UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

UNITED STATES OF AMERICA §

§

v. § 3:22-CR-378-N

§

RAYNALDO RIVERA ORTIZ, JR, §

Motion to Dismiss Counts One through Five because Absence of “Tampering” Is 

Established as a Matter of Law, or, Alternatively, for Failure of Indictment to State an 

Offense in These Counts

TO THE HONORABLE CHIEF JUDGE DAVID C. GODBEY:

Defendant respectfully moves this Court to dismiss Counts One through Five for two 

reasons. First, the undisputed facts will show the absence of “tampering” within the meaning of 

the statute as a matter of law. Second, these Counts of the Indictment do not allege acts that 

constitute “tampering.”

Section 1365(a) punishes:

[w]hoever, with reckless disregard for the risk that another person will be placed 

in danger of death or bodily injury and under circumstances manifesting extreme 

indifference to such risk, tampers with any consumer product that affects 

interstate or foreign commerce, or the labeling of, or container for, any such 

product, or attempts to do so...

Although it did define several terms in this statute, “Congress did not define the term 

‘tamper[.]’” United States v. Lyle, 742 F.3d 434, 436 (9th Cir. 2014)(citing 18 U.S.C. §1365(h)). 

This Court “interpret[s] undefined terms according to their ordinary and natural meaning and the 

overall policies and objectives of the statute.” United States v. Orellana, 405 F.3d 360, 365 (5th

Cir. 2005).

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The natural meaning of the term “tamper” implies that the tampering party lack authority 

to manipulate the item. As the Ninth Circuit observed in United States v. Lyle, 742 F.3d 434 (9th 

Cir. 2014), the natural meaning of the term “tamper” is reflected in its definitions in Black’s 

Law, the Oxford English Dictionary, and the American Heritage Dictionary, all three of which 

equate it to the term “meddle.” Lyle, 742 F.3d at 437 (quoting Tamper Definition, Black's Law 

Dictionary 1592 (9th ed.2009)(“[t]o meddle so as to alter (a thing); esp., to make changes that 

are illegal, corrupting, or perverting.”), Tamper Definition, http://www.oed.com/ (last visited 

March 9, 2024)(“[t]o have to do or interfere with improperly; to meddle with (a thing),” and “[t]o 

meddle or interfere with (a thing) so as to misuse, alter, corrupt, or pervert it.” ), and Tamper

Definition, http://www.ahdictionary.com/ (last visited March 24, 2024)(“to interfere in a harmful 

or disruptive manner; meddle[,]” “[t]o make alterations or adjustments, especially secretly so as 

to subvert an intended purpose or function[,]” “[t]o tinker rashly or foolishly[,]” and “to alter 

improperly”)(emphasis added). 

One does not “meddle” with his or her own affairs, nor with his or her own property. 

Accordingly, the natural meaning of the term “tamper,” equated by three dictionaries to 

“meddle,” does not apply when the defendant alters items he or she possesses a lawful right to 

access or manipulate. 

This is confirmed by the statutory structure. Subsection (b) punishes “whoever, with 

intent to cause serious injury to the business of any person, taints any consumer product ...” 18 

U.S.C. §1365(b). The use of distinct terminology in these adjacent Subsections of the same 

statute implies an intent to describe distinct acts. See Russello v. United States, 464 U.S. 16, 23 

(1983)(“‘[Where] Congress includes particular language in one section of a statute but omits it in 

another section of the same Act, it is generally presumed that Congress acts intentionally and 

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purposely in the disparate inclusion or exclusion.’”)(quoting United States v. Wong Kim Bo, 472 

F.2d 720, 722 (5th Cir. 1972)). While a defendant may be convicted of “tainting” any product by 

altering it in a damaging way, he or she only “tampers” with items he or she cannot lawfully 

access or manipulate.

Federal Rule of Criminal Procedure 12(a) authorizes “[a] party [to] raise by pretrial 

motion any defense, objection, or request that the court can determine without a trial on the 

merits.” In this Circuit, “‘[t]he propriety of granting a motion to dismiss an indictment ... by 

pretrial motion is by-and-large contingent upon whether the infirmity in the prosecution is 

essentially one of law or involves determinations of fact.... If a question of law is involved, then 

consideration of the motion is generally proper.’” United States v. Fontenot, 665 F.3d 640, 644–

45 (5th Cir. 2011)(quoting United States v. Flores, 404 F.3d 320, 324 (5th Cir.2005), abrogation 

on other grounds (agency deference) recognized by Unuited States v. Garcia, 707 Fed.Appx. 231 

(5th Cir. 2017)(unpublished) (internal quotation marks and citations omitted by Fontenot)). 

In practice, that means that the Court may dismiss the Indictment if the undisputed facts 

defeat criminal liability. See Flores, 404 F.3d at 323-326. The Fifth Circuit has rejected an 

interpretation of Rule 12 that would limit the factual inquiry to the Indictment itself – if the facts 

are undisputed in material respects, the Court may proceed. See id.

Here, the defense anticipates that it will be undisputed that Dr. Ortiz had lawful authority 

to handle the allegedly tampered-with IV bags. He worked at the facility, and was permitted to 

use the bags for his own surgeries. The Indictment alleges that he had access to the bags, and 

while it says that he was not “responsible” for placing the bags in the warmer, it neither says nor 

implies that he was forbidden to do so. His authority to handle the IV bags is established by 

record testimony at the preliminary detention, which shows that Dr. Ortiz was “the 

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anesthesiologist for numerous surgeries from May of 2022 through August of 2022 at that 

surgery center,” Preliminary Detention Hearing United States v. Ortiz, 3:22-mj-00884-BK-1, 

p.17 lines 6-9 (Sept. 19, 2022)(“Detention Transcript”), and that while it was unusual for doctors 

to handle IV bags in the warmer, it was not unheard of, see Detention Transcript, at p.45, line 24-

p.46, line 12. It can be further established by testimony if the Court convenes a hearing on the 

instant motion. 

Of course, the government will note that Dr. Ortiz lacked any authority to place 

dangerous chemicals into saline IV bags for malicious purposes. That point, however, is not 

disputed, and does not establish the tampering element; were the defendant’s allegedly malicious 

motive cognizable in determining the “tampering element,” Section 1365(a) would effectively 

require only tainting. As noted above, the statute intends to distinguish these concepts.

Alternatively, the Court should grant the Motion because the allegations of the Indictment 

do not constitute “tampering,” and Counts One through Five accordingly suffer from “failure to 

state an offense.” Fed. R. Crim. P. 12(b)(3)(B)(v). The Indictment alleges that Dr. Ortiz had 

access to the IV bags, and from context it can be determined that this access arose from his 

lawful employment at the facility. Further, the Indictment neither alleges nor implies that he was 

forbidden to access the bags.

CONCLUSION

Defendant respectfully moves this Court to dismiss Counts One through Five of the 

Indictment, or alternatively, to convene a hearing to resolve any factual dispute relevant to the 

question of whether he had the right to possess and manipulate the IV bags referenced in the 

Indictment.

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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

CERTIFICATE OF SERVICE

I hereby certify that on March 11, 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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