The United States solicitor general on Sept. 17 filed a brief recommending that the U.S. Supreme Court review the case of Thoroughbred trainer Murray Rojas, who was convicted in June 2017 on multiple charges of drug misbranding, that the judgment by the Court of Appeals to affirm the conviction be vacated and the case remanded to the trial court for further proceedings.
The brief was filed by Brian H. Fletcher, acting solicitor general of the United States; Brian M. Boynton, acting assistant U.S. attorney general and two attorneys from the U.S. Department of Justice.
The recommendation that the Supreme Court review the case was made on the basis that the trial judge in U.S. District Court for the Middle District of Pennsylvania and the Court of Appeals for the Third Circuit erred in their definition of misbranding in both the jury instructions for the Rojas trial and in the appellate decision.
Rojas was sentenced to 27 months in federal prison after a jury convicted her on 13 counts of misbranding animal prescription drugs and one count of conspiracy to misbrand. She was found not guilty on six counts of wire fraud and one count of conspiracy to commit wire fraud. Rojas received a stay on the sentence while the case was being appealed. The case was part of an FBI investigation into corruption and illegal drugging of horses at Penn National racetrack in Grantville, Pa. A number of trainers, veterinarians and racing officials pleaded guilty to various offenses. The case against Rojas is the only one that went to trial.
Robert E. Goldman, attorney for Rojas, said the “government confessed an error” in how prosecutors, the District Court judge and the Court of Appeals interpreted the Federal Food, Drug and Cosmetic Act (FDCA), a 1938 law that gives authority to the U.S. Food and Drug Administration to oversee the safety of food, drugs and cosmetics.
Judge Sylvia H. Rambo denied Goldman’s request for jury instructions to differentiate between “administering” and “dispensing” of drugs under the FDCA, and the Court of Appeals affirmed her denial.
According to the brief filed by the office of the solicitor general, “The government now acknowledges that a veterinarian who personally injects a drug into an animal under her direct care in the course of her professional practice, without first issuing a written or oral order (i.e., prescription), has not engaged in misbranding under the FDCA.
“The FDCA permits a covered animal drug to be ‘dispensed only by or upon the lawful written or oral order of a licensed veterinarian in the course of the veterinarian’s professional practice,’” the brief states. “If the drug is dispensed in that manner, misbranding does not occur. The plain text of that provision indicates that an animal drug may lawfully be dispensed via two different methods: either ‘by a licensed veterinarian in the course of the veterinarian’s professional practice’ or ‘upon the lawful written or oral order of a licensed veterinarian in the course of the veterinarian’s professional practice. Therefore, if a veterinarian follows the first method and personally dispenses a covered animal drug in the course of the veterinarian’s professional practice, no written or oral order is required.”
The jury instructions from Rambo “permitted the jury to find that the government carried its burden of proof on the third element solely by showing that the veterinarians injected covered animal drugs into petitioner’s horses with a written or oral order, and without the jury considering whether the drugs were injected ‘in the course of the veterinarian’s professional practice,” the brief states.
Rojas was accused of having veterinarians administer medications to horses within 24 hours of a race and then falsify the dates of the treatments in violation of state racing regulations. A fellow trainer and one of the veterinarians who pleaded guilty in the case said the practice was commonplace.
The petition by Rojas was supported by the Cato Institute, a Washington, D.C., public policy foundation created by billionaire libertarian Charles Koch, as well as by the American Conservative Union Foundation, which among other things hosts the annual Conservative Political Action Conference (CPAC). Their brief focused on what it said was “a particularly egregious example of an increasingly common and distressing phenomenon – the aggressive federal criminal prosecution of conduct that historically has been left to state and local regulatory enforcement.”
The solicitor general determines the cases for which Supreme Court review will be sought by the federal government and provides oral arguments before the Court. The recommendation for review will be moot if the Supreme Court opts not to review the case or return it to District Court for reconsideration with the amended definition for misbranding. According to a government website for the federal court system, the Supreme Court “accepts 100-150 of the more than 7,000 cases that it is asked to review each year.”
Goldman, the attorney for Rojas, said the solicitor general’s brief “is not a complete victory yet, but is going in the right direction” for his client.
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