Government's Response on Scope of Cross-Examination — U.S. v. Merritts

Summary

The government's response to defendant Cortney Merritts's additional briefing on cross-examination in United States v. Cortney Merritts, Case No. 1:25-cr-00076-JMC, in the U.S. District Court for the District of Columbia, filed December 16, 2025 as Document 43. It responds to the Court's December 5, 2025 Minute Order, which directed the defendant to file a supplemental memorandum on questioning agents about a separate investigation of a former congresswoman. The government argues that the defendant cites no authority permitting such cross-examination, that the evidence is irrelevant and would invite jury nullification, and that it would undo the Court's order denying his motion to dismiss for selective prosecution. It asks that its Motion In Limine be granted. The five-page filing is signed by Assistant United States Attorney Brian P. Kelly.

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       Case 1:25-cr-00076-JMC          Document 43       Filed 12/16/25      Page 1 of 5




                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

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


                GOVERNMENT’S RESPONSE TO DEFENDANT’S
          “ADDITIONAL BRIEFING” REGARDING CROSS-EXAMINATION

       Following extensive briefing and oral argument by the parties concerning whether

Defendant should be allowed to introduce evidence or testimony concerning the Government’s

investigation into whether former Congresswoman Cori Bush made false statements to the Federal

Election Commission— either during opening statements, cross-examination of the government’s

witnesses, or otherwise—the Court ordered Defendant to “submit a supplemental memorandum to

the Court on or by December 12, 2025, after which the Government w[ould] have an opportunity

to respond.” See Dec. 5, 2025, Minute Order.

       As further discussed at length during the December 5, 2025, Pretrial Conference in this

case, Defendant’s purported basis for seeking to introduce evidence or testimony of the other

investigation is to show that the law enforcement agents who worked on that investigation were

biased against Defendant in this investigation. As such, as described in more detail during the

Pretrial Conference, the purpose of the Court’s Order was to give Defendant the opportunity to

provide specific authority permitting cross-examination of witnesses on that basis.1 Having failed




1
  The Government has ordered a copy of the transcript of the Pretrial Conference but has not yet
received it. The Government’s description of what was discussed during the Pretrial Conference
is based on the assigned prosecutors’ notes and best recollections.
        Case 1:25-cr-00076-JMC          Document 43        Filed 12/16/25       Page 2 of 5




to provide any such authority in his initial Opposition (ECF No. 32 at 12-15) to the Government’s

Motion In Limine to preclude, inter alia, evidence and argument regarding the other investigation

(ECF No. 24 at 7-8), and having had no such authority available during the Pretrial Conference,

Defendant has now utterly failed yet again to offer support for his position.

       Instead of providing specific authority that is responsive to the Court’s request, Defendant

cites a litany of cases for the uncontroverted proposition that a criminal defendant may generally

cross-examine the Government’s witnesses in order to challenge their credibility, including by

demonstrating bias. ECF No. 41. Yet the Government remains baffled by what “bias” Defendant

seeks to demonstrate, or on what grounds he supports a good-faith belief that any such “bias” even

exists. As the Government previously explained, Ms. Bush, not Defendant, was the target of the

other investigation. The evidence that Defendant seeks to offer concerning an investigation of a

different target, for different crimes involving different people, organizations, courses of alleged

conduct, and time periods, through the cross-examination of law enforcement agents who lack the

authority to charge a crime, is not relevant.2 But it would be unduly prejudicial, invite jury

nullification, and open the door to extensive testimony, evidence, and additional witnesses from

both sides that have nothing at all to do with the charges against Defendant in this case, thereby

greatly expanding the scope of the trial and creating undue confusion and delay.

       The truth is that Defendant is not interested in exposing “bias” of the Government’s law

enforcement witnesses. Rather, he seeks to cast this straightforward fraud case as some kind of



2
  Nor are the law enforcement agents whom Defendant seeks to cross-examine about the other
investigation the Government’s “star” witnesses, no matter how many times Defendant casts them
as such. To the contrary, there is no “star” witness in this case. The Government intends primarily
to meet its burden at trial through documents, including Defendant’s loan applications and related
filings, his tax filings (or lack thereof), and his own financial records. The law enforcement agents
who are expected to testify at trial are summary witnesses who will dispassionately describe that
evidence to the jury.
                                                 2
        Case 1:25-cr-00076-JMC           Document 43        Filed 12/16/25       Page 3 of 5




political witch hunt. He wants to make this trial about a campaign funds investigation rather than

the false statements he made on his loan applications. He wants to make this case about Ms. Bush

rather than about his own conduct. This is a blatant attempt at nullification by inviting the jury to

reach a verdict on something other than the merits of the evidence and the law. Moreover,

permitting Defendant to pursue lines of questioning about the other investigation would effectively

undo the Court’s previous Order denying Defendant’s Motion to Dismiss the Indictment for

Selective Prosecution. This Court has already ruled in no uncertain terms that Defendant showed

neither a discriminatory effect nor a discriminatory intent by the Government in pursuing and

indicting this case. That ends the inquiry, and Defendant cannot now backdoor evidence and

testimony that this Court has already determined must be excluded.             See United States v.

Washington, 705 F.2d 489, 495 (D.C. Cir. 1983) (“[T]he issue of selective prosecution is one to

be determined by the court, as it relates to an issue of law entirely independent of the ultimate issue

of whether the defendant actually committed the crimes for which she was charged.” (citations

omitted)); United States v. Abboud, 438 F.3d 554, 579 (6th Cir. 2006) (“[T]he defense of selective

prosecution is a matter that is independent of a defendant’s guilt or innocence, so it is not a matter

for the jury.”); United States v. Sutton, 636 F. Supp. 3d 179, 209-10 (D.D.C. 2022) (granting

motion in limine and describing selective prosecution argument as “irrelevant, inappropriate for

consideration by the jury,” and prone to “invit[ing] jury nullification [] and distract[ing] from the

issues at trial”); United States v. Smirnov, No. 2:24-CR-00091-ODW, 2024 WL 4893937, at *5

(C.D. Cal. Nov. 26, 2024) (granting government motion in limine and excluding “evidence,

argument, or questioning that suggests the prosecution is politically motivated”).

       Despite the Court’s invitation to do so, Defendant has offered no authority permitting such

cross-examination. He has failed because no such authority exists. But there is ample authority



                                                  3
        Case 1:25-cr-00076-JMC          Document 43        Filed 12/16/25      Page 4 of 5




supporting the Government’s position that where, as here, a defendant offers no foundation for a

good-faith belief that any such bias may even exist, the Court enjoys ample discretion to limit cross

examination. See United States v. Lin, 101 F.3d 760, 763–64 (D.C. Cir. 1996), as amended (Jan.

28, 1997) (“The court’s limitation on the cross-examination of [a] government witness … was not

an abuse of discretion because defense counsel did not demonstrate a reasonable basis for asking

highly prejudicial cross-examination questions.”); United States v. Sampol, 636 F.2d 621, 658

(D.C. Cir. 1980) (“[C]ounsel must have a reasonable basis for asking questions on cross-

examination which tend to incriminate or degrade the witness and thereby create an unfounded

bias which subsequent testimony cannot fully dispel. The general rule in such situations is that

‘the questioner must be in possession of some facts which support a genuine belief that the witness

committed the offense or the degrading act to which the questioning relates.’” (quoting United

States v. Fowler, 465 F.2d 664, 666 (D.C. Cir. 1972))); United States v. Smoot, 463 F.2d 1221,

1222 (D.C. Cir. 1972) (affirming as being “well within the court’s discretion” a “ruling limiting

defense counsel’s cross examination of a Government witness on the ground that he was

embarking on a fishing expedition to attempt to find bias”); see also Delaware v. Fensterer, 474

U.S. 15, 20 (1985) (“[T]he Confrontation Clause guarantees an opportunity for effective cross-

examination, not cross-examination that is effective in whatever way, and to whatever extent, the

defense might wish.” (emphasis omitted)); United States v. Wilson, 605 F.3d 985, 1012 (D.C. Cir.

2010) (“[T]he Supreme Court has instructed with regard to cross-examination to expose potential

bias of a prosecution witness, that ‘trial judges retain wide latitude insofar as the Confrontation

Clause is concerned to impose reasonable limits on such cross-examination based on concerns

about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or




                                                 4
       Case 1:25-cr-00076-JMC          Document 43       Filed 12/16/25     Page 5 of 5




interrogation that is repetitive or only marginally relevant.’” (quoting Delaware v. Van Arsdall,

475 U.S. 673, 679 (1986))).

       The Government’s Motion In Limine to exclude evidence and arguments regarding the

prior investigation into Ms. Bush should be granted.

                                            Respectfully submitted,

                                            JEANINE FERRIS PIRRO
                                            UNITED STATES ATTORNEY

                                     By:    __/s/ Brian P. Kelly__
                                            BRIAN P. KELLY (D.C. Bar No. 983689)
                                            Assistant United States Attorney
                                            United States Attorney’s Office
                                            District of Columbia
                                            601 D Street NW
                                            Washington, DC 20530
                                            Office: (202) 252-7503




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