Court filing

Government's Opposition to Motion on Act-of-Production of Corporate Records — U.S. v. Merritts

No. 1:25-cr-00076-JMC · Doc. 35 · Docket on CourtListener

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Case 1:25-cr-00076-JMC Document 35 Filed 12/02/25 Page 1 of 6

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA :
:
v. : Case No. 25-cr-00076-JMC
:
CORTNEY MERRITTS, :
:
Defendant. :

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

The United States of America respectfully opposes Defendant Cortney Merritts’s (the

“Defendant”) Motion in Limine to Prohibit the Government from Attributing the Act of Production

of Corporate Records to Merritts (ECF No. 21). Such records are properly attributable to the

Defendant because they were produced by his company in response to a grand jury subpoena, and

because he was a sole proprietor, as a legal matter he could not have produced them in a

representative capacity. The United States thus requests that the Court deny the Defendant’s

Motion to preclude the Government from attributing the documents that Vetted produced. As

described further below, counsel provided additional similar documents as potential trial exhibits.

The United States requests permission to attribute those documents to him as well.

I. Relevant Procedural Background

On March 12, 2024, the United States served two identical subpoenas for records, on one

“Vetted Couriers and Logistics,” a sole proprietorship owned by the Defendant (Exhibit A), and

the other on the Defendant directly (Exhibit B). At no time did the Government make any

representations limiting how it would use or attribute the documents produced or seek immunity

to compel any act of production.
Case 1:25-cr-00076-JMC Document 35 Filed 12/02/25 Page 2 of 6

On May 10, 2024, counsel for the Defendant responded to both subpoenas. In the cover

letter to the production (Exhibit C), counsel stated:

Finally, out of an abundance of caution, please note that the production of the
enclosed documents is deemed an act of Vetted—not any individual custodian.
Pursuant to Braswell v. United States and its progeny, Vetted—and the individuals
through which Vetted acts—expressly assert that no protections under this body of
law are being waived. See Braswell v. United States, 487 U.S. 99, 118 (1988)
(“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”).

With respect to the subpoena served on Merritts in his individual capacity, the
subpoena purports to require an individual to appear before a federal grand jury and
to produce certain broad categories of documents after making a determination of
what would be responsive to the requests contained within the subpoena. As such,
he respectfully asserts his privilege against self-incrimination and his right to
remain silent under the Fifth Amendment to the U.S. Constitution. This includes,
but is not limited to, an express assertion of his Fifth Amendment privilege with
respect to the act of production. See, e.g., In re Grand Jury Subpoena Duces Tecum
Dated Mar. 25, 2011, 670 F.3d 1335, 1345 (11th Cir. 2012) (citing Curcio v. United
States, 354 U.S. 118, 128 (1957) (“The touchstone of whether an act of production
is testimonial is whether the government compels the individual to use the contents
of his own mind to explicitly or implicitly communicate some statement of fact”)
(internal quotations omitted). That said, we have not identified any documents to
date that would be responsive to the subpoena served on Merritts but not responsive
to the subpoena served on Vetted.

The enclosed production consisted of 215 pages of text messages and 93 pages of emails.

The United States’ proposed exhibit list for trial includes the entirety of that production as

two exhibits (Exhibits 028 and 029). The Defendant has not noted any objection to those exhibits.

In the Defendant’s proposed exhibit list for trial, he purports to offer a subset of his

production as exhibits (Defense Exhibits G, H, K, L, and N). The Defendant’s exhibit list also

includes additional text messages (Defense Exhibits A-F, I, M, and O) that were not produced in

response to the grand jury subpoena (even though they would have been responsive to the

2
Case 1:25-cr-00076-JMC Document 35 Filed 12/02/25 Page 3 of 6

subpoena).1

On November 7, 2025, the Defendant filed a Motion in Limine to Prohibit the Government

from Attributing the Act of Production of Corporate Records to Merritts (ECF No. 21). Relying

on Braswell v. United States, 487 U.S. 99 (1988), and its progeny, the Defendant asserts that

records were provided by a corporate records custodian who could not resist the subpoena and that

attributing the production to the Defendant personally would be a violation of his asserted Fifth

Amendment right against self-incrimination.

II. The Defendant’s Motion Should be Denied.
As the evidence amply demonstrates that at all relevant times, including when Vetted

responded to the grand jury subpoena, Vetted was a sole proprietorship and d/b/a name for the

Defendant, not a corporate entity, there is no distinction between Vetted and the Defendant, and

the documents that were produced may be attributed to the Defendant.

A. Vetted was a d/b/a Name for the Defendant as a Sole Proprietor.

The only tax return the Government was able to locate for the Defendant or Vetted was an

individual Form 1040 for the Defendant for tax year 2019 (Exhibits D1 and D2).2 When Vetted

applied for its first Economic Injury Disaster Loan (“EIDL”) on April 3, 2020, the Defendant

stated, “Applicant is an individual who operates under a sole proprietorship, with or without

employees, or as an independent contractor.” (Exhibit E). When the Defendant applied for his

second EIDL on July 8, 2020, he repeated that assertion (Exhibit F). When the Defendant applied

1
This opposition does not concede that any of the defense exhibits are admissible when offered
by the Defendant.
2
As Exhibits D1 and D2 were obtained from the IRS pursuant to an ex parte order under 26 U.S.C.
§ 6103(i)(1) and are confidential by default, the United States is simultaneously filing a motion to
file these exhibits under seal, and following that motion with a motion to authorize disclosure
pursuant to 26 U.S.C. §§ 6103(i)(4)(A)(i) and (D).
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Case 1:25-cr-00076-JMC Document 35 Filed 12/02/25 Page 4 of 6

for a Paycheck Protection Program (“PPP”) loan on April 22, 2021, he identified himself as the

“sole proprietor” of a business (Exhibit G). In the draft 2020 Form 1040 Schedule C the Defendant

submitted with his PPP loan application, he identified himself as the “proprietor” of a principal

business engaged in “All Other Support Activities for Transportation.” (Exhibit H).3 There are no

records in the Missouri Secretary of State for Vetted (Exhibit I). There are no records in the Illinois

Department of Employment Security for Vetted (Exhibit J).

During the same time period, and as late as mid-2021, the Defendant used “Vetted” as a

d/b/a name. See, e.g., Exhibit K (document provided by the Defendant through counsel in response

to the subpoena to Vetted); and Exhibits L1, L2, and L3 (Defense trial exhibits A, G, and O,

provided by the Defendant through counsel).

B. There is No Legal Distinction Between the Defendant and Vetted.

As the Defendant is a sole proprietor, and not a custodial representative of a separate entity,

his reliance on Braswell in his cover letter to the subpoena response and again in his motion is

wholly misplaced. As the Court in Braswell explicitly states:

Had petitioner conducted his business as a sole proprietorship, Doe would require
that he be provided the opportunity to show that his act of production would entail
testimonial self-incrimination. But petitioner has operated his business through the
corporate form, and we have long recognized that, for purposes of the Fifth
Amendment, corporations and other collective entities are treated differently from
individuals. This doctrine—known as the collective entity rule—has a lengthy and
distinguished pedigree.

Braswell, 487 U.S. at 104 (citing United States v. Doe, 465 U.S. 605 (1984)). Contrary to the

Defendant’s assertions, the Court in Braswell expressly finds that, “A sole proprietor does not hold

3
Exhibit H was obtained from Prestamos Community Development Financial Institution, the
lender to whom the Defendant submitted his Paycheck Protection Act loan application. It thus does
not fall within the default confidentiality provisions of 26 U.S.C. § 6103 and need not be filed
under seal. See 26 U.S.C. § 6103(b)(1) (The term “return” means, inter alia, “supporting
schedules” that are “filed with the Secretary.”).
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Case 1:25-cr-00076-JMC Document 35 Filed 12/02/25 Page 5 of 6

records in a representative capacity.” Id. at 112 n.5. There is no legal distinction between a sole

proprietor and the identity of a sole proprietorship. See, e.g., United States v. Fox, 721 F.2d 32, 36

(2d Cir. 1983) (a sole proprietorship has no legal existence apart from its owner). The Defendant

understands this, as he has never filed a separate tax return for Vetted as a separate entity. To the

contrary, he used a draft Form 1040 Schedule C when he submitted his PPP loan application (the

effect of which was to pass his business’s profits and losses through to his personal income tax

return).

As a sole proprietor, in the cover letter to his production, the Defendant could have asserted

a Fifth Amendment act-of-production privilege on behalf of Vetted, as he did for himself

personally. See Bellis v. United States, 417 U.S. 85, 87–88 (1974) (holding that the privilege

against compulsory self-incrimination protects the records of a sole proprietor but not the records

of a collective entity); United States v. Doe, 465 U.S. 605 (1984) (holding that government cannot

compel a sole proprietor to produce documents unless it provides a grant of use immunity, which

protects the individual from having the act of production used against them in court). The

Defendant, however, did not assert such a privilege or demand such immunity, and instead turned

over the documents voluntarily.

The Defendant’s request not to have those documents attributed to him now smacks of

gamesmanship, particularly given that he has placed some of the very same documents on his own

exhibit list, presumably in an effort to demonstrate that he was making sufficient money and had

sufficient employees—although the records do not actually support that inference—to justify the

statements that he made on the loan applications at issue. He is attempting to use the rule against

attribution as a sword (to defend himself personally in this matter) and a shield (to prevent the

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Government from attributing the same documents against him in this matter). The Defendant

simply should not be permitted to have it both ways.

CONCLUSION

For the reasons stated above, the United States requests that the Court deny the Defendant’s

Motion to preclude the Government from attributing the documents that Vetted provided in

response to a grand jury subpoena to the Defendant and permit the Government to attribute the

documents provided by his attorneys in response to the grand jury subpoena and as potential trial

exhibits directly to him.

Respectfully submitted,

JEANINE FERRIS PIRRO
UNITED STATES ATTORNEY

By: /s/ Emily A. Miller
EMILY A. MILLER (D.C. Bar No. 462077)
Assistant United States Attorney
United States Attorney’s Office
District of Columbia
601 D Street NW
Washington, DC 20530
Office: (202) 252-6988

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