Motion to Dismiss Case Pursuant to Federal Rule of Criminal Procedure 12 by Cortney Merritts — USA v. Merritts (Dkt. 13, D.D.C.)

Record facts

U.S. District Court for the District of Columbia · No. 1:25-cr-00076-JMC · Doc. 13 · 2025-10-10 · Docket on CourtListener

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UNITED STATES DISTRICT COURT 
 
FOR THE DISTRICT OF COLUMBIA 
 
 
UNITED STATES OF AMERICA, 
) 
Plaintiff, 
) 
 
) 
  
 v.                                                                  
 ) 
No. 1:25-CR-76-JMC 
 
) 
 
CORTNEY MERRITTS,  
) 
Defendant. 
) 
 
MOTION TO DISMISS THE INDICTMENT  
PURSUANT TO FEDERAL RULE OF CRIMINAL PROCEDURE 12 
 
 
Defendant Cortney Merritts (“Merritts”), by and through undersigned counsel, Justin K. 
Gelfand and Gregory P. Bailey and the law firm Margulis, Gelfand, DiRuzzo & Lambson, 
respectfully moves this Court to dismiss the Indictment. (Doc. 1).  
Specifically, Counts One and Two of the indictment fail as a matter of law, pursuant to the 
Fifth and Sixth Amendments to the Constitution and Federal Rules of Criminal Procedure 
12(b)(3)(B)(i) and 12(b)(3)(B)(iii), because they are impermissibly duplicitous and lack 
specificity.  
I. 
Relevant Background 
On March 20, 2025, Merritts was charged in an indictment with two counts of wire fraud, 
in violation of 18 U.S.C. § 1343. (Doc. 1). The indictment also contains a forfeiture allegation. 
Merritts has pled not guilty to each count and has denied the forfeiture allegation.  
In the indictment, the following wire communications are referenced: 
a. Paragraph 8 – April 30, 2020 – “submitted and caused to be submitted an application 
to the SBA for an EIDL;” 
b. Paragraph 12 – May 30, 2020 – “electronically signed the SBA Loan Authorization 
and SBA Loan Note for an EIDL loan;” 
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c. Paragraph 13 – July 3, 2020 – “SBA representative spoke with MERRITTS;” 
d. Paragraph 14 – July 3, 2020 – “SBA transmitted $8,500 to a NFCU bank account;” 
e. Paragraph 16 – July 13, 2020 – “SBA transmitted a further $6,000, representing the 
EIDL loan advance, to MERRITTS’ NFCU bank account;” 
f. Paragraph 24 – July 8, 2020 – “submitted and caused to be submitted an application to 
the SBA for an EIDL loan;” 
g. Paragraph 27 – April 22, 2021 – “submitted and caused to be submitted an application 
for a PPP loan;” 
h. Paragraph 29 – No Date – “submitted and caused to be submitted a false and fraudulent 
2020 Form 1040 Schedule C;” 
i. Paragraph 32 – April 29, 2021 – “signed and executed loan documents . . . and the SBA 
Note for a PPP loan;” 
j. Paragraph 33 – May 12, 2021 – “$20,832 in PPP loan proceeds was disbursed to 
MERRITTS’ NFCU bank account;” 
k. Paragraph 35 – July 11, 2022 – “submitted and caused to be submitted a SBA Form 
3508S, PPP Loan Forgiveness Application (Form 3508S), seeking loan forgiveness for 
his PPP loan;” 
l. Paragraph 37 – July 8, 2020 – “submitted an EIDL application over the internet;” and 
m. Paragraph 37 – April 22, 2021 – “submitted a PPP loan application over the internet.”  
(Doc. 1). 
II. 
Counts One and Two Fail to Provide Merritts With Required Notice of the 
Charges he Must Defend Against 
 
“In all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the 
nature and cause of the accusation.” U.S. Const. Amend. VI. An indictment is required to “be a 
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plain, concise, and definite written statement of the essential facts constituting the offense 
charged.” Fed. R. Crim. P. 7(c)(1). Rule 12 of the Federal Rules of Criminal Procedure states that 
pretrial motions to dismiss the indictment are proper when there are defects including: (i) duplicity 
and (iii) lack of specificity. Fed. R. Crim. P. 12(b)(3)(B)(i) and (iii).  
Requiring a facially valid indictment is intended to guarantee two core constitutional 
protections: (1) notice under the Sixth Amendment, see Russell v. United States, 369 U.S. 749, 
763-64 (1962) (one purpose of the indictment is to “sufficiently apprise[] the defendant of what he 
must be prepared to meet”); and (2) protection against abusive criminal charging practices and 
double jeopardy under the Fifth Amendment, see United States v. Hitt, 249 F.3d 1010, 1015-16 
(D.C. Cir. 2001) (“an indictment must . . . enable him to plead an acquittal or conviction in bar of 
future prosecutions for the same offense”) (internal quotation omitted); United States v. Saffarinia, 
424 F. Supp. 3d 46, 57 (D.D.C. 2020) (“specifically, [the Fifth Amendment] guarantees that a 
criminal defendant can only be prosecuted for offenses that a grand jury has actually passed up 
on”). “The test for sufficiency is whether it is fair to require the accused to defend himself on the 
basis of the charge as stated in the indictment.” United States v. Conlon, 628 F.2d 150, 155 (D.C. 
Cir. 1980).  
When considering this motion, the Court must merely “review the sufficiency of the 
government’s pleadings,” not opine on the “sufficiency of the government’s evidence.” Saffarinia, 
424 F. Supp. 3d at 57. While a Court “assumes the truth of those factual allegations” contained in 
an indictment when considering a motion to dismiss, United States v. Ballestas, 795 F.3d 138, 149 
(D.C. Cir. 2015), “[a]dherence to the language of the indictment is essential because the Fifth 
Amendment requires that criminal prosecutions be limited to the unique allegations of the 
indictments returned by the grand jury.” Hitt, 249 F.3d at 1016. This is critical because the right 
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at issue in this motion does not turn on the evidence presented during trial—it turns on the Fifth 
Amendment’s grand jury right. In this capacity, the United States District Court for the Southern 
District of Ohio explained why the Court should not “conflate[] the standards applicable to an 
appellate review for erroneous jury instructions, with the fundamental requirement that an 
indictment actually allege an offense.” United States v. Ogbazion, No. 3:15-CR-104, 2016 WL 
6070365, at *19–20 (S.D. Ohio Oct. 17, 2016). That court explained:  
Where prosecutors properly charge a defendant by way of a valid indictment, 
proceed to trial, and present ample evidence at trial as to an essential element of the 
offense, such that no reasonable juror could have found otherwise, then omission 
of the element from the jury instructions, while still erroneous, is effectively 
harmless. The same cannot be said, however, where the indictment itself fails to 
allege an element of the offense. This is so because, “[n]o person shall be held to 
answer for a capital, or otherwise infamous crime, unless on a presentment or 
indictment of a Grand Jury ....” U.S. Const. amend. V. To allow the prosecutor, or 
the court, to make a subsequent guess as to what was in the minds of the grand jury 
at the time they returned the indictment would deprive the defendant of a basic 
protection which the guaranty of the intervention of a grand jury was designed to 
secure. For a defendant could then be convicted on the basis of facts not found by, 
and perhaps not even presented to, the grand jury which indicted him.   
 
Id.  
“The elements of wire fraud are (1) formation of a scheme to defraud, [to get money or 
property,] and (2) use of interstate wire communication to further that scheme.” United States v. 
Barrow, 109 F.4th 521, 526 (D.C. Cir. 2024) (internal quotation omitted). The second element is 
of particular importance because “Section 1343 targets not the defendant’s creation of a scheme 
to defraud, but the defendant’s execution of a scheme to defraud. To that end, it punishes each 
interstate wire transmission that carries out that scheme.” United States v. Williams, 527 F.3d 1235, 
1241 (11th Cir. 2008) (emphasis in original). As noted by the court in the District of New Jersey, 
“courts that have previously addressed this issue have held that each use of the wires constitutes a 
separate offense under 18 U.S.C. § 1343.” Giblin v. United States, 2010 WL 3039992, at *7-8 (D. 
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N.J. Aug. 3, 2010) (holding that wire fraud is not a continuing offense and any suggestion that it 
might be is untenable) (citing Williams, 527 F.3d at 1241; United States v. Garlick, 240 F.3d 789, 
792 (9th Cir. 2001); United States v. Luongo, 11 F.3d 7, 9 (1st Cir. 1993); United States v. Alston, 
609 F.2d 531, 535-36 (D.C. Cir. 1979); United States v. Calvert, 523 F.2d 895, 914 (8th Cir. 1975); 
Henderson v. United States, 425 F.2d 134, 138 n.4 (5th Cir. 1970)).    
The indictment in this case is facially invalid. It charges two counts of wire fraud but lists 
eleven separate wire transmissions in the charging language.1 This is both duplicitous and lacks 
the specificity required under the Constitution for an indictment. Because of these defects, both 
Constitutional principles of a proper indictment have been violated. First, Merritts has not received 
adequate notice under the Sixth Amendment to be able to adequately prepare a defense for the 
charged conduct. Second, Merritts, and this Court, cannot know which wire listed in the charging 
language was considered by the grand jury to be the operative wire for Count One or Two, in 
violation of his Fifth Amendment protections to be charged by the grand jury and negating any 
future ability to claim a violation of double jeopardy for this same conduct.  
III. 
Conclusion 
Based on the foregoing, this Court should dismiss the Indictment because it is 
impermissibly duplicitous and lacks specificity. 
// 
// 
// 
// 
 
1 The charging language is the entire indictment because Counts One and Two incorporate by 
reference all other paragraphs in the indictment. (Doc. 1). 
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Respectfully submitted, 
 
Margulis Gelfand DiRuzzo & Lambson, LLC 
 
 /s/ Justin K. Gelfand  
JUSTIN K. GELFAND (D.C. Bar 90023996) 
GREGORY P. BAILEY (D.C. Bar 1781925)  
1325 G St., NW, Suite 500 
Washington, DC 20005  
Telephone: 314.390.0234  
Facsimile: 314.485.2264  
justin@margulisgelfand.com  
greg@margulisgelfand.com 
 
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CERTIFICATE OF SERVICE  
  
I hereby certify that the foregoing was filed electronically with the Clerk of Court and that 
all counsel of record received notice. 
 
 
/s/ Justin K. Gelfand  
JUSTIN K. GELFAND (D.C. Bar 90023996) 
GREGORY P. BAILEY (D.C. Bar 1781925)  
1325 G St., NW, Suite 500 
Washington, DC 20005  
Telephone: 314.390.0234  
Facsimile: 314.485.2264  
justin@margulisgelfand.com  
greg@margulisgelfand.com 
 
 
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