1 

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 BRIEF TO THE COURT

Pursuant to the Court’s Order of September 18, 2024 (Doc. 184), the defense respectfully 

submits this brief as to: 1) whether the death of Dr. Kaspar should be considered relevant conduct; 

and 2) who is entitled to make victim impact statements, and whether it would be error for the 

Court in its discretion to permit others to be heard at sentencing. 

The Death of Dr. Kaspar Should Not Be Considered Relevant Conduct 

Relevant conduct is defined by USSG § 1B1.3(a), and includes: 

(1)(A) all acts and omissions committed, aided, abetted, counseled, commanded, 

induced, procured, or willfully caused by the defendant; and 

(B) in the case of a jointly undertaken criminal activity (a criminal plan, scheme, 

endeavor, or enterprise undertaken by the defendant in concert with others, 

whether or not charged as a conspiracy), all acts and omissions of others that 

were--

(i) within the scope of the jointly undertaken criminal activity,

(ii) in furtherance of that criminal activity, and

(iii) reasonably foreseeable in connection with that criminal 

activity;

that occurred during the commission of the offense of conviction, in preparation 

for that offense, or in the course of attempting to avoid detection or responsibility 

for that offense; 

(2) solely with respect to offenses of a character for which § 3D1.2(d) would 

require grouping of multiple counts, all acts and omissions described in 

subdivisions (1)(A) and (1)(B) above that were part of the same course of conduct 

or common scheme or plan as the offense of conviction; 

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(3) all harm that resulted from the acts and omissions specified in subsections 

(a)(1) and (a)(2) above, and all harm that was the object of such acts and 

omissions; and

(4) any other information specified in the applicable guideline.

USSG § 1B1.3(a)(1).

The death of Dr. Kaspar, even if caused by Dr. Ortiz, which he denies, plainly falls in none 

of these categories. Subsection (a)(1) captures only that conduct that occurs: 1) during the offense 

of conviction, 2) in preparation for the offense of conviction, or 3) to avoid responsibility for the 

offense of conviction. 

The offenses of conviction are five discrete acts of alleged tampering occurring in August 

of 2022, none of which affected Dr. Kaspar, who died in June of 2022. Dr. Ortiz did not allegedly 

poison Dr. Kaspar “during” any of the offenses of conviction; the offenses of conviction occurred 

two months after any poisoning of Dr. Kaspar of Dr. Kaspar could have occurred. 

Nor has the government introduced any evidence, nor made any argument, that Dr. 

Kaspar’s death represented some manner of “preparation” for the offenses of conviction. There is 

no evidence, for example, that Dr. Ortiz changed a M.O. after learning from Dr. Kaspar’s death, 

nor that the offenses of conviction represented an ultimate goal that Dr. Kaspar’s death helped him 

achieve. If Dr. Kaspar’s alleged poisoning is treated as “preparation” for the offenses of conviction, 

it can only be on the theory that every repetitive offense constitutes a string of “preparations” for 

the next offense. That theory would eliminate any meaningful distinction between Subsections 

(a)(1) and (a)(2) of § 1B1.3. Subsection (a)(2) captures some repetitive offenses, namely those that 

would be grouped under USSG § 3D1.2(d), and those sufficiently connected by a common course 

of conduct or common scheme. But if (a)(1) treats every repetitive offense as a string of “ongoing 

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preparations,” it would capture all repetitive offenses, eliminating the explicit restrictions found 

on the application of (a)(2). That would contravenecontravene the canon against surplusage.1

Further, any alleged poisoning of Dr. Kaspar cannot have been an effort “to avoid detection 

or responsibility for” the offenses of conviction. The offenses of conviction had not yet occurred, 

and the government has offered neither evidence nor argument as to why Dr. Kaspar’s death helped 

Dr. Ortiz avoid detection in allegedly committing the offenses of conviction.

Subsection (a)(2) is entirely off-limits, as the defense’s response to the PSR (Doc. 174) 

explained without meaningful rebuttal. This theory of relevant conduct liability applies “solely 

with respect to offenses of a character for which § 3D1.2(d) would require grouping of multiple 

counts.” Section 3D1.2(d) calls for grouping:

[w]hen the offense level is determined largely on the basis of the total amount of harm or 

loss, the quantity of a substance involved, or some other measure of aggregate harm, or if 

the offense behavior is ongoing or continuous in nature and the offense guideline is 

written to cover such behavior.

USSG § 3D1.2(d). Neither USSG § 2N1.1 nor USSG § 2A2.1 (to which the PSR applies a crossreference) call for a quantitative measurement of harm such as loss or drug quantity – they only 

onlycount offense levels. Indeed, USSG § 2A2.1 (the target of a cross-reference) and nearly all of 

Chapter 2A (which would have governed the death of Dr. Kaspar, had it been charged) are 

1 See United States v. Menasche, 348 U.S. 528, 538–539 (1955) (“‘every clause and word 

of a statute’” should, “‘if possible,’” be given “‘effect.’”) (quoting Inhabitants of Montclair Tp. v. 

Ramsdell, 107 U.S. 147, 152 (1883)). 

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expressly excluded from § 3D1.2(d).2 As such, it it would be erwould be error to treat any offense 

resulting in Dr. Kaspar’s death as relevant conduct under USSG § 1B1.3(a)(2).3

Subsection (a)(3) captures “all harm that resulted from the acts and omissions specified in 

subsections (a)(1) and (a)(2) above, and all harm that was the object of such acts and omissions.” 

But, again, Dr. Kaspar’s death could not have resulted from the offenses of conviction; it occurred 

two months earlier. There is no evidence, moreover, that it resulted from preparation for the 

offenses of conviction.

Finally, Subsection (a)(4) provides that Chapter Two Guidelines may create local rules of 

relevant conduct. None appears in USSG § 2N1.1.

The government’s response to the PSR Objection scarcely disputes any of this. It does not 

engage with the language of the relevant conduct Guideline at all; rather it ; rather it simply asserts 

that any challenge to the PSR would “prove too much” because it would not consider an uncharged 

offense. The notion that defendants suffer punishment chiefly for the offenses of which a jury 

actually convicts them, however, is hardly absurd. Rather, the limits on the relevant conduct 

Guideline honor the sacred Constitutional Right to trial by jury, to proof beyond a reasonable 

doubt, and to fair notice of the charged offense. If the government wishes to seek punishment for 

the death of Dr. Kaspar, then it should have charged Dr. Ortiz with causing it and attempted to 

secure the unanimous verdict of a jury.

2 See USSG § 3D1.2(d).

3 United States v. Randall, 924 F.3d 790 (5th Cir. 2019). 

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Only Persons Directly and Proximately Harmed by the Offenses in the Counts of Conviction Are 

Entitled to Make Victim Impact Statements and Should be Allowed to Speak Prior to the Court 

Imposing Sentence 

The government provided the Court and, later, the defense, with a list of nine persons who 

wish to give victim impact statements at Dr. Ortiz’s sentencing: DA, KP, MJ, JK, JM, RL, LS, MN, 

and MD. Because DA, KP, and MJ are either named victims or a family member of a named victim 

in a count of conviction, the defense does not contest their status as “crime victims” and their 

corresponding right to make a victim impact statement. However, for the reasons set forth below, 

the defense objects to the remaining six and the Court should not permit them to offer evidence 

for consideration in connection with Dr. Ortiz’s sentence. 

“Crime victims” do indeed enjoy the right to be reasonably heard at any public proceeding 

involving release, plea, sentencing, or any parole proceeding.4 However, “crime victim” is, per the 

Crime Victims Rights Act (“CVRACVRA”), a term of art: the term ‘crime victim’ means a person 

directly and proximately harmed as a result of the commission of a federal offense or an offense in 

the district of Columbia.5 And it is not just any federal offense that triggers a person’s status as a 

“crime victim,” but rather the crime.

6 The question for this Court, then, is not whether JK, JM, RL, 

LS, MN, and MD ought to be permitted to make victim impact statements pursuant to 18 U.S.C. 

§ 3771(a)(4), but rather whether they are “crime victims” per the CVRAVRA. And, when deciding 

that question, the defense respectfully submits that the Court should be mindful of the 

government’s request that it punish Dr. Ortiz for Dr. Kaspar’s death even though it declined to 

charge that accusation and have it resolved by a jury. In evaluating whether a District Court erred 

as to relief requested under the CVRA V, the Fifth Circuit reviews “the district court’s legal 

4 18 U.S.C. § 3771(a)(4).

5 18 U.S.C. § 3771(e)(2)(A) (emphasis added).. 6 See Fed. R. Crim. P. 32(i)(4)(B) (“before imposing sentence, the court must address any victim of the crime who is 

present at sentencing and must permit the victim to be reasonably heard”) (emphasis added)..

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conclusions de novo, its factual conclusions for clear error, and its discretionary judgments for 

abuse of discretion.”7

Another District Court in our district succinctly found that “when a jury convicts a 

defendant, the first step [of determining who is a victim pursuant to the CVRA] is straightforward. 

The federal offense is the ‘offense of conviction, based solely on facts reflected in the jury 

verdict.’”8 The only reason a Court would need additional analysis, as reasoned by Boeing, is when 

a Court is “supposed to determine the ‘federal offense committed’ in the context of a deferred 

prosecution agreement.”9 Because Dr. Ortiz proceeded to trial, there is no mystery as to what 

constitutes the “offenses of conviction” and persons are not “crime victims” in this case unless 

they were directly and proximately harmed by the specific offenses in the counts of conviction. 

For this reason alone, JK, JM, RL, LS, MN, and MD are not “crime victims” in this casein this 

case.

If the Court were to shun a bright-line rule that “crime victims” are those directly and 

proximately harmed by the offenses in the counts of conviction, then it is difficult to see what 

method the Court could employ to determine if said persons are eligible for any of the rights 

afforded to victims under the CVRACVRA (to make victim impact statements, receive restitution, 

etc.) and whether the government and Court’s obligations under the CVRA are triggered as to those 

persons. If the Court were to enlarge the universe of persons to include those referenced in the 

government’s Notice pursuant to Federal Rule of Evidence 404(b), then would the Court first hold 

an evidentiary hearing? What would the standard be and how would it be determined? In any event, 

7 In Re Ryan, 88 F.4th 614, 621 (5th Cir. 2023). 8 United States v. Boeing, 617 F.Supp. 3d 502, 508 (N.D.T.X. July 27, 2022) citing In re McNulty, 597 F.3d 344, 351 

(6th Cir. 2010). 9 Id.

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there is no support for a claim that, in passing the CVRACVRA, Congress intended for its 

protections and rights to apply to persons other than those directly and proximately harmed by the 

offenses in the counts of conviction. To the contrary, as to restitution, 18 U.S.C. § 3663(a)(2) 

provides that “the term ‘victim’ means a person directly and proximately harmed as a result of the 

commission of an offense...” and the Fifth Circuit only permits said restitution to a victim “directly 

and proximately harmed by the defendant’s offense of conviction.” 10 It is difficult to see why “a 

person directly and proximately harmed as a result of the commission of an offense” would mean 

one thing in the context of 18 U.S.C. § 3663(a)(2) but another in the CVRA.

The Court should decline to categorize persons as “crime victims” in the absence of the 

satisfaction of the corresponding statutory criteria. The Court should resist the government’s plea 

to make the upcoming sentencing hearing a free-for-all wherein anyone with a perceived perceived 

grievance against Dr. Ortiz may provide information for the Court’s consideration as to the 

sentence it will impose. The defense submits that doing otherwise would be error. As set forth 

above, if seeing Dr. Ortiz punished in connection with the matters corresponding to JK, JM, RL, 

LS, MN, and MD is important enough to the government to urge this Court to add substantially to 

the sentence it would otherwise impose, then the government either should have sought 

corresponding counts from the Grand Jury or should seek them now.

10 Boeing, 617 F. Supp. 3d 3d. 502 at 512 citing United States v. Kim, 988 F.3d 803, 811 (5th Cir.).

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Respectfully submitted,

JASON HAWKINS 

Federal Public Defender

Northern District of Texas 

 

 /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 

CERTIFICATE OF SERVICE

I hereby certify that on October 18, 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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