Judge postpones Mosby’s trial, citing last-minute expert disclosures from defense

The federal trial against Baltimore City State’s Attorney Marilyn Mosby has been delayed again, just a day before jury selection was set to begin in the case.

U.S. District Judge Lydia Griggsby “regretfully” postponed the trial at a final hearing Wednesday, pointing to filings from the defense that revealed only days ago that one of Mosby’s expert witnesses would testify her personal travel business could have suffered financial losses because of the coronavirus pandemic.

UPDATE: Mosby’s federal trial moved to March, when she will be out of office

“This is a central part of the case, and there’s just no realistic way to proceed, given what the government has raised as its concerns,” Griggsby said. “The court really doesn’t have a choice.”

Griggsby did not set a new date for the trial, which was set to begin Monday. Jury selection would have begun on Thursday.

Instead, the defense and prosecution will meet again Thursday at 2 p.m. to decide on a new schedule.

Federal prosecutors said they needed additional time to hire witnesses who could assess the defense’s expert testimony. The defense, however, blamed prosecutors for being unprepared to confront Mosby’s experts.

“They made a strategic decision … and represented to this court that they are not going to call an expert,” said Rizwan A. Qureshi, one of Mosby’s lawyers.

Mosby’s defense is likely to hinge on whether her personal businesses were affected financially when the pandemic hit in early 2020. She is accused of lying about suffering a COVID-related financial hardship when she made two withdrawals totaling $90,000 from her city retirement account in 2020.

The CARES Act allowed for expedited withdrawals from retirement accounts because of the economic turmoil caused by the pandemic. Mosby was only required to self-certify that she suffered a pandemic-related loss in order to withdraw her retirement money — a statement that federal prosecutors allege was a lie.

In new filings this week, prosecutors said they had just learned of the opinions that Mosby’s experts will present in court if called to testify. One of those witnesses, a forensic accountant named Jerome Schmitt, is expected to testify about COVID-19’s impact on the stock market and on Mosby’s investments.

Schmitt would also testify about “the ability of an early-stage travel-related company, like Mahogany Elite Enterprises, LLC, to generate revenue in 2020 after the COVID-19 pandemic began,” according to court records.

Mahogany Elite Enterprises is one of three personal businesses that Mosby set up in 2019. She claimed repeatedly that those companies were inoperable in a series of statements that prosecutors are also seeking to introduce at her trial as evidence of a discrepancy.

Mosby’s lead lawyer, A. Scott Bolden, accused the government of unfairly targeting Mosby, who he says is the only person to have been charged with improperly withdrawing money from their retirement account under the CARES Act. He also said the government should have been prepared for expert testimony about Mosby’s businesses, though Griggsby previously ruled that the defense’s expert disclosures were inadequate.

“I’ve talked about the business before, and the government has amnesia about it,” Bolden said after the hearing. He said he disagrees with Griggsby that the continuance was caused by the defense’s late filings.

Assistant U.S. Attorney Leo Wise called the defense’s tactics an “ambush.”

“For the first time we hear about this expert who’s going to talk about the travel industry,” Wise said in court. It will take prosecutors time to assess the expert’s opinions and to hire experts of their own, he said.

Mosby’s defense lawyers revealed more of their plan for the trial at Wednesday’s hearing. Attorney Kelley C. Miller said that under the financial disclosure Mosby provided to make her retirement withdrawals, Mosby only needed to show that she owned a business that suffered a loss, not that the business was actually operating.

Mosby spent money in order to launch the business, Miller said, and travel businesses in general suffered enormous financial losses during the pandemic. Miller said Schmitt’s testimony would include comparisons to publicly traded travel companies to show fluctuations in that industry during the pandemic.

Court records show Schmitt planned to use major companies such as Disney, Marriott International and American Airlines for comparison purposes. Wise said in court that the government would need to hire an expert to assess whether this strategy is “junk science.”

Griggsby on Wednesday also denied a motion to dismiss the perjury charges against Mosby. The judge was not convinced by the defense’s argument that the phrase “adverse financial consequences” was unconstitutionally vague or that Mosby’s self-certification of a pandemic-related loss was not a “material” statement under federal perjury law.

Mosby faces two counts each of perjury and making false statements on mortgage applications. In addition to the COVID-19 retirement withdrawals, Mosby is accused of failing to disclose a $45,000 IRS lien and making other false statements when she applied for mortgages on two Florida vacation properties.