by Jeff Lowe

A Kentucky judge has declared a mistrial in the federal case involving two co-owners of Horse of the Year Curlin.

Judge William Bertelsman ordered suspended attorneys Bill Gallion and Shirley Cunningham back to jail while they await another trial.

Gallion and Cunningham are charged with bilking former clients of $65-million in a settlement related to the diet drug Fen-Phen.

Jurors deliberated the case for eight days. They acquitted a third defendant, Melbourne Mills Jr., earlier this week.

“I sat through the trial, so I know how confused the jury could have been on some of these issues,” said Angela Ford, an attorney who represented the former clients in a successful civil case against Gallion, Cunningham, and Mills. “I feel confident the prosecution will obtain a conviction. It just means more time.”

Gallion and Cunningham also own multiple Grade 1 winner Einstein (Brz).

Their 20% stake in Curlin has clouded the colt’s eligibility to race outside Kentucky, where he won the Stephen Foster Handicap (G1) on June 12. Jess Jackson’s Stonestreet Stables owns the other 80% of Curlin.

Trainer Steve Asmussen would like to test Curlin on turf on July 12 in either the 1 1/4-mile Arlington Handicap (G3) at Arlington Park or the 1 3/8-mile Man o’ War Stakes (G1) at Belmont Park, but licensing issues might be a hurdle in either jurisdiction.

Cunningham and Gallion are not licensed in Illinois, and Cunningham is not licensed in New York. That would be only a formality if Cunningham and Gallion were not facing the federal charges, along with pending liquidation of assets to satisfy the ruling in the civil case.

A Kentucky judge ordered an interim receiver to take control of the management of Cunningham’s and Gallion’s assets on July 2. Kevin McGee, an attorney for Jackson, said Stonestreet representatives are hopeful that the judge’s order would help clear up Curlin’s status for racing in Illinois, New York, and possibly France for the Qatar Prix de l’Arc de Triomphe (Fr-G1) in October.

Jeff Lowe is a Thoroughbred Times staff writer