Court filing

Exhibit Jury Instructions — USA v. Merritts (Dkt. 34-3, D.D.C.)

Filed November 26, 2025 in USA v. Merritts; one of 82 filings from this case.

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Court	U.S. District Court for the District of Columbia
Filed	2025-11-26

U.S. District Court for the District of Columbia · No. 1:25-cr-00076-JMC · Doc. 34-3 · 2025-11-26 · Docket on CourtListener

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA
:
:

:
Case No. 25-cr-00076-JMC
:

CORTNEY MERRITTS,

:
Defendant.

ATTACHMENT 3 TO JOINT PRETRIAL STATEMENT
PROPOSED JURY INSTRUCTIONS

The United States of America, by and through its attorney, the United States Attorney for
the District of Columbia, and defendant Cortney Merritts, by and through his attorneys Justin
Gelfand and Joseph DiRuzzo, respectfully propose the following jury instructions for the Court
to use at trial. Unless otherwise noted, all proposed instructions come from the Standardized
Criminal Jury Instructions for the District of Columbia (“Redbook”).

Case 1:25-cr-00076-JMC Document 34-3 Filed 11/26/25 Page 1 of 15

INSTRUCTIONS ON WHICH THE
PARTIES AGREE

Case 1:25-cr-00076-JMC Document 34-3 Filed 11/26/25 Page 2 of 15

PRELIMINARY INSTRUCTIONS
1. Preliminary Instructions Before Trial, Criminal Jury Instructions for the District of
Columbia § 1.102
2. Notetaking by Jurors, Criminal Jury Instructions for the District of Columbia § 1.105
3. Preliminary Instructions to Jury Where Identity of Alternates is Not Disclosed § 1.107
4. A Juror’s Recognition of a Witness or Other Party Connected to the Case § 1.108

Case 1:25-cr-00076-JMC Document 34-3 Filed 11/26/25 Page 3 of 15

FINAL JURY INSTRUCTIONS
PART ONE: GENERAL – INTRODUCTORY
1. Furnishing the Jury with a Copy of the Instructions, Criminal Jury Instructions for the
District of Columbia § 2.100
2. Function of the Court, Criminal Jury Instructions for the District of Columbia § 2.101
3. Function of the Jury, Criminal Jury Instructions for the District of Columbia § 2.102
4. Jury’s Recollection Controls, Criminal Jury Instructions for the District of Columbia §
2.103
5. Evidence in the Case, Criminal Jury Instructions for the District of Columbia § 2.104
6. Statements of Counsel, Criminal Jury Instructions for the District of Columbia § 2.105
7. Indictment Not Evidence, Criminal Jury Instructions for the District of Columbia §
2.106
8. Burden of Proof, Criminal Jury Instructions for the District of Columbia § 2.107
9. Reasonable Doubt, Criminal Jury Instructions for the District of Columbia § 2.108
10. Direct and Circumstantial Evidence, Criminal Jury Instructions for the District of
Columbia § 2.109
11. Nature of Charges Not to be Considered, Criminal Jury Instructions for the District of
Columbia § 2.110
12. Number of Witnesses, Criminal Jury Instructions for the District of Columbia § 2.111
13. Inadmissible and Stricken Evidence, Criminal Jury Instructions for the District of
Columbia § 2.112 (if applicable)

Case 1:25-cr-00076-JMC Document 34-3 Filed 11/26/25 Page 4 of 15

PART TWO: EVALUATION OF TESTIMONY
1. Credibility of Witnesses, Redbook Criminal Jury Instructions for the District of
Columbia § 2.200
2. Police Officer’s Testimony, Criminal Jury Instructions for the District of Columbia §
2.207
3. Right of Defendant Not to Testify, Criminal Jury Instructions for the District of
Columbia § 2.208 (if applicable)
4. Defendant as Witness, Criminal Jury Instructions for the District of Columbia § 2.209
(if applicable)
5. False or Inconsistent Statement by Defendant § 2.210 (if applicable)
6. Effect of Refusal of Witness to Answer Question, Criminal Jury Instructions for the
District of Columbia § 2.211 (if applicable)
7. Invocation of Fifth Amendment Privilege Against Self-Incrimination, Criminal Jury
Instructions for the District of Columbia § 2.212 (if applicable)
8. Character of the Defendant, Criminal Jury Instructions for the District of Columbia §
2.213 (if applicable)
9. Cross-Examination of Character Witness, Criminal Jury Instructions for the District of
Columbia § 2.214 (if applicable)
10. Evaluation of Prior Inconsistent Statement, Criminal Jury Instructions for the District
of Columbia § 2.216 (if applicable)
11. Evaluation of Prior Consistent Statement, Criminal Jury Instructions for the District of
Columbia § 2.217 (if applicable)

Case 1:25-cr-00076-JMC Document 34-3 Filed 11/26/25 Page 5 of 15

PART THREE: EVALUATION OF OTHER EVIDENCE
1. Motive, Criminal Jury Instructions for the District of Columbia § 2.307
2. Other Crimes Evidence, Criminal Jury Instructions for the District of Columbia § 2.321
(if applicable)

Case 1:25-cr-00076-JMC Document 34-3 Filed 11/26/25 Page 6 of 15

PART FOUR: ASPECTS OF DELIBERATIONS
1. Multiple Counts—One Defendant, Criminal Jury Instructions for the District of
Columbia § 2.402
2. Unanimity—General, Criminal Jury Instructions for the District of Columbia § 2.405
3. Verdict Form Explanation, Criminal Jury Instructions for the District of Columbia §
2.407

Case 1:25-cr-00076-JMC Document 34-3 Filed 11/26/25 Page 7 of 15

PART FIVE: CLOSING REMARKS
1. Summary Exhibits1: Certain charts and summaries have been received into evidence.
Charts and summaries are valid only to the extent that they accurately reflect the
underlying supporting evidence. You should give them only such weight as you think
they deserve.2 If you find that any charts or summaries do not correctly reflect facts or
figures shown by the evidence in this case, you should disregard any part of the charts
or summaries you find to be inaccurate.3
2. Redacted Exhibits, Criminal Jury Instructions for the District of Columbia § 2.500 (if
applicable)
3. Exhibits During Deliberations, Criminal Jury Instructions for the District of Columbia
§ 2.501
4. Selection of Foreperson, Criminal Jury Instructions for the District of Columbia § 2.502
5. Possible Punishment Not Relevant, Criminal Jury Instructions for the District of
Columbia § 2.505
6. Cautionary Instruction on Publicity, Communication, and Research, Criminal Jury
Instructions for the District of Columbia § 2.508
7. Communication Between Court and Jury During Jury’s Deliberations, Criminal Jury
Instructions for the District of Columbia § 2.509
8. Attitude and Conduct of Jurors in Deliberations, Criminal Jury Instructions for the
District of Columbia § 2.510
9. Excusing Alternate Jurors, Criminal Jury Instructions for the District of Columbia §
2.511
10. Defendant’s Theory of the Case § 9.100

1 As noted in a separate pleading, the Defendant objects to at least some of the government’s
summary exhibits. But if they are admitted, the Defendant does not object to this language.
2 Adapted from Fed. R. Evid. 1006.
3 Adapted from O’Malley, 1A Fed. Jury Prac. & Inst. 14:02 (6th ed.)
Case 1:25-cr-00076-JMC Document 34-3 Filed 11/26/25 Page 8 of 15

DEFINITIONS AND THEORIES OF LIABILITY
1. Proof of State of Mind, Criminal Jury Instructions for the District of Columbia § 3.101
2. Willfully Causing An Act To Be Done, Criminal Jury Instructions for the District of
Columbia § 3.102
3. “On or About,” Criminal Jury Instructions for the District of Columbia § 3.103

Case 1:25-cr-00076-JMC Document 34-3 Filed 11/26/25 Page 9 of 15

INSTRUCTIONS ON WHICH THE
PARTIES DO NOT AGREE

Case 1:25-cr-00076-JMC Document 34-3 Filed 11/26/25 Page 10 of 15

OFFENSE INSTRUCTIONS
GOVERNMENT’S PROPOSAL4
Counts One and Two of the indictment charge the defendant with wire fraud, which is a
violation of federal law.
Elements of the Offense
In order to find the defendant guilty of wire fraud, you must find that the government
proved each of the following elements beyond a reasonable doubt:
First, that the defendant knowingly devised or participated in a scheme to defraud
someone by using false or fraudulent pretenses, representations, or promises;
Second, that the false pretenses, representations, or promises were about a material fact;
Third, that the defendant acted with the intent to defraud; and
Fourth, that the defendant transmitted or caused to be transmitted by wire some
communication in interstate commerce to help carry out the scheme to defraud.
Definitions
A “scheme to defraud” means any plan or course of action intended to deceive or cheat
someone out of money or property by using false or fraudulent pretenses, representations, or
promises.
A statement or representation is “false” or “fraudulent” if it is about a material fact that
the speaker knows is untrue or makes with reckless indifference to the truth, and makes with the
intent to defraud. A statement or representation may be “false” or “fraudulent” when it is a half-
truth, or effectively conceals a material fact, and is made with the intent to defraud.
A “material fact” is an important fact that a reasonable person would use to decide
whether to do or not do something. A fact is “material” if it has the capacity or natural tendency
to influence a person’s decision. It doesn’t matter whether the decision-maker actually relied on
the statement or knew or should have known that the statement was false.
To act with “intent to defraud” means to act knowingly and with the specific intent to use
false or fraudulent pretenses, representations, or promises to cause loss or injury. Proving intent
to deceive alone, without the intent to cause loss or injury, is not sufficient to prove intent to
defraud.
The government does not have to prove all the details alleged in the indictment about the
precise nature and purpose of the scheme. It also doesn’t have to prove that the material
transmitted by interstate wire was itself false or fraudulent; or that using the wire was intended as

4 Adapted from 11th Cir. Model Crim. Jury Instr. O51, unless otherwise noted.
Case 1:25-cr-00076-JMC Document 34-3 Filed 11/26/25 Page 11 of 15

the specific or exclusive means of carrying out the alleged fraud; or that the defendant personally
made the transmission over the wire. And it doesn’t have to prove that the alleged scheme
actually succeeded in defrauding anyone, or that the defendant actually realized any gain from
the scheme or that any intended victim actually suffered any loss.5
To “use” interstate wire communications is to act so that something would normally be
sent through wire, radio, or television communications in the normal course of business. The use
of the internet to send a message, such as an e-mail, or to communicate with a website may
constitute a wire transmission in interstate commerce.6
Each separate use of the interstate wire communications as part of the scheme to defraud
is a separate crime.
For purposes of Count One, the alleged interstate wire signal is the defendant’s July 8,
2020, submission of an Economic Injury Disaster Loan Program application over the internet
from Missouri to a server located in Iowa used in processing such applications for the United
States Small Business Administration.
For purposes of Count Two, the alleged interstate wire signal is the defendant’s April 22,
2021, submission of a Paycheck Protection Program loan application over the internet from
Missouri to a server located in Virginia used in processing such applications for the United
States Small Business Administration.

5 Adapted from 3d Cir. Model Crim. Jury Instr. 6.18.1341-1.
6 Adapted from 3d Cir. Model Crim. Jury Instr. 6.18.1343-1.
Case 1:25-cr-00076-JMC Document 34-3 Filed 11/26/25 Page 12 of 15

DEFENDANT’S PROPOSAL7
The defendant is charged in counts I and II of the indictment with a violation of 18
U.S.C. section 1343.
This law makes it a crime to use interstate wire communication facilities in carrying
out a scheme to defraud.
To find the defendant guilty of this crime you must be convinced that the government has
proved each of the following beyond a reasonable doubt:
First: the defendant devised or intended to devise a scheme to defraud, as alleged in the
indictment;
Second: the defendant acted with specific intent to defraud;
Third: the defendant used interstate or foreign wire communications facilities for the
purpose of carrying out the scheme; and
Fourth: the scheme employed false or fraudulent pretenses, representations, or
promises that were material.
A "scheme to defraud" is conduct intended to or reasonably calculated to deceive
persons of ordinary prudence or comprehension.
A "scheme to defraud" includes a scheme to deprive another of money, property, or the
intangible right of honest services.
An "intent to defraud" means an intent to deceive or cheat someone.
A representation is "false" if it is known to be untrue or is made with reckless
indifference as to its truth or falsity.
A representation would also be "false" when it constitutes a half truth, or effectively
omits or conceals a material fact, provided it is made with intent to defraud.
A false statement is "material" if it has a natural tendency to influence, or is capable of
influencing, the decision of the person or entity to which it is addressed.
To "cause" interstate wire communications facilities to be used is to do an act with
knowledge that the use of the wire facilities will follow in the ordinary course of business or
where such use can reasonably be foreseen.

7 Adapted from the 10th Cir. Pattern Crim. Jury Instruction 2.57 Wire Fraud, 18 U.S.C. Section
1343.
Case 1:25-cr-00076-JMC Document 34-3 Filed 11/26/25 Page 13 of 15

WIRE FRAUD – GOOD FAITH DEFENSE
DEFENDANT’S PROPOSAL8
(1) The good faith of the defendant is a complete defense to the charge of wire fraud
contained in Counts I and II of the indictment because good faith on the part of the defendant is,
simply, inconsistent with an intent to defraud.

(2) A person who acts, or causes another person to act, on a belief or an opinion honestly
held is not punishable under this statute merely because the belief or opinion turns out to be
inaccurate, incorrect, or wrong. An honest mistake in judgment or an honest error in management
does not rise to the level of criminal conduct.

(3) A defendant does not act in good faith if, even though he honestly holds a certain
opinion or belief, that defendant also knowingly makes false or fraudulent pretenses,
representations, or promises to others.

(4) While the term “good faith” has no precise definition, it encompasses, among other
things, a belief or opinion honestly held, an absence of malice or ill will, and an intention to avoid
taking unfair advantage of another.

(5) The burden of proving good faith does not rest with the defendant because the
defendant does not have any obligation to prove anything in this case. It is the government’s burden
to prove to you, beyond a reasonable doubt, that the defendant acted with an intent to defraud.

(6) If the evidence in this case leaves you with a reasonable doubt as to whether the
defendant acted with an intent to defraud or in good faith, you must acquit the defendant.

GOVERNMENT’S OBJECTIONS9

The defendant is not entitled to a standalone “good faith” jury instruction because the
substantive offense instruction for wire fraud already adequately informs the jury of the requisite
“intent to defraud” mens rea that the government must prove beyond a reasonable doubt. “[I]t is
unnecessary to give a particular defense instruction if its essential points are covered in another
instruction[,]” so therefore “[a] good faith instruction is not required where lack of good faith is
part of the charge.” United States v. Johnson, 874 F.3d 990, 1002 (7th Cir. 2017) (holding that
because the defendants in a wire fraud case “were convicted of crimes that required the jury to find
bad faith, and specifically the intent to commit fraud, they were not entitled to an additional
instruction for good faith”) (citations omitted); see also United States v. Kismat, 570 F. App’x 155,
158 (3d Cir. 2014) (“We have upheld refusals to give a separate good faith instruction when the

8 Adapted from the 6th Cir. Pattern Crim. Jury Instruction 10.04 Wire Fraud, Good Faith Defense.
9 The Defendant notes that the elements instruction and good faith instruction proposed by the
defense are both pattern jury instructions from federal circuits. The defense intends to file a
supplemental pleading at the appropriate time as to why both of these instructions should be given
and why the Government’s proposed elements instruction should not.
Case 1:25-cr-00076-JMC Document 34-3 Filed 11/26/25 Page 14 of 15

instructions, taken as a whole, adequately define the elements of the crime, including the intent
requirement, thereby making a good faith instruction unnecessary and redundant.”) (citation
omitted); United States v. Dockray, 943 F.2d 152, 154–55 (1st Cir. 1991) (“Jury instructions are
to be evaluated in the context of the charge as a whole, and a defendant has no absolute right to
the use of particular language. Although good faith is an absolute defense to a charge of mail or
wire fraud, the court need only convey the substance of the theory to the jury. There is nothing so
important about the words ‘good faith’ that their underlying meaning cannot otherwise be
conveyed. Thus, where the court properly instructs the jury on the element of intent to defraud—
essentially the opposite of good faith—a separate instruction on good faith is not required.”)
(citations omitted); United States v. Howard, 245 F. Supp. 2d 24, 38 (D.D.C. 2003) (holding that
“a separate instruction regarding the ‘good faith defense’ was unnecessary” because the offense
instruction itself already “accurately recited the level of intent the government had to prove to
establish the mail and wire fraud charges”) (collecting cases).

Finally, to the extent the Court determines that a standalone good faith instruction may
nonetheless be appropriate, such an instruction should only be given if evidence that the defendant
acted in good faith is actually introduced at trial. See 6th Cir. Model Crim. Jury Instr. 10.02, Use
Note. If no such evidence is introduced, then a separate good faith instruction is per se
inappropriate.
Case 1:25-cr-00076-JMC Document 34-3 Filed 11/26/25 Page 15 of 15

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Exhibit Jury Instructions — USA v. Merritts (Dkt. 34-3, D.D.C.)

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