Judge’s rulings on motions go largely against Mosby, but feds can’t mention earlier probes

A federal judge denied the majority of pretrial motions brought by Baltimore State’s Attorney Marilyn Mosby and granted key prosecution motions at a hearing Wednesday, potentially hurting Mosby’s defense at her upcoming trial on charges of perjury and mortgage fraud.

U.S. District Judge Lydia Kay Griggsby ruled against Mosby on a number of issues, including her request to block federal prosecutors from telling jurors that Mosby used money she withdrew from her city retirement account to pay down payments on vacation homes in Florida.

The judge granted a request from federal prosecutors to block the defense from arguing at trial that Mosby is the victim of a vindictive or selective prosecution. Griggsby previously ruled there was no objective evidence of a vindictive prosecution based on Mosby’s political views or her race.

Griggsby did rule against prosecutors in one respect: the judge said the government may not introduce evidence of earlier investigations into Mosby by state bar counsel and the Baltimore City Inspector General’s Office. But Griggsby seemed to leave open the possibility that prosecutors could introduce statements Mosby made during those investigations if they contradict evidence the defense presents at trial.

Mosby’s defense team filed its motions in limine in July. The motions sought to exclude prosecution witnesses as improperly disclosed experts and to exclude other issues that the defense claimed would unfairly prejudice jurors against Mosby.

Mosby faces two counts each of perjury and making false statements on loan applications. She is accused of falsely claiming financial hardship during the COVID-19 pandemic in order to withdraw money from her city retirement account. She is also charged with failing to disclose a $45,000 IRS lien and making a series of other false statements when she applied for mortgages on two vacation properties in Florida.

RELATED NEWS: Mosby fined $1,500 for ‘willful violation’ of gag order in Davis case

The defense argued that telling jurors that Mosby put the money she withdrew from her retirement account toward down payments on the Florida properties would prejudice the jury against Mosby.

“The government intends to paint Ms. Mosby in a negative light by arguing that the purchase of two lavish vacation homes, which they were not, is somehow dispositive,” said Rizwan Qureshi, one of Mosby’s defense lawyers.

Griggsby disagreed: “The government makes a persuasive argument that evidence about how these funds were used is relevant to key issues in this case about whether the defendant suffered adverse financial consequences due to the coronavirus,” the judge said.

Qureshi also argued that Griggsby should block the government from using the word “hardship” to describe the intended purpose of COVID-19-related withdrawals that were permitted under the CARES Act. The key question, he argued, is whether Mosby suffered “adverse financial consequences,” nor hardship.

Griggsby denied that request for now, and said she will address it further at a hearing next week on a still-pending motion to dismiss charges ahead of Mosby’s trial.

Griggsby also denied defense requests to exclude government witnesses as experts. The witnesses will simply provide summaries of complex or voluminous information, not expert opinions, she found.

The judge granted a defense motion to block prosecutors from presenting evidence of previous investigations into Mosby by state bar counsel and the Baltimore City Inspector General’s Office. The defense argued those investigations, which largely found no wrongdoing by Mosby, would prejudice jurors against Mosby.

Prosecutors said they intended to introduce statements that Mosby or her lawyers made during those investigations, including that her private businesses were inactive. Assistant U.S. Attorney Aaron Zelinsky said Wednesday that the government has subpoenaed the lawyers who prepared those statements for Mosby during the previous investigations and that the lawyers will testify Mosby instructed them to make those statements.

The subpoenas could trigger another round of legal sparring between the parties.

Griggsby also partially granted government requests to limit expert testimony from the defense, which prosecutors argued went beyond the scope of what can be presented to jurors.

Wednesday’s hearing revealed key details of the defense’s plan for Mosby’s trial. Though Mosby has previously said that her private businesses, including a travel and hospitality business, were not operational and had no clients, one defense lawyer on Wednesday indicated that an expert witness may testify that Mosby’s “business income and activity” were negatively impacted by the coronavirus pandemic.

The witness may also testify that Mosby’s net worth had fallen before she made the retirement withdrawals, said the lawyer, Kelley Miller.

Miller also said that Mosby had a “very high credit risk score” that “should have prompted greater due diligence” by lenders who considered her mortgage applications, pointing to a likely effort by the defense to shift the burden of wrongdoing onto mortgage brokers who gave loans to Mosby despite flaws in her applications.

Griggsby will consider a motion to dismiss both perjury charges at the second pretrial hearing next week. Defense lawyers have argued that Mosby’s self-certification that she suffered a COVID-19-related hardship in order to withdraw money from her retirement account does not qualify as perjury.

RELATED NEWS: Judge sets hearing schedule for final weeks before Mosby trial

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

Mosby’s criminal indictment loomed over her campaign for reelection as Baltimore state’s attorney. She came in third place in the July Democratic primary and is set to leave office when her term ends in January.

Mosby will face trial beginning Sept. 19. As Mosby entered the federal courthouse in Baltimore Wednesday, her lawyer, A. Scott Bolden, said she would take the case to trial.