Government’s Response to Motion for Sanctions – Page 1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

UNITED STATES OF AMERICA

v.

RAYNALDO RIVERA ORTIZ JR.

CASE NO. 3:22-CR-378-N

GOVERNMENT’S RESPONSE TO DEFENDANT’S MOTION FOR SANCTIONS

There was no Brady violation concerning the second fingerprint report. The 

defendant’s motion should be denied. 

Background

In December 2023, defense counsel reviewed various items of physical evidence 

at the FDA’s Irving office, including IV bags collected from the surgery facility at which 

the crimes charged against the defendant occurred. After the review was completed, 

defense counsel asked the prosecutors if any of the IV bags in evidence had been 

submitted for fingerprinting. The prosecutors responded that none had, but, following the 

meeting at the FDA, subsequently asked the FDA agents to request that the Dallas Police 

Department (DPD) fingerprint three of the IV bags in custody. The DPD did so, 

producing a report that the government turned over to the defense on February 12, 2024

through its twelfth production of discovery. 

Defense counsel did ask the prosecutors if there were any additional reports or 

experts regarding the fingerprinting on February 20, 2024, and the prosecutors stated that 

they did not know of any additional reports concerning the fingerprint and did not expect 

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to list any fingerprint experts for testimony. Subsequently, the prosecutors learned of the 

second DPD report on March 11, 2024, when they received a copy of it via electronic 

mail from one of the DPD detectives involved in the original local investigation. The 

prosecutors learned of this report shortly prior to the defense filing the instant Brady

motion.

The day after the motion was filed, the prosecutors communicated to the defense

that, for defense planning purposes, the government’s response to the sanctions motion 

would state the government would not oppose the defense calling an expert on the 

fingerprint issue to testify at trial without the notice required under Rule 16 of the Federal 

Rules of Criminal Procedure. 

Authorities and Argument

To establish a Brady violation, the defendant must show the following: (1) the 

evidence at issue was favorable to the accused, either because it was exculpatory or 

impeaching, (2) the evidence was suppressed by the prosecution, and (3) the evidence 

was material. See United States v. Brown, 650 F.3d 581, 587-88 (5th Cir. 2011). 

Here, there was no Brady violation for several reasons. First, the second report 

was not “suppressed” because, under Fifth Circuit precedent, delayed disclosure is not 

“suppression.” See United States v. Swenson, 894 F.3d 677, 683 (5th Cir. 2018) (holding 

that “the evidence clearly was not suppressed” because, “under this court’s caselaw, 

evidence that is turned over to the defense during trial, let alone before trial, has never 

been considered suppressed”); United States v. Morrison, 833 F.3d 491, 508 (5th Cir. 

2016) (rejecting the defense’s argument that the government committed a Brady violation 

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where the defense received the material on the Friday before trial started, so the material 

was not “suppressed.”); Powell v. Quarterman, 536 F.3d 325, 335 (5th Cir. 2008) 

(holding that evidence turned over to the defense during trial is not “suppressed” within 

the meaning of Brady); Lawrence v. Lensing, 42 F.3d 255, 257 (5th Cir. 1994) (holding 

that a defendant “cannot allege a Brady violation because the prosecution did not 

suppress any evidence” where the existence and contents of the route sheet were 

disclosed at trial); United States v. McKinney, 758 F.2d 1036, 1049-50 (5th Cir. 1985) 

(holding that, even assuming the evidence was exculpatory and material, the government

did not suppress the evidence, but rather disclosed it to the defense during trial).

Second, the report was not suppressed because it was discoverable (and, in fact, 

was discovered) through the defendant’s due diligence (presumably through a Rule 17 

subpoena). “To constitute suppressed evidence under Brady, the evidence must not have 

been discoverable through the defendant’s due diligence.” United States v. Dvorin, 817 

F.3d 438 (5th Cir. 2016) (citing Brown, 650 F.3d at 588)); see also United States v. 

Skilling, 554 F.3d 529 (5th Cir. 2009) (“Evidence is not ‘suppressed’ if the defendant 

knows or should know of the essential facts that would enable him to take advantage of 

it.”) (internal citation omitted). 

Third, the accidental delayed disclosure of the second report is not material. 

Evidence is material if there is a reasonable probability that, had the evidence been 

disclosed to the defense, the result of the proceeding would have been different. Dvorin, 

817 F.3d at 451. A reasonable probability is a probability sufficient to undermine 

confidence in the outcome. Id.; see also McKinney, 758 F.2d at 1051 (“Because there is 

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substantial evidence supporting [the defendant’s] conviction, which in no way depends 

on the credibility of [a witness] and because [the witness’] credibility was effectively 

impeached thorough cross-examination in which [the witness’] propensity to lie and to 

threaten people was fully explored, we are confident that utilization of the [the 

suppressed evidence] during cross examination would not have affected the outcome of 

this case.”). 

Although the materiality element of Brady is typically reviewed post-trial, it is 

extremely likely that the evidence at issue here will not be material. Here, the 

government expects that several witnesses will testify that they handled the IV bags at 

issue during the facility’s investigation of the August 24, 2022 incident, making the 

evidentiary value of fingerprints on the IV bags extremely weak. There is also extensive

video surveillance documenting the defendant retrieving IV bags from and placing them 

in the warming bin at the facility. Furthermore, defense counsel can still make effective 

use of the second fingerprint report at trial. In sum, there is no reasonable probability that 

the delayed disclosure will affect the outcome of the case. 

For all these reasons, there was no Brady violation. 

Indeed, because this case involves delayed disclosure and not suppression (and 

therefore no Brady violation), the proper inquiry is whether the defendant was prejudiced 

by the tardy disclosure, and if so, what is the proper remedy. See Morrison, 833 F.3d at 

508-09 (holding that, for delayed disclosure, the analysis turns on whether the defendant

was prejudiced by delay); see also Quarterman, 536 F.3d at 335-36 (holding that when a 

claim is untimely disclosure of Brady, the court looks to whether the defendant was 

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prejudiced by the delay, and “a defendant is not prejudiced if the evidence is received in 

time for its effective use at trial”); see also United States v. Chesser, 795 F. App’x 242, 

244-45 (5th Cir. 2019). 

Here, the only prejudice that the defendant alleges is that “had the violation been 

discovered earlier, the defense could have sought an expert to assess the likelihood that a 

person who handled the bag would have left a latent print, given the known fact that 

someone who handled the bag did in fact leave a print.” (Doc. 72, p. 4.) 

The defense’s allegations are not compelling. The defendant acknowledges that 

he has known since February 12, 2024 that someone who handled the bag left a 

fingerprint. The defendant has also known since that time that AFIS did not match the 

print on the IV bag to the defendant (whose prints are obviously in AFIS). Thus, the 

defendant already had every incentive to pursue this evidence prior to the discovery 

deadline—he could have asked to perform fingerprint testing for himself, and he could 

have sought an expert to testify on fingerprinting and related issues—but apparently he 

did not do so. Importantly, the government has also now indicated that it will not oppose 

the defendant’s use of such an expert at trial. The defendant therefore has failed to show 

the late disclosure of the supplemental report has prevented him from effectively using it 

at trial. 

Moreover, the sanctions that the defendant has asked for are excessive for several 

reasons. First, the delayed disclosure did not cause the defendant any prejudice that 

cannot be cured by the government’s proposal concerning a fingerprint expert testifying 

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at trial. Second, the delayed disclosure was not caused by any bad faith by the 

government, and the government has acted promptly to correct the oversight. 

The Fifth Circuit addressed the appropriateness of imposing sanctions in United 

States v. Garrett, noting that courts consider (1) why disclosure was not made, (2) the 

amount of prejudice to the opposing party, (3) the feasibility of curing such prejudice 

with a continuance of the trial, and (4) any other relevant circumstances. 238 F.3d 293, 

297-98 (5th Cir. 2000). Emphasizing the district court’s finding that the government 

acted in good faith and that the government’s tardy disclosure was an oversight, the Fifth 

Circuit reasoned that the question of prejudice turned on whether the defendant had time 

to put the tardily disclosed information to use, not whether some extra effort was required 

by the defendant. Id. “In light of the absence of bad faith on the part of the government, 

the minimal amount of substantive prejudice because of the cumulative nature of the 

tardily disclosed materials, and the availability of a much less severe sanction than 

striking witnesses with the effect of eviscerating the government’s case, [the Fifth Circuit 

found] that the district court could most certainly have eliminated the minor prejudice 

with either a brief delay or a less severe sanction [than the exclusion-of-witnesses 

sanction the district court imposed].” Id. at 301. 

Similarly, here, because the government’s tardy disclosure did not cause the 

defendant any prejudice that cannot be cured, the tardy disclosure was not caused by any 

bad faith by the government, and the government has acted promptly to correct the 

oversight, the sanctions the defendant seeks are excessive and unnecessary. Indeed, the 

Fifth Circuit has held that extreme sanctions, such as dismissal of the indictment and 

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exclusion of government witnesses, are not necessary where the government did not act 

in bad faith. See Dvorin, 817 F.3d at 453 (noting that “a district court will not impose 

severe sanctions, like suppression of evidence, where the government’s discovery 

violations were not committed in bad faith”); United States v. Bentley, 875 F.2d 1114, 

1118 (5th Cir. 1989) (holding that the district court did not abuse its discretion when it 

decided not to exclude the late-disclosed evidence where the defendant “has not shown 

that any violation of the discovery order by the government necessitated the most 

extreme sanction possible”); Chesser, 795 F. App’x at 245 (admonishing government on 

the importance of its discovery obligations where the government violated Rule 16 but 

not otherwise requiring any sanction).

Conclusion

Because the government did not suppress the second report and the evidence in it 

is not material, the government did not violate Brady. Rather, all the defendant has 

shown is that there has been an accidental late disclosure, which, given the government’s 

proposal concerning presentation of an “unnoticed” fingerprint expert at trial, has not 

prejudiced him. Because there has been no Brady violation and no circumstances 

warranting the severe sanctions requested by the defense, the defendant’s motion for 

sanctions should denied. 

Respectfully submitted,

LEIGHA SIMONTON

UNITED STATES ATTORNEY

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s/ John J. de la Garza III . 

John J. de la Garza III

Texas Bar No. 007964555

Assistant United States Attorney

1100 Commerce Street, Room 300

Dallas, Texas 75242-1699

Telephone: 214-659-8682

Email john.delagarza@usdoj.gov

PATRICK R. RUNKLE

Senior Litigation Counsel 

RACHEL E. BARON

Trial Attorney

Consumer Protection Branch

U.S. Department of Justice

P.O. Box 386

Washington, DC 20044-0386

202-532-4723

Certificate Of Service

I certify that a copy of this pleading was served on counsel for the defendant via 

ECF on the 18th day of March 2024.

s/ John J. de la Garza III . 

John J. de la Garza III

Assistant United States Attorney

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