telexfree-logoTwo days ago James Merrill filed a motion requesting his upcoming criminal trial be postponed till November 14th.

The original trial date (which has been rescheduled at least twice at Merrill’s request already), was October 23rd.

Today the DOJ filed an opposition to Merrill’s motion, citing a number of legally compelling reasons.

The thrust of Merrill’s filing was that he had a ton of discovery to go through. Both Merrill and his lawyer’s children were involved in sports tournaments during the scheduled trial period, which was also mentioned as a factor in the filing.

The DOJ contend that while discovery provided to Merrill is abundant, that it is ‘ no more than usually appear in large white collar cases‘.

Most of the “28,000 pages” is bank and payment processor records that no one will read beyond the unfortunate auditors and expert witnesses called at trial.

How Merrill might use such records to prepare his defense was not clarified in Merrill’s original continuance filing.

And it is true that the government’s expert disclosures are based on TelexFree’s huge database of transactional data.

But all of this material – the business records and the TelexFree database – was either produced to the defense, or made available, in 2014.

Far more important than what exactly Merrill has been doing with provided discovery for two years, is the scope of the DOJ’s case against Merrill.

More specifically, the level of pre-planned organization to coordinate it all.

The government has been relying on the October 24 date, in a case that involves many moving parts.

The government plans to call about 25 witnesses, including a witness from the Brazilian Federal Police and several witnesses flying in from other states.

The government has also been coordinating with TelexFree victims (at this point, about 15) who wish to fly in to see the proceedings at government cost.

There are also other proceedings directly impacted by this one,
including the MDL action and the SEC’s civil enforcement action (both stayed pending resolution of this case) and claims processing in the bankruptcy proceedings.

But uh yeah, I’m sure all that is trumped by discovery that Merrill won’t use at trial and his kid’s hockey game.

In related news Merrill has also filed objections to a DOJ request regarding the exclusion of ‘self-serving, out-of-court statements through the testimony of another witness‘.

This includes emails Merrill sent to third-parties, which he’s objecting to.

As the government correctly notes, an “important issue at trial
will be James Merrill’s intent, evidence of which can be properly gleaned from his own statements, whether oral (to witnesses) or written (usually in email).

Presumably, the government’s motion is directed towards the thousands and thousands of emails at issue in this case—including the litany of emails written by Mr. Merrill during the charged conspiracy period, that show his good faith intentions and which, collectively, utterly belie the central accusation in this case—i.e., that Mr. Merrill
had a specific intent to defraud.

To the extent the government’s motion is directed at those emails—i.e., emails written by Mr. Merrill contemporaneously with the events at
issue, which bear upon his state of mind during the pertinent time period, they are undoubtedly admissible.

There is no clearer, more relevant evidence of Mr. Merrill’s state of mind or “intent” than statements made by him (1) during the relevant period, (2) about the relevant events, and (3) to relevant persons.

Merrill also assures the court that he

has no intention of asking witnesses whether Mr. Merrill “just wanted to do the right thing.”

A second objection filing by Merrill pertains to the DOJ’s filed jury instructions.

Merrill claims the DOJ’s instructions regarding pyramid schemes and proof he intended to act willfully with a specific intent to defraud, ‘conflates different elements of wire fraud‘.

I’m not too sure on when a ruling will be made on the objections but I’d be surprised if we didn’t get a decision on the trial continuance by the end of the week.

Stay tuned…


Footnote: Our thanks to Don@ASDUpdates for providing a copy of the DOJ’s Memorandum in Opposition and Merrill’s two opposition filings (all filed on October 4th).


Update October 6th 2016 – Following a hearing held on October 5th, a new trial date has been scheduled for November 8th.