Madeleine O'Neill//September 15, 2023
//September 15, 2023
Ex-Baltimore State’s Attorney Marilyn Mosby will take the stand at her upcoming federal perjury trial, according to a new court filing submitted Friday.
Mosby will testify to explain why she claimed a coronavirus-related financial setback in order to withdraw money from her city retirement account under emergency pandemic rules in 2020, her lawyer wrote in a series of motions in limine.
As expected, that explanation will involve Mosby’s nascent travel business, Mahogany Elite. Mosby’s lawyer, federal public defender James Wyda, wrote in the motions that the business was not yet operational when the pandemic hit, but Mosby had invested “start-up costs, legal and operational fees, and research expenditures.”
“Then, when the pandemic made it impossible to proceed with opening the business, she experienced sunk costs, expenses, and expenditures, as well as reduced expected profits,” Wyda wrote.
This is the “adverse financial consequence” that Mosby experienced that led her to withdraw money from her retirement account, the defense will argue. Federal prosecutors allege that Mosby lied about having suffered a financial setback when she applied to withdraw the money under the CARES Act, which allowed people struggling during the pandemic to more easily access their retirement savings.
Mosby faces two counts of perjury related to the withdrawals, one for $40,000 in May 2020 and another for $50,000 in December 2020, according to the indictment. She is also facing two counts of mortgage fraud related to a pair of Florida vacation homes that she purchased with the money.
Prosecutors will have to make their case at two separate trials following a ruling last week from U.S. District Judge Lydia Kay Griggsby. Griggsby agreed to split up the perjury charges and the mortgage fraud charges into two trials and to move both to the District of Maryland’s southern division in Greenbelt in order to pull from a pool of potential jurors who are less familiar with Mosby and her criminal case.
The perjury trial will take place first, followed by the mortgage fraud trial. The indictment charges that Mosby failed to disclose a $45,000 IRS lien, lied about the source of a $5,000 “gift” from her husband, Baltimore City Council President Nick Mosby, and made other false statements when she applied for mortgages on the Florida homes.
Mosby will claim that she did not know about the tax lien. A previous court filing indicated that Nick Mosby, from whom Marilyn Mosby is seeking a divorce, is expected to testify at his wife’s trial that he led her to believe he had settled the IRS debt.
Prosecutors will be allowed to tell jurors at the perjury trial that Marilyn Mosby used the retirement money to buy the homes in Florida. But Friday’s motions ask Griggsby to prohibit the government from describing the homes as “luxury” properties, showing pictures of the homes, or saying how much they cost — $545,000 for a house in Kissimmee and $476,000 for a condo in Long Boat Key.
“Commentary of this nature serves only to inflame the jury, in addition to pictures and descriptions of the property, to cause the jury to reach a decision based on emotion and dislike of Mrs. Mosby, not based on the evidence in front of them,” Wyda wrote.
The new motions also ask Griggsby to block prosecutors from arguing that the size of Mosby’s financial loss was too small to justify a CARES Act withdrawal from her retirement account. Prosecutors may argue that a “de minimis” loss, or one so small that it is inconsequential, is not enough to meet the requirements of the CARES Act.
Mosby’s defense, however, says the CARES Act does not state how small or large a financial loss had to be in order to qualify.
“The government’s ‘de minimis’ argument is a naked attempt to rewrite the CARES Act,” Wyda wrote. “Rather than honor Congress’ choices about when and to what extent early withdrawals should be available, the government seeks to reverse-engineer a constricted version of (coronavirus-related distribution) eligibility that fits the facts of Mrs. Mosby’s case.”
The government’s motions in limine, if any, are also due Friday. None had been filed as of 2 p.m.