USA v. Merchant

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------x
UNITED STATES OF AMERICA,
-against-
ASIF MERCHANT,
Defendant.
------------------------------------x
MEMORANDUM & ORDER
24-CR-362(EK)
ERIC KOMITEE, United States District Judge:
The Court resolves several additional motions in
limine as follows. 	Judgment is reserved on any motions not
covered below. 	As the parties know, they should advise the
Court sufficiently in advance of the testimony of any witness
whose testimony will implicate a motion in limine that has not
yet been decided.
Motion to Admit Merchant’s Statements as Party-
Opponent Admissions; Preclude Merchant’s Statements When Offered
by Him. 	The Court reserves judgment on this motion.
Motion to Admit Proffer-Protected Statements if Waiver
Provision Is Triggered. 	The Court reserves judgment on this
motion.
Motion to Preclude Merchant from Raising an Entrapment
Defense. 	The government seeks to preclude the defense from
“raising or alluding to an entrapment defense in his opening
Case 1:24-cr-00362-EK-JRC Document 134 Filed 02/21/26 Page 1 of 7 PageID #:
<pageID>

2
statement” “or otherwise.” 	Gov’t Mot. 19-20, ECF No. 77.1 	The
defense notes that this motion should be denied as moot because
he does not intend to do what the government seeks to preclude,
at this point. 	Resp. 18, ECF No. 88. 	Given that
representation, the Court need not decide this motion at this
point.
Motion to Preclude Evidence or Argument About the
Existence or Absence of Classified Information. 	The government
writes:
To the extent the defendant seeks to elicit classified
information at trial, he is required to comply with
CIPA, which requires a defendant who reasonably
expects to disclose or to cause the disclosure of
classified information to notify the United States
“within the time frame specified by the court, or,
where no time is specified, within thirty days prior
to trial.” 	Accordingly, and in an abundance of
caution, the government moves to preclude any inquiry
or argument about classified information during the
trial outside the scope of CIPA.
Gov’t Mot 22 (internal citations omitted).
At this point, the most the Court can offer are the
following observations. 	The government is of course correct
that the CIPA statute will govern any effort to elicit
classified evidence — on cross-examination of the government’s
witnesses or otherwise. 	The Court does not, however, understand
the government to be seeking to preclude the defense from
1 Page numbers to record documents other than briefs refer to ECF
pagination.
Case 1:24-cr-00362-EK-JRC Document 134 Filed 02/21/26 Page 2 of 7 PageID #:
<pageID>

3
arguing that the jury has not seen evidence of type X or heard
testimony of type Y — even if such evidence may exist in
classified form. 	To the extent the absence of such evidence is
relevant, precluding such argument could improperly hamstring
the defendant’s effort to put the government to its burden of
proof.
Beyond those general observations, the Court reserves
judgment at this stage. 	Both parties should, of course, seek
clarity in advance of any specific trial developments they
believe will implicate this motion.
Motion to Preclude “Prior Good Acts” Evidence. 	The
government asks to preclude evidence concerning the defendant’s
“garment business” to the extent Mr. Merchant would seek to
argue from that evidence “that because he engaged in lawful
conduct on certain occasions while in the United States, he did
not engage in unlawful conduct on other occasions.” 	Id. at 24.
This motion is predicated on the familiar rule that a
“defendant may not seek to establish his innocence” by offering
“proof of the absence of criminal acts on specific occasions.”
See, e.g., United States v. Scarpa, 897 F.2d 63, 70 (2d Cir.
1990).2 	This principle is by now extremely familiar; so, a bank
2 Unless otherwise noted, when quoting judicial decisions this order
accepts all alterations and omits all citations, footnotes, and internal
quotation marks.
Case 1:24-cr-00362-EK-JRC Document 134 Filed 02/21/26 Page 3 of 7 PageID #:
<pageID>

4
robbery defendant will not, for example, typically be permitted
to introduce evidence concerning the many times he allegedly
entered the bank, apart from the date charged, and did not rob
it.
This case is different, for at least one reason that
is apparent at this stage. 	Though the jury instructions have
not been finalized, the government’s own proposed charge would
require the jury to determine that the defendant “traveled in
interstate or foreign commerce,” and that such travel was “done
with the intent that a murder be committed in violation of the
laws of any State or of the United States.” 	Gov’t’s Requests to
Charge 29, ECF No. 102 (emphasis added). 	Given that, evidence
that the defendant traveled intending to sell garments, rather
than to arrange one or more murders, may be directly relevant to
the charged conduct.
There may be limits to this relevance — if, for
example, the defendant seeks to introduce evidence of
developments in his mental state occurring after the travel at
issue. 	And Federal Rule of Evidence 403 may be implicated, even
assuming relevance, if at some point the probative value of such
evidence would be substantially outweighed by the risks of
Case 1:24-cr-00362-EK-JRC Document 134 Filed 02/21/26 Page 4 of 7 PageID #:
<pageID>

5
confusion, delay, and the like. 	At the moment, however, the
requested ruling will not issue.
Motion to Preclude Evidence or Argument About
Punishment. 	The government seeks to “preclude evidence and
argument regarding the punishments that the defendant may face
if convicted.” 	Gov’t Mot. 26. 	The defense submits that this
motion should be denied because Merchant does not intend to do
what the government seeks to preclude. 	Resp. 19. 	Given that
representation, the Court need not decide this motion.
Motion to Preclude Examination Regarding the Identity
of a Third-Party Country Which Assisted the Government’s
Investigation. 	The Government moves to preclude the defendant
from cross-examining an FBI agent about “which country provided”
a given cellular phone “to her for extraction.” 	Gov’t Mot. 28.
The Court reserves judgment on this motion.
The Court previously granted the government’s motion
to “authenticate extractions from cell phones and other
electronic devices by certification” under FRE 902(13) and (14).
ECF No. 128. 	The briefing suggests — but does not explicitly
state — that the iPhone described in this motion was among the
phones implicated in the previous one. 	See Gov’t Mot. 18, 28.
Regardless, the prior resolution does not dictate the
disposition of this one. 	Among other things, as the defense has
Case 1:24-cr-00362-EK-JRC Document 134 Filed 02/21/26 Page 5 of 7 PageID #:
<pageID>

6
observed, the relevance and authenticity of the iPhone may be
affected by questions about the chain of custody.
The Second Circuit has long recognized that relevance
and authenticity may be interrelated. 	See, e.g., United States
v. Grant, 967 F.2d 81, 83 (2d Cir. 1992) (“In order for the
chemist’s testimony to be relevant, there must be some
likelihood that the substance tested by the chemist was the
substance seized at the airport.”). 	Here, the defense raises
questions about the manner in which the iPhone in question came
to be in the government’s hands. 	“A break in the chain of
custody will not necessarily lead to the exclusion of the
evidence.” 	Id. 	“Rather, the ultimate question is whether the
authentication testimony is sufficiently complete so as to
convince the court that it is improbable that the original item
had been exchanged with another or otherwise tampered with.”
Id. (emphasis added).3
The italicized improbability determination remains, at
this point, to be made. 	Judgment on this motion is reserved.
Defendant’s Motion to Preclude the Use of Classified
Information. 	Merchant seeks to “prohibit the government from
utilizing any classified material” at trial. 	Def. Mot. 8, ECF
No. 78-1. 	The government notes that this motion should be
3 Cf. United States v. Gonzalez, 144 F.4th 396, 406 (2d Cir. 2025)
(“Landji contends that Santos’ testimony did not account for non-
Case 1:24-cr-00362-EK-JRC Document 134 Filed 02/21/26 Page 6 of 7 PageID #:
<pageID>

7
denied as moot because it “does not intend to introduce
classified information at trial.” 	Gov’t Resp. 1, ECF No. 81.
Given that representation, the Court need not decide this motion
at this point.
The Court reserves judgment on Merchant’s motion that
the government be precluded from “attempting to use classified
information indirectly,” Def. Reply 1, ECF No. 96, until such
time as a concrete issue arises. 	As always, the parties should
think expansively about any testimony that may implicate this
issue, and endeavor to raise it with the Court in advance.
SO ORDERED.
/s/ Eric Komitee
ERIC KOMITEE
United States District Judge
Dated: 	February 21, 2026
Brooklyn, New York
manipulation-related defects in the data such as machine error, software
glitches, operator error, and / or omission. 	Though these arguments may be
fertile ground for cross-examination, they too bear on the weight of the
evidence, not its admissibility.” (emphasis added)).
Case 1:24-cr-00362-EK-JRC Document 134 Filed 02/21/26 Page 7 of 7 PageID #:
<pageID>