Court filing

Defendant's Motion in Limine on Act-of-Production of Corporate Records — U.S. v. Merritts

No. 1:25-cr-00076-JMC · Doc. 21 · Docket on CourtListener

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Case 1:25-cr-00076-JMC Document 21 Filed 11/07/25 Page 1 of 4

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA, )
Plaintiff, )
)
v. ) No. 1:25-CR-76-JMC
)
CORTNEY MERRITTS, )
Defendant. )

DEFENDANT’S MOTION IN LIMINE TO PROHIBIT THE GOVERNMENT FROM
ATTRIBUTING THE ACT OF PRODUCTION OF CORPORATE RECORDS TO
MERRITTS

Defendant Cortney Merritts (“Merritts”), by and through his undersigned counsel, Justin

K. Gelfand and the law firm Margulis, Gelfand, DiRuzzo & Lambson, respectfully moves this

Court to prohibit the Government from attributing the act of production of corporate records to

Merritts.

I. Relevant Background

Merritts is charged in an indictment and has entered a plea of not guilty to all counts.

Prior to returning the indictment in this case, the grand jury served various subpoenas on

corporate entities including Vetted Couriers and Logistics. In response to the subpoenas, Vetted

Courtiers and Logistics produced various documents, some of which the Government intends to

introduce at trial.

II. Braswell Requires This Court to Grant This Motion

The Fifth Amendment provides, “No person…shall be compelled in any criminal case to

be a witness against himself[.]” U.S. Const., Amend. V.

In Braswell v. United States, 487 U.S. 99 (1988), the United States Supreme Court

reiterated that the Fifth Amendment does not apply to corporations. Id. at 102. Thus, a corporate
Case 1:25-cr-00076-JMC Document 21 Filed 11/07/25 Page 2 of 4

records custodian may not resist a subpoena for corporate records on Fifth Amendment grounds.

Id. at 109.

Significantly, though, the Court also held: “Because the custodian acts as a representative,

the act is deemed one of the corporation and not the individual. Therefore, the Government

concedes, as it must, that it may make no evidentiary use of the ‘individual act’ against the

individual.” Id. at 117-18 (emphasis added).

Thus, as a matter of law, Merritts hereby objects to the attribution of any such records to

him. Instead, the Government must limit any such testimony to state that such records were

provided in response to a corporate subpoena served on the entity. The Government may not—at

any stage in the trial—attribute the records to Merritts as opposed to the entity and the Government

may not attribute the act of production to Merritts as opposed to the entity.

Given the constitutional nature of Braswell and its progeny, a Braswell violation at trial is

no small matter—and the prosecution would have to establish the error was harmless beyond a

reasonable doubt. See United States v. Barton, 731 F.2d 669, 675 (10th Cir. 1984) (citing Chapman

v. California, 386 U.S. 18 (1967)) (“Although a violation of a criminal defendant’s constitutional

rights is not per se reversible error, the prosecution must demonstrate that the error was harmless

beyond a reasonable doubt”). The prosecution would have to demonstrate “that the error did not

contribute in any way to the conviction of the defendant.” Eberhardt v. Bordenkircher, 605 F.2d

275, 278 (6th Cir. 1979) (emphasis added).

Ultimately, Merritts is flagging this issue for the Court in limine so as to protect his Fifth

Amendment rights and to preemptively avoid a violation of his rights at trial.

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Case 1:25-cr-00076-JMC Document 21 Filed 11/07/25 Page 3 of 4

III. Conclusion

Based on the foregoing, Merritts respectfully moves this Court to prohibit the Government

from attributing the act of production of corporate records to Merritts. Any such records produced

by Vetted Couriers and Logistics should be attributed to the entity.

Respectfully submitted,

Margulis Gelfand DiRuzzo & Lambson, LLC

/s/ Justin K. Gelfand
JUSTIN K. GELFAND (D.C. Bar 90023996)
GREGORY P. BAILEY (D.C. Bar 1781925)
1325 G St., NW, Suite 500
Washington, DC 20005
Telephone: 314.390.0234
Facsimile: 314.485.2264
justin@margulisgelfand.com
greg@margulisgelfand.com

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Case 1:25-cr-00076-JMC Document 21 Filed 11/07/25 Page 4 of 4

CERTIFICATE OF SERVICE

I hereby certify that the foregoing was filed electronically with the Clerk of Court and that

all counsel of record received notice.

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