Reply in Support by Cortney Merritts re 14 Motion to Dismiss Case for Selective Prosecution — USA v. Merritts (Dkt. 18, D.D.C.)

Record facts

U.S. District Court for the District of Columbia · No. 1:25-cr-00076-JMC · Doc. 18 · 2025-10-30 · 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. 
) 
 
REPLY IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS THE INDICTMENT  
FOR SELECTIVE PROSECUTION 
 
 
Defendant Cortney Merritts (“Merritts”), by and through his undersigned counsel, Justin 
K. Gelfand and Gregory P. Bailey and the law firm Margulis, Gelfand, DiRuzzo & Lambson, 
respectfully submits this reply in support of his motion to dismiss the indictment for selective 
prosecution.  
 
The Government attempts to discredit the parameters that Merritts uses to define the group 
under which this selective prosecution motion should be evaluated. But these parameters—a PPP 
defendant with a loss under $30,000 within the jurisdiction of the United States Attorney’s Office 
for the District of Columbia—hew the closest to a similarly situated person for this Court to 
consider. The Government boldly states that “[h]ad Defendant expanded his parameters to include 
people prosecuted by the office for loans of under $35,000, instead of $30,000, then presumably 
his claim of selective prosecution would crumble.” (Doc. 16) (emphasis added). In support of this 
assertion, the Government offers two other cases in the past two years that were $35,000 or less.1 
Both of those cases were Metropolitan Police Department (“MPD”) officers, not a population that 
Merritts claims to be similarly situated with, and a population that the United States Attorney’s 
 
1 While two cases brought in two years may be significant in some federal districts, the USAO-DC brought 414 
criminal cases in 2023 and 508 criminal cases in 2024. See https://www.justice.gov/usao/media/1343726/dl?inline 
(last visited October 28, 2025); https://www.justice.gov/usao/media/1399686/dl?inline (last visited October 28, 2025). 
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Office for the District of Columbia would have increased interest in prosecuting wrongdoing 
within. Regardless, the Government misses the mark. While Merritts set his similarly situated 
population at $30,000 of loss, his motion mentions the $35,000 loss case involving the MPD 
officer,2 and specifically states that the only cases with less than a $150,000 loss located in a search 
of press releases by the United States Attorney’s Office for the District of Columbia (“USAO-
DC”) was for an MPD officer. Merritts’ motion states that, according to the press releases, and 
with the exception of the MPD, the apparent threshold for charging a PPP-related case is $150,000 
for this office. If his motion were to crumble if he selected $35,000, where are the other similarly 
situated defendants who were prosecuted? They do not exist, and this prosecution was 
impermissibly selective. 
 
The next parameter the Government attempts to distance itself from is that this 
consideration of a similarly situated person should be limited to the USAO-DC. (Doc. 16). This 
position from the Government makes rhetorical sense for this motion, but is antithetical to the 
normal operations and statutory constraints of the USAO-DC. In plea agreements drafted by the 
USAO-DC, the language clearly states “this agreement is binding only upon the Criminal and 
Superior Court Division of the United States Attorney’s Office for the District of Columbia.” The 
agreements go on to state that “[t]his agreement does not bind the Civil Division of the United 
States Attorney’s Office for the District of Columbia or any other United States Attorney’s Office, 
not does it bind any other state, local, or federal prosecutor.”3 (emphasis added). A screenshot of 
that paragraph, identical in all cases reviewed in footnote 3, is below: 
 
2 Merritts acknowledges failing to locate the only other PPP-related case cited by the Government coming in at under 
$150,000 of loss, which was also an MPD officer. (Doc. 16). 
3 This is based on a review of ten recent plea agreements entered into by the USAO-DC. The following documents 
were reviewed on Pacer: 1:24-CR-401 (Doc. 30); 1:24-CR-533 (Doc. 24); 1:24-CR-157 (Doc. 38); 1:24-CR-157 (Doc. 
41); 1:25-CR-108 (Doc. 8); 1:25-CR-149 (Doc. 14); 1:24-CR-520 (Doc. 56); 1:24-CR-520 (Doc. 63); 1:24-CR-520 
(Doc. 73); 1:24-CR-520 (Doc. 78).    
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Further, a federal statute limits the reach of a United States Attorney to offenses “within his 
district.” 28 U.S.C. § 547. While it limits the geographical reach of its plea agreements and is 
limited by statute in its geographic authority to bring cases, the USAO-DC wants this Court to 
consider cases outside these parameters in determining similarly situated defendants. The 
Government cannot have it both ways. 
 
The Government goes on to say that the change in administration is a red herring. (Doc. 
16). But this too does not hold water. The Government states, just as Merritts did in his initial 
motion, that this investigation began under a different administration. But what the Government 
cannot escape is that the case was not presented to the grand jury until after the change in 
administration, even though it was, according to Government representations at the time, ready to 
proceed to the grand jury in June of 2024. According to footnote two in the Government’s 
response, Merritts shortened the time from the beginning of this PPP investigation to the 
presentation of the indictment. (Doc. 16). But, to be clear, this does not help the Government in 
the way it argues. The Government now admits to having had evidence of this alleged crime longer, 
and still not bringing charges until after the change in administrations. The lengthening of the 
investigation timeline only buttresses Merritts’ claim. Indeed, entirely missing from the 
Government’s response is the elephant in the room: Merritts is married to a former democratic 
congresswoman who has always been vocal against President Trump. That is the distinction with 
a difference: he is the only non-Washington, D.C. police officer to have been charged in a two-
year period for this crime and a loss amount under $35,000. And he is the only person charged in 
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a two-year period for this crime and a loss amount under $30,000. The evidence overwhelmingly 
reflects that this U.S. Attorney’s Office does not prosecute people for this crime with a loss amount 
under $150,000 unless the defendant is a Washington, D.C. law enforcement officer—and Merritts 
should not be the subject of this prosecution because he is married to an outspoken Democratic 
politician.   
 
While Merritts is confident he has established the requirements to grant dismissal under a 
claim of selective prosecution, he has, at the very least, presented a “colorable claim” that would 
warrant discovery to be ordered by this Court. (Doc. 16). “The colorable basis standard is met by 
some evidence tending to show the existence of the essential elements of the claim.” Branch 
Ministries, Inc. v. Richardson, 970 F. Supp. 11, 16 (D.D.C. 1997) (emphasis in original) (internal 
quotation omitted). That is analogous to the common idea that where there is smoke, there could 
be fire. Merritts has demonstrated fire in this motion for dismissal. But, at the very least, Merritts 
asks this Court to let him sift through the smoke so that this Court can see, undeniably, the fire that 
is burning. Merritts was initially targeted because of his relationship with, at the time, a sitting 
United States Representative. The initial investigation failed to yield any evidence of wrongdoing.4 
Then, after having evidence of alleged financial wrongdoing for, according to the Government, 
over one year, the Government finally gets around to presenting an indictment, after the change of 
administrations. There is smoke, and this Court, if it chooses not to grant a dismissal, should force 
the Government to clear away the smoke with more than the broad assertions contained in its 
response. Merritts, this Court, and the justice system deserve “one tier of justice for all.” See 
Attorney General Pam Bondi, Senate Confirmation Hearing, January 15, 2025. 
 
4 This assertion, made in Merritts’ motion, was not refuted by the Government in its response. 
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Based on the foregoing, and incorporating his original motion, Merritts respectfully 
requests that this Court dismiss the indictment for selective prosecution. In the alternative, Merritts 
moves this Court to compel production of discovery related to: (1) the review, approval or 
declination, and presentation of charges against Merritts; and (2) the review, approval or 
declination, and presentation of charges of other defendants for PPP or EIDL fraud with losses less 
than $30,000. Merritts further moves, following production of that discovery, for the Court to set 
an evidentiary hearing on this motion to dismiss. 
 
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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