. and Robert Scott Gillaspie were convicted of theft by deception and tampering with a sporting event in connection with their actions during a fishing tournament in Guntersville, Ala. The men were arrested when another competitor witnessed the two retrieving previously caught fish from a holding tank secreted near a dock. Suspicions about the fraudsters purportedly arose after the two won six consecutive tournaments.

In October, Steven Ray Macon pleaded guilty to tampering with a fishing competition that occurred in June on another Alabama lake. Similar to Minor and Gillaspie’s criminal activity, a state conservation officer witnessed him weighing in a fish he had taken from a basket under a dock.

These types of contests usually earn the winners no more than a few hundred dollars. Petty or not, criminal convictions are an indelible stain on one’s record, and fines, restitution, community service, probation, and even jail time are the penalties that result.

While fixing a late night fishing competition may harm only those who compete, fixing a pari-mutuel horse race affects not just the connections of the particular race’s horses. When the results of a race have been tampered with, countless gamblers are affected. Tens of thousands, if not hundreds of thousands of dollars, are involved.

Criminal prosecutions in the racing realm are not unheard of, and take a variety of forms. An infamous ringer scandal at New York’s Thoroughbred tracks in the 1970s landed a prominent veterinarian a local jail sentence. The “Drexel Pick-Six” betting scandal involving the 2002 Breeders’ Cup races was an instance of manipulation of a tote company’s computer system. Guilty pleas resulted in short jail terms. Over the last 40 years, several prosecutions for race fixing involving alleged intentional lack of effort on the part of drivers, many involving exotic wagers such as the superfecta, have been conducted with mixed results.

Yet, criminal prosecutions for drug positives are virtually nonexistent. While a 2003 federal prosecution involving milkshaking at Aqueduct Racetrack in New York snared a Thoroughbred trainer and others, the case was based upon conversations among conspirators picked up on wiretaps, not a drug positive. Another criminal case in New York involving milkshaking was based upon eyewitness testimony of a track security guard who witnessed pre-race tubing being performed by a trainer’s assistant and a veterinarian in a backstretch stall. Of course, the horse didn’t race as scheduled. Even the 2006 case built against Seldon Ledford and others involving the rapid and significant improvement of several horses under his tutelage resulted in guilty pleas only for drug possession, not race fixing or positive samples in horses.

Indictments filed in Federal District Court in Pennsylvania in November 2013 are of similar import. In addition to charges against a clocker for taking bribes paid to secure the falsification of Thoroughbred workouts, three trainers were alleged to have been involved in the pre-race administration of drugs to horses for the purpose of tampering with the outcome of races conducted at Penn National Race Course.

The Pennsylvania allegations were reportedly the outgrowth of a four year investigation. The cases were based upon surveillance and actual observations by track personnel of trainers injecting horses and possessing syringes, needles and medication bottles.

Subsequent to the indictments, the U.S. Attorney’s Office deferred its prosecution of the accused to the state. While the charges against one trainer were dismissed, it was reported last month that another trainer is pleading guilty to rigging a publicly exhibited contest under an applicable Pennsylvania statute. The clocker in the case pleaded guilty earlier in the year and is cooperating with authorities.

Amidst the call from some quarters for government to get more involved in the setting of medication standards and the policing of substance administration in racing, the obvious is nowhere to be found. No amount of state-by-state uniformity, multistate detection labs or federal oversight can substitute for the true measure of deterrence that can be employed in the here and now without a single medication rule change in our industry. Rather than severely limiting the scope, amount and timing of therapeutics veterinarians use to treat illness, the racing community’s thrust can be aimed at expanding human intelligence and employing human observation to catch cheaters.

Consider, for example, various sections of New York’s Penal Law:

  • § 180.51 Tampering with a sports contest in the first degree.
    A person is guilty of tampering with a sports contest in the first degree when, with intent to influence the outcome of a pari-mutuel horse race:
    1. He affects any equine animal involved in the conduct or operation of a pari-mutuel horse race by administering to the animal in any manner whatsoever any controlled substance.
  • § 180.50 Tampering with a sports contest in the second degree.
    A person is guilty of tampering with a sports contest when, with intent to influence the outcome of a sports contest, he tampers with any sports participant, sports official or with any animal or equipment or other thing involved in the conduct or operation of a sports contest in a manner contrary to the rules and usages purporting to govern such a contest.

Besides being clear and straightforward, the statutes are written specifically to target abuses in our industry. The problem is that finding an illicit substance in a sample is, by itself, insufficient as the basis for criminal prosecution. While the trainer responsibility rule provides ample cause to administratively violate a trainer for a drugged horse, the standard for criminal conviction, proof beyond a reasonable doubt, requires much more than simply proving that the horse was in the trainer’s barn.

Having care, custody and control over the animal does not establish that the horse was tampered with at the trainer’s direction. There must be a degree of physical proof that a jury can latch onto which ensures the tampering was to the exclusion of everyone other than the trainer and/or his or her agents. The presumption afforded the accused is that of innocence, not responsibility. Eyewitness testimony of a highly reliable nature as to the actual administration or attempt thereto of the substance, and possession of the substance and tools of administration, provide that type of assurance.

Deterrence is achieved through the general knowledge that detection is probable and punishment will be of a nature and severity such that the proscribed activity is not worth the potential for reward.

Stated another way, establishing questionable thresholds and withdrawal times based upon other than irrefutable science, poorly constructing out of competition protocols, etc. simply allows for the accused to argue against the propriety of violation. Fines and suspensions lead to eventual reinstatement. Criminal conviction, on the other hand, imposes a stigma and measure of certainty that carries far beyond the racetrack, and conviction for a serious offense could provide a barrier to a return to participation.

Catching a drug perpetrator in the act red handed is more significant than finding a bad substance in a sample. We don’t convict test tubes; we convict people. A positive sample occasions a rule violation. Tying administration to the affirmative act of a specific person via eyewitness observation could lead to a criminal conviction. Soliciting tips, developing leads, conducting professional surveillance, obtaining warrants -- hard, old fashioned legwork -- is what’s needed. While much of this is being done now, we need much more to be done.

A fish looks, smells and tastes like a fish. How and when you caught it is another matter. It’s time we stopped worrying about the fish out of water, and start to watch the fishermen much more closely.

Chris E. Wittstruck is an attorney, a director of the Standardbred Owners Association of New York and a charter member of the Albany Law School Racing and Gaming Law Network.

Editor's Note: The views contained in this column are that of the author alone, and do not necessarily represent the opinions or views of the United States Trotting Association.

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