Federal prosecutors asked jurors to convict former Baltimore State’s Attorney Marilyn Mosby of two counts of perjury, saying she twice lied about suffering a hardship during the COVID-19 pandemic in order to access retirement funds to buy Florida vacation homes.

“Telling the truth matters. It matters for all of us,” Assistant U.S. Attorney Aaron Zelinsky told jurors closing arguments. The evidence presented over two days of testimony, he said, showed Mosby “believed telling the truth didn’t matter.”

Prosecutors contend Mosby suffered no “adverse financial consequences” from the pandemic. Her $250,000 salary was not cut; unlike her state’s attorney staff, she was not furloughed.

Much of the testimony centered on the viability of a side company Mosby incorporated in 2019 called Mahogany Elite Enterprises. The defense has maintained that Mosby had goals to run Mahogany and was thwarted by the pandemic.

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And that, they said, met the vaguely defined requirements of a financial hardship needed to obtain the funds.

“With little or no guidance, the evidence is that Marilyn Mosby got it right,” public defender James Wyda told jurors. “But even if she didn’t, if you think it’s wrong that her ... business did not suffer an adverse financial consequence, it’s not a crime. It’s a mistake.”

Wyda said the government needed to prove that Mosby “knowingly and intentionally lied,” which he said they cannot do.

The trial was held in Greenbelt, after Mosby asked for a change of venue. Additional charges that she lied on mortgage paperwork when she bought the Florida properties were severed for separate proceedings.

Mosby’s retirement funds were held in trust and were the property of the city, jurors were told. Before the pandemic, funds could only be obtained under specific circumstances, such as medical or funeral expenses, which had to be proven to officials who could approve or deny the request.

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But when the pandemic hit, new rules were put in place under the CARES Act, allowing employees to take a disbursement if they’d suffered as a result of COVID. David Randall, the executive director of the Baltimore City Employees Retirement Systems, testified there was virtually no guidance on what qualified.

Prosecutors say Mosby took advantage of the opportunity. She had been looking to purchase real estate in Baltimore and initially sought a loan from the fund, then moved to take two withdrawals totaling $90,000 under the CARES Act terms. She bought two homes in Florida, one of which she rented out.

Assistant U.S. Attorney Sean Delaney told jurors that Mosby knew she met none of the criteria.

“She did it because she wanted the money for the houses; that’s why she took it,” Delaney said. “She wanted it, and that was the only way she could get it. She didn’t care if she had to commit perjury to do it.”

Prosecutors argued that Mahogany Elite was not an operable business. The FBI subpoenaed records related to the company and were given little to show she had done anything beyond the most preliminary of steps to establish a footprint for the company.

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It had no revenue, no employees and no clients. There were no records of a business plan, conversations with vendors, business cards, or letterhead, prosecutors said.

When Mosby filled out, as an elected official, a financial disclosure form for 2019 under penalty of perjury in January 2020, just prior to the pandemic, she listed no interest in any business.

When the existence of the company was unearthed in July 2020 by the Baltimore Brew, Mosby said the business was a “long-term venture” that she had no plans to operate while in office.

“Use your common sense,” Zelinsky, one of the prosecutors, said. “Does that sound like an open and operable business to you?

Mosby’s attorneys contended that the business was indeed a legitimate venture. The idea was sparked after taking a “transformative” trip to Jamaica with Downtown Partnership President Shelonda Stokes, who testified that the pair discussed the idea of a business hosting retreats for professional Black women. When Mosby returned, she ran with the idea, and filed incorporation documents for Mahogany Elite Enterprises and two related trade names.

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She paid filing fees to do so and spent money to reserve a domain name and for an email account.

“She indisputably established the business,” Wyda said.

Mosby also claimed expenses related to the company on her 2019 taxes, listing various trips.

But prosecutors showed evidence that Mosby had misrepresented many of the trips — expenses associated with a listed trip to Florida appeared to actually be a trip to Boston that she took with her daughters. Another trip was made to an adults-only resort in Cancun, with her husband, City Council President Nick Mosby.

“There is no evidence that they were anything more than what they appear to be — personal trips of Mrs. Mosby,” Zelinsky said.

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Added Delaney, the other prosecutor: “You hear Mr. Wyda talk about ... COVID devastated her business. The government’s response: What business?”

Mosby, 43, was expected to take the stand in her own defense, where she might have offered an explanation for the trips.

But she opted not to testify, after the government warned that it planned to cross-examine her on uncharged allegations that she claimed $18,000 in charitable donations on her taxes the government does not believe she made, and Baltimore State’s Attorney’s Office expenses that they say she wrongly deducted. Zelinsky said those were just some of the items he planned to bring up.

During Zelinsky’s closing argument, Mosby looked over in his direction and at times glanced back into the gallery as people walked into the courtroom. When Zelinsky claimed that there was no evidence that Mahogany Elite Enterprises existed to host retreats, Mosby appeared to slightly shake her head.

As for Mosby’s public statements that the company was only a long-term venture she hadn’t intended to operate while in office, her director of communications at the time testified that she advised Mosby to abandon the plans because it was bad politics.

While the two sides sparred over the legitimacy of Mahogany Elite, the defense said the CARES Act instructions were nonetheless vague.

Wyda, the defense attorney, said the testimony of the executive director of the retirement system was crucial. He said no guidance had been given to city employees about what qualified as an operable business, or how long a business had to be in existence, or whether it needed clients or revenue. An “adverse financial consequence” could be as little as $50, he said.

“How can you convict someone of perjury when the drafter of this form testified in this courtroom that none of the key terms were defined?” Wyda said.

“Ms. Mosby was doing the best she could.”

Banner reporter Dylan Segelbaum contributed to this article.

justin.fenton@thebaltimorebanner.com

Justin Fenton is an investigative reporter for the Baltimore Banner. He previously spent 17 years at the Baltimore Sun, covering the criminal justice system. His book, "We Own This City: A True Story of Crime, Cops and Corruption," was released by Random House in 2021 and became an HBO miniseries. 

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