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Mosby seeks dismissal of perjury charges related to retirement withdrawals

Baltimore City State’s Attorney Marilyn Mosby, accompanied by her husband, City Council President Nick Mosby, to her right, outside the federal courthouse prior to an April hearing. (The Daily Record/Madeleine O’Neill)

Baltimore State’s Attorney Marilyn Mosby is again seeking to dismiss the federal charges against her, this time focusing solely on two counts of perjury related to allegations that she falsely claimed pandemic-related financial hardship to withdraw money from her city retirement account.

In a motion filed late Wednesday, Mosby’s lawyers asked permission to file a second motion to dismiss charges in her federal criminal case.

U.S. District Judge Lydia Kay Griggsby last month rejected a motion to dismiss the entire indictment on the grounds that the charges were brought out of personal animus. Wednesday’s request, if granted, would mean another round of pretrial motions ahead of Mosby’s trial in September.

In the proposed motion to dismiss the charges, which was also filed Wednesday, the defense team claimed that Mosby did not benefit financially when she took money from her retirement account under the CARES Act, which allowed for emergency withdrawals during the coronavirus pandemic.

The CARES Act allowed participants to avoid a 10% penalty for withdrawing retirement funds early and to spread out the taxes due on that money over three years. But Mosby’s retirement account wasn’t subject to an early withdrawal penalty and she paid all of the taxes due on the withdrawals in the same tax year, her lawyers wrote.

“Simply put, the only benefit State’s Attorney Mosby enjoyed from her two (coronavirus-related distributions) was her own money, and nothing more – no waived 10% penalty, and no deferred tax liability,” the motion claims.

The government alleged that Mosby falsely claimed COVID-related financial hardships in order to make two withdrawals from her retirement account, which she put toward down payments on two vacation properties in Florida.

But Wednesday’s proposed motion to dismiss argues that the perjury charges should be dropped because Mosby was allowed to self-certify that she had suffered financially — meaning she did not make a “material” statement under the federal perjury statute.

Nationwide, the company that manages the city’s retirement plan, was not required to check whether Mosby actually suffered a pandemic-related financial hardship in order to release the money from her retirement account.

The proposed motion also argues that the phrase “adverse financial consequence,” which Mosby had to have suffered in order to qualify for the early retirement withdrawal, is too vague to be the basis for criminal charges.

“Whether a retirement plan participant suffered an ‘adverse financial consequence’ is fundamentally ambiguous because the term is ‘is not a phrase with a meaning about which men of ordinary intellect could agree,'” Mosby’s lawyers wrote.

Federal prosecutors alleged that because Mosby’s salary did not decrease during the pandemic, she did not suffer an adverse financial consequence. Mosby’s lawyers countered that she could have suffered any number of different financial strains during the pandemic.

The government will have an opportunity to respond to the latest motion.

Mosby also faces two counts of making false statements on loan applications, which the motion to dismiss does not address. She is accused of making several false claims in order to secure advantageous interest rates as she sought to purchase the vacation homes in Florida.

Two new lawyers also entered appearances on behalf of Mosby on Wednesday: Gary E. Proctor, who previously represented one of the Baltimore police officers Mosby charged in connection with the death of Freddie Gray, and Lucius Outlaw, who has represented a number of high-profile Marylanders facing criminal charges.