Prosecutors can ask Mosby about perjury conviction at upcoming mortgage fraud trial

GREENBELT — Prosecutors will be allowed to ask former Baltimore State’s Attorney Marilyn Mosby about her recent perjury conviction if she chooses to take the stand at her upcoming trial on mortgage fraud charges, a federal judge ruled Friday.

The ruling could make it less likely that Mosby will testify in her own defense at her second trial, which is set to begin later this month.

The decision was already going to be a difficult one. Mosby chose at the last minute not to testify at her perjury trial in November, where a jury found that she lied about suffering a pandemic-related financial loss in order to withdraw money from her city retirement account.

Federal prosecutors also warned Friday that if Mosby testifies they could bring up a “truckload” of other topics in an effort to discredit her. The perjury conviction is fair game because it raises questions about Mosby’s credibility, U.S. District Judge Lydia Kay Griggsby ruled.

Griggsby punted on other questions about Mosby’s potential testimony, ruling that she would need to hear what Mosby said before she could decide what questions prosecutors can ask on cross examination.

Griggsby also ruled that the defense team will not be allowed to introduce a comment made by Mosby’s ex-husband, Baltimore City Council President Nick Mosby, to support their argument that Marilyn Mosby did not know about an IRS lien that she failed to disclose when applying for mortgages on a pair of Florida vacation homes.

“I’m not really understanding the relevance of whatever Mr. Mosby thought or did,” Griggsby said.

The defense wanted to introduce a conversation between Nick Mosby and a local banker that took place “sometime in 2020,” according to court records.

Nick Mosby was seeking a bank loan in order to pay off the $45,000 IRS lien that had been placed against the couple’s property because of their tax debt, but was having trouble qualifying. When asked why his then-wife, Marilyn Mosby, was not being included on the loan, Nick Mosby responded, “It’s my obligation. I want to take care of it.”

This type of conversation usually would not be admissible in court as hearsay, but the defense asked to introduce it to show what Marilyn Mosby believed at the time. Mosby’s lawyers claim the exchange shows that she did not know about the lien — because her husband was trying to handle it on his own — when she applied for mortgages on two luxury Florida vacation properties.

Mosby is set to face trial later this month on two counts of mortgage fraud. She is accused of telling a series of lies, including failing to disclose the IRS lien when she applied for mortgages on the Florida properties.

She was previously convicted of two counts of perjury at her first trial stemming from the same indictment. Jurors at that trial found that Mosby lied when she claimed to have suffered a pandemic-related financial loss in order to take early withdrawals from her city retirement account.

Mosby made two withdrawals — $40,000 in May 2020 and another $50,000 in December 2020 — under emergency pandemic rules designed to ease the financial difficulties caused by the health crisis. She used the money to make down payments on the Florida properties.

The perjury and mortgage fraud charges were split into two trials at the defense’s request. The trials were both also moved to Greenbelt in an effort to find a pool of jurors less familiar with Mosby, who was the top prosecutor in Baltimore for eight years.

On Friday, Griggsby also rejected several other out-of-court statements that the defense asked to present to jurors in a series of motions in limine. The statements include an occasion when Mosby told the banker that Nick Mosby had spoken with that she was “not involved in getting the loan earlier because it was ‘Nick’s issue.'”

Marilyn Mosby also told a different bank employee in the spring of 2021 that she “thought this was all resolved and taken care of,” according to defense motions.

“The distinction between what was false and what Ms. Mosby knew to be false is critical,” Assistant Federal Public Defender Cullen Macbeth said. “We are trying to show what she thought.”

Griggsby rejected both statements, finding that they were made too long after Mosby applied for the mortgages.

“The real question is the defendant’s state of mind, her knowledge about the tax lien when she submitted the two mortgage applications,” Griggsby said. “When we get to statements made many months later, I think it can get confusing.”

Prosecutors also noted that by the time those statements were made, Mosby knew she was under federal investigation and had a motive to create a false trail of evidence. Assistant U.S. Attorney Aaron Zelinsky said the government would seek to introduce evidence that Mosby was facing multiple investigations, including one by Maryland Bar Counsel, if those statements were introduced.

“She had ample reason to mislead and make those statements,” Zelinksy said.

Griggsby allowed a text message exchange between Mosby and her lender in which she asked whether critical media coverage about her purchase of a Florida property was “even accurate.” And the judge said she will decide later whether the defense can introduce a statement that Mosby called her lender and “was livid” when she learned of the IRS lien.

Marilyn Mosby is also facing other consequences stemming from her perjury conviction. On Dec. 22, Maryland Bar Counsel petitioned the state Supreme Court to suspend Mosby’s law license because she was convicted of a serious crime under ethics rules for lawyers.

Mosby has yet to respond to the petition, according to court records.