Court filing
Transcript of Pretrial Conference Proceedings in the case — USA v. Merritts (Dkt. 46, D.D.C.)
Filed December 19, 2025 in USA v. Merritts; one of 82 filings from this case.
Record facts
| Court | U.S. District Court for the District of Columbia |
|---|---|
| Filed | 2025-12-19 |
U.S. District Court for the District of Columbia · No. 1:25-cr-00076-JMC · Doc. 46 · 2025-12-19 · Docket on CourtListener
Full text
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
THE UNITED STATES OF AMERICA, Criminal Action
Plaintiff,
No. 1:25-76
vs. Washington, DC
December 5, 2025
CORTNEY MERRITTS,
Defendant.
1:02 p.m.
____________________________________________________________
TRANSCRIPT OF PRE-TRIAL CONFERENCE
BEFORE THE HONORABLE JIA M. COBB
UNITED STATES DISTRICT MAGISTRATE JUDGE
____________________________________________________________
APPEARANCES:
For Plaintiff:
Brian P. Kelly
DOJ-USAO
601 D Street NW
Washington, DC 20530
Email: brian.kelly3@usdoj.gov
Emily A. Miller
USAO - D.C.
Fraud & Public Corruption
555 4th Street, NW, Suite 5836
Washington, DC 20530
Email: emily.miller2@usdoj.gov
For Defendant:
Joseph A. DiRuzzo , III
MARGULIS GELFAND DIRUZZO & LAMBSON
500 East Broward Blvd., Suite 900
Ft. Lauderdale, FL 33394
Email: jd@margulisgelfand.com
Reported By:
Lorraine T. Herman, RPR, CRC
Official Court Reporter
U.S. District & Bankruptcy Courts
333 Constitution Avenue NW
Washington, DC 20001
lorraine_herman@dcd.uscourts.gov
*** Proceedings recorded by stenotype shorthand.
*** Transcript produced by computer-aided transcription.
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 1 of 85
2
P R O C E E D I N G S
DEPUTY CLERK: Your Honor, we are now calling for
the record Criminal Case 25-76, United States of America vs.
Cortney Merritts.
Counsel, beginning with the government, please
approach the lectern and state your appearances for the
record.
MR. KELLY: Good morning, Your Honor. Brian Kelly
and Emily Miller for the United States.
THE COURT: Okay. Good morning.
MR. DiRUZZO: Good morning, Your Honor. Joseph
DiRuzzo on behalf of Cortney Merritts, who is directly to my
left and seated.
THE COURT: Okay. All right. Good morning,
everyone. We are here for the pretrial conference. I just
want to confirm that both sides will be ready for trial.
Government, you intend to be ready for trial?
MR. KELLY: Yes, Your Honor.
THE COURT: Okay. And defense ready for trial?
MR. DiRUZZO: Yes.
THE COURT: I just also wanted to confirm the
length of trial just so we can know for purposes of
coordinating with the jury office. My understanding is the
parties expect this to be about a week?
MR. KELLY: That's correct, Your Honor.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 2 of 85
3
THE COURT: Okay.
You agree with that?
MR. DiRUZZO: I concur.
THE COURT: Okay. I don't typically sit on
Fridays, although if the parties want me to, I think I can.
If it could be the difference between finishing versus
carrying over to Monday, does the government have a
preference?
MR. KELLY: I mean, Your Honor, I think, without
looking at a calendar, that Monday may be Martin Luther King
Day.
THE COURT: Oh, it is.
MR. KELLY: So that would have us carrying over to
that following Tuesday.
THE COURT: Okay.
MR. KELLY: We are happy to sit on Friday, if
that's not an inconvenience for the Court.
THE COURT: Okay.
MR. KELLY: Ultimately, we'll defer to your
preference.
MS. MILLER: My guess is that you're going to have
jurors taking three-day weekends.
THE COURT: Okay. Yeah, that's a good point.
What is the defense preference?
MR. DiRUZZO: Our preference is to go on Friday.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 3 of 85
4
Hopefully, we'll already be into either closings or
deliberation, but given that counsel for Mr. Merritts and
Mr. Merritts, everyone is from out of town. Our preference
is to get it done as soon as possible.
THE COURT: Okay. Let me -- I'm just going to
look at my calendar to make sure. I think what we can do is
we can plan to sit on Friday. I can see about moving
around. I have a hearing but I can move that around. If
we're running into a problem confirming jurors and the only
issue is people are planning to be away Friday, we can
revisit that, but hopefully that doesn't become an issue.
Okay. One housekeeping thing before we start
'cause I always forget to do this, I usually have each side
pick a seat for alternates. So defense, for first
alternate, just pick a number 1 through 14. That will be
the first alternate juror seat.
MR. DiRUZZO: I'm lost.
THE COURT: Okay. So there's going to be two
alternate jurors. I don't do the alternates 13 and 14,
because they know they're alternates and they don't pay
attention. So I have each side pick a number between 1 and
14. So if you pick 2, that means whoever is in seat
number 2 will be the first alternate. And the government
will pick a number and then that will be the second
alternate. Sorry.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 4 of 85
5
MR. DiRUZZO: Okay. Understood.
THE COURT: Okay.
MR. DiRUZZO: Nine.
THE COURT: Nine, okay.
Government?
MR. KELLY: Four, Your Honor.
THE COURT: Okay. So the juror in seat number 9
will be our first alternate, and the juror in seat number 4
will be the second alternate. All right. Give me one
second.
Okay. I've reviewed the parties' pretrial
statement. The first thing that I want to do is just put
the plea offer on the record. Mr. Merritts, I don't do this
because I'm suggesting that you should plea, but part of my
responsibility is to just make sure that all plea offers
were conveyed to you, that you received them, had an
opportunity to discuss it with your attorney and that you
declined them.
So can the government just put on the record from
your pretrial statement what the -- I think there were maybe
two plea offers extended at some point. If you wouldn't
mind just putting that on the record, and I'll confirm what
is represented in the pretrial statement that both of those
offers were rejected.
MR. KELLY: Yes, Your Honor.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 5 of 85
6
On June 6th, 2024, the government extended a
pre-indictment plea offer which would have been for
Mr. Merritts to plead guilty to one count of bank fraud in
violation of 18 U.S.C. Section 1344.
And then on June 16th, 2025, the government
extended a post-indictment plea offer, which would have been
for Mr. Merritts to plead guilty to one count of wire fraud
in violation of 18 U.S.C. 1343.
THE COURT: Okay.
And Mr. DiRuzzo, you communicated those offers to
Mr. Merritts?
MR. DiRUZZO: My co-counsel has, yes.
THE COURT: Okay. Okay.
And Mr. Merritts, if you could just speak into
that microphone. I just want to confirm that -- I want to
make sure this is not the first time that you are hearing
that those plea offers were extended to you.
THE DEFENDANT: No, ma'am. It's not the first
time.
THE COURT: Okay. All right.
Okay. So let's just start with the voir dire. I
had received the parties' proposed questions, and then I
have a standard voir dire. So I essentially took the
parties' questions and, where there was duplication with my
standard voir dire, I just consolidated the questions or
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 6 of 85
7
used my standard question.
Just so the parties know, I only ask yes-or-no
questions of the jury panel. So, essentially, all of the
jurors, potential jurors that come in will get a notecard.
I will read off each voir dire question. If they have a
"yes" answer, they will put the number of the question on
their notecard. So if they have a "yes" answer to number 1,
they'll write "1" on the notecard and so on.
Then we clear the courtroom and bring every single
juror in, in the panel individually at least up until we
have enough that we've qualified enough to proceed with
peremptory strikes.
So even if someone doesn't ask -- answer any
questions, we'll bring them in, make sure they understood
all the questions. And I do allow attorneys to do brief
follow-up. So some of the questions that were proposed, I
didn't include in the voir dire, that does not prohibit
parties, if someone gives a "yes" answer and you want more
information, to probe -- to follow up on the questions that
they've given.
So again, I try to, you know, keep the questions
broad and to, you know, not ask more questions than
necessary to make sure that we're getting a fair jury panel
and I do allow follow-up questions.
So I did want to address a specific voir dire
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 7 of 85
8
question because it relates to a motion in limine that I'll
resolve. And that is the defense wanted a question about
Mr. Merritts' wife who is a former Congresswoman. I know
the government had objected.
I'll hear from the parties about whether she's
going to be a witness or not or the extent to which she
could be mentioned in trial. But regardless, I think, given
that there is a chance, you know, depending on what happens
in trial, that her name could come up, I don't want a
situation where jurors might be familiar with her and we
don't know if they have strong feelings.
And so I think it's actually important for both
sides to know whether jurors have feelings, positive or
negative, that might make them unfair in the event that
she's called as a witness, particularly that the defense has
included her on their witness list.
Again, maybe she doesn't get called or maybe there
is some limit to her testimony or maybe, after a proffer,
it's determined she's not relevant. But I just don't want
any mid-trial issues. So I just wanted to explain why I
included that question.
So with that, I'll start with the government. Do
you have other objections, edits, additions? Any questions
that I didn't include that you wanted that you feel strongly
about, we can discuss that now.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 8 of 85
9
MR. KELLY: No, Your Honor. We didn't have any
other objections or issues with the proposed voir dire.
THE COURT: Okay.
MR. KELLY: I think, as to the question about
Ms. Bush being included in voir dire, we understand
Your Honor's concern that it is prudent to front a potential
juror bias or prejudice issue in either direction. And to
the extent that she is brought into the trial --
THE COURT: Yeah.
MR. KELLY: -- I just want to know, and I
understand you'll hear argument on this later that, one of
our concerns is that the defense is attempting to sort of
insert her into this case, either through voir dire or
opening statements or through cross-examination of the
government's witnesses with no actual intention of ever
calling her, in part, because she has no relevant testimony
to offer.
THE COURT: Okay.
MR. KELLY: So we are concerned about, sort of,
the confusion that it may inject to the jury. Why are we
being asked about Congresswoman Corey Bush? But we do
understand, you know, sort of the prudential reason for
Your Honor wanting to do that.
THE COURT: Okay. And like I said, we'll address
some of those issues when we get into the motions in limine.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 9 of 85
10
Does the defense have any objections, additions,
edits?
MR. DiRUZZO: No, none that were otherwise before
the Court.
THE COURT: Okay. All right, great.
Okay, we're just going to take a minute to get
back online.
(Brief pause.)
MR. KELLY: Are we back on, Your Honor?
THE COURT: Yes.
MR. KELLY: I apologize. I actually have one
other thing that isn't necessarily an objection.
THE COURT: Sure.
MR. KELLY: I just wanted to make sure that
Your Honor had noted in the proposed statement of the case.
We were fine with all of it. There had been the one
reference to, at the end, "the government has the burden to
prove beyond a reasonable doubt, if it can."
THE COURT: Oh, okay.
MR. KELLY: And we had objected to the inclusion
of the words "if it can" as being superfluous. It sort of
puts the thumb on the scale a little bit in our opinion
without really adding anything --
THE COURT: Okay.
MR. KELLY: -- to the defense, you know, position
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 10 of 85
11
obviously that we do bear the burden of proof. But we had
just included that objection in the filing.
THE COURT: I see, okay.
MR. KELLY: And to the extent Your Honor saw that
and rejected our objection, that's fine. But to the extent
that you had not seen it or considered it we did want to
flesh that out.
THE COURT: Okay. What is the defense's position
about -- I mean, it doesn't really add anything. What is
the defense's position?
MR. DiRUZZO: It's not wrong, I would say that.
So I think that the Court would be well within its
discretion to keep it.
THE COURT: Okay. What is -- why is it included?
I'm just curious what you think it adds.
MR. DiRUZZO: Well, I think it's an inappropriate
statement of the law and -- that's it, Judge.
THE COURT: Okay. Well, the way I -- I mean, I
don't think it's wrong. I don't think it adds anything.
The way I usually approach this is unless it is not
accurate, I usually let the defense frame their, kind of,
part of the statement the way they want to.
The same way, when the government was outlining
its allegations, I did take out the initial additional
language that the defense had proposed that I thought was
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 11 of 85
12
kind of redundant to the element. So I'll leave it just
because I don't think it's prejudicial if the defense wants
to keep it.
MS. MILLER: Your Honor.
THE COURT: Yes, come on up.
MS. MILLER: Going back to the voir dire for just
a moment.
THE COURT: Yes. Yes.
MS. MILLER: A thought that occurred to us is, to
not create confusion in the panel about why Ms. Bush might
be mentioned, could we amend the question to somehow
indicate that she is a family member or a spouse or
something like that and so you may hear something about her?
THE COURT: Oh, sure. I think that's fair. Do
you have any problem with that? "So you heard that you may
hear from or about former U.S. Congresswoman Corey Bush, who
is Mr. Merritts' wife" or who -- any problem with that?
What does the government propose?
MR. KELLY: I think maybe we would propose family
member, Your Honor.
THE COURT: Okay. I don't have any problem with
that.
And again, the defense is fine with -- I think
it's fair to explain.
MR. DiRUZZO: Yes.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 12 of 85
13
THE COURT: Okay. Then moving to the preliminary
jury instructions which are very standard from the Red Book.
The only addition are the elements. I think the elements
that I've included are elements that have been given in this
district and are very -- they're probably closer to what the
government proposed, but the parties weren't that far apart.
I think the only difference is this one gives a little bit
more detail about what a wire communication is.
Does the government have any objections to the
statement of the elements? And again, for purposes of the
preliminary instructions, I just give the basic elements.
Obviously, at the final charging conference, we'll discuss
instructions concerning definitions as they relate to these
elements.
But just in terms of the basic mechanical elements
of the charge of wire fraud, does the government have any
problem with the instructions as I've articulated them?
MR. KELLY: The only point we'd like to make,
Your Honor, is that the first element of Your Honor's
proposed instructions, I believe, say that the government
must prove the defendant, "entered into a scheme to
defraud."
THE COURT: Okay.
MR. KELLY: And in our proposed jury instruction,
which was taken from the 11th Circuit, we had proposed that
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 13 of 85
14
the defendant devised or participated in a scheme. And we
think that the "or participated in a scheme" language is
important to make clearer to the jury that the defendant
could be convicted even if he did not personally submit one
or either of the charged loan applications himself.
To that point, the Indictment does allege that the
defendant "transmitted and caused to be transmitted and did
aid and abet." That's Paragraph 37 and throughout the
statement of the case the parties proposed as the defendant
"prepared and submitted and caused to be submitted."
THE COURT: Sure, okay. I think that's accurate.
Does the defense disagree? I mean, you can be
convicted if you participated in wire fraud and all of these
elements are met.
MR. DiRUZZO: My only concern, Your Honor, is I'm
a little worried that we might be getting into what would be
more of like conspiracy land or Section 2, like aiding and
abetting.
If I remember correctly, the Indictment did not
charge anything in respect to aiding and abetting or have
any mention of Pinkerton. So I'm a little concerned that if
we start bringing in the possibility of other individuals
that you might unnecessarily or improperly expand the scope
of the Indictment.
THE COURT: What is the government's response?
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 14 of 85
15
MR. KELLY: Just that, again, Your Honor, the
Indictment literally says in the charging language that the
defendant "transmitted and caused to be transmitted and did
aid and abet."
The language that we proposed from the Eleventh
Circuit "devised or participated in a scheme," I mean, that
seems to be black-letter law. We'd be happy to brief the
issue.
THE COURT: No, no. I don't think this is an
inaccurate statement of law. If you participate in a scheme
to defraud and meet all of these elements, it seems clear to
me that you'd be guilty of wire fraud the same as if you are
the master mind or a participant. So I don't see a concern
here. So I will make that edit over defense objection.
So "the defendant knowingly and willingly devised
or participated in a scheme to defraud or to obtain money or
property by means of false or fraudulent pretenses,
representations or promises."
MR. KELLY: Yes, Your Honor. Thank you.
THE COURT: All right. Okay. So I will make that
correction or edit, again, over defense objection.
Any other concerns from the government about the
proposed elements?
MR. KELLY: No, Your Honor.
THE COURT: Okay.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 15 of 85
16
So for the defense, I've ruled on this first
issue. Any other concerns about any of the other elements?
MR. DiRUZZO: No, Judge.
THE COURT: Okay. All right. So -- and anything
else about the preliminary instructions generally? Again,
they're Red Book instructions but if someone has something
additional?
MR. KELLY: No objections, Your Honor.
THE COURT: Okay. Anything from the defense?
MR. DiRUZZO: No.
THE COURT: Okay. So just for purposes of exhibit
objections, if the objection is something like relevance,
foundation, authentication, I'll deal with that at the time
of trial just because, without context, it's hard for me to
rule on that.
Some of these documents relate to Motions in
Limine, so we'll resolve those shortly. But are there any
exhibit-related issues from either side that are not covered
by a motion in limine that the parties think would be
helpful to have a pretrial ruling on?
MR. KELLY: Not for the government, Your Honor.
THE COURT: Okay. For the defense?
MR. DiRUZZO: No, Your Honor.
THE COURT: Okay. All right. Great. Just give
me one second, here.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 16 of 85
17
Okay. So I'm prepared to rule on the Motion to
Dismiss the Indictment. I'll put my reasoning on the
record.
I'm going to deny the motion. The -- and I'm
referring to ECF-13. It's the Motion to Dismiss the
Indictment pursuant to the Federal Rule of Criminal
Procedure 12. An Indictment is sufficient if it contains
the elements of the offense charged and fairly informs the
defendant of the charge against which he must defend.
And two, enables him to plead an acquittal or
conviction and bar of future prosecutions for the same
offense. That's from Hamling v. United States, 418 U.S. 87
(1974).
The defendant argues that the Indictment fails to
inform him as to which of the 11 mentioned wire
communications constitute the basis for the two counts of
wire fraud. I have reviewed the Indictment. I do find the
Indictment to be clear. There are two counts at issue in
this case.
One is based on defendant's transmission of his
EIDL application on July 8th, 2020. And the other is based
on defendant's submission of his PPP loan application on
April 22nd, 2021; that's clear in the Indictment.
While the Indictment certainly mentions other
acts, the government has not alleged that those other
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 17 of 85
18
communications satisfy the elements of wire fraud. They are
not pled as separate counts in the Indictment. Essentially,
I think this Indictment actually has probably much more
information than even required to describe the specific
crimes with which Mr. Merritts has been accused of.
So I do find that the Indictment has satisfied the
requirements of the Sixth and Fifth Amendments. I find that
defendant was properly charged by the grand jury, is on
notice of the charged conduct and can prepare his defense.
So I will deny ECF-13.
There's also a Motion to Dismiss for selective
prosecution which is ECF-14. I do want to understand kind
of what the class is that Mr. Merritts is suggesting that
he's part of that's distinct from others who have not been
prosecuted for this offense. If you can just clarify that
and then I'll be prepared to rule.
MR. DiRUZZO: Your Honor, it's our position that
Mr. Merritts is in a class of individuals that, according to
the government's theory, he admitted PPP fraud for a very
modest amount of $22,000. And given that -- putting aside
police officers who hold a special position of authority and
respect and they get some of the benefits, like qualified
immunity but are held to a higher standard, putting aside
those individuals, that my client was indicted when very few
to, you know, hardly ever individuals are indicted.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 18 of 85
19
Now, the government has in its moving papers or in
its opposition papers cited to five cases. Your Honor, I
would submit we have five instances nationwide. And using
some basic math, if there are a thousand PPP fraud cases
that would be .5 percent, half a percent, if there are
10,000 PPP fraud cases, which I think is a little more
realistic in a country of over 300 million, that is .05.
That's five basis points.
So when you look at the number of cases, you know,
number of fraud cases out there and the number that have
been indicted for such a small number, it leads to what I
think the natural question is: Why and why wasn't this case
brought in the context of some type of civil resolution?
And it's our position, Your Honor, that it is
selective that the thrust of the underlying investigation
wasn't to Congresswoman Bush and my client. And then when
there was nothing that was to be found, you know, they
pivoted and then -- and that's why we're here.
I would say, Your Honor, that I think, if the
Court has concerns, I think that the Court should consider
exercising its discretion to allow discovery. To quote
Justice Brandeis, "Sunlight is the best of disinfectants."
I would think, if the government truly believes
that there is nothing to see here, that, you know, I'm going
proverbial open kimono, would allow everyone to make sure
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 19 of 85
20
that nothing untoward has happened.
So with that being said, Your Honor, I submit
that, given the rather small dollar amount, something that,
in my view, I think best case scenario for the government
look at zone B, in my experience you don't get too many
federal criminal indictments where in the government's best
day you're looking at a zone B as compared to a zone D.
And so that, again, just reiterates the
strangeness of this Indictment in comparison to the most
federal criminal fraud cases.
THE COURT: Okay. And then what's your response
to the government's argument about why are you picking
30,000 as the baseline? Aren't you kind of arbitrarily...
MR. DiRUZZO: Well, at some -- I mean, at some
level it is arbitrary. We could have picked 25,000. We
could have picked, you know, 35,000, 50,000, but I don't
think that number -- I think, if you look at that number in
comparison -- and again, putting aside the police officers,
if you picked 50,000, I don't think that it would move the
analysis, it would move the proverbial needle.
Personally, I think if -- I think 35, if my
recollection of (2)(b) is correct, I think that's the next
level that kicks you up. I think it's under 2B subsection
(b)(1), like, at (D) perhaps. And I think that's where, you
know, it takes you into the next level.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 20 of 85
21
But that's my recollection, Your Honor. You can't
hold me to that and obviously the guidelines are what the
guidelines are.
THE COURT: And then why are we removing police
officers?
MR. DiRUZZO: Because, again, you know, police
officers have a special role in our criminal justice system.
For example, they get special protections. Many
jurisdictions have, you know, battery and law enforcement.
It takes a normal battery to a -- and enhancements and
police officers are given qualified immunity.
THE COURT: Well, not for fraud, though. There's
no immunity for PPP loan fraud.
MR. DiRUZZO: No, of course. Just as a general
proposition, police officers are given certain protections
in a society and are held to a higher standard. That's in
particular given that they are the ones that are on the
front lines and enforcing the law and they are literally law
enforcement.
THE COURT: Okay. Does the government have
anything to add in addition to what's in its briefs?
MR. KELLY: Not necessarily anything that's in
addition to our briefs, Your Honor. If I could just respond
to a couple points quickly.
THE COURT: Sure.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 21 of 85
22
MR. KELLY: One, as to the limited number of cases
that we cited in our opposition, that was literally based
off of a 10-minute Google search.
THE COURT: Okay.
MR. KELLY: It was by no means intended to be, you
know, sort of a 50-state survey of every PPP fraud case
that's been prosecuted in the last several years.
And, Your Honor, I think you hit it on the point
that this does appear to be a somewhat arbitrary and
artificially narrow comparison group. And courts actually
have rejected artificially narrow comparators for purposes
of selective prosecution claims.
To that point, we didn't actually raise this in
our opposition, but it occurs to the government it's not
even clear why we would be limiting the universe of similar
prosecutions to PPP fraud.
THE COURT: I was thinking the same thing. It's
really just wire fraud.
MR. KELLY: It's just fraud. It's just fraud,
Your Honor.
THE COURT: Yeah.
MR. KELLY: It could even be -- it could be
healthcare fraud. It could be wire fraud. It could be mail
fraud. It could be bank fraud. And I guarantee, Your
Honor, without having done the research but I'll stake my
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 22 of 85
23
reputation on it, there are going to be plenty of cases out
there in this office and throughout the country of cases of
similar magnitude that have been prosecuted.
And as to sort of the open-the-kimono,
what's-the-harm, in terms of requesting discovery, a
selective prosecution standard is extremely high. And the
burden is on the defendant to meet that standard of showing
discriminatory effect and discriminatory intent.
And for the reasons stated in our motion, the
defendants have just fallen woefully short of providing any
evidence for that. And, Your Honor, it is cited in our
opposition but the -- to even obtain discovery related to a
selective prosecution claim under D.C. Circuit and U.S.
Supreme Court law, the defendant still has to make a
colorable claim of selective prosecution, which requires,
quote, from U.S. v. Bass, 536 U.S. at 863, it requires a
defendant to offer some evidence of both discriminatory
effect and discriminatory intent.
And in U.S. v. Armstrong, 517 U.S. at 464, 468,
that is a, quote, "rigorous standard," which, quote, "itself
is a significant barrier to the litigation of insubstantial
claims."
According to U.S. v. Stone, 394 F.Supp.3d 1 at 31,
a DDC case from 2019, quoting Armstrong, "a defendant must
provide something more than mere speculation or personal
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 23 of 85
24
conclusions based on anecdotal evidence."
Simply stated, Your Honor, there is no colorable
claim here and the defendant is not entitled to discovery.
THE COURT: Okay. Thank you.
All right. Anything more from the defense before
I rule?
MR. DiRUZZO: No.
THE COURT: Okay. So I appreciate the defense's
arguments. I will deny the motion.
To begin, the presumption of regularity applies to
prosecutorial decisions. And in the absence of clear
evidence to the contrary, courts presume that prosecutors
have properly discharged their official duties. That's from
a D.C. Circuit decision from 2016, United States v. Fokker
Services B.V., 818 F.3d 733.
To dispel that presumption, a criminal defendant
must present clear evidence to the contrary that the
prosecutor's actions had a discriminatory effect and were
motivated by a discriminatory purpose. That's from U.S.
v. Armstrong, which the parties have cited in their briefs.
I find that the defendant has not shown that he
was singled out for prosecution from among other similarly
situated or that the prosecution was improperly motivated,
for example, based on race, religion or another arbitrary
classification, here, political affiliation or connection to
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 24 of 85
25
political affiliation.
First, I find that the defense has failed to
properly identify the group to which he is similarly
situated. The defense initially suggested that the group is
all subject to the jurisdiction of the United States
Attorney's Office for the District of Columbia, who has
allegedly submitted false PPP or EIDL claims for losses
under 30,000.
I do agree with the government that, you know,
it's not clear to me why 30,000 is the threshold. I also
agree with the argument made today that the defendant is
charged with two counts of wire fraud. So I do think it
would be appropriate to consider wire fraud more broadly.
Second, even taking this group that the defense
has identified for comparison, you know, there is just some
evidence that there are other similarly situated that have
been prosecuted for this type of loan fraud in this amount.
I don't think that there is a meaningful difference between
MPD officers in this context, although I appreciate that in
some circumstances they have special protections.
But the government has pointed to individuals that
were charged with PPP fraud for amounts even lower than what
Mr. Merritts is charged with. And, you know, the argument
that the defendant is not similarly situated to MPD officers
because the U.S. Attorney's Office has increased interest in
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 25 of 85
26
prosecuting wrongdoing within, just continues to narrow the
group for comparison, including excluding other evidence
that the U.S. Attorney's Office has prosecuted other people
in this district for similar amounts for specifically
pandemic loan fraud not to mention what I can say from my
personal experience fraud generally in this district.
So I also find that the defense has failed to
offer any evidence, even in direct evidence, of improper
motive that would justify discovery on this issue. So
because I find that the defense has failed to demonstrate
discriminatory effect and offers only speculation as to
discriminatory motive, the Court will deny that motion. And
again, I agree that it's a high standard for dismissal and
even for discovery.
Okay. So both of the Motions to Dismiss have been
denied which means we are going to trial. So let's get into
the motions in limine.
So I want to start with the defendant's motion
related to the corporate records which is ECF-21. Before I
get into the meat of the parties' arguments, can I ask the
government, I'm wondering if there is a real dispute here.
If you could just explain to me or maybe proffer, how do you
plan to introduce and discuss the evidence at trial when you
say you want to attribute it to him? I mean, is it -- are
you going to get out that it was obtained pursuant to a
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 26 of 85
27
subpoena?
MS. MILLER: My plan at this juncture, Your Honor,
would be to elicit that Vetted was subpoenaed, that Vetted
voluntarily responded to the subpoena, and the subpoena
asked for the universe, which is in evidence.
And in response to the universe received these
limited documents. This is going a little bit further but
then, in addition, although that purported to be everything
they could find at the time, they provided additional
documents of a similar nature, more text messages, it
appears, of the defendants and their exhibit list, their
defense exhibit list.
Taking all of these together and the way that they
are relevant is that there are lots of discussions about
business of the defendant, potential moving jobs, what he
would charge, what he did charge. And if you took all of
those jobs -- and I haven't done this yet but I plan to.
THE COURT: Okay.
MS. MILLER: But just from a quick looking at the
text messages, if you added up everything that he produced
to us, it doesn't come close to justifying the amount of
revenue that he stated that he made when he submitted his
loan applications. And so it is probative of the falsity of
those statements, along with like the bank records and
everything else.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 27 of 85
28
So I think being able to say "that's about him and
what he produced" is important because it's really tying my
hands behind my back to try and say "well Vetted produced
them." It almost sets up this weird false narrative that
Vetted is something other than him. And maybe he has
records that Vetted didn't have when he and Vetted are, in
fact, one and the same.
And he is claiming that they gave us everything.
It was through counsel. You know, in response to the
subpoena, they're claiming they gave us everything they
could find. Apparently they did find some more, but that
would be the gist of the argument.
THE COURT: Okay. So I guess that was my question
because initially you had said that you were going to elicit
that Vetted was subpoenaed, that Vetted voluntarily
responded to the subpoena. But then later you want to say
that Mr. Merritts produced the documents, not Vetted.
MS. MILLER: Well, that he is a -- that Vetted is
a sole proprietorship and that the documents that we have
show that he owns it 100 percent.
THE COURT: Okay.
MS. MILLER: And that, as a matter of law, there's
no legal distinction. It's just a doing-business-as name.
There is no legal distinction between him and Vetted. And
so when you are looking at this evidence and seeing what he
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 28 of 85
29
voluntarily produced in response to the Vetted subpoena,
what you are looking at doesn't add up to what he said.
THE COURT: Right. I guess I'm just interested
in, when you put the witness on the stand, what do you
intend to elicit in terms of, because you're not going to
ask the witness to describe what a sole proprietorship is.
MS. MILLER: I would put on through the witness
did -- was the grand jury, through the summary witness we
would put on, did you -- was a subpoena issued? Yes. Is
this the subpoena? Yes. What does it ask for? Highlight
all the relevant -- it asked for the universe. Did the
government receive a response? Yes, it did. Is government
X, you know, the response? Yes.
Did you pick out all of the messages that have
anything to do with business, potential business, actual
business?
THE COURT: Yeah.
MS. MILLER: Yes. And did you, you know, add it
all up and -- I haven't done that much yet.
THE COURT: Yeah. No, no, no.
I am just trying to understand, it sounds -- and
again, I will resolve the legal issue but it sounds like the
defense's concern was eliciting that Mr. Merritts produced
the documents. And if you don't intend to elicit
specifically Mr. Merritts produced documents, then we don't
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 29 of 85
30
really have a dispute. And if we do, that's fine. I'm not
suggesting you can't do that, but I just want to know if
this is even an issue before I dig in.
MS. MILLER: As I understood their objection, it's
not just saying that he produced them but it's attributing
them to him, like saying that these somehow have anything to
do with him and his defense.
THE COURT: Oh, okay.
MS. MILLER: Or the prosecution of them.
THE COURT: Yeah, I'm going to ask them a
clarification about the attribution issue. I mean, once
they're in evidence, are these texts from his cell phone?
MS. MILLER: Well, that's part of the reason that
I think it's important to attribute to the fact that they
came from Vetted and that Vetted is a sole proprietorship.
And so when you say "Vetted" you can say him because, while
you can look at the face of the screenshots, I think we can
authenticate them through the fact that they were produced
by his counsel in response to a subpoena to his company that
he is the 100 percent owner of.
THE COURT: Okay.
MS. MILLER: And then I think if you look at the
face of the screenshots, you will see his name, Cortney, you
will see his phone number at the -- you know, in certain
ones of them which we can authenticate with other records or
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 30 of 85
31
with witnesses.
So I think that it's important to say that these
things came through his counsel. I think that that's
obviously slightly different for the items he produced in
connection with his exhibit list because that wasn't in
response to a request for production. But again, I think,
for authentication purposes, we can look at those and say,
do they look like the other ones that his lawyer also gave
us?
THE COURT: Okay. Sure.
Okay. Can I hear from the defense and just try to
understand -- I want to understand your argument, because
obvious -- it sounds like, based on the proffer that these
are relevant documents. You don't disagree with that, do
you?
MR. DiRUZZO: At this stage I don't.
THE COURT: Okay. So the government is going to
have to lay a foundation for their authentication and
admissibility at trial. What exactly are you objecting to
in terms of how they do that?
MR. DiRUZZO: Well, Your Honor, it's, from my
perspective, when the government issues a grand jury
subpoena to an entity and the entity responds, I think it's
fair for the government to say that these documents came
from the entity.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 31 of 85
32
But what I have a problem with is the government
skipping over his evidentiary burden and immediately
attributing documents from an entity to an individual if
that makes sense.
THE COURT: Okay. So you don't have a problem
with -- again, before I get into the legal issue, I'm just
trying to flesh out if we have a dispute.
You heard Ms. Miller's, kind of, summary of what
she would ask. She's going to get out that there was a
subpoena to Vetted; that the defendant is the sole
proprietor of Vetted; that, you know, there was a response
to the subpoena, this is what was produced.
MR. DiRUZZO: I think all of that with the
exception of the, you know, it's a sole proprietorship,
because I'm going to anticipate that the individual that's
going to testify is going to lack personal knowledge as to
whether the entity is a sole proprietorship. And that
crucial piece of information is going to have to come in
through other witnesses and other bits of evidence.
THE COURT: Sure. And you can object. Assume
that they can -- they call a witness with knowledge and
that's before the jury either through the witness for these
documents, part of their investigation through documents,
through business records, they determined that there was a
sole proprietorship. So just assume -- again, you can
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 32 of 85
33
object if the witness isn't qualified to testify about that,
but just assume, for the sake of argument, that they are
able to do that.
What is the problem with that line of questioning
and what exactly are you objecting to?
MR. DiRUZZO: There's no problem with that line of
questioning.
THE COURT: Okay.
MR. DiRUZZO: The problem that we have is skipping
over the evidentiary foundation and just saying "Vetted
equals Cortney Merritts."
There needs to be some evidentiary foundation in
the proverbial chain in order to make the connection. And
from my perspective, what the government is trying to do is
skip over their evidentiary burden and automatically connect
the dots.
THE COURT: Okay. But what Ms. Miller suggested
would connect -- I mean, you want to connect the dots
because the jury is not going to know who Vetted is versus
Mr. Merritts.
You know, this sounds more like a foundation issue
than a potential Fifth Amendment issue. Your problem is,
you know, the government, if it has evidence, can establish
it served a subpoena to Vetted. Vetted -- again, assuming
that they have the evidence for this, Vetted is a sole --
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 33 of 85
34
Mr. Merritts is the sole proprietor of Vetted, that the sole
proprietorship, which Mr. Merritts, responded to the
subpoena. These are the documents produced. This is what
they show.
You don't have a problem with any of that. Right?
MR. DiRUZZO: No, because I think, being
realistic, that's coming in. Right? And so I think it's
coming in.
THE COURT: Okay.
MR. DiRUZZO: But, you know, I think for me, the
real problem I have is the possibility of the witness
saying, "I got this from Vetted." Vetted is Mr. Merritts.
And then all of that additional evidentiary foundation, you
know, the government doesn't have to do that work and the
jury hears that Vetted is Mr. Merritts.
THE COURT: Okay. You're going to lay the
foundation to connect Vetted, and the connection is the sole
proprietorship?
MS. MILLER: Yes, Your Honor.
THE COURT: Okay.
MS. MILLER: We, in fact, laid out numerous pieces
of evidence that the defendant so admitted that starting at
Page 3 of our opposition.
THE COURT: Okay. All right. I mean, the reason
I wanted to go this route is because it didn't really seem
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 34 of 85
35
like a Fifth Amendment issue. I'm not being called upon,
when the subpoena is served, to resolve any disputes about
whether Mr. Merritts had to respond to the subpoena. I
mean, you know, based on the case law, Mr. Merritts could
have resisted responding on behalf of Vetted and made this
argument that it's a sole proprietorship. But instead
documents were produced and now the documents have been
turned over.
And so if the question is just: What is the
evidentiary foundation that the government needs to lay to
admit these documents and to sufficiently tie them to
Mr. Merritts, you know, it sounds like the government plans
to do that. And if the government doesn't do that, as with
any evidence, you're free to object during trial if you
think the proper evidentiary foundation hasn't been laid.
So I'm going to deny ECF-21.
You know, again, it was framed as a Fifth
Amendment issue. I didn't see anything in the moving papers
that demonstrated that, you know, a defendant's, kind of,
failure or decision not to assert a Fifth Amendment
privilege and resist production of documents, that then on
the back end I would limit the government's attribution of
the records to the defendant as a remedy for that.
So I was prepared to deny it, but it sounds like
we really don't even have a dispute about whether or not
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 35 of 85
36
these documents could come in if the appropriate foundation
is laid and whether they could be attributed to Mr. Merritts
if the appropriate foundation is laid.
So again, I'm going to deny that motion with the
caveat that obviously you are free to object at trial if the
government doesn't lay a foundation for the admissibility of
those documents and does not tie them to Mr. Merritts before
attributing them to him.
Okay. All right. For ECF-22, that's the
defendant's motion regarding expert testimony, I'm going to
deny that as moot. The government has confirmed that it
will not be seeking to introduce expert testimony at trial.
I'll address some separately the issue of the summary
exhibits and whether those exhibits are appropriately
admitted.
Again, for Mr. Merritts, if at trial the
government asks questions of a witness that seeks to elicit
testimony based on the witness's training and experience
that seems to veer into expert testimony, again, you're free
to object. But I accept the government's representation
that it didn't disclose any expert testimony because it
doesn't have any expert testimony that it plans to introduce
at trial.
So that, ECF-22 is denied as moot.
Okay, now we're at ECF-23, which is the
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 36 of 85
37
government's motion to admit evidence. I understand the
motion to encompass three types of records. One is what
I'll categorize as kind of routine business records; two are
government records; and then three, there is the issue of
summary exhibits.
I did not understand the defendant to be objecting
to the admissibility and authentication of the routine
business records; is that correct? There was no objection
there?
MR. DiRUZZO: That's correct.
THE COURT: Okay.
MR. DiRUZZO: At least as for his business records
portion.
THE COURT: Okay. So I'm going to grant that
portion of the government's motion to admit business records
and documents under Rule 902.11 and .13. Again, the
government is required to lay any sufficient foundation for
records to establish their relevance and admissibility at
trial. So the defendant can object on those grounds at
trial, but I will grant the government's motion.
With respect to the motion to introduce the
self-authenticating signed and sealed government records
under 902.1, I would grant that motion, except I want the
government's position with respect to the documents that
certify the absence of records, because the defense is
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 37 of 85
38
objecting to that coming in.
MR. DiRUZZO: That's correct.
THE COURT: So there's been an objection. Will
you have the person who conducted the search prepared to
testify at trial?
MS. MILLER: Yes, Your Honor.
THE COURT: Okay. All right. So I'll grant in
part and deny in part the government's motion to introduce
those self-authenticating signed records. And those records
will come in as self-authenticating, except with respect to
the documents that certify the absence Of records.
There has been an objection to the two IRS
Forms 3050, 3050 certifications under Rule 803.10. So the
government must and will produce a witness to testify about
the lack of those records; and that person will be available
for Mr. Merritts to cross-examine.
Let me ask, just to confirm with Mr. Merritts, are
there any other government records, apart from those two IRS
certifications, that the government intends to introduce at
trial that you object to under --
MR. DiRUZZO: Confrontation clause.
THE COURT: -- confrontation clause?
There was some reference to some SBA records but I
wasn't exactly clear.
MR. DiRUZZO: Yes, Your Honor.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 38 of 85
39
I think I can make it easy for you. Any type of
government certification of lack of --
THE COURT: Yes.
MR. DiRUZZO: -- lack of absence, that would fall
under this general claim.
THE COURT: Okay. But are there other records
that the government intends to introduce?
MS. MILLER: Lack of records?
THE COURT: Lack of, yeah.
MS. MILLER: No, Your Honor.
THE COURT: Okay. All right. So it sounds like
the only lack of records would be from the IRS. Just to be
clear, the defense has objected, so if there is some other
entity from which the government wants to elicit that there
were no records found, they would have to produce a witness
to testify about their efforts so that that person could be
available for cross-examination.
Okay. Finally, I will grant, over the defense
objection, the government's motion to permit the summary
exhibits under Rule 1006. I do find it appropriate to allow
the government to introduce charts and graphs summarizing
the voluminous financial information at issue in this case.
The Circuit has repeatedly permitted similar
accounting summaries that utilize basic calculations of
financial invoices and other data to create charts, graphs
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 39 of 85
40
or timelines.
Mr. Merritts will have the opportunity to
cross-examination the FBI agents who prepared these summary
exhibits to contest any categories, labels or underlying
data that the defendant disputes the accuracy of. And the
government has also noted that it will instruct its
witnesses not to provide any improper opinion or influential
testimony in relation to those exhibits.
I also will, as I understand case law, be prepared
to give a limiting instruction, if the parties want,
advising what the purpose of the summary exhibits are.
Oh, did you?
Yes.
MS. MILLER: Sorry, Your Honor.
I believe that, if I'm correct, with respect to
1006 there is a limiting instruction.
THE COURT: Yes.
MS. MILLER: I think that applies when you do
summary exhibits before the jury.
THE COURT: Okay.
MS. MILLER: Like the ones that are not admitted
into evidence.
THE COURT: I see, to let them know that it's an
aid but not required.
MS. MILLER: Yes. I don't --
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 40 of 85
41
THE COURT: Okay.
MS. MILLER: I don't think the limiting
instruction rule applies to Rule 1000 --
THE COURT: To summarizing the voluminous records?
MS. MILLER: [Nodded]
THE COURT: Okay.
I was just going to suggest that, if there is any
explanation I need to give to the jury about what they're
seeing, I'd be prepared to do that. But the parties can let
me know if they think that's appropriate, but I will permit
the government to introduce the summary exhibits.
Okay. Now moving on to the government's Motion to
Exclude Evidence, which I believe is ECF-24. First, I'll
deny as moot the government's Motion to Exclude Evidence or
arguments seeking jury nullification because the defense has
represented that he will not make such arguments or
introduce such evidence.
Again, I know we have to get into the weeds of
some of the specific issues, which we will do shortly, but,
you know, I trust that the defense knows that jury
nullification would be improper to ask the jury to do in any
way. And if the defense makes any arguments or asks any
questions and attempts to do that, the government can object
and I will instruct the jury accordingly. So I'll deny that
as moot.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 41 of 85
42
Second, I will deny in part the government's
Motion to Exclude Character Evidence and Prior Good Acts. I
say "in part" because, to the extent that it covers any
general statements of good character, which can't be
offered, I don't understand the defense to understand they
could do that. But just to be clear, that's not
permissible.
But the federal rules clearly allow a defendant to
offer character evidence under 404 and 405 of a pertinent
trait that's relevant to an element of the offense. So, for
example, in this case, it's a fraud case, so evidence that
demonstrates a character for qualities like truthfulness
could be pertinent in a case about fraud.
So I won't preclude the defense from introducing
appropriate character evidence, if that's what he chooses to
do. Again, if there's an issue with respect to the extent
of that testimony, I can deal with those objections during
trial.
Okay. Third, with respect to the government's
Motion to Exclude Statements about Punishment or Collateral
Consequences of Conviction, I'm going to deny that as moot
because the defendant has represented that he will not
introduce evidence about punishment or consequences or make
any such arguments.
You know, I do think, you know, in closing, can a
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 42 of 85
43
defendant say, you know, please consider all of the evidence
carefully because this is a very serious matter and is
important to Mr. Merritts? Sure.
Can he say, you know, "if you convict,
Mr. Merritts is looking at X time"? No. Can they talk
about collateral consequences? No.
So again, I think this is one of those things
where I trust the defense understands what's appropriate and
what's not. And if the defense starts down a line of making
an argument or asking a question that seems to be attempting
to elicit statements about punishment or collateral
consequences, government can object and I will deal with it
and instruct the jury accordingly if I need to instruct them
as to what's permissible and not.
But I accept that Mr. Merritts has experienced
counsel that knows that he can't make arguments about
punishment or collateral consequences.
Okay. So then -- okay. So now we're at the issue
of the investigation of former Congresswoman Corey Bush.
Let me hear from the government on this. Am I right that my
understanding, from the limited information I have, is there
was an investigation into Ms. Bush and Mr. Merritts and that
these -- this alleged fraud was discovered in connection
with that investigation?
MR. KELLY: That's correct, Your Honor.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 43 of 85
44
THE COURT: Okay.
MR. KELLY: So, yes. There was the campaign --
the misuse of campaigns funds investigation.
THE COURT: Okay.
MR. KELLY: Primarily focused on Ms. Bush that
also, of course, included Mr. Merritts. Since the
allegations included that she had misused campaign funds to
pay him for security services.
THE COURT: Okay.
MR. KELLY: During the course of that
investigation, the agents were investigating whether or not
Mr. Merritts actually had any sort of security-related
company or firm. And as part of that investigation, they
queried whether he had ever applied for any COVID
relief-related loans for any business.
Nothing came back for a security business, but the
loans at issue in this case did come back as to his
purported moving business. And the agents realized, from
having reviewed his financial records, that the
representations in the loan applications were not consistent
with what they had seen in his financial records.
And at that time point in time, the decision was
made to open -- you can call it a separate -- I mean it's
not a separate investigation -- it is a separate
investigation because they're investigating completely
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 44 of 85
45
separate crimes --
THE COURT: Different issues.
MR. KELLY: -- different people, different
timeframes, different conduct, different criminal statutes.
But, yes, it was somewhat happenstance that the evidence
that led to the charges of this case was uncovered during
the other investigation.
THE COURT: Okay. And then let me be clear, so
you're moving to exclude that. So you have no intention, if
I were to grant the motion and I'll hear from the defense,
you're not going to explain to the jury kind of how
Mr. Merritts ended up in this seat by laying out any of this
information?
MR. KELLY: No, Your Honor.
I mean I think that it could be appropriate for
testimony to be elicited in general terms that there was,
you know, an ongoing investigation and during that
investigation, you know, they uncovered this evidence that I
just very rudimentary -- you know, rudimentarily -- I don't
know if that's a word, Your Honor -- laid out.
But just as if, if the evidence in this case had
been uncovered while Mr. Merritts or Ms. Bush were being
investigated for murder, I guarantee, Your Honor, the
defense would be taking the complete opposite position here
that the government should in no way be allowed to get into,
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 45 of 85
46
whatsoever, the details or the outcome or anything having to
do with that murder investigation. And we think it's
equally true here.
THE COURT: Sure. So I'm just trying to
understand before I ask the defense for more information on
this. You know, if I were to grant this motion, you would
or you would not, in general terms, have an investigating
agent testify about how Mr. Merritts came -- I mean, you
would just start with this investigation, not kind of the
investigative steps that led to it; is that right?
MR. KELLY: Court's indulgence. I just want to --
THE COURT: Sure. Yeah.
(Discussion off the record between government counsel.)
MR. KELLY: Your Honor, it's just -- I think we
could do something very general, such as, during an
unrelated investigation in which Mr. Merritts was not a
target, you know --
THE COURT: Okay.
MR. KELLY: -- you uncovered X, Y, Z.
THE COURT: Yeah, I'm not even trying to -- I'm
not even there yet. I just want to know kind of what your
intention was. You know, if I were to say I'm granting this
motion in full, is it your preference not even to do it in
general terms? I'm not asking for like a concession between
your position and the defense.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 46 of 85
47
I just want to know, you know, from your
perspective, like if you got your way and you could try this
case exactly how you want, you wouldn't even mention it in
general terms or you would?
MR. KELLY: I don't think that we would need to,
Your Honor.
THE COURT: Okay.
MR. KELLY: I mean, if an investigation was
launched because, you know, there was a whistleblower
complaint for example, we wouldn't necessarily elicit
testimony from the agent that there was an anonymous
complaint and that caused you to look into this.
We would just say, you know, "did you open that
investigation into whether or not Mr. Merritts had submitted
fraudulent COVID loan applications?" And they would say
"Yes." And then we could say, you know, "What did you do as
part of that investigation?"
So I think we would steer as far clear from any
reference to a separate investigation as possible, you know,
short of somehow causing juror confusion but --
THE COURT: Okay.
MR. KELLY: -- that would be our preference.
THE COURT: All right. I'll hear from the
defense.
First, do you intend to get into this prior
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 47 of 85
48
investigation if you had your way?
MR. DiRUZZO: Yes, Your Honor.
THE COURT: Okay. And the relevance is?
MR. DiRUZZO: Well, Your Honor, I'll put it to you
this way. I think you've probably seen in the course of
your career some people make the argument of law enforcement
spend a tremendous amount of time, effort and money in an
investigation that was, you know, dead on arrival.
And in order to save face, you know, save their
career prospects, you know, that they had to find something
and, lo and behold, what do they find? They found X. And
I've personally, you know, made those arguments, you know,
myself in different cases.
And of course the witness is going to be allowed
to say, if it's true that, no, that's not the case. But
then the argument is going to be to the jury that, of
course, law enforcement -- just like everyone has a vested
interest to make sure that what they do is not a waste of
time that, if a law enforcement, for example, you know, if I
pose the question: Well, it's your job to investigate cases
and make arrests? Invariably the answer is going to be to
investigate cases but not necessarily make arrests.
And the follow-up is often, Well, if you didn't
make any arrests, it wouldn't look like you were doing a
very good job as an investigator. Right? That's going to
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 48 of 85
49
play out and I think that that's fair game because I don't
know how much time, effort and money went into the initial
investigation of my client and Ms. Bush.
It seems they both were being investigated for
possible conspiracy, either to commit some type of campaign
finance violation. But the fact that there was no their
there and then, lo and behold, what do we have, a mere PPP
fraud case for a mere $20,000. I think that's fair game, at
a minimum, to be argued to the jury that, like, this is not
something that you would typically see and that goes to the
witness's sloppiness.
THE COURT: Well, let me stop you there. So I was
with you until you said this is not something you typically
see because, what do you mean? What is not something you
typically see?
MR. DiRUZZO: That you've got a rather substantial
federal investigation into campaign finance and then you get
a fraud case for a mere 20,000, 22,000.
THE COURT: Where is that? I don't know if that's
true or not. So how is the jury -- what evidence do you
expect to come out that's going to substantiate that?
MR. DiRUZZO: I can ask the law enforcement, you
know, how many cases has he been involved with that results
in a -- criminal charges for only $22,000.
THE COURT: But I guess, okay, so I denied the
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 49 of 85
50
selective prosecution claim.
MR. DiRUZZO: Uh-huh.
THE COURT: And so the only question for the jury
is whether the government has proved these allegations
beyond a reasonable doubt or not. And so it's not a matter
of -- I mean, I think there's a line -- you know, it can't
be the government has proven the allegations beyond a
reasonable doubt. There's evidence but this is unusual and
it's for a low amount so, jury, you should acquit. Right?
That's not permissible.
MR. DiRUZZO: Well --
THE COURT: What could be permissible is, you
know, there is nothing here. The evidence is not
sufficient. And this is to save face because the
investigators were embarrassed but that doesn't require the,
you know --
MR. DiRUZZO: The discussion of $22,000? That's
fine, Judge.
THE COURT: Yeah, I'm concerned about that
because, first of all, you know, I don't know -- it sounds
like you don't know -- you know, this is not discovery.
This is actually the trial, so I don't know that that's a
true statement. And it sounds like you don't have any
information to suggest that it is the case that this is
unusual or not.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 50 of 85
51
MR. DiRUZZO: I would agree with that.
THE COURT: Okay.
MR. DiRUZZO: I'd be willing to, to make it easy
for you, Judge, not talk about the dollar amount but be able
to say that the witness -- you know, the law enforcement,
you know, put a lot of time, resource and effort and
manpower into an investigation that went nowhere, and then
it morphed into a totally unrelated investigation of my
client. I think that that's fair game.
THE COURT: Okay. Let me hear from the
government. I'll hear from the government.
And let me just explain, kind of, what I think is
the issue, here. On one hand, I don't want this prior
investigation to turn into a sideshow, a mini trial. I'm
not even sure, for the point you want to make, that it
matters what the initial investigation was about. You know,
I don't know that you need to say any details to ask those
questions.
But I do think I have to let the defense question
witnesses about potential bias. So, you know, if the
witness -- again, I'm not suggesting this is the case. But
imagine a case where a witness made an arrest without
evidence because -- for some reason or another than the
evidence, they are worried about, you know, blow-back from
supervisors, whatever it is.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 51 of 85
52
So let me hear about specifically that because I
can't shut the defense down in a theory where they want to
confront specific witnesses about bias. I am very concerned
about mentioning this dollar amount, which I've said that I
would not permit that.
I'm not going to permit selective prosecution
arguments. I've denied that motion. It's not -- you know,
if I thought there was selective prosecution, it would be
dismissing the case. That would never go to the jury.
So let me hear from the government about what you
think appropriate bias cross is, understanding that I have
to let a defendant do that, and what your response is to the
defense's argument.
MR. KELLY: Yes, Your Honor.
A few points. One, this is all pure conjecture.
There is actually no good-faith basis whatsoever in any of
the discovery that the agents or anybody involved in this
case was somehow frustrated that the investigation into
Ms. Bush didn't lead to charges, so they pivoted to target
Mr. Merritts.
And it's our position there has to be a good faith
basis on which to attack someone's credibility through bias
cross-examination. I just want to be very clear,
Your Honor. The campaign funds investigation, the only
target in that case was Ms. Bush. Mr. Merritts was not a
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 52 of 85
53
target of that investigation. The only reason that he had
any involvement in terms of the investigation was because he
was one of the people --
THE COURT: So I guess your point is that, if
Ms. Bush was the defendant here, that might be a more
appropriate argument but --
MR. KELLY: Yes, Your Honor. The actual
investigation as to Ms. Bush was whether she had provided
false statements to the FEC. Mr. Merritts, by definition,
could have never been guilty of making false statements to
the FEC. He was never a target, so this is not a situation
where the agents were going after Mr. Merritts and couldn't
get him on one thing, and so they decided to get him on
something else.
THE COURT: Okay.
MR. KELLY: And Your Honor, I mean, that seems
like back door to a selective or even a vindictive
prosecution claim by the defense.
And as to the sideshow, Your Honor, we're not
really sure how that could be avoided. I mean, the defense
counsel is speaking about Ms. Bush being exonerated. And
I'll just note that the government's position has never been
that Ms. Bush was exonerated. We'll concede charges haven't
been brought.
But would the government be entitled to present
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 53 of 85
54
evidence in detail about the allegations as to Ms. Bush and
the defendant, for example, that Ms. Bush paid her
boyfriend, now husband, over $100,000 for security services
that were alleged to have never been provided or that the
FEC issued a complaint against her?
Should we be allowed to get into the agents about
all of the evidence of wrongdoing that they did uncover as
part of that investigation? Should we be allowed to ask
them why criminal charges haven't been brought in that case?
Your Honor, if that door is opened, this case is
no longer going to be about whether or not two loan
applications that Mr. Merritts submitted were fraudulent,
which is what this case is about. And our fear throughout
all of the briefing has been that the defendant isn't
interested in having that conversation. The defense is
interested in having a conversation about the investigation
into Ms. Bush.
And I will also note, Your Honor, that -- I mean
to the extent that it matters, the applications at issue
here are from well before actually the time period of the
investigation into Ms. Bush in terms of the relevant offense
conduct.
So we just -- this seems like a back door for a
selective prosecution argument. We don't know how we
couldn't open the door wide open for a complete sideshow
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 54 of 85
55
here and Mr. Merritts was not the target of that
investigation, Your Honor.
THE COURT: Okay. Well, let me ask the defense
your response to that because, if you were to make a
suggestion or ask a witness, you know, you're investigating
Ms. Bush and you couldn't find anything so you pivoted and
the government has evidence that they in fact did find
things, I mean, why wouldn't they be able to put forth
everything they found, which I don't think you would want
and I don't want that sideshow either.
So how does that -- I mean, you agree that I can't
let you ask questions about the investigation and what it
turned up and what it didn't without letting the government
respond?
MR. DiRUZZO: Your Honor, I think there's a happy
medium here. Right? I think I should be allowed to get
into the amount of -- I'll give a nice example. Imagine
this were Enron all over again, an accounting fraud case.
Right?
And then you have all of the government law
enforcement auditors spending hundreds of thousands of
dollars, hundred of thousands of man hours and then, for
whatever reason, they don't make the case but a small
additional case is found on the side, you know, a 1001
violation. Right?
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 55 of 85
56
I think that it's appropriate to say that the
investigators who have a personal interest in their own
career to say that they weren't wasting hundreds of
thousands of dollars on a lark and a detour on an
investigation that turned up nothing. Right?
THE COURT: Well, right, but let me stop you right
there. That's the issue. You're assuming that it turned up
nothing. And the government is saying, if you want to go
down this road, what they're going to -- they want to show
that they did turn up something. There was a complaint, an
agency complaint filed. There was evidence of payments for
services not rendered.
MR. DiRUZZO: I think I would agree to limit it
to -- we could say that just charges were never brought.
THE COURT: And then do they get to ask: Can you
explain why charges have not been brought?
MR. DiRUZZO: I would say at that point, if the
government wants to go there, I would, to be actually
honest, I think they would be able to do it.
THE COURT: Right. I mean, do you want -- you
don't know what the answer to that question is going to be.
Do you want that answer? I mean, this is what I'm a little
bit concerned about.
Let me just be clear. I don't want to cut you off
in any way from questioning witnesses about bias. And so
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 56 of 85
57
I'm not trying to do that, and I want to find a way for you
to ask questions that get at witness's bias, their motives
to curry favor with the government, what could have tainted
the investigation --
MR. DiRUZZO: Uh-huh.
THE COURT: -- that the jury could then use to
either doubt the credibility of the investigation or to, you
know, make other conclusions that the government hasn't
carried its burden. But I don't want this to be, you know,
opening the door based on speculation.
So you know, I don't know how much was spent on
the investigation or how much time. I mean, how long was
the investigation into Ms. Bush?
MR. DiRUZZO: Unfortunately, Judge, I can't say
that because I'm rather new to the case.
THE DEFENDANT: Your Honor.
THE COURT: Do you want to consult with your
client?
(Discussion off the record between Mr. Merritts and
Mr. DiRuzzo.)
MR. DiRUZZO: It's my understanding that the
investigation into Ms. Bush was approximately a year through
an IG investigation and in addition to the DOJ
investigation.
To answer your question, Judge, how about this:
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 57 of 85
58
Trying to be intellectually honest, I think if I go there,
I've got to pick my poison. And it's kind of you're in for
a penny, you're in for a pound and then the door is opened.
Just because the door is opened, then the government needs
to make their own tactical decisions of whether they want to
walk through.
THE COURT: Well, no, I also have to be concerned
with turning this into a mini trial about an unrelated
investigation. So I need to know kind of what could come
out and what specifically you want to ask.
I mean, if you want to confront a witness with --
I'm not saying I'm going to let you do that. I'm just kind
of thinking out loud.
MR. DiRUZZO: Sure.
THE COURT: So you want a -- the FBI investigator
is going to testify. You want to ask the FBI investigator,
you know, Mr. Merritts, you found out about this alleged
loan fraud because you were actually investigating his wife
for something unrelated.
MR. DiRUZZO: Ms. Bush. You spent a year of your
life and thousands of hours or hundreds of hours working on
the case and that case did not amount to an indictment.
Correct? Yes.
THE COURT: And then the government gets to
explain why it didn't amount to an indictment?
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 58 of 85
59
MR. DiRUZZO: Well, I think then, again, to be
fair, you know, the government is going to have to make the
tactical decision whether they want to walk through that
door themselves. Although I personally think that there
is -- I'm not entirely sure that the case agent would be
able to make that representation as to the thought
processes.
THE COURT: Right. They're going to -- that's the
problem. Then are they going to have to call some other
witness to testify about that? I mean, that's what I don't
want to happen.
MR. DiRUZZO: I understand, Judge. I understand.
But looking back at it or looking at it from the
10,000 foot, you know, I think it's fair game and I should
be able to go into the biases, prejudices and motivations of
law enforcement. And at some level, it's law enforcement's
job to make a case.
And so to save, you know, that time and effort of
a year, you know, and then voila, you've got a $20,000 PPP
case, I think that's fair game understanding I will not be
able to get into a dollar amount.
THE COURT: All right. Let me here from the
government and then I'm just going to -- now that I have
some specifics, I'll think about this. I might just issue a
short Minute Order in the next day or so. But let me hear
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 59 of 85
60
from the government.
Is there anything that you think would be
appropriate for them to get into that relates to this bias
issue? I'm just trying to draw a line. I share your
concern. I don't want to cut the defense off from
questioning witnesses about bias. I don't think I can do
that.
I also do not want this case to turn into a case
about this former Congressperson's investigation. I
actually think it could potentially be damaging to --
probably more damaging to Mr. Merritts than the government
if that door is open, quite frankly.
So let me hear from -- is there any piece of what
the defense is saying that you agree is appropriately
inquired into on cross and then I'll take this under
advisement?
MR. KELLY: Your Honor, I am happy to answer that
question if I could just make one other brief point.
THE COURT: Sure. Yeah.
MR. KELLY: So you know, it occurs there are a lot
of -- this goes back to my good faith basis point from
before, Your Honor, to exploring bias. And it occurs that
there are a lot of assumptions being made here.
The example that was just given by defense counsel
is they would like to ask the agent, you know, would it --
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 60 of 85
61
you know, you pursued this case because you wanted a
promotion or you could get in trouble with your job if you
didn't, et cetera.
They would have to lay the foundation for the
potential bias first by asking the more neutral question:
Is your job tied to how many cases you closed? Or, you
know, if you were to, you know, investigate a case and then
it didn't lead to charges, you know, what repercussions
could that have for you?
They would have to lay some sort of foundation
that what they were hoping to explore as to the other
investigation would actually have some potential bias impact
for the witness.
And Your Honor, I think, you know, at most -- and
this goes back to sort of what we were talking about before
in terms of how much would the government want to get into
the other investigation in terms of laying, you know,
providing contacts for this investigation. And frankly,
again, we don't think we need to get into it at all in order
to make out the charges here.
But after laying a proper foundation for potential
bias through the more sort of neutral questions that would
normally be required, if the defense wants to try to elicit
testimony from the agents about, you know, efforts that were
put into another investigation during which they uncovered
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 61 of 85
62
the evidence that ultimately led to these charges, it would
still add literally nothing but would certainly invite jury
nullification, confuse the issues, greatly expand the scope
of this trial, for them to get into whatsoever any of the
details of that investigation, the nature of that
investigation, the fact that Ms. Bush was the target of that
investigation, which, again, seems to be what the defense
has been trying to do all along during -- through all of the
briefing in this case.
So if Your Honor is inclined or if, during
testimony, a foundation is laid for a potential bias based
on the fact that resources had been expended in an unrelated
investigation, there is no justification at all to get into,
as I just said, any of the details of that investigation.
Court's indulgence, Your Honor.
THE COURT: Sure.
MR. KELLY: Oh, and one other point, just -- and I
don't think this is a technical point. I think it's an
important one. The investigating agents don't make the
charging decisions here. The U.S. Attorney's Office does.
THE COURT: Yeah. Yeah.
MR. KELLY: So to the extent -- it's just they're
not -- they're not even the decision-maker here, which is
another reason that sort of -- if they want to attack the
thoroughness of this investigation as to Mr. Bush and what
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 62 of 85
63
was done in terms of interviewing people who he may have
provided moving services to or people that he were employed
by or look into his financial records, that's certainly fair
game. But there's really no reason to get into what was
done. In our opinion, substantively is an unrelated
investigation.
THE COURT: Okay. Thank you.
Can I hear from defense counsel? One is, I forgot
to ask you your response to the government's argument about
the mismatch, meaning, you know, maybe this would be a
closer question if Ms. Bush were the defendant. But because
Mr. Merritts was not the target of the investigation, this
idea that, you know, you had to find something, doesn't that
suggest that they would have -- if they were going to kind
of pin something on someone, wouldn't they pin it on the
target of their investigation?
MR. DiRUZZO: Well, I think we all know that, just
because one individual is the target, that doesn't mean that
individuals close to that person might not be in the
proverbial blast radius.
THE COURT: Well, no I'm just saying that your --
again, this has to be tied to the government's lack of
evidence or inability to prove beyond a reasonable doubt.
So what's going on in the background is that, you know, he
doesn't have to prove his innocence.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 63 of 85
64
But like the argument is Mr. Merritts didn't do
these things. The government can't prove these things. The
evidence is lacking and he's only -- you want to say he's
only here because they couldn't make this other
investigation.
The government's response was, you know, that
theory might work for the target of the investigation,
meaning we couldn't find anything so we just kind of pinned
something that wasn't sound on Ms. Bush. You know, he
wasn't the target.
So there's a mismatch between -- you know, if you
can just respond to that if you understand what I'm trying
to say.
MR. DiRUZZO: I understand. There is not a
mismatch. And I think for the simple reason that all of the
money, Judge, you heard it all of the time from the
government. Where did the money come from? Ms. Bush, her
and her campaign. Where did it go to? Mr. Merritts.
THE COURT: Okay.
And then what is your response to the government's
noting that, well, you're going to ask these investigators
these questions and they don't make charging decisions. So
you have the wrong person in the chair to confront about,
you know, why there wasn't an indictment against Ms. Bush.
MR. DiRUZZO: There is no indictment is a fact.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 64 of 85
65
And the witness can say that, can testify to that. And
then, to the extent that the government wants to
rehabilitate on redirect to say something that you don't
make the charging decisions, those are above your proverbial
pay grade, that's fair.
THE COURT: Okay. And so, again, I'm going to
take this under advisement. But it would be helpful if --
do you have, you know, any authority that you can submit in
short order of this kind of bias cross being permissible?
That would be helpful if you could submit or supplement your
briefs with authority.
MR. DiRUZZO: And what is the Court looking for in
short order, Your Honor? And the reason I am hesitating is
we're on a Friday afternoon and I've got a Third Circuit
oral argument --
THE COURT: No problem. So trial is January 12th.
And so I'm not even saying it needs to be a brief. I
just -- if you have authority. You don't have to. I'm just
saying I'm inviting, I'm giving you the opportunity to
submit some authority in support of your position now that
you've articulated very clearly what you intend to do.
MR. DiRUZZO: It's my question, 24 hours? Half a
week? One week?
THE COURT: You tell me when you can do it.
MR. DiRUZZO: My co-counsel is in the middle of a
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 65 of 85
66
two-week trial.
THE COURT: Okay. You don't have to. I'm just
inviting you to supplement the record before I rule.
MR. DiRUZZO: Give me a week, Judge. I think --
I'll be able to find someone in my firm to do the research
and come up --
THE COURT: Okay. I think by the 12th, that's
still a month before trial. So that if by the 12th -- and
again, if you don't intend to, just let me know so I'm not
waiting.
MR. DiRUZZO: Yes.
THE COURT: But if you -- you know, now that
you've identified specifically what you intend to do, and
the government, you're free to as well but I'm more
interest -- you've made your point. I'm more interested if
the defense has authority in which this specific type of
questioning has been admitted. But I will give you the same
opportunity. If you have additional authority that you want
to add, you don't have to.
MR. KELLY: Thank you, Your Honor. We would just
ask that if the defense does submit something, we just be
given a short period of time --
THE COURT: Sure.
MR. KELLY: -- even a couple of days to just make
a response.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 66 of 85
67
THE COURT: Respond, sure. Okay. Thank you.
All right. I will take that issue under
advisement.
Okay. So the next piece of this is somewhat
related and it probably will be in the same bucket. It has
to do with the government's Motion to Exclude Evidence and
Arguments about Political Motivation. You know, I can
clearly grant the government's Motion to Exclude any
discussion of a purported legal defense of selective
prosecution.
Selective prosecution, as I indicated, I denied
that motion. But I agree with the government's position
that that is not an issue for the jury. That doesn't have
to do with guilt or not guilt. And so it would be
inappropriate to make a selective prosecution argument in
any way, shape or form during the trial.
So I won't permit anything of that nature. I
trust that the defense understands that. Again, if there is
something that is on the line, the government is free to
object but, you know, I think specifically I have made clear
that this kind of idea that this is a unique amount or a
small amount, I'm worried about that and the jurors
thinking, oh, this is not serious and so they think that
that means that they don't have to look at the evidence and
apply it to the elements. Right?
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 67 of 85
68
He's charged. He will get -- he should get a
robust defense to the elements and an opportunity to attack
the government's evidence however he sees fit to do so
within the confines of the law. But the amount of -- for,
you know, that this is a small amount relatively. First of
all, I don't even know how that would be elicited in
evidence that the jury could consider but I don't think
that's relevant to anything.
So I just want to be clear that suggestions that
this is a unique case because of the amount, that this is
smaller than what the government tends to prosecute, that
this is not a lot of money, I don't think is relevant to any
of the elements. So I'm not permitting anything of that
nature.
Okay. So let me ask the defense, in terms of any
type of political motivation-type evidence, what, if
anything, are you intending to elicit in line with my
rulings that I've made so far? Is there anything I need to
rule on here? Do we understand --
MR. DiRUZZO: I think you made yourself loud and
clear, Judge. I know where you're going.
THE COURT: Okay.
MR. DiRUZZO: And we get it.
THE COURT: Okay.
MR. DiRUZZO: Although I just I -- do leave open
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 68 of 85
69
the possibility that there might be something said on the
witness stand that might open the door to a more -- a line
of questioning that we hadn't considered. But other than
that, Judge, I think we're good.
THE COURT: Okay. Okay. And I want to be clear.
I'm going to take this under advisement because I want to be
very clear. I appreciate that I have an obligation to
ensure that Mr. Merritts can cross witnesses about relevant
bias. So I admit that sometimes these lines get blurry and
they can be fine.
So, you know, if there is a bias question you want
to ask a witness that you think is on the line of something
political, I don't want you to take my ruling as that I'm
saying that you can't confront witnesses about bias, but I
want to kind of flesh that out in advance so that we don't
run into issues.
So I'm not suggesting that -- I've not ruled that
it would be inappropriate to ask bias questions. But I
think, because of the line, if there's something that you
think you might want to do, I'm asking that you raise it
earlier because...
For example, if a witness, if you had a reason to
believe that a witness had some sort of political animus
against Mr. Merritts or a political animus against someone
affiliated with him, you know, that could be permissible to
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 69 of 85
70
ask about. Again, I would want to discuss that earlier and
not be finding out, surprise, that you're going to ask these
questions because I do think that there is a fine line here.
I just want to be very clear that I am not shutting the
defense down from pursuing bias cross-examination.
But I think we just need to be clear about what is
appropriately bias and what veers into inappropriate topics.
Does that make sense?
MR. DiRUZZO: Understood.
THE COURT: Okay.
Does the government understand kind of where I am
going?
MR. KELLY: Yes, Your Honor. That makes sense.
THE COURT: Okay. All right.
Okay. So I will take the balance of ECF -- wait,
is this 24?
MR. DiRUZZO: It's 23.
MR. KELLY: This one is 24, Your Honor.
THE COURT: I will take the balance of that under
advisement. If Mr. Merritts wants to provide some
additional authority, he will do so by the 12th which is a
week from today. I will give the government an opportunity
to respond.
When you get the submission, if you could
just -- you can even do this by email to chambers copying
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 70 of 85
71
Mr. Merritts' counsel. Just let me know how much time you
need for a response so I know to wait.
MR. KELLY: Of course, Your Honor.
THE COURT: Okay. And then we will resolve this
issue.
Okay. There's also the government's Motion for
Disclosure of Tax Return and I'm not sure if I have the
defense position on that.
MR. DiRUZZO: No, Your Honor. That came in in the
last couple of days.
THE COURT: Right. Are you prepared to provide a
position or did you want to respond in writing?
MR. DiRUZZO: Oh, no. We definitely want to
respond in writing. We'd just ask that we be allowed to
brief it in the normal course.
THE COURT: Okay. Okay. All right.
And then the government had also filed an
evidentiary notice at ECF-20, Notice of Other Acts Evidence,
that I don't believe Mr. Merritts filed a response. Is
there any objection or issue with this?
MR. DiRUZZO: It wasn't a motion. It was just a
404(b) notice?
THE COURT: Yeah, it was just a 404(b) notice.
And you didn't file a Motion to Exclude, so I'm assuming
that there is no dispute?
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 71 of 85
72
MR. DiRUZZO: I think it's fine.
THE COURT: Okay.
MR. DiRUZZO: I would say that we can take it as
it comes during the course of the trial. But in general, I
don't find 404(b) stuff to be really that contentious when
you actually get down to it. And so this is not a drug
case. This is not --
THE COURT: Yeah, okay.
Okay. Well, if there's no dispute, I don't need
to rule on it. But I just wanted to put on the record that
the government has filed a Notice of Other Acts Evidence,
and I did not receive a motion in limine from the defense to
exclude other acts evidence. So I'm taking that to mean
that the government can proceed as it intends to unless
there is an objection that I need to resolve which I am not
hearing one. Okay. All right.
Okay. So we got through all of the motions,
except the one issue that I am receiving further submissions
on and that I'll need to take under advisement -- or the two
issues because we have the tax return issue, which I'll get
a written response for, and this issue about the other
investigation.
Let me just clarify, with respect to the other
investigation though, the defense is on board, to the extent
I let anything in, of not getting into the specifics of what
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 72 of 85
73
it was. Or what is it -- just so I understand exactly what
you are trying to do, what is it that you want to elicit
about the former investigation in terms of what it was for?
MR. DiRUZZO: I don't actually need what exactly
what it's for. It's just -- it can be a: You had an
investigation into Ms. Bush and her then boyfriend, you
know, now husband, Mr. Merritts. The amount of time,
effort, money, manpower in that investigation that's entered
on Ms. Bush, you know, it didn't go anywhere.
THE COURT: Okay.
MR. DiRUZZO: But here we are on something, you
know, that sprung out of that investigation.
THE COURT: Okay. I just wanted to get an
articulation of what he was trying to do. You can respond.
I was just trying to get an articulation of what he was
trying to do so I know clearly what his intention -- I'm not
saying that I am allowing him to do that. But I just wanted
to know exactly what he wanted to confront the witness with
so that, when I get the supplemental authority, I can
compare it to the facts of this case.
MR. KELLY: Your Honor, and I don't think I need
to repeat myself.
THE COURT: Okay.
MR. KELLY: We've made our position pretty clear
on that. Just to hit the two high points very quickly, one,
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 73 of 85
74
there's really no reason to reference, again, the nature of
what was being investigated or who was the target of that
investigation being Ms. Bush or anyone else for that matter.
And I go back to my point of, had it been a murder
investigation, you know, I think we would be having a
different conversation. It just adds absolutely nothing to
what defense counsel seems to be seeking to achieve here.
And the second point being, you know, defense
counsel just said again they want to get into that Ms. Bush
was being investigated and that investigation led nowhere or
didn't lead to an indictment, et cetera.
That just brings me back to the point that we've
been making all along, Your Honor, which is that seems to,
you know, just -- it just -- the door flies wide open at
that point and the government believes that we would have
the right and obligation to present evidence as to what, if
anything, was found in the course of that investigation.
And for all the reasons we said before, that just
it's not relevant, it's a sideshow, there's no need to get
into the substance of what was being investigated.
THE COURT: Okay.
And then I think -- I don't know if there was a
specific request to exclude Ms. Bush as a potential witness,
but it's kind of lurking in the background of the pleadings
related to this. And I'll say this, I don't think you need
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 74 of 85
75
to say now if you're definitively planning to call her or
not.
But if you do get to a point at trial where you
are planning to call her for something other than as a
potential character witness, I want to -- before she takes
the stand and before you say our next witness is Ms. Bush,
knowing that the government might have an objection, I'm
just going to ask that you bring it to my attention so that
I can rule on -- get a proffer at that time and hear from
the government.
MR. DiRUZZO: Understood.
THE COURT: Okay. Is that acceptable to the
government?
MR. KELLY: I think we're halfway there,
Your Honor.
We're still concerned -- we don't know what, if
anything, the defense would want to say about Ms. Bush in
their openings.
THE COURT: Okay.
MR. KELLY: I think that will somewhat be
constrained by whatever Your Honor ends up ruling as
to -- you've already denied the selective prosecution
motion.
THE COURT: Yes.
MR. KELLY: Depending on what Your Honor orders as
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 75 of 85
76
to the motion in limine to exclude evidence or testimony
about the prior investigation, that will certainly or it
could put, you know, pretty clear guardrails on what I can
and can't say.
THE COURT: Okay, yeah.
MR. KELLY: We just are still concerned about, you
know, somehow trying to plant the seed in the jurors' minds
that, you know, Mr. Merritts is married to a former
Congresswoman and, you know, any sort of implication that it
had anything to do with the government's charging decisions
here, which they would not be permitted to do based on
Your Honor's ruling.
THE COURT: Right.
MR. KELLY: And so that sort of is why all along
we've been seeking some kind of proffer even ex parte
frankly, Your Honor --
THE COURT: Okay.
MR. KELLY: -- just to assure the Court at the
very least that, you know, generally what she would be
testifying to in order to put in place proper guardrails for
opening statements and cross-examination of the government's
witnesses and the like.
THE COURT: Okay. What's the defense's response?
MR. DiRUZZO: Your Honor, I think at this point
it's a little premature. Obviously, we haven't made the
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 76 of 85
77
decision on whether to call any witnesses and whether to
affirmatively put on anyone in our case-in-chief.
I have no problem for recalling any witness. If
the Court would like us to front it at sidebar so that we
could address that outside of the hearing of the jury, that
I don't have a problem with. And as to the possibility of
opening, at this point, I'm going to have to say that I --
it's going to depend on how you rule and -- at least in
part. And so it's a little premature.
THE COURT: Okay. Why don't I get the supplement
rule and then, if I need to set a further hearing, even if
it's just by Zoom, because I understand you're traveling,
just to clear any issues about what's permissible in opening
when we get a little closer to trial, I can do that.
But I've made clear to the defense that, because I
know that there will be an objection to this witness, before
this witness is potentially called, we'll deal with the
issue. But we'll deal with the openings and what's fair
game in openings sufficiently in advance of trial as it
relates to this issue.
Okay. All right. Is there anything -- oh, go
ahead. Sorry.
MR. KELLY: Sorry, Your Honor.
THE COURT: No, it's okay. I was going to ask:
Is there anything else that we need to cover?
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 77 of 85
78
MR. KELLY: Just since we're on the topic, I
hadn't wanted to revisit it until it made sense.
As to the voir dire question as to identifying
Ms. Bush, I think it's Your Honor's proposed Question 22 --
THE COURT: Yes.
MR. KELLY: -- I think that we had suggested and
everyone had agreed that she could be referred to as the
defendant's family member. We actually prefer something
even more neutral than that and just say: You heard that
you may hear from or about former U.S. Congresswoman Corey
Bush, who is a potential witness, during this trial. And
not sort of identify what the connection is between the
defendant and Ms. Bush.
THE COURT: Okay. Yeah. Any problem with that?
MR. DiRUZZO: That's fine.
THE COURT: Okay. And let me be clear, the only
reason that -- well, I said why I included this question.
But I assumed that, in response to -- I usually ask the
government and defense counsel to identify names of people
or entities that they may hear from or even about during the
trial.
And so I thought that Ms. Bush would be listed on
the defendant's list. So I'm happy to say who may be a
potential witness as well in 22. But, again, if, you know,
I thought that the defense might identify her in 6. Okay.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 78 of 85
79
That's fine. No problem. I will make that adjustment.
MR. KELLY: And Your Honor, just one quick matter,
and I apologize if this has already been done in this case
before I was an assigned prosecutor.
THE COURT: Yes.
MR. KELLY: I just wanted to put on the record,
and I raised this with defense counsel before that we were
planning on doing this, that Mr. Merritts has previously
waived in writing in March of this year any venue challenge
for the charged offenses being brought in the District of
Columbia as opposed to elsewhere.
THE COURT: Okay.
Was that something that was submitted on the
docket?
MR. KELLY: It was an email, Your Honor.
THE COURT: Okay.
MR. KELLY: Which I believe is sufficient between
the parties.
THE COURT: Okay.
MR. KELLY: If Your Honor would like us to file
something, we certainly can. But in my experience, just
putting it on the record orally that there is a written
waiver of venue, assuming that defense counsel and
Mr. Merritts, don't object to that.
THE COURT: That's fine, okay. Okay.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 79 of 85
80
MR. DiRUZZO: I'm sure my co-counsel, if he sent
that email, and I have no reason to doubt the
representations of the AUSA --
THE COURT: Okay.
MR. DiRUZZO: -- then we will abide by it.
THE COURT: Okay. All right.
MR. KELLY: Thank you, Your Honor.
THE COURT: Okay. Anything else from the
government that we need to cover before trial?
MR. KELLY: No, Your Honor.
THE COURT: Okay. Anything else from the defense?
MR. DiRUZZO: If you could indulge me a little
bit, Your Honor. So --
THE COURT: If you want to come up, maybe come on
up just so we can make sure that we hear you.
MR. DiRUZZO: If you could indulge me. So how
many potential jurors do you pull from the pool and like
where do you seat them?
THE COURT: Sure. So how many -- I'm trying to
think. Usually they send up maybe about 40 to 50 people.
MR. DiRUZZO: Okay.
THE COURT: They're going to start, initially, in
the gallery.
MR. DiRUZZO: Oh you don't start them --
THE COURT: No, not to begin with.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 80 of 85
81
MR. DiRUZZO: Okay.
THE COURT: And they will start in the gallery.
You're going to have a sheet that identifies them by juror
number, their name, which we won't use on the record.
MR. DiRUZZO: Yep.
THE COURT: You'll have information. It may have
address information and certainly where they work or their
profession.
I'll do the voir dire. I'll ask the questions.
Then I'll clear the room, and they'll come in one by one and
sit on the stand here. And I'll put their number on the
record so you'll be able to follow along. We'll do the voir
dire process.
Then when they come back, the first 14 that have
not been struck for cause and that are a part of the pool
will sit in the box. One is the seat closest to me. It
goes 1 through 7, 8 through 14.
MR. DiRUZZO: So left to right, front to back?
THE COURT: Yes.
MR. DiRUZZO: The same thing when they're sitting
in the gallery, left to right, front to back?
THE COURT: No. I think they --
MR. KELLY: Your Honor, I think the way I've seen
it done before --
THE COURT: Well, Erika can tell me.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 81 of 85
82
MR. KELLY: I'll defer to the expert here.
THE COURT: How are they lined up in the gallery
in order?
DEPUTY CLERK: So they will be the first ones will
be coming in this way.
THE COURT: Okay. So left to right?
DEPUTY CLERK: Yes.
MR. DiRUZZO: Okay.
THE COURT: Okay. All right, yes. Okay. And
then you'll have time for your strikes.
MR. DiRUZZO: Okay. So you bring the 14 in?
THE COURT: When it's time for strikes. So you
can see, like if we didn't strike anyone, this is our jury
and you can see who is coming up next. And so if you
strike, we play musical chairs. Does that make sense?
MR. DiRUZZO: Are you doing musical chairs?
DEPUTY CLERK: Well, I do it at the end but, yeah.
MR. DiRUZZO: Presumptive 14 after the cause?
THE COURT: Sorry.
MR. DiRUZZO: The presumptive 14 after the cause,
they'll be there.
DEPUTY CLERK: Yes.
MR. DiRUZZO: And then do the parties do their
pre-emps at sidebar, Judge?
THE COURT: No, you'll do it at your tables.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 82 of 85
83
MR. DiRUZZO: Okay.
DEPUTY CLERK: Hold on.
Two courtrooms individual and then they do strikes
first. I don't put the 14 until they've done all of their
strikes.
THE COURT: Oh no, I thought when they came in we
put the 14 in so they can see who is in the box before they
start their strikes.
MR. DiRUZZO: From what I remember when we did
it --
THE COURT: I usually put them in the box so they
can see kind of what the jury looks like and then they start
striking because they might strike from the box.
DEPUTY CLERK: Okay. That's fine.
THE COURT: Yeah, yeah.
MR. DiRUZZO: And then I say, Judge, we strike
juror number 1.
THE COURT: No, no. You don't say anything.
You'll get a sheet of paper.
MR. DiRUZZO: Okay, okay.
THE COURT: And you guys will trade back and forth
then, when you're done, when everyone has made their
strikes, give it to Ms. Duncan. And then she'll move
everyone around, and then I'll make sure you're satisfied
with the jury.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 83 of 85
84
MR. DiRUZZO: Like I go then they go and then I go
or is it like -- or it's like --
THE COURT: No. No. I have you do it in rounds.
It will be clear on the sheet.
MR. DiRUZZO: Okay. Okay.
THE COURT: Yeah. And then I do a round for
alternates too.
MR. DiRUZZO: Okay. And then if there is an
objection like under Batson, like how does one --
THE COURT: Well, you would make that -- once you
get the government sheet, if you have an issue, you would
ask to approach and we would deal with that. Yeah.
MR. DiRUZZO: Okay. Okay. Understood. Thanks,
Judge.
THE COURT: Okay.
All right. Anything else from the defense?
MR. DiRUZZO: No, Your Honor.
THE COURT: All right. Okay. Thanks, everyone.
Happy holidays. I will see you in January.
MR. KELLY: Thank you, Your Honor.
MR. DiRUZZO: Thank you.
DEPUTY CLERK: All rise.
(Proceedings concluded at 12:54 p.m.)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 84 of 85
85
C E R T I F I C A T E
I, Lorraine T. Herman, Official Court Reporter,
certify that the foregoing is a true and correct transcript
of the record of proceedings in the above-entitled matter.
December 10, 2025
/s/ Lorraine T. Herman
DATE
REPORTED BY
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 1:25-cr-00076-JMC Document 46 Filed 12/19/25 Page 85 of 85File and source
- File
- gov.uscourts.dcd.278640.46.0.pdf
- Size
- 525,198 bytes
- SHA-256
- f575ca5197048d70203f4cd4be8c84174208be3fc6b9a8d4c1e0720e904c1204
- Our copy
- gov.uscourts.dcd.278640.46.0.pdf
- Original
- PACER (login required)