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Defendant's Motion in Limine to Prohibit Expert Testimony — U.S. v. Merritts

No. 1:25-cr-00076-JMC · Doc. 22 · Docket on CourtListener

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Case 1:25-cr-00076-JMC Document 22 Filed 11/07/25 Page 1 of 6

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
INTRODUCING EXPERT TESTIMONY AT TRIAL

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 enter an order prohibiting the Government from presenting expert testimony at trial.

I. Background

On March 20, 2025, Merritts was charged in an indictment with two counts of wire fraud, in

violation of 18 U.S.C. § 1343. 1 (Doc. 1). The indictment also contains a forfeiture allegation. Merritts

has pled not guilty to each count and has denied the forfeiture allegation.

On April 14, 2025, Merritts formally requested discovery including all disclosures required

under Federal Rule of Criminal Procedure 16(a)(1)(G): “any and all evidence of any nature

whatsoever and the names of any witnesses, including a written summary of any testimony the

Government intends to use in its case-in-chief at trial under Federal Rules of Evidence 702, 703 or

705, which summary shall describe the witness’s opinions, the bases and reasons for those opinions,

and the witness’s qualifications pursuant to Federal Rule of Criminal Procedure 16(a)(1)(G).”

On June 26, 2025, the Court issued a Pretrial Order setting forth deadlines in advance of

the January 12, 2026 trial date of this case. (Doc. 11). The deadline for the Government to provide

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The defense maintains its position set out in its pending motions to dismiss the indictment. However, this motion is
being filed due to this Court’s deadline.
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Case 1:25-cr-00076-JMC Document 22 Filed 11/07/25 Page 2 of 6

expert disclosures, if any, was September 19, 2025. (Id.). No expert disclosures have been made

by the Government to date. Merritts is filing this motion out of an abundance of caution, because

some of the proposed exhibits provided by the Government to Merritts, as required under the

Court’s Pretrial Order, appear to present the need for expert opinion testimony and/or incorporate

expert opinions.

II. This Government Has Not Made Timely Disclosure of Any Expert Materials

This Court’s Order set a hard deadline for disclosure of expert materials as governed by

Federal Rule of Criminal Procedure 16(a)(1)(G)—September 19, 2025. (Doc. 11). Under that rule,

“[a]t the defendant’s request, the government must disclose to the defendant, in writing” the

following information “for any testimony that the government intends to use at trial under Federal

Rules of Evidence 702, 703, or 705 during its case-in-chief”:

• a complete statement of all opinions that the government will elicit from the witness in its
case-in-chief, or during its rebuttal to counter testimony that the defendant has timely
disclosed under (b)(1)(C);
• the bases and reasons for them;
• the witness’s qualifications, including a list of all publications authored in the previous 10
years; and
• a list of all other cases in which, during the previous 4 years, the witness has testified as an
expert at trial or by deposition.

See Fed. R. Crim. P. 16(a)(1)(G)(iii).

Under the new iteration of the rule, this Court “must”—as it has—“set a time for the

government to make its disclosures” and the deadline “must be sufficiently before trial to provide

a fair opportunity for the defendant to meet the government’s evidence.” Fed. R. Crim. P.

16(a)(1)(G)(ii). Furthermore, each expert witness “must approve and sign the disclosure.” Fed. R.

Crim. P. 16(a)(1)(G)(v).

The Advisory Committee Note to the 1993 amendment states that the required production

under Rule 16 is intended to be comprehensive and “should cover not only written and oral reports,

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Case 1:25-cr-00076-JMC Document 22 Filed 11/07/25 Page 3 of 6

tests, and investigations, but any information that might be recognized as a legitimate basis for an

opinion under Federal Rule of Evidence 703, including opinions of other experts.” See United

States v. Cerna, 2010 WL 2347406 *1 (N.D. Cal. 2010) (unpublished) (“[T]he bases and reasons

must be sufficient to allow counsel to frame a Daubert motion (or other motion in limine), to prepare

for cross-examination, and to allow a possible counter-expert to meet the purport of the case-in-

chief testimony”).

The scope of the expert notice is significant. Federal courts have been clear that conclusory

letters or reports are insufficient. See, e.g. United States v. Caputo, 382 F. Supp. 2d 1045 (N.D. Ill.

2005) (“It is exceedingly difficult to cross-examine a scientific expert witness about the results of

a scientific test without an opportunity to first review the test giving rise to the results”); United

States v. Robinson, 44 F. Supp. 2d 1345, 1346 (N.D. Ga. 1997) (“If a defendant does not have the

bases for the government’s opinion, there is no way the defendant’s counsel can effectively cross-

examine the expert. It is this issue, which goes to the fairness of the trial, that the court must always

keep in mind in dealing with discovery issues in a criminal case”); United States v. Wilkerson, 189

F.R.D. 14, 16 (D. Mass. 1999) (“[M]ore is required than a statement to the effect that such and

such examiner will testify” about the test results).

Critically, where—as here—the Government does not timely disclose expert materials, this

Court may prevent the expert from testifying. Fed. R. Crim. P. 16(d)(2). Indeed, the Government’s

disclosure to a defendant of its intended use of expert witness testimony is of the utmost

importance. The United States District Court for the Northern District of Georgia explained why

exclusion of the Government’s proposed expert witness when the Government fails to comply with

the mandates of Federal Rule of Criminal Procedure 16(a)(1)(G) is the appropriate remedy.

United States v. Robinson, 44 F. Supp. 2d 1345, 1347-48 (N.D. Ga. 1997). The Court reasoned:

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Case 1:25-cr-00076-JMC Document 22 Filed 11/07/25 Page 4 of 6

A defendant […] is never required to introduce any evidence and, therefore, the
defendant has a right to predicate a trial strategy solely on an attack of the opinion
evidence offered by the government. If a defendant does not have the bases for the
government’s opinion, there is no way the defendant’s counsel can effectively
cross-examine the expert. It is this issue, which goes to the fairness of the trial, that
the court must always keep in mind in dealing with discovery issues in criminal
cases.

There are also concerns of judicial economy and the legitimate expectation of the
public and of the defendant in the speedy disposition of criminal cases. In this case
the relevant portions of Rule 16 tell the Assistant United States Attorney what he
must do. He was ordered by the United States Magistrate Judge to comply with his
Rule 16 obligations generally and this one in particular. […]

As best this court can determine, the failures of the government in this case to
comply with its Rule 16 obligations were begun in lethargy and a lackadaisical
acknowledgment of the mandates of Rule 16 and ended with inattention to the order
of the court, a stubborn refusal to understand the requirements of Rule 16, and a
somnolent review of the materials being produced.

To be sure, the court could have granted yet another continuance for the government
to get it right. The court might have even invited the expert witness to chambers
and assisted that expert in dictating a proper report to the judge’s secretary. This
matter, however, ought to be at an end. Failing to impose a sanction on this record
would be to establish a precedent countenancing a disregard of discovery
obligations which will assure either a snail like progression of the 800 felony cases
filed in this court annually or a succession of trials in which the United States
Department of Justice is allowed to flaunt the law it exists to support and defend.

Id.

Similarly, the D.C. Circuit has affirmed a district court’s exclusion of an expert witness

based on a party’s failure to comply with its pretrial disclosure obligations. See United States v.

Day, 524 F.3d 1361, 1372 (D.C. Cir. 2008). In Day, the D.C. Circuit stated that “[t]rial courts have

the discretion to weigh various options in deciding how to address a party's violation of a discovery

rule” and “exclusion of evidence and testimony can be a proper sanction.” Id. Further, the D.C.

Circuit has “rejected the suggestion that Taylor, [484 U.S. 400 (1988)], requires a trial court to

conduct some sort of least restrictive alternative analysis before excluding evidence as a sanction.

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Case 1:25-cr-00076-JMC Document 22 Filed 11/07/25 Page 5 of 6

Id. (internal quotations omitted).

III. Conclusion

Based on the foregoing, Merritts respectfully requests that this Court grant this motion,

entering an Order preventing the Government from presenting expert opinion testimony of any

nature at trial.

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 22 Filed 11/07/25 Page 6 of 6

Certificate of Service

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

served by operation of the Court’s electronic filing system upon the Office of the United States

Attorney and all other counsel in this case.

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