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Defendant's Response to Motion in Limine to Admit Evidence — U.S. v. Merritts

No. 1:25-cr-00076-JMC · Doc. 33 · Docket on CourtListener

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Case 1:25-cr-00076-JMC Document 33 Filed 11/26/25 Page 1 of 13

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 RESPONSE TO GOVERNMENT’S MOTION IN LIMINE
TO ADMIT CERTAIN EVIDENCE

Margulis Gelfand DiRuzzo & Lambson

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

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Case 1:25-cr-00076-JMC Document 33 Filed 11/26/25 Page 2 of 13

TABLE OF CONTENTS

I. Background .............................................................................................................................................. 1

II. Self-Authenticating Documents ............................................................................................................... 2

III. This Court Should Reject the Government’s Attempt to Backdoor Expert Opinions into Evidence by

Calling Them “Summary” Testimony and Evidence........................................................................................ 5

Certificate of Service ...................................................................................................................................... 10

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Case 1:25-cr-00076-JMC Document 33 Filed 11/26/25 Page 3 of 13

TABLE OF AUTHORITIES

Cases

Campos-Alvarez v. United States, 16 A.3d 954 (D.C. 2011) ............................................................. 4

Crawford v. Washington, 541 U.S. 36 (2004) .................................................................................... 3

Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) ............................................................. 3, 4, 5

Petrone v. Werner Enters., Inc., 42 F.4th 962 (8th Cir. 2022) ........................................................... 6

Tabaka v. D.C., 976 A.2d 173 (D.C. 2009) ........................................................................................ 4

United States v. Benson, 941 F.2d. 598 (7th Cir. 1991) ..................................................................... 8

United States v. Cameron, 699 F.3d 621 (1st Cir. 2012) ................................................................... 5

United States v. Gold, 743 F.2d 800 (11th Cir. 1984) ........................................................................ 8

United States v. Maga, 475 F. App’x 538 (6th Cir. 2012) ......................................................... 2, 3, 4

United States v. Martinez-Rios, 595 F.3d 581 (5th Cir. 2010) ........................................................... 5

United States v. Norwood, 603 F.3d 1063 (9th Cir. 2010) ................................................................. 5

United States v. White, 737 F.3d 1121 (7th Cir. 2013)....................................................................... 6

United States v. Windfelder, 790 F.2d 576 (7th Cir. 1986) ................................................................ 8

Rules

Federal Rule of Criminal Procedure 16 .............................................................................................. 7

Federal Rule of Evidence 902 ............................................................................................................ 1

Federal Rule of Evidence 1006 ...................................................................................................... 6, 7

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Case 1:25-cr-00076-JMC Document 33 Filed 11/26/25 Page 4 of 13

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 RESPONSE TO THE GOVERNMENT’S MOTION IN LIMINE
TO ADMIT CERTAIN EVIDENCE

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

responds to the Government’s motion in limine to admit certain evidence. (Doc. 23).

In its motion, the Government cites boilerplate law about self-authenticating records

pursuant to Federal Rule of Evidence 902 and simultaneously asks this Court to pre-admit what

the prosecution mischaracterizes as “certain summary testimony and exhibits” pursuant to Federal

Rule of Evidence 1006. While, as a general matter, the defense does not take issue with the concept

of the admissibility of certain evidence pursuant to Federal Rule of Evidence 902, this Court should

reject the Government’s premature attempt to backdoor otherwise inadmissible evidence into the

record. Furthermore, having failed to timely provide proper notice of expert opinion testimony,1

the Government asks this Court to admit expert opinions as “summary” evidence, but the law

mandates otherwise. This Court should deny the Government’s motion in limine and address these

evidentiary issues at trial.

I. Background

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

1
The Government curiously opposes the defense’s motion in limine to exclude expert testimony even though, in its
response, the Government correctly concedes it failed to comply with the mandates of expert witness disclosures pursuant
to Federal Rule of Criminal Procedure 16(a)(1)(G).
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Case 1:25-cr-00076-JMC Document 33 Filed 11/26/25 Page 5 of 13

violation of 18 U.S.C. § 1343. 2 (Doc. 1). The indictment also contains a forfeiture allegation. Merritts

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

II. Self-Authenticating Documents

To be clear, the defense does not take issue with the concept of self-authenticating business

records and certainly is not insisting on the testimony of a custodian of records for all business

records the Government seeks to admit at trial. However, as it stands, the Government has provided

this Court with no evidentiary basis to establish the admissibility of any of this evidence. Thus, to

the extent the Government only seeks a ruling as to the authenticity of the private sector business

records referenced in its motion, the defense does not object provided the Government otherwise

lays sufficient foundation and establishes its relevance and admissibility at trial; in that respect, the

defense reserves the right to lodge objections on all other grounds.

However, it is an altogether different story as it relates to certain government records.

Specifically, in its motion, the Government broadly seeks to include a wide array of records it

obtained from the United States SBA. But, as to some of those records, that is a bridge too far. For

instance, the Sixth Amendment’s Confrontation Clause bars the admission of so-called “lack of

records” and other testimonial statements without the live, in-court testimony of the individual who

performed any such search and the individual who made each particular testimonial statement. The

Government records disclosed in discovery are replete with such documents.

In United States v. Maga, a defendant was indicted for failing to file federal income tax

returns for tax years 2002 through 2006. 475 F. App’x 538, 540 (6th Cir. 2012) (unpublished

opinion). The Government prepared Maga’s official tax transcripts for use at trial. Id. These

transcripts, also known as Form 4340s, were prepared by an IRS employee, DePowell, who testified

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The defense maintains its position set out in its pending motions to dismiss the indictment. However, this response is
being filed due to this Court’s deadline.
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Case 1:25-cr-00076-JMC Document 33 Filed 11/26/25 Page 6 of 13

at trial that “he first cross-referenced the social security number that the agent gave to him with the

Social Security Administration to confirm that it belonged to Maga, then generated the Form 4340s

by accessing the IRS master file remotely and printing them out at his desk. After verifying the

accuracy of the Form 4340s against the data on the computer, he presented his findings to Resident

Agent–in–Charge Martha Williams for further verification. Williams signed the certification at the

end of each of the transcripts and DePowell affixed the seal. On the witness stand, DePowell

identified the Form 4340s he generated and their accompanying ‘certificates of official record,’

observing that the Form 4340s revealed no record of Maga filing a tax return for the years 2002,

2003, 2004, 2005, and 2006.” Id. Maga was convicted of five counts of failure to file a tax return.

On appeal, Maga argued the district court erred in admitting the Forms 4340 over his objection

because their admission violated his rights under the Confrontation Clause. Id. at 541. The court

unambiguously held, “The Form 4340s and their certificates qualify as ‘testimonial’ statements

triggering confrontation rights.” Id.

Central to the court’s determination of this issue was the seminal Supreme Court decision

Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), which triggered a sea change in how the

admission of documents in criminal trials are to be analyzed. The Maga court explained, “Business

record or not, the Supreme Court’s decision in Melendez–Diaz v. Massachusetts requires the

government to demonstrate that the IRS did not generate the forms and certificates for trial to defeat

confrontation rights challenges.” Maga, 475 F. App’x at 541.

The Maga court noted that statements are “testimonial” if they are “made under

circumstances which would lead an objective witness reasonably to believe that the statement would

be available for use at a later trial[.]” Id. (quoting Crawford v. Washington, 541 U.S. 36, 51–52

(2004)). The Government argued that DePowell, the IRS employee, merely located the Forms 4340

(as though he simply found a document that previously existed). Id. at 542. The court disagreed,

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noting that “DePowell's own testimony explains that, in fact, he ‘generate[d]’ the transcripts by

‘access[ing] the master file.’ The forms and the certificates did not exist before an agent in the

Criminal Investigation Division asked for them.” Id. Accordingly, the court determined the forms

were testimonial because “DePowell created the documents under circumstances where one could

reasonably believe that the government would use them at trial.” Id.

The Government countered that the forms were merely synopses of tax records translated

into plain English. Id. Rejecting this argument, the court explained, “these ‘transcripts’ are not exact

copies of the data the IRS ordinarily maintains in its master files. Generating a Form 4340 involves

searching through raw data and returning the result, ‘NO RECORD OF RETURN FILED,’ rather

than copying a preexisting record.” Id. The Government further argued that because “the forms ‘are

no different than any computer record for which a printout is generated,’” the court should “treat a

Form 4340 as functionally equivalent to a copy, even if it does not merely reproduce the underlying

coded data.” Id. Rejecting this invitation to violate the defendant’s constitutional rights, the court

explained, “once a certifier assesses the substantive similarity of the content, as opposed to

authenticating the exactness of the copy, he crosses the testimonial line: ‘certify[ing] to [the record’s]

substance or effect.’” Id. (citing Melendez–Diaz, 557 U.S. at 322). The Maga court then concluded,

“under Melendez–Diaz’s reasoning, the Form 4340s and their certificates are testimonial in nature.”

Id.

This analysis rings true throughout this body of relevant case law—none of which the

Government acknowledges in its motion. See, e.g., Tabaka v. D.C., 976 A.2d 173, 175–76 (D.C.

2009) (“The Supreme Court’s analysis [in Melendez-Diaz] conclusively shows that the [certificate

of no-record] in this case, ‘a clerk’s certificate attesting to the fact that the clerk had searched for a

particular relevant record and failed to find it,’ id., was inadmissible over objection without

corresponding testimony by the DMV official who had performed the search”); Campos-Alvarez v.

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Case 1:25-cr-00076-JMC Document 33 Filed 11/26/25 Page 8 of 13

United States, 16 A.3d 954, 961 (D.C. 2011) (“as the government concedes, it was constitutional

error to admit the certificates of no record without live testimony from their preparer”); United States

v. Norwood, 603 F.3d 1063, 1068 (9th Cir. 2010) (“the government concedes that under Melendez–

Diaz, Washington Department of Employment Security Assistant Records Officer Jodi Arndt’s

affidavit, prepared for use at Norwood’s trial to prove the absence of any record of Norwood having

legitimate employment, should not have been admitted without Arndt presenting herself at trial for

examination”); United States v. Martinez-Rios, 595 F.3d 581, 586 (5th Cir. 2010) (“[Certificates of

Nonexistence of Record] are not routinely produced in the course of government business but instead

are exclusively generated for use at trial. They are, therefore, testimonial”). With respect to IRS

records, the Government in this case readily intends to violate this same constitutional precedent.

But the problem runs deeper for the Government in this case. The records from the SBA

include testimonial statements in “reports” that include analyses. See United States v. Cameron, 699

F.3d 621, 647 (1st Cir. 2012) (holding that the reports in that case were testimonial because they did

not simply consist of “underlying records arranged and formatted in a readable way for presentation

purposes,” but instead “convey[ed] an analysis that was performed using pre-existing data”)

(emphasis in original).

Thus, as it applies to any record in which the Confrontation Clause is implicated, Merritts

opposes the admissibility of any such record without the necessary constitutional foundation being

laid. In the event the Government complies with the constitution and lays adequate foundation, this

Court can make an admissibility determination at trial.

III. This Court Should Reject the Government’s Attempt to Backdoor Expert
Opinions into Evidence by Calling Them “Summary” Testimony and Evidence

As set out in its motion, the Government seeks a pre-trial ruling admitting documents it

characterizes as “summary charts” and admitting the testimony of “the FBI agents who prepared

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Case 1:25-cr-00076-JMC Document 33 Filed 11/26/25 Page 9 of 13

them,” all with the understanding that the Government will “instruct any witness testifying about the

summary exhibits not to provide any improper opinion or inferential testimony in relation to those

exhibits.” (See Doc. 23 at 6). And with respect to the content of the exhibits, the Government

argues—citing no legal authority—that any “concerns the defense has about the contents of the

exhibits can and should be addressed through cross-examination, not preclusion of the exhibits from

evidence.” (Id. at 7-8).

At the outset, the Government’s proposed course of action is inconsistent with the Federal

Rules of Evidence and relevant legal authority. Indeed, exhibits introduced under Rule 1006 must

“fairly summarize voluminous trial evidence and assist the jury in understanding the testimony

already introduced.” Petrone v. Werner Enters., Inc., 42 F.4th 962, 969 (8th Cir. 2022). But critically,

the rule requires that the summaries accurately summarize the voluminous documents without further

editorializing on their contents. See United States v. White, 737 F.3d 1121, 1134 (7th Cir. 2013)

(holding that a Rule 1006 summary “must accurately summarize [the] documents [and] must not

misrepresent their contents”) (emphasis added). In other words, summaries are admissible only if

they are, in fact, summaries—and it is not appropriate to admit them as the Government requests and

simply to leave it up to cross-examination to expose misrepresentations contained within their

contents. See id.

The proposed summary charts and accompanying testimony at issue here are problematic for

many reasons, each of which requires denial of the Government’s motion.

First, the FBI subjectively characterizes certain alleged expenses by analyzing bank records.

For example, the FBI concludes certain expenditures constitute “moving supplies” while other

expenditures do not. And, in that same vein, the Government arbitrarily created certain categories

and placed certain alleged transactions into each category. Those are not summaries, they are

opinions.

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Second, the Government created what it calls a “summary chart” that is no more than a totally

misleading graph with cherry-picked alleged evidence suggesting an improper relation to the

statements referenced and transactions that are the subject of the graph:

This is not a summary chart. It is a theory of prosecution that is not properly admitted as a

Government exhibit under Rule 1006 (or any other rule for that matter).

Third, another so-called “summary chart” characterizes “Income Sources,” “Income,”

“Investments,” and other technical accounting classifications—none of which is accompanied by an

expert disclosure and none of which even comports with generally accepted accounting principles.

Indeed, the Government has not established that the FBI special agents who formed these opinions

are even remotely qualified to do so and the deadline for the prosecution to make expert witness

disclosures has long passed. This proposed exhibit does not summarize voluminous records; it

reaches conclusions about those records that both invade the province of the jury and that constitute

inadmissible expert opinions without proper notice pursuant to Federal Rule of Criminal Procedure

16(a)(1)(G).
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Case 1:25-cr-00076-JMC Document 33 Filed 11/26/25 Page 11 of 13

Fourth, the proposed “summary charts” and “summary testimony” include expert opinions.

To be clear, there is no dispute that “[e]xpert testimony by an IRS agent which expresses an

opinion as to the proper tax consequences of a transaction is admissible evidence.” United States v.

Windfelder, 790 F.2d 576, 581 (7th Cir. 1986); see also United States v. Gold, 743 F.2d 800, 817

(11th Cir. 1984). But it is admissible only as expert testimony. And “an IRS expert’s analysis of”

transactions can also constitute “admissible evidence.” Windfelder, 790 F.2d at 581. But again, only

as expert testimony.

In United States v. Benson, the Government called an IRS Revenue Agent “to summarize the

government’s trial evidence and give his expert opinion as to why that evidence showed that Benson

was required to file income tax returns[.]” 941 F.2d. 598, 603 (7th Cir. 1991). Reversing the

conviction, the Seventh Circuit explained that an expert opinion must be informed by the witness’

expertise. Id. at 604. That revenue agent offered testimony consisting “of nothing more than drawing

inferences from the evidence that he was no more qualified than the jury to draw.” Id. In forming his

opinions, he “had to make credibility determinations” in that he had to rely on the testimony of other

witnesses. Id. And, as the Seventh Circuit explained, “the jury does not need an expert to tell it whom

to believe.” Id. (internal citations omitted).

This Court should exclude the Government’s proposed “summary charts” and “summary

testimony” because it is simply inadmissible expert testimony in disguise. But, at a bare minimum,

this Court should reserve ruling on these issues to determine whether they are admissible at trial.

IV. Conclusion

For the foregoing reasons, and for any other reasons this Court may determine at the pretrial

conference and at trial, Merritts respectfully requests that this Court deny the Government’s motion

in limine.

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Respectfully submitted,

Margulis Gelfand DiRuzzo & Lambson

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

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Case 1:25-cr-00076-JMC Document 33 Filed 11/26/25 Page 13 of 13

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.

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

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