NEW YORK – The jury in the federal trial of Seth Fishman on Monday heard a portion of an FBI wiretap in which Fishman discusses whether the drugs he sold to horse trainers involved “doping.” "Any time you give something to a horse, that's doping," said Fishman, who ran several businesses that marketed performance-enhancing substances to horsemen. The conversation was recorded by the FBI on April 5, 2019. "Whether or not they test for it is another story." On the call with Fishman was an unidentified individual who had wanted to know more about the drugs. "But it's not doping, yeah?" that person asks. "Don't kid yourself," Fishman also tells him. “If you're giving something to a horse to make it better, and you're not supposed to do that, that's doping. You know, whether or not it's testable, that's another story." The conversation, which had been transcribed in the indictments of Fishman and others and been widely quoted by media outlets, was played in court on the fifth day of the trial as testimony resumed after a day's interruption. On Monday, Judge Mary Kay Vyskocil declared a mistrial in the case co-defendant Lisa Giannelli. Giannelli's attorney tested positive for COVID-19 before court Monday, warranting the mistrial. As the day began Tuesday, Vyskocil announced a ruling rejecting a motion for a mistrial by Fishman's attorneys. They moved for a mistrial because they believed the positive COVID-19 test upset the flow of the trial and because of remarks Giannelli’s attorney made during opening statements last week that they said could prejudice the jury against their client. :: Want to start playing with a $510 bankroll and have access to free Formulator? Learn more That attorney, Louis Fasulo, had described his client as the "proverbial sheep" to Fishman's "sheep master." Giannelli allegedly helped Fishman distribute and sell his products. Vyskocil countered that Fishman had not been prejudiced. "Dr. Fishman has received a fair trial so far and will continue to receive a fair trial," Vyskocil said. Fishman was one of more than two dozen members of the horse racing community charged in sweeping indictments in March 2020 with conspiring to distribute or administer illegal substances to horses that wouldn't show up in post-race testing. Those charged included top trainers Jason Servis, who awaits trial, and Jorge Navarro, who pleaded guilty to one felony charge of conspiracy to commit drug adulteration or misbranding and was sentenced to five years in prison. Fishman is charged with two counts of conspiring to violate drug adulteration and misbranding laws. He faces a maximum of 15 years in prison if convicted. As part of their case, prosecutors allege Fishman accepted tens of thousands of dollars from Navarro in exchange for untestable drugs. On Tuesday, prosecutors called Dr. Jean Bowman, a veterinary medical officer in the division of surveillance for the FDA, as a government expert witness. During her testimony, prosecutor Sarah Mortazavi introduced into evidence photos taken on the day of Navarro's arrest in 2020 that showed him in possession at his Florida home of four alleged performance-enhancing drugs that came from Fishman. Mortazavi drilled down on those drugs, named BB3. The indictment described BB3 as a customized "blood building" product that when combined with intense physical exertion thickens a horse's blood. A horse administered BB3 ran the risk of a heart attack, the indictment said. The photo of BB3 seized by the FBI from the Navarro residence shows only the product's name on the bottle. Bowman testified that BB3 had not been approved by the FDA and that she could find no studies in an FDA database about BB3 and its effectiveness and safety to horses. Bowman also told the jury that the label on the BB3 bottle should have contained more information to pass muster with the FDA. She said the label should have contained the name of the prescribing veterinarian, how and when it should be administered, the identity of the manufacturer, and what precautions should be taken before administering it. The doctor testified that BB3 and the other substances Fishman sold should only be prescribed after a physical examination of the animal. Prosecutors contend Fishman never did that before shipping his products to buyers. At one point during questioning, Mortazavi had Bowman read from an email Fishman sent to Giannelli on Jan. 5, 2019, that contained a list of drugs available from Fishman's South Florida business Equestology. "BB3: Would only let trusted clients have this," Bowman quoted the email as saying. Fishman's lawyers Maurice Sercarz and Marc Fernich will have an opportunity to cross-examine the FDA expert when the trial resumes Wednesday. The Thoroughbred industry's leading publications are working together to cover this key trial.