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Defendant's Response to Government's Omnibus Motion in Limine — U.S. v. Merritts

No. 1:25-cr-00076-JMC · Doc. 32 · Docket on CourtListener

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Case 1:25-cr-00076-JMC Document 32 Filed 11/26/25 Page 1 of 19

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 IN OPPOSITION TO
GOVERNMENT’S OMNIBUS MOTION IN LIMINE

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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TABLE OF CONTENTS

I. Background ................................................................................................................................. 2

II. “Jury Nullification” .................................................................................................................... 3

III. Character Evidence .................................................................................................................... 6

VI. Statements About Punishment or Collateral Consequences...................................................... 7

V. The Government’s “Unrelated” Investigation of Former Congresswoman Bush ..................... 8

VI. Evidence Regarding the Government’s Charging Decisions, Alleged Political Motivation, or

Alleged Selective Prosecution .......................................................................................................... 11

VII. Conclusion ............................................................................................................................. 13

Certificate of Service ........................................................................................................................ 15

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TABLE OF AUTHORITIES

Cases

Alford v. United States, 282 U.S. 687 (1931) ................................................................................... 12

California v. Trombetta, 467 U.S. 479 (1984) ................................................................................... 9

Chambers v. Mississippi, 410 U.S. 284 (1973) ................................................................................ 10

Crane v. Kentucky, 476 U.S. 683 (1986) .................................................................................. 4, 9, 11

Davis v. Alaska, 415 U.S. 308 (1974) .......................................................................................... 9, 11

Olden v. Kentucky, 488 U.S. 227 (1988) ............................................................................................ 5

Smith v. State of Illinois, 390 U.S. 129 (1968) ................................................................................. 12

Tardif v. City of New York, 991 F.3d 394 (2d Cir. 2021) ................................................................. 12

United States v. Abel, 469 U.S. 45 (1984) .................................................................................... 9, 11

United States v. Armstrong, 621 F.2d 951 (9th Cir. 1980) ............................................................... 10

United States v. Blackwell, 853 F.2d 86 (2d Cir. 1988) ..................................................................... 4

United States v. Brown, 503 F. Supp. 2d 239 n.4 (D.D.C. 2007) ....................................................... 4

United States v. Carpenter, No. CR 21-305 (JEB), 2023 WL 1860978 (D.D.C. Feb. 9, 2023) ........ 6

United States v. Chwiesiuk, No. CR 21-0536 (CKK), 2023 WL 3002493 (D.D.C. Apr. 19, 2023) .. 6

United States v. Crosby, 75 F.3d 1343 (9th Cir. 1996) .................................................................... 10

United States v. Deel, No. 1:09CR00022, 2010 WL 519836 (W.D. Va. Feb. 11, 2010) ................... 4

United States v. Grant, 775 F.2d 508 (3d Cir. 1985) ......................................................................... 4

United States v. Kosinski, No. 3:16-CR-00148 (VLB), 2017 WL 4953902 (D. Conn. Oct. 31, 2017)

......................................................................................................................................................... 4

United States v. Lucas, 395 F. Supp. 3d 241 (W.D.N.Y. 2019) ......................................................... 5

United States v. Navarro, 737 F.2d 625 (7th Cir. 1984) .................................................................. 12

United States v. Perez, 459 F. App'x 191 (3d Cir. 2012) (unpublished) ............................................ 5
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United States v. Santana-Camacho, 931 F.2d 966 (1st Cir. 1991)..................................................... 5

United States v. Sutton, 636 F. Supp. 3d 179 (D.D.C. 2022) ......................................................... 6, 7

Villaroman v. United States, 184 F.2d 261 (D.C. Cir. 1950) ....................................................... 9, 11

Washington v. Texas, 388 U.S. 14 (1967) .......................................................................................... 9

Rules

Federal Rule of Evidence 403 .......................................................................................................... 11

Federal Rule of Evidence 404 ............................................................................................................ 6

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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 IN OPPOSITION TO
GOVERNMENT’S OMNIBUS MOTION IN LIMINE

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

Gelfand, Joseph A. DiRuzzo, III and the law firm Margulis, Gelfand, DiRuzzo & Lambson,

respectfully asks this Court to deny the Government’s omnibus motion in limine (Doc. 24).

The pending indictment arose out of a federal criminal investigation targeting a then-sitting

United States Congresswoman, Cori Bush, and false allegations involving security services

provided to her by her husband, Cortney Merritts. During that investigation, the Government

obtained documents from the U.S. House of Representatives through a federal grand jury subpoena

received by the House Sergeant at Arms; the Government obtained internet service provider

records directly relevant to the allegations at issue in this case for Congresswoman Bush’s

residence; and, inter alia, the Government obtained and disclosed in discovery a 35-page

comprehensive report relating only to Congresswoman Bush. In December 2024, the FBI in a

document where “Cori Bush for Congress” is listed as the only “Case ID,” the FBI sought approval

for interviews related only to the PPP and EIDL loans at issue in this case using “non-custodial

surreptitious recording of interviews.” And this Court correctly included Congresswoman Bush as

a possible “witness in the investigation” in its conditions of release. See Condition 7(g) (naming,

but excluding, Congresswoman Bush from the no-contact order). Indeed, every grand jury

subpoena disclosed by the Government in this case was issued in the same U.S. Attorney’s Office’s

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grand jury case number.

Yet against this backdrop, the Government is now asking this Court to conclude the

investigation into Congresswoman Bush was “unrelated” and, in doing so, to hide from the jury

that Congresswoman Bush was—in fact—a Congresswoman and involved “in politics”; to

foreclose constitutionally-mandated lines of cross examination of certain witnesses about their

political biases including those investigating this case; and even to prevent Merritts from testifying

about his family and background if he chooses to exercise his right to testify in his own defense.

Furthermore, Congresswoman Bush is a likely witness at this trial. While there are bits and pieces

of the Government’s omnibus motion in limine that the defense does not object to, this Court

should largely deny it.

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.

In its motion, the Government is attempting to re-write history and to fashion the chain of

events as follows: there was an investigation into Congresswoman Bush and then there was an

“unrelated” investigation into Merritts. But based on the discovery, that is categorically inaccurate.

Indeed, the Government is attempting to prosecute Merritts for internet activity that is allegedly tied

to Congresswoman Bush’s residence based on documents obtained from an internet service provider

as a result of a subpoena in the single investigation that led to the charges in this case.

What really happened is that federal investigators launched an investigation into a sitting

congresswoman who, at the time, was an outspoken critic of both the current (and then former)

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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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presidential administration and of the then-in-office democratic administration. That investigation

was necessarily made public by the issuance of a federal grand jury subpoena to the U.S. House of

Representatives—requiring public disclosure by the House clerk to the entire legislative body, which

happened on C-SPAN. The initial focus of the federal criminal investigation was on the objectively

false allegation that some crime was committed arising out of security services provided by, inter

alia, Merritts to the congressional campaign. But that investigation fell flat because neither

Congresswoman Bush nor Merritts committed a crime. So instead of simply walking away from the

case as reasonable law enforcement officers would do, the FBI and other agencies continued their

investigation—now focusing on loans totaling approximately $22,000 allegedly tied to Merritts.

Through its motion in limine, the Government is seeking to prevent the defense from

exposing the bias inherent and evident in the law enforcement investigation of this case and even

from giving the jury necessary background about Merritts through his own testimony or other

admissible evidence. Indeed, the Government is even going so far as to seek to hide from the jury

necessary background of a material fact witness—Congresswoman Bush—all of which is critical to

their consideration of credibility.

II. “Jury Nullification”

Merritts does not intend to argue or introduce evidence for the purpose of encouraging “jury

nullification.” But the Government’s motion goes much further. Although framed as a request to

preclude “jury nullification,” it seeks to bar evidence critical to defending this case which alleges

only specific intent crimes. For example, the Government asks this Court to exclude evidence of

Merritts’ “participation in the community.” (See Doc. 24 at 3). But this would include Merritts’

exemplary military experience and service to this country and a full understanding of his community-

related activities during the time period relevant to an assessment of whether he committed wire

fraud with criminal intent. Furthermore, the Government seeks to bar evidence of Merritts’ “marriage

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or family status.” (See id. at 4). But he should be permitted to provide relevant background to the

jury about his life experience, and it should not be hidden that he is currently married to former

Congresswoman Bush, who is a possible (and likely) witness in this case, or that he was dating

Congresswoman Bush during some of the events at issue in this case. These broad requests—

unsupported by any relevant legal authority in the context of this specific intent criminal

prosecution—would also improperly restrict Merritts’ right to both present a complete defense, see

Crane v. Kentucky, 476 U.S. 683, 687 (1986) (criminal defendants have a fundamental constitutional

right to a fair opportunity to present a defense), and to testify if he elects to do so.

If Merritts elects to testify as the constitution permits him to do, he is entitled to provide

background information about himself, including his education, work history, and circumstances

leading up to, during, and following the alleged specific intent crimes. After all, his credibility will

be at stake for the jury’s consideration, and it is elementary in a specific intent case that circumstantial

evidence of a defendant’s mens rea or lack thereof is fair game. This Court has broad discretion to

admit appropriate background testimony, including a defendant’s employment history and life

circumstances. See United States v. Brown, 503 F. Supp. 2d 239, 242 n.4 (D.D.C. 2007) (“Certainly,

the trial court is entitled to wide discretion concerning the admissibility of background evidence.”)

(citing United States v. Blackwell, 853 F.2d 86, 88 (2d Cir. 1988)).

Such testimony is routinely permitted to give jurors a complete and accurate understanding

of a witness’s perspective, credibility, and life context. See, e.g., United States v. Grant, 775 F.2d

508, 513 (3d Cir. 1985) (“During the course of a trial, it is customary for the defendant to introduce

evidence concerning his background, such as information about his education and employment. Such

evidence is routinely admitted without objection…”); United States v. Kosinski, No. 3:16-CR-00148

(VLB), 2017 WL 4953902, at *6 (D. Conn. Oct. 31, 2017) (admitting limited testimony from

defendant about, inter alia, his family background and employment to “tell ‘the jury something about

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the defendant as a person, and his experience in life’”); United States v. Deel, No. 1:09CR00022,

2010 WL 519836, at *1 (W.D. Va. Feb. 11, 2010) (“I will allow a defendant who testifies to give a

brief and straight-forward recitation of his life history, including employment and family details,

simply as background evidence for the jury’s benefit to judge his credibility.”); United States v.

Lucas, 395 F. Supp. 3d 241, 256 (W.D.N.Y. 2019) (appropriate for jury to hear general background

information concerning a significant witness).

Furthermore, the Government seeks to exclude—in this PPP loan fraud case—that Merritts

was a “hard-working person.” (See Doc. 24 at 4). But this entire case arises out of the false allegation

that Merritts was not entitled to certain loan proceeds related to his moving company, which was

both real and aptly named “Vetted.” Indeed, the very name of the company is a relevant play on

words: it was owned by a military veteran, and customers are frequently concerned their movers are

not vetted. The two cases on which the Government relies are inapposite. Santa-Camacho was a case

where the defendant was charged and convicted of illegally bringing two Dominican citizens into the

United States. The First Circuit simply concluded evidence that the defendant was a “kind or a good

family man” was not a trait “‘pertinent’ to the crime charged.” United States v. Santana-Camacho,

931 F.2d 966, 968 (1st Cir. 1991). But the fact that Merritts was a “hard-working person” is

particularly “pertinent” to the wire fraud allegations arising out of PPP and EIDL loans related to his

moving company in this case. And excluding evidence of his employment-related activities would

literally bar him from putting on a defense. See Olden v. Kentucky, 488 U.S. 227, 232 (1988)

(exclusion of evidence undermining prosecution’s theory violates a defendant’s right to present a

complete defense). The second case—equally irrelevant—is an unpublished Third Circuit case where

a defendant charged only with illegal reentry was prevented from putting on evidence of his “life in

the United States” prior to the illegal reentry charged was not relevant given the unique facts and

circumstances of that case and the single-count indictment that did not charge a specific intent crime.

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United States v. Perez, 459 F. App'x 191, 197 (3d Cir. 2012) (unpublished).

The Government mischaracterizes this testimony as “jury nullification” but it is patently not

that. It is circumstantial evidence critical to a jury’s assessment of, inter alia, a defendant’s mens rea

or lack thereof in a specific intent crime such as wire fraud; a defendant’s credibility if he elects to

testify in his own defense; and truthful testimony about events that have actually occurred in a

defendant’s life that are otherwise relevant to what transpired. Indeed, it is the Government that has

put Merritts’ state of mind at issue—and he is entitled to litigate it.

III. Character Evidence

The Government’s motion—again improperly referencing “jury nullification”—amounts to

no more than a boilerplate request that the defense comply with the relevant Federal Rules of

Evidence governing character evidence. Without addressing any particular concern specific to this

case, the Government broadly asserts that Federal Rule of Evidence 404(a)(2) for some reason does

not apply in this case. (See Doc. 24 at 5).

And the Government again cites three entirely inapposite cases purportedly in support of its

position. The first, Carpenter, is a January 6 case involving “the insurrection at the United States

Capitol” where the district court excluded “specific prior acts of peacefulness or nonviolence from

[the defendant’s] time as an NYPD officer.” See United States v. Carpenter, No. CR 21-305 (JEB),

2023 WL 1860978, at *1 (D.D.C. Feb. 9, 2023). That evidentiary ruling on an entirely different kind

of case charging an entirely different kind of crime bears no similarity to the trial of this case—and

the Government does not attempt to tie the two together, leaving the defense and this Court to guess

as to any relevant connection. The second is another January 6 “insurrection” case excluding similar

evidence of law enforcement accolades. United States v. Chwiesiuk, No. CR 21-0536 (CKK), 2023

WL 3002493, at *6 (D.D.C. Apr. 19, 2023). And the third case the Government cites is a case

involving allegations of obstruction of justice and second-degree murder perpetrated by police

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officers. See United States v. Sutton, 636 F. Supp. 3d 179, 209 (D.D.C. 2022). But a close read of

Sutton weighs against the Government’s motion in this case. There, the district court correctly

determined that evidence of a defendant’s truthfulness is “pertinent” to an obstruction of justice

charge—referencing the probative value of such evidence where an issue before the jury is whether

a defendant acted “with a prohibited state of mind.” Id. at 208 (internal citations to Fifth Circuit

authority omitted). In that circumstance, “[w]hen character is an essential element of a charge, claim,

or defense,” the pertinent character or trait may be proved by relevant specific instances of the

person’s conduct.” See id. at 209. Thus, the district court in Sutton determined evidence about

commendations and awards constituted “admissible character evidence” and permitted the

introduction of such evidence. Id.

Based on this legal authority—two January 6 cases and an obstruction of justice / murder

case where the district court ruled against the Government—the prosecution seeks to exclude

wholesale categories of character evidence. But this Court should deny the Government’s motion

and simply ensure the parties comply with the relevant Federal Rules of Evidence governing the

introduction of character evidence.

VI. Statements About Punishment or Collateral Consequences

Again, focusing on its misplaced concerns about “jury nullification,” the Government seeks

to exclude any reference to punishment or the consequences of such punishment on Merritts or his

family.

To be clear, Merritts does not intend to introduce affirmative evidence or argument of the

penalties or consequences of the wire fraud crimes charged in this case, including any potential term

of incarceration, fines, or other punishments he might face if convicted. But yet again, the

Government attempts to shoehorn even more into what seems like an otherwise innocuous request.

For example, the Government seeks to prevent defense counsel from arguing to the jury that its

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decision “will have consequences”—even “serious consequences”—for the defendant. (See Doc. 24

at 6). But that goes one step too far and is entirely unsupported by the law cited by the Government.

As with any federal criminal trial, the defense should be permitted to reinforce the gravity and

importance of its decision because a conviction alone, even without any further penalty, is a

“consequence” and a “serious consequence” for this defendant with no criminal history and an

otherwise spotless record of hard work, honorable service to his country, and integrity. Additionally,

if the defendant elects to testify and his credibility is attacked with a suggestion that he has a motive

to lie, the defense should be permitted to address the issue of potential consequences in the event of

a conviction outright if the Government has indeed opened the door to such questions.

V. The Government’s “Unrelated” Investigation of Former Congresswoman Bush

As set out in detail supra, this portion of the Government’s omnibus motion in limine is

outright disingenuous and should be denied. As the discovery reveals, the Government conducted a

single investigation that initially focused on Congresswoman Bush and security services provided

by Merritts. But that investigation revealed no crime and the investigators then went on to try to

justify the absurd abuse of resources expended on that investigation targeting a sitting member of

Congress by charging Merritts with wire fraud. But the evidence the Government seeks to introduce

at trial was obtained during that one investigation and even involves internet protocol (IP) address

records tied to Congresswoman Bush’s residence in St. Louis, Missouri.

Citing no legal authority at all in support of its efforts to exclude this evidence, the

Government curiously asks rhetorical questions that are no more than strawman arguments and then

the Government answers its own rhetorical questions in its motion. (See Doc. 24 at 8). For instance,

the Government asks, “How would introducing evidence of the unrelated investigation show whether

Defendant submitted fraudulent loan applications?” (Id.). And then the Government summarily

answers: “It would not.” (Id.). But the Government’s flawed premise is that this was an “unrelated

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investigation” (it was not) and the defense in any event has the right to confront adverse witnesses

and to present a complete defense—including by attacking the investigation that led to the pending

charges in the first place.

At the outset, it is black letter law that Merritts has the right to present a complete defense.

The Due Process Clause requires that “criminal defendants be afforded a meaningful opportunity to

present a complete defense.” California v. Trombetta, 467 U.S. 479, 485 (1984). “The right to offer

the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to

present a defense, the right to present the defendant's version of the facts as well as the prosecution’s

to the jury so it may decide where the truth lies. Just as an accused has the right to confront the

prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his

own witnesses to establish a defense. This right is a fundamental element of due process of law.”

Washington v. Texas, 388 U.S. 14, 19 (1967). This means that Merritts has a constitutional right to

present evidence that contradicts the evidence in the Government’s case. See Crane, 476 U.S. at 690-

91 (“the Constitution guarantees criminal defendants a meaningful opportunity to present a complete

defense” and “that opportunity would be an empty one if the State were permitted to exclude

competent, reliable evidence…when such evidence is central to the defendant's claim of innocence.

In the absence of any valid state justification, exclusion of this kind of exculpatory evidence deprives

a defendant of the basic right to have the prosecutor's case encounter and survive the crucible of

meaningful adversarial testing”) (internal citations omitted).

But even more, Merritts has a Sixth Amendment right to confront adverse witnesses—and to

expose bias. Cross examination regarding the earlier aspects of this investigation is proper

impeachment, as it is probative of bias, motive, and prejudice. See Davis v. Alaska, 415 U.S. 308,

315–16 (1974) (exposure of a witness’s bias, motive, or prejudice is a constitutionally protected form

of cross examination). This includes the right to cross-examine government witnesses about their

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own biases and credibility. See United States v. Abel, 469 U.S. 45, 52 (1984) (“Proof of bias is almost

always relevant because the jury, as finder of fact and weigher of credibility, has historically been

entitled to assess all evidence which might bear on the accuracy and truth of a witness’ testimony”);

Villaroman v. United States, 184 F.2d 261, 262 (D.C. Cir. 1950) (“Bias of a witness is always

relevant” and “may be shown by contradiction of his testimony or other independent evidence”).

In a similar vein, the defense has the right to attack the sloppiness of the Government’s

investigation—including its failure to even attempt to interview critical material witnesses and to

identify an alleged alternative perpetrator. The defense should be permitted to enable the jury to

appreciate that this was not the result of a lack of resources; rather, the Government spent an

enormous amount of resources investigating Merritts but fell flat on its face when it comes to the

investigation of the only charged conduct. For instance, Merritts intends to establish reasonable doubt

as to whether it was in fact Merritts who submitted certain of the documents the Government

contends are fraudulent. Thus, this Court should see the Government’s motion for what it is: an

attempt to prevent Merritts from highlighting the existence of reasonable doubt by establishing a

failure to effectively investigate the crimes charged. This matters because “[f]undamental standards

of relevancy, subject to the discretion of the court to exclude cumulative evidence and to insure

orderly presentation of a case, require the admission of testimony which tends to prove that a person

other than the defendant committed the crime that is charged.” United States v. Armstrong, 621 F.2d

951, 953 (9th Cir. 1980) (citing Chambers v. Mississippi, 410 U.S. 284, 302 (1973)). To be clear,

Merritts does not have to establish that someone else committed the crimes charged to be permitted

to argue the investigation and evidence fails to prove, beyond a reasonable doubt, his guilt. But what

the Government seeks to exclude here is evidence that someone other than Merritts “had the

opportunity, ability and motive to commit the crime.” United States v. Crosby, 75 F.3d 1343, 1347

(9th Cir. 1996).

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In Crosby, the defendant argued “the police investigation was sloppy and that a more

thorough investigation would have exonerated him.” Id. The defense highlighted failures at the scene

of the crime, a lack of physical evidence, a failure to pursue certain leads with respect to forensic

testing, and similar shortcomings of the police investigation. Id. On appeal, the Ninth Circuit

explained that the district court failed to permit the defendant to “fully argue his sloppy investigation

theory” because, while “he could point out what the police hadn’t done, he could suggest no

exculpatory evidence the police might have found had they conducted a more thorough

investigation.” Id. at 1347-48. This would have enabled the defense counsel to “plausibly argue[]

that a more thorough investigation would have produced evidence incriminating [another

individual].” Id. That court reversed the conviction, explaining that district courts “should afford the

accused every opportunity to create that doubt.” Id. at 1349 (internal quotations omitted). But, in its

motion, the Government is now trying to prevent the defense from even acknowledging the existence

of the totality of the investigation by compartmentalizing it only to what the prosecution charged and

to the evidence and witnesses the prosecution singlehandedly concludes are relevant.

Finally, the Government curiously cites Federal Rule of Evidence 403 for the premise that, if

Merritts is permitted to introduce evidence casting doubt on the charges, “the government would be

required to introduce its own evidence and testimony to the contrary.” (See Doc. 24 at 8). But that is

exactly what the Constitution requires, not grounds to exclude exculpatory evidence. See Crane, 476

U.S. at 690-91.

VI. Evidence Regarding the Government’s Charging Decisions, Alleged Political
Motivation, or Alleged Selective Prosecution

Merritts has no intention to raise the Government’s charging decisions before the jury. But

once again, the Government goes one step too far.

When it comes to cross examination of adverse witnesses, Merritts has an absolute

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constitutional right to expose bias, political motivation, and prejudice of any witness. See Davis, 415

U.S. at 315–16 (exposure of a witness’s bias, motive, or prejudice is a constitutionally protected form

of cross examination); Abel, 469 U.S. at 52 (“Proof of bias is almost always relevant because the

jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence

which might bear on the accuracy and truth of a witness’ testimony”); Villaroman, 184 F.2d at 262

(“Bias of a witness is always relevant” and “may be shown by contradiction of his testimony or other

independent evidence”). This includes witnesses who investigated this case.

And the Government also seeks an order prohibiting the defense “from identifying” Cori

Bush “as Congresswoman Bush or making any reference to her profession or involvement in politics,

including during opening statements or closing arguments.” (See Doc. 24 at 10). Not surprisingly,

the Government cites no legal authority whatsoever for this premise—because there is none. But

there is an even greater fatal flaw with the Government’s request: Congresswoman Bush is a possible

(and likely) witness. “Background evidence may provide necessary context to a witness’s substantive

testimony” and it is not an abuse of discretion to permit such testimony at trial. Tardif v. City of New

York, 991 F.3d 394, 409 (2d Cir. 2021). And when it comes to a witness’s employment history, a

defendant has the right for a jury to evaluate that when considering that witness’s credibility.

“Prejudice ensues from a denial of the opportunity to place the witness in his proper setting and put

the weight of his testimony and his credibility to a test, without which the jury cannot fairly appraise

them.” Alford v. United States, 282 U.S. 687, 692 (1931). Indeed, “when the credibility of a witness

is in issue, the very starting point in ‘exposing falsehood and bringing out the truth’ through cross-

examination must necessarily be to ask the witness who he is and where he lives… To forbid this

most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination

itself.” Smith v. State of Illinois, 390 U.S. 129, 131 (1968). Supreme Court precedent “make it clear

that a defendant is presumptively entitled” to question a witness as to her “employment.” United

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States v. Navarro, 737 F.2d 625, 633 (7th Cir. 1984) (referencing Alford and Smith). Thus, when the

jury evaluates Bush’s credibility, they should be entitled to consider her employment history as a

former member of Congress. That the Government would argue there is “no legitimate purpose” in

“[r]eferencing Congresswoman Bush’s identity and political involvement” is stunning. (See Doc. 24

at 10). To the extent the Government has any such concerns, that can be appropriately addressed

through jury instructions and voir dire—not from hiding facts from the jury. But, in any event, the

Government should not be permitted to conceal from the jury Merritts’ employment history (which

includes providing security services to Congresswoman Bush) and Congresswoman Bush’s

employment history when she likely testifies as a witness at trial.

*****

At its core, the Government’s motion seeks to deny Merritts his constitutional right to a fair

trial, to put on a complete defense, to attack the credibility of material witnesses including law

enforcement investigators, and to testify in his own defense if he elects to do so. But what is really

clear is that the Government is afraid of its own shadow: the prosecution fears that the jury will acquit

Merritts if it knows the truth about its investigation and if it is entitled to the facts necessary to weigh

the credibility of possible material witnesses, including the defendant himself. Through that lens, this

Court should see the motion for what it is: an attempt to deny Merritts a fair trial. The Government

brought this case and should have to prove it—fairly, the same as with any other case, and subject to

the constitutional mandates that apply to every criminal defendant.

VII. Conclusion

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

conference, Merritts respectfully requests that this Court deny the Government’s omnibus motion in

limine.

13
Case 1:25-cr-00076-JMC Document 32 Filed 11/26/25 Page 18 of 19

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

14
Case 1:25-cr-00076-JMC Document 32 Filed 11/26/25 Page 19 of 19

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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