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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

UNITED STATES OF AMERICA § 

§ 

v. § 3:22-CR-378-N 

§ 

RAYNALDO RIVERA ORTIZ, JR. § 

DEFENDANT’S MOTION TO EXCLUDE ACCUSATIONS

BY NON-TESTIFYING WITNESS

The government timely filed its witness list (Doc. 121) on Friday, March 22, 2024, and

this motion follows. Noticeably absent from the government’s fifty-seven probable, expert, and 

possible witnesses is Dr. Morris Gottlieb. Regardless of why the government chose not to list Dr. 

Gottlieb, the fact remains he is not on the government’s list and, as such, his multiple accusations 

and assertions of fact against Dr. Ortiz are inadmissible at Dr. Ortiz’s trial. As such, the defense 

respectfully submits that the Court should order the government not to reference or otherwise 

convey Dr. Gottlieb’s accusations and assertions during voir dire, opening statement, or the 

presentation of evidence unless it first makes a showing of how they are admissible absent Dr. 

Gottlieb’s live testimony.

As part of the discovery in this case, the government provided a recorded interview 

between Dr. Gottlieb and law enforcement. A transcript of that interview reveals that Dr. Gottlieb 

is both the “Facility-1 personnel” and the “doctor who is a principal at Facility-1” referenced in 

the Criminal Complaint (Doc. 1). Similarly, Dr. Gottlieb is both the “staff there at the surgery 

center” and the “Surgicare staff” referenced by Special Agent Allgeyer during his testimony at 

Dr. Ortiz’s detention hearing before the Honorable U.S. Magistrate Judge on September 29, 

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2022.1 Throughout the prosecution of this case, the government has made much use of Dr. 

Gottlieb’s accusations and assertions but now advises it does not intend to present him as a live 

witness, one subject to the Court’s admonishment to tell the truth and, moreover, be subject to 

cross-examination.

The defense expects the government to argue it can have its cake and eat it, too. The 

Court should reject any such argument as flatly contrary to the prohibition on both hearsay and 

the Sixth Amendment’s Confrontation Clause as explained by Crawford v. Washington.

2 The 

government’s most likely theory of admission is the jury’s need to understand why the 

investigation proceeded as it did, why it focused on Dr. Ortiz as the only suspect, etc. However, 

the Fifth Circuit has repeatedly disapproved of this tactic. For example, in United States v. 

Brown, the Fifth Circuit held that the government may not elicit hearsay testimony that the 

defendants in that case were on a “target list” in order to explain why officers commenced an 

investigation of them.3 The Brown court persuasively reasoned that evidence of that sort can lead 

the jury to infer guilt from reasons other than the product of that investigation—if the declarant’s 

statement lead the officer to believe the defendant is guilty, it is likely to persuade the jury to do 

the same.4 Similarly, in United States v. Sharp, the Fifth Circuit provided that “the mere 

existence of a purported non-hearsay purpose does not insulate an out-of-court statement of the 

most damaging kind—that Sharp was committing the crime—and left Sharp with no opportunity 

to confront his accuser.” 5 The Sharp court further reasoned that, “[b]ackdooring highly 

1 Transcript of testimony, pg. 18 lines 13-23. 2 Crawford v. Washington, 541 U.S. 36 (2004) 3 United States v. Brown, 451 F.2d 1231, 1234-35 (5th Cir. 1971). 4 Id.

5 United States v. Sharp, 6 F.4th 573, 582 (5th Circuit 2021).

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inculpatory hearsay via an explaining-the-investigation rationale is a recurring problem,” and the 

government “must take care to avoid eliciting this kind of unconstitutional testimony.”6

The Court should order the government to refrain from making any assertions or 

arguments at any stage of Dr. Ortiz’s trial that originated with Dr. Gottlieb unless it has first 

proffered a basis of admission and, after having heard from the defense, received leave of the 

Court; a non-exhaustive list of said assertions or arguments is as follows: 1) that it would have 

been “devastating financially” had Dr. Ortiz lost his privileges at Baylor Scott North Dallas 

(“BSND”); 2) that, concerning an investigation into a May 19, 2022 procedure, Dr. Ortiz said he 

felt he would be “crucified”; 3) that, beginning in late May of 2022, Dr. Ortiz went outside of the 

operating room for every surgery he was working to get a second bag of IV fluid when such was 

needed; 4) that, in the eighteen years prior to May of 2022, Dr. Ortiz had a nurse get a second 

bag of IV fluid when such was needed; 5) that Dr. Ortiz allegedly said, “...look at all these cases 

at the surgery center where people are being transferred out (BSND), there are so many...Look at 

all these other anesthesiologists, look at all these transfers, and they’re going after me?”; and 6) 

that, concerning a Baylor Scott & White Surgicare North Garland (“BSWNG”) investigation into 

a procedure for which Dr. Ortiz was the anesthesiologist, Dr. Ortiz said that BSWNG was trying 

to “crucify him”.

Notably, the trial has not yet begun and whether, and to what extent, evidence from and 

about Dr. Gottlieb is admissible is already pending in the form of two motions (including this 

one). If the Court were to deny this motion, then additional and related litigation as to the 

6 Id. See also United States v. Johnston, 127 F.3d 380, 395 (5th Cir. 1997)(“The identity of the ‘focus’ of the 

investigation had limited, if any probative value. It was entirely unnecessary to explain the basis for further activity 

by the witness. By any account the probative value was insufficient to offense the prejudice to Adams resulting from 

the direct implication that a Shreveport policeman, not subject to cross-examination, had given information, itself 

probably not admissible, which caused defendants to become the ‘focus’ of a narcotics investigation.”)

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admissibility of the defense’s evidence tending to impeach Dr. Gottlieb via Federal Rule of 

Evidence 806 would be inevitable. Hence, putting aside for the moment the prohibition on 

hearsay and Dr. Ortiz’s Sixth Amendment Right to confront his accusers, Dr. Gottlieb’s 

accusations and factual assertions would be ideal candidates for exclusion under Federal Rule of 

Evidence 403. 

CONCLUSION

The defense respectfully requests the relief discussed above.

Respectfully submitted,

 

 /s/ John M. Nicholson 

JOHN M. NICHOLSON

Assistant Federal Public Defender

Northern District of Texas 

Texas Bar # 24013240

525 Griffin Street, Suite 629

Dallas, Texas 75202

Phone (214) 767-2746 

Fax (214) 767-2886 

john_nicholson@fd.org

 s/ Marti R. Morgan 

MARTI R. MORGAN

Assistant Federal Public Defender

Northern District of Texas 

Florida Bar # 91879

525 Griffin Street, Suite 629

Dallas, Texas 75202 

Phone (214) 767-2746 

Fax (214) 767-2886 

marti_morgan@fd.org 

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CERTIFICATE OF SERVICE

I hereby certify that on March 25, 2024, I electronically filed the foregoing document 

using the Court’s CM/ECF system, thereby providing service on attorneys of record.

 /s/ John M. Nicholson 

 JOHN M. NICHOLSON

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