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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. § 

REPLY IN SUPPORT OF MOTION FOR SANCTIONS

On January 10, 2024, a detective on this case – classically a part of the “prosecution 

team” -- possessed a report that excluded the defendant as the source of a fingerprint. That print 

had been recovered from the purported instrumentality of the crime charged in the indictment. 

The defense asked whether any such report existed and on February 26, 2024, the prosecutor 

said, in writing, that he didn’t know of any. Then, the prosecution failed to produce the report at 

this Court’s deadline for Brady material. 

This course of events is profoundly troubling. Again, the prosecution’s failure to turn 

over important and favorable evidence is repeatedly implicated in miscarriages of justice. See

John B. Gould, et al, Mapping the Path of Brady Violations: Typologies, Causes & 

Consequences in Erroneous Conviction Cases, 71 Syr. L. Rev. 1061, 1064 (2021)(citing Brian 

Gregory, Brady is the Problem: Wrongful Convictions and the Case for “Open File” Criminal 

Discovery, 46 U. S.F. L. Rev. 819, 821 (2012), Jon B. Gould, et al, Predicting Erroneous 

Convictions, 99 Iowa L. Rev. 471, 477 (2014), and J. Paul Johnson, Study Reveals 10 Factors in 

Wrongful Conviction Cases, Am. Univ. (Mar. 11, 2013), 

https://www.american.edu/media/news/spa_news_wrongful-convictions-study.cfm). It should 

therefore be met with firm deterrence when it comes to light. Further, the record here contains 

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absolutely no reason to think that the report would have ever been produced if the defense had 

simply accepted the prosecutor’s prior written response at face value. It also contains no 

evidence about the reason for the report’s non-production or the prosecutor’s prior written 

statement. 

Even taking all of the representations made by the prosecution in ECF No. 82 as 

evidence, they would not provide sufficient information for this Court to make a reasonable 

decision as to the proper response. Specifically, the prosecutions’ representations do not provide 

sufficient information regarding the first prong of the analysis: “the reasons why disclosure was 

not made.” United States v. Garrett, 238 F.3d 293, 298 (5th Cir. 2000). 

The prosecutor calls the non-disclosure “accidental,” (Response, at 7), but this is not very 

illuminating. Whose accident? The defense assumes that neither the detective nor the agent had 

actually informed the prosecutor of the second report excluding the defendant when he wrote the 

February 26, 2024, letter. But, had the Detective told the Agent? If so, why didn’t the Agent turn 

it over to the prosecutor? If the Agent knew about the report and never told the prosecutor, then 

why not? Did the prosecutor ask the Detective or the Agent or the technician whether any such 

report existed before answering a Brady request and disclaiming all knowledge of the report’s 

existence? If so, why did he receive false information? If he didn’t ask, why not? And if not, 

when did he plan to do so? What measures has he taken to make sure there is no other 

undisclosed favorable information in the files of his law enforcement partners?

This information is not merely important to determine the proper response to the prior 

violation of the scheduling order: it may itself be Brady information. If the Detective did not 

bother to tell the Agent about the report, or the Agent did not tell the prosecutor, this tends to 

show bias, disregard for the possibility of innocence, or sloppiness on the part of key government 

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witnesses. See Kyles v. Whitley, 514 U.S. 419, 447 (1995)(suppressed evidence was material 

where “defense could have laid the foundation for a vigorous argument that the police had been 

guilty of negligence.”); United States v. Bagley, 473 U.S. 667 (1985)(government must turn over 

impeachment evidence as well as exculpatory evidence). The government’s response does not 

suggest any intent to turn over everything it knows about the chain of communication regarding 

this report. A hearing could help it do so.

The government asks this Court to issue no sanction, save giving the defendant the right 

to call his own fingerprint expert. (Response, at 7). But this places the government in the same 

position it would have been had it never disclaimed knowledge of an exculpatory fingerprint 

report. Actually, it places the government in a little better position, since the defense has less 

time to account for the issue than it would have had if the government had followed this Court’s 

orders. Accordingly, it gives the government absolutely no disincentive to repeat the conduct.

Arguing against a meaningful sanction, the government first argues that this Court need 

not order a sanction because the evidence was not suppressed. (Response, at 2-3). True, a

defendant must show that evidence has been “suppressed” in order to make out a post-conviction 

claim for Brady relief. See United States v. Swenson, 894 F.3d 677, 683 (5th Cir. 2018). This 

Court’s scheduling order, however, does not forbid “Brady violations.” Rather, it affirmatively 

compels the government to turn over exculpatory information:

The Government shall in accordance with Brady v. Maryland, 373 U. S. 83 

(1963), provide each defendant with all of the exculpatory evidence it possesses 

concerning that defendant thirty-five (35) days before trial.

(Court’s Order of January 2, 2023)(ECF No. 46).

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The government was required to produce all exculpatory evidence by February 26, 2024; 

instead, when asked very specifically about a piece of exculpatory evidence, it said that it didn’t 

know anything about that evidence.

For the same reason, it is irrelevant whether the evidence would independently satisfy 

Brady’s materiality standard. This Court’s order required the production of “all of the 

exculpatory evidence [the government] possesses concerning the defendant.” A normal speaker 

of English would understand the term “exculpatory” to capture all evidence “tending or serving 

to exculpate.” See Webster’s online, entry=exculpatory (emphasis added), available at 

https://www.merriam-webster.com/dictionary/exculpatory, last visited March 2, 2024. So would a 

lawyer. See BLACK'S LAW DICTIONARY (11th ed. 2019)(“EVIDENCE...exculpatory evidence. 

Evidence tending to establish a criminal defendant's innocence.”)(emphasis added). The report 

here excluding the defendant as the source of a print on the purported instrumentality of the 

crime. Whether it independently alters the outcome of the case – a fact we can’t know yet – that 

report at least “tends to” show innocence. 

The government wants to read the scheduling order as a mere exhortation against the kind 

of misconduct that could later jeopardize a conviction, rather than an order to turn over all 

favorable information. In its view, the order only orders production if non-production would 

constitute a Brady violation. (Response, at 2-3). 

There are several problems with this reading. First, it makes the Court’s order

superfluous. The due process clause already requires the production of all material and favorable 

information. If this is all the scheduling order demands, there would be no need for it. Second, 

the order is intended to govern the government’s pretrial conduct, and presumably to be 

enforceable in some way. But under the government’s reading, there is no way to evaluate 

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whether unproduced evidence violates the order, because the Court does not know the full scope 

of the parties’ evidence. By contrast, if the order simply tells the government to turn over all 

favorable information, it is easy to know which evidence qualifies. Thus, under the defendant’s 

reading, the order can be easily followed and enforced.

In any case, the evidence was material. The government’s sole materiality argument is 

that it can prove the defendant handled IV bags. (Response, at 4). It cannot, however, prove that 

he handled the only IV bags in which it claims to have found poison, notwithstanding the fact that 

someone left a print on one of them. This is game-changing evidence, and certainly meets the 

standard of materiality. After all, “a showing of materiality does not require demonstration by a 

preponderance that disclosure of the suppressed evidence would have resulted ultimately in the 

defendant's acquittal...” Kyles, 514 U.S. at 434. 

Finally, the government argues against a sanction because the defense suffered no 

prejudice. The government is wrong. The defense did not know whether the print possessed 

sufficient detail for manual comparison until it received the report on March 8, 2024. For this 

reason, the defense was in no position to undertake comparison – it did not even know whether 

an examiner would think such comparison possible. In turn, that precluded the defense from 

accounting for the exculpatory fact as it prepared for trial.

In any case, prejudice is but one factor to consider in fashioning a sanction. See Garrett, 

238 F.3d at 297-98. The Court should also consider (and determine) who knew about the report 

and when, the significance of the report, the fact that the report was exculpatory rather than 

inculpatory, and the fact that the government can’t prove that it would have produced the report

on its own initiative. If the defendant’s independent discovery of a discovery violation invariably 

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defeats the need for a remedy, the government will be able to violate this Court’s order with 

impunity. 

The government cites Garrett for the proposition that it should not suffer an extreme 

sanction, but that case does not help its position. (Response, at 6). Garrett involved the nonproduction of “cumulative” evidence, not the sole evidence excluding the defendant as the source 

of a fingerprint on the instrumentality of the crime. Garrett, 238 F.3d at 301. Further, Garrett 

says that a district court did not abuse its discretion by declining sanctions “with the effect of 

eviscerating the government’s case.” Id. at 301. But there are plenty of sanctions that would not 

eviscerate the government’s case. It would not eviscerate the government’s case to tell the jury 

what happened and let it draw such conclusions as it wishes. Nor would it eviscerate the 

government’s case to order an outside review of its files for other undisclosed evidence, or to 

require supervisory guarantees of the government’s compliance. 

Both United States v. Dvorin, 817 F.3d 438 (5th Cir. 2016) and United States v. Bentley, 

875 F.2d 1114 (5th Cir. 1989), are to like effect. In those cases, the district courts declined to 

suppress evidence as a discovery sanction, and the Fifth Circuit affirmed. See Dvorin, 817 F.3d at 

453; Bentley, 875 F.2d at 1118. But those holdings don’t exclude lesser sanctions, such as jury 

instructions or outside supervision. And they don’t identify the limit of the district court’s 

authority to order sanctions, only its authority to forego them.

The government violated the most important piece of this Court’s discovery order and 

wants to be placed in the same position (or better) it would have occupied without the violation.

This is not “the least severe sanction that will accomplish the desired result-prompt and full 

compliance with the court's discovery order.” United States v. Sarcinelli, 667 F.2d 5 (5th 

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Cir.1982). The government’s proposal does not ensure compliance with the court’s discovery 

order at all.

CONCLUSION

 The defense respectfully moves for a pre-trial hearing for the relief discussed herein and 

in the previously filed Motion for Sanctions. 

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 21, 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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