Motion to Permit Law Enforcement Agent to Be Present at Counsel Table During Trial — USA v. Merritts (Dkt. 47, D.D.C.)

Record facts

U.S. District Court for the District of Columbia · No. 1:25-cr-00076-JMC · Doc. 47 · 2025-12-27 · Docket on CourtListener

Full text

UNITED STATES DISTRICT COURT 
 
FOR THE DISTRICT OF COLUMBIA 
 
UNITED STATES OF AMERICA  
: 
:  
 
v. 
 
 
 
:  
Case No. 25-cr-00076-JMC 
: 
  
CORTNEY MERRITTS, 
 
 
: 
 
 
 
 
 
 
: 
Defendant. 
 
: 
 
 
 
 
 
 
 
 
 
 
GOVERNMENT’S MOTION TO PERMIT LAW ENFORCEMENT AGENT  
TO BE PRESENT AT COUNSEL TABLE DURING TRIAL 
 
The United States, by and through its attorney, the United States Attorney for the District 
of Columbia, hereby moves, pursuant to Federal Rule of Evidence 615(a)(2), to permit the 
government to designate a law enforcement agent to remain at counsel table throughout the trial.1  
The government submits the following points and authorities in support of its Motion. 
Federal Rule of Evidence 615 requires the Court, upon a party’s request or at its own 
initiative, to exclude witnesses from the courtroom “so that they cannot hear other witnesses’ 
testimony.”  Fed. R. Evid. 615(a).  Rule 615 excludes certain categories of witnesses from 
exclusion, including “one officer or employee of a party that is not a natural person, if that officer 
or employee has been designated as the party’s representative by its attorney.”  Id. 615(a)(2).  Rule 
615 “allows the government to have any law enforcement officer it wants at its counsel table.”  
United States v. Phibbs, 999 F.2d 1053, 1073 (6th Cir. 1993).  “It has been authoritatively 
determined, based on the legislative history of the Rule, that a government investigative agent 
involved in a criminal prosecution . . . is within this exception.”  United States v. Parodi, 703 F.2d 
 
1 The government anticipates that FBI Special Agent Asia Major-Waithe will be the designated 
agent to remain at counsel table during the course of the trial.  However, should another agent be 
so designated, the government will provide defendant’s counsel with the name of that agent before 
trial.  Special Agent Major-Waithe is also expected to testify during the government’s case in chief. 
Case 1:25-cr-00076-JMC     Document 47     Filed 12/27/25     Page 1 of 2

2 
768, 773 (4th Cir. 1983); see also United States v. Rhynes, 218 F.3d 310, 318 n.8 (4th Cir. 2000) 
(noting that Rule 615 “allow[s] the prosecution’s case agent to remain at counsel table with the 
prosecutor, hear the other witnesses testify, and nevertheless testify on behalf of the prosecution”).  
As noted in the Senate Judiciary Committee Report 93-1277: 
Many district courts permit government counsel to have an investigative agent at 
counsel table throughout the trial although the agent is or may be a witness.  The 
practice is permitted as an exception to the rule of exclusion and compares with the 
situation defense counsel finds himself in – he always has the client with him to 
consult during the trial.  The investigative agent’s presence may be extremely 
important to government counsel, especially when the case is complex or involves 
some specialized subject matter.  The agent, too, having lived with the case for a 
long time, may be able to assist in meeting trial surprises where the best-prepared 
counsel would otherwise have difficulty. . . . 
 
This problem is solved if it is clear that investigative agents are within the groups 
specified under the second exception made in the rule for ‘an officer or employee 
of a party which is not a natural person designated as its representative by its 
attorney.’  It is our understanding that this was the intention of the House 
committee.  It is certainly this committee’s construction of the rule. 
 
S. Rep. No. 93-1277, at 7072 (1974), U.S.C.C.A.N. 7051, 7073, reprinted in Historical Note, 28 
U.S.C.A., Rule 615. 
WHEREFORE, for the foregoing reasons, the United States moves this Court, pursuant to 
Federal Rule of Evidence 615, to allow a designated law enforcement agent to remain at counsel 
table during trial. 
Respectfully submitted, 
 
JEANINE FERRIS PIRRO 
UNITED STATES ATTORNEY 
 
 
 
 
 
 
By: 
__/s/ Brian P. Kelly__    
 
BRIAN P. KELLY (D.C. Bar No. 983689) 
Assistant United States Attorney 
 
United States Attorney’s Office, 
 
District of Columbia 
 
601 D Street NW 
 
Washington, DC 20530 
Case 1:25-cr-00076-JMC     Document 47     Filed 12/27/25     Page 2 of 2

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