Pattern-and-Surveillance Circumstantial Proof Sustains § 1365 Tampering and § 331(k) Drug-Adulteration Convictions; Graphic 404(b) Death Evidence Deemed Harmless with Limiting Instructions

Case: United States v. Ortiz (5th Cir. May 20, 2026) (per curiam, unpublished)
Court: United States Court of Appeals for the Fifth Circuit
Lower Court: N.D. Tex., No. 3:22-CR-378-1

1. Introduction

This appeal arose from a string of alarming perioperative emergencies at an ambulatory surgery center in Dallas (Baylor Scott and White Surgicare North Dallas). Four patients—identified as TY, JE, KP, and JA—experienced a strikingly similar clinical pattern: sudden hypertensive spikes, subsequent hypotension, pulmonary/cardiac dysfunction, and elevated cardiac markers without evidence of a classic heart attack lesion. Separately, another anesthesiologist (Dr. MK) died at home after starting an IV, a death the Government portrayed as consistent with anesthetic-agent poisoning.

The Government’s central theory was not a manufacturing defect or physician mistake, but deliberate “secret adulteration” of IV bags by anesthesiologist Raynaldo Rivera Ortiz, Jr. (Dr. Ortiz): injecting epinephrine/ephedrine and/or local anesthetics (e.g., bupivacaine/lidocaine) into sealed IV bags by exploiting the bags’ “self-healing” injection port and puncturing only the outer wrapper—leaving no obvious visible damage to the bag itself.

A jury convicted Dr. Ortiz of:

• Five counts of tampering with a consumer product (18 U.S.C. § 1365(a)); and
• Five counts of adulteration of a drug (21 U.S.C. §§ 331(k), 333(b)(7)).

The district court imposed consecutive statutory-maximum sentences totaling 2,280 months’ imprisonment. On appeal, Dr. Ortiz challenged: (i) sufficiency of the evidence; (ii) admission of evidence concerning Dr. MK’s death (Rules 104/403/404); (iii) permitting the Government’s anesthesia expert to testify after a Rule 615 sequestration issue; and (iv) an allegedly improper closing-argument comment implicating the Fifth Amendment.

2. Summary of the Opinion

3. Analysis

3.1. Precedents Cited

A. Sufficiency-of-the-evidence framework

• United States v. Martinez supplies the Fifth Circuit’s modern articulation of sufficiency review: “highly deferential” to the jury; appellate review asks reasonableness, not correctness, and permits the jury to “choose among reasonable constructions of the evidence.” The panel repeatedly used Martinez as the organizing authority for de novo review plus heavy deference to jury inferences.
• Jackson v. Virginia anchors the constitutional minimum: whether “any rational trier of fact” could find guilt beyond a reasonable doubt when evidence is viewed in the light most favorable to the prosecution. The panel’s application—especially across ten counts—tracks Jackson’s tolerance for inferential proof.
• The opinion reinforces that circumstantial evidence may suffice: United States v. Acosta (citing United States v. Ivey) and United States v. Moreno-Gonzalez reject any “second-class” treatment of circumstantial evidence; the same sufficiency standard applies.
• Several cases cabin inferential reasoning: United States v. Ganji (no conviction on mere “speculation” or “overly attenuated piling of inference on inference”); United States v. Lage (factfinders use “common sense” and “natural tendencies”); and United States v. Moreland (consider countervailing evidence too).
• The opinion also relies on deference doctrines: United States v. Oti, United States v. Zamora-Salazar, United States v. Capistrano, and United States v. Harris (via United States v. Moreno-Gonzalez) collectively support giving the jury wide berth on credibility and competing narratives.

B. Evidentiary error and harmlessness (Rules 104/403/404)

• For abuse-of-discretion review and harmless-error overlay in Rule 404(b) disputes, the majority cites United States v. Smith and United States v. Cervantes (citing United States v. Girod).
• Preservation doctrine is framed by United States v. Lara (and Rule 103(b)): a denied pretrial motion in limine preserves the evidentiary issue on appeal.
• The harmlessness standard is drawn from United States v. Nguyen (error excused if harmless), United States v. Treft (definition of harmless error), and United States v. Williams (whether there is a “reasonable possibility” the evidence contributed to conviction, quoting United States v. Mendoza-Medina).
• The panel’s “overwhelming evidence” reasoning is supported by United States v. Naidoo and the “substantial evidence” discussion in United States v. Williams and United States v. Mendoza-Medina.
• Limiting instructions receive heavy weight: the panel invokes Zafiro v. United States (juries presumed to follow instructions, quoting Richardson v. Marsh) and notes the Fifth Circuit’s view in United States v. Garcia Mendoza that such instructions “greatly minimize” undue prejudice.

C. Rule 615 witness sequestration and expert witnesses

• The panel relies on Cruz v. Maverick County and United States v. Wylie for the trial court’s “broad discretion” to find/severity of a Rule 615 violation and to permit testimony even after violation; reversal requires “sufficient prejudice.”
• In assessing whether the testimony might be “tailored,” the court references the purpose of sequestration discussed in United States v. Wylie (citing United States v. Ell and United States v. Lamp) and uses Mayo v. Tri-Bell Indus., Inc. to emphasize experts typically are not witnesses whose recollections are “colored” by other testimony.
• To rebut the notion experts are automatically exempt, the panel distinguishes Miller v. Universal City Studios, Inc., which held experts are not categorically excused from sequestration.
• “Essential witness” discretion is supported by Polythane Sys., Inc. v. Marina Ventures Int'l, Ltd.
• The court also notes (by citation) other circuits’ perspectives on experts and Rule 615: United States v. Reynolds, Morvant v. Constr. Aggregates Corp., United States v. Lussier, Malek v. Fed. Ins. Co., and Opus 3 Ltd. v. Heritage Park, Inc.

D. Prosecutorial comment on silence; plain error; orderliness

• The “manifest intent / naturally and necessarily construed” test for Fifth Amendment comment is taken from United States v. Grosz (quoting United States v. Collins).
• The panel distinguishes Madden v. Collins and aligns the present case with Lucas v. Johnson, where an “only one person knows” remark was construed as an argument about what facts were unnecessary to decide guilt, rather than a direct comment on silence.
• For plain-error framework, the panel cites United States v. Cervantes, and for prejudice burden it relies on United States v. Dominguez Benitez (quoting United States v. Bagley).
• For the rule of orderliness, the panel cites Nivelo Cardenas v. Garland (citing GlobeRanger Corp. v. Software AG U.S. of Am., Inc.), and notes no conflict between Madden v. Collins and Lucas v. Johnson, referencing Barrientes v. Johnson.
• Harmlessness/curative instructions on alleged prosecutorial error are supported by United States v. Bohuchot, United States v. Virgen-Moreno, Cotton v. Cockrell, Nethery v. Collins, and Donnelly v. De Christoforo; the panel also references Brecht v. Abrahamson through Lucas v. Johnson.

E. The dissent’s harmless-error/remand authorities

• Judge Higginson’s dissent frames the MK evidence as potentially case-determinative in a close circumstantial prosecution, citing United States v. Fortenberry and United States v. Hernandez-Guevara.
• The dissent proposes a limited remand procedure for proper Rule 104/403/404 application, citing United States v. Elwood, United States v. Anderson, United States v. Zabaneh, and United States v. Hamilton.

3.2. Legal Reasoning

A. What the Government had to prove (and how it proved it)

The panel treated both statutory schemes—18 U.S.C. § 1365(a) (tampering with a consumer product) and 21 U.S.C. § 331(k) (adulteration of a drug)—as requiring proof, “inter alia,” that Dr. Ortiz tampered with/adulterated a specific IV bag corresponding to each count. The defense strategy was to fracture the pattern: attack whether bags were tainted at all, and, even if tainted, argue the Government had only “coincidence” to identify the perpetrator.

The Fifth Circuit answered in two steps:

1. General pattern proof: The Government’s common evidence (access, knowledge, opportunity, surveillance, correlation with Dr. Ortiz’s presence, expert causation testimony, and motive evidence tied to professional/financial strain) made the “poisoned IV bag” hypothesis coherent and non-speculative.
2. Count-by-count linkage: Surveillance evidence and warmer-usage timing (often: Dr. Ortiz places a bag; no one else accesses; a clinician retrieves a bag; patient deteriorates shortly thereafter) allowed the jury to attribute particular bags to Dr. Ortiz.

B. The opinion’s model of “pattern + mechanics + opportunity” sufficiency

Several features of the Government’s proof mattered to the panel’s sufficiency analysis:

• Mechanism of undetectable tampering: The wrapper puncture above a self-healing injection port supplied a plausible “how,” neutralizing the defense’s “no obvious damage” theme.
• Unusual conduct evidence: Physicians supposedly did not stock or check the warmer; Dr. Ortiz did, repeatedly, and exhibited what the Government argued was “guilty conscience” behavior (looking around, waiting for hallways to clear, re-checking the warmer).
• Clinical similarity across diverse patients: The panel emphasized the same symptom cluster across different patients, procedures, and providers, supporting a single external cause rather than individualized medical error.
• Objective corroboration: Toxicology results (KP and JA blood), lab testing of unused bags, and manufacturer investigation “ruling out manufacturing” collectively reduced the chance the case was built on mere temporal association.

Notably, the court did not require each count to be supported by the same type of “direct” proof. Some counts had blood testing; others relied more heavily on timing, surveillance, and clinical evidence. The court treated this as acceptable under Jackson v. Virginia so long as, in combination, the inferences were reasonable and not “overly attenuated” under United States v. Ganji.

C. Rule 404(b)/403: the majority’s “assume error, find harmless” pathway

The panel avoided deciding whether admitting Dr. MK’s death evidence was correct under Rules 104/403/404. Instead, it assumed error and held it harmless because:

• The evidence of guilt on the charged counts was “substantial,” even “overwhelming”; and
• The jury charge limited use of “other acts” evidence to intent/motive/opportunity and instructed that arguments are not evidence.

This is a familiar appellate move: when the record supports conviction independent of the challenged evidence, courts often resolve on harmlessness rather than deepen Rule 404(b) doctrine. The dissent warns, however, that this case is not the right vehicle for such confidence: it describes the MK evidence as uniquely visceral and potentially outcome-shaping in a “close, entirely circumstantial case,” and criticizes the district court’s sparse pretrial handling (“I’m going to permit the 404(b) stuff.”).

D. Rule 615: experts, practice norms, and prejudice

The panel treated the Rule 615 issue as principally pragmatic. It read the district court’s “I’ll grant permission after the fact” as an exercise of discretion, and then found no abuse and no prejudice:

• No tailoring concern like a fact witness: Relying on Mayo v. Tri-Bell Indus., Inc., the court emphasized experts opine based on data and records, not recollection of contested events.
• Defense control of its own exemption request: The defense could have sought similar treatment for its expert regardless of the Government’s omission; the court viewed any “imbalance” as within defense counsel’s control.
• Cross-examination remained available: The defense was not denied the chance to probe the expert’s exposure to evidence.

E. Closing argument: contextual construction of “only one person knows”

Under United States v. Grosz and United States v. Collins, the key question is whether the jury would “naturally and necessarily” take the remark as a comment on the defendant’s silence. The panel held it would not, because the remark was embedded in rebuttal of an evidentiary inconsistency (IV-bag content versus blood results) and functioned as an argument that the precise adulterant did not have to be pinned down to convict. That logic tracks Lucas v. Johnson, and the panel distinguished Madden v. Collins as broader and more accusatory.

3.3. Impact

A. Prosecutions for medical product tampering and drug adulteration

Even though unpublished, United States v. Ortiz signals how the Fifth Circuit is willing to treat “pattern” proof in highly technical healthcare prosecutions:

• Count proof can be mosaicked: The Government need not have a tested bag and tested blood for every patient if surveillance, timing, clinical pattern, and opportunity evidence reasonably connect the defendant to the adulteration event.
• Operational details matter: Routine practices (who stocks a warmer, how bags are rotated, lack of logging) become key “opportunity structure” evidence.
• Video surveillance plus workflow anomalies are powerful: The opinion repeatedly treats surveillance as bridging the gap between general suspicion and count-specific proof.

B. Evidentiary risk: uncharged death evidence and the dissent’s roadmap

The dissent is likely to be cited by future litigants for two propositions:

• Horrific extrinsic-act evidence may not be harmless in a circumstantial case: The dissent’s reliance on United States v. Fortenberry and United States v. Hernandez-Guevara underscores appellate discomfort when emotionally overwhelming narratives are introduced without robust findings.
• Limited remand as a remedy: By citing United States v. Elwood, United States v. Anderson, United States v. Zabaneh, and United States v. Hamilton, the dissent lays out a procedural alternative to outright reversal: send the case back for the trial court to perform the required Rule 104/403/404 analysis in the first instance.

Practically, prosecutors will likely treat this case as permission to introduce powerful “other incidents” evidence, but the dissent cautions that they do so at appellate peril if the record lacks clear pretrial hearings, particularized findings, and careful limiting rationales.

C. Trial management: Rule 615 and expert witnesses

The panel’s treatment of the Rule 615 issue is a warning to both sides:

• Prosecutors: seek explicit expert exemptions even if local practice is lenient; do not rely on “after-the-fact” cures.
• Defense counsel: if expert presence is strategically important, request an exemption; appellate courts may frame non-request as self-inflicted prejudice.

4. Complex Concepts Simplified

• 18 U.S.C. § 1365(a) “tampering with a consumer product”: A federal crime targeting deliberate interference with products used by consumers (here, IV bags) in a way that can cause harm. The Government’s theory was “tampering” by injection of drugs into IV fluid.
• 21 U.S.C. § 331(k) “adulteration of a drug”: Prohibits making a drug “adulterated” while it is held for sale after shipment in interstate commerce; the indictment treated IV fluids as “drugs,” adulterated by adding substances not intended to be in them.
• Self-healing septum and wrapper puncture: The injection port on an IV bag can reseal after a needle is inserted, leaving minimal visible evidence on the bag. Puncturing the outer wrapper (not the bag) can be a tell—if the wrapper is recovered.
• Qualitative vs. quantitative toxicology tests: “Qualitative” testing reports whether a substance is present. “Quantitative” testing reports how much, often with a threshold below which results may be reported as negative. The panel used this to explain why SWIFS and NMS results could differ.
• Rule 404(b) and Rule 403: Rule 404(b) limits using “other acts” evidence to prove character/propensity; it may be admissible for intent, motive, opportunity, etc. Rule 403 still allows exclusion if unfair prejudice substantially outweighs probative value—especially relevant where the “other act” is a death.
• Rule 615 sequestration (“the Rule”): A rule designed to prevent witnesses from shaping testimony after hearing others. Experts are often exempted because their role is to interpret evidence, but exemption should usually be explicit.
• Plain error: When no timely objection is made, a defendant must show an obvious error that likely changed the outcome and seriously affects the proceedings’ integrity.

5. Conclusion

United States v. Ortiz affirms that, in the Fifth Circuit, complex medical tampering and adulteration cases can be proved beyond a reasonable doubt through a tightly woven circumstantial narrative: operational access and knowledge, repeated surveillance-documented anomalies, convergent clinical patterns across patients, laboratory corroboration, and motive evidence. On the procedural side, the majority’s harmless-error holding tolerates (at least on this record) admission of extraordinarily prejudicial other-acts death evidence when accompanied by limiting instructions and substantial independent proof—while Judge Higginson’s dissent highlights the countervailing concern that such evidence can dominate a close, circumstantial trial and should trigger careful, explicit Rule 104/403/404 adjudication, potentially via limited remand.

Note: The panel opinion is “not designated for publication,” but its reasoning—especially the dissent’s critique of sparse Rule 404(b)/403 handling—may still influence litigation strategies and district court practices in high-stakes healthcare tampering prosecutions.