Much has changed for Marilyn Mosby since federal prosecutors indicted her on charges of perjury and mortgage fraud.
At the time, she was gearing up for reelection to her third term as Baltimore’s top prosecutor. Having been vanquished in the election, she’s now running a consulting company that recently hosted a Jamaican retreat. Once billed as one-half of a political power couple, her divorce from City Council President Nick Mosby got closer to being finalized at a hearing the same day that jury selection got underway for her trial.
Though the stakes are now lower, Mosby, 43, still faces the prospect of a life-altering criminal conviction when her trial kicks off Monday with opening statements in U.S. District Court in Greenbelt.
Here are some things to know:
What charges is Mosby facing?
Mosby’s indictment leveled charges of perjury and making false statements. She’s accused of lying when she took an early disbursement from her retirement account, and on mortgage applications related to buying properties in Florida. But the judge overseeing the case, Lydia K. Griggsby, severed those counts into separate trials. The perjury case will proceed first.
Mosby is accused of lying about suffering an “adverse financial consequence” brought on by the COVID-19 pandemic, in order to take two disbursements totaling $90,000 held in trust in her 457(b) retirement account with the city. The funds otherwise couldn’t be accessed without incurring a penalty.
In each request, the indictment alleges that Mosby falsely certified that she met at least one of the qualifications for a distribution as defined under the Coronavirus Aid, Relief and Economic Security Act, specifically, that she was experiencing adverse financial consequences from the coronavirus as a result of being quarantined, furloughed, or laid off; having reduced work hours; being unable to work due to lack of child care; or the closing or reduction of hours of a business she owned or operated.
Prosecutors say Mosby saw no reduction in salary or hours worked. But the defense team says she suffered a loss when she took steps towards starting a side consulting and travel company, Mahogany Elite Enterprises LLC, which they say she abandoned due to the pandemic.
If convicted, Mosby faces a maximum sentence of five years in federal prison on each of the two counts of perjury. Actual sentences for federal crimes are typically less than the maximum penalties.
What are ‘adverse financial consequences’?
This is something prosecutors and the defense have been sparring over for months and through various motions, and the jury’s understanding of it could determine the outcome of the case.
Griggsby settled on the definition as “an unfavorable or negative outcome related to money,” but the two sides continued to debate what constitutes such a circumstance. The government sought a jury instruction that a loss “must be more than nominal and insignificant” and that without it, she could argue that even a penny would qualify.
“A negligible and insignificant loss should not qualify as an adverse financial consequence, as that term is ordinarily understood, and as the defendant understood the term at the time she falsely certified the form,” prosecutors wrote in a court filing.
But the defense countered that “nothing in the CARES Act requires that adverse financial consequences exceed some (ill-defined) threshold before they trigger eligibility to take a withdrawal.” And they argued the “the term was not defined at the time Mrs. Mosby self-certified that she qualified for a withdrawal.”
“Without advance notice of that requirement, Mrs. Mosby had no ability to chose to obey the law,” they said.
Griggsby ruled last month that she didn’t see anything in the statute that gave any guidance on what would qualify as an adverse financial condition, which means the defense is free to argue that any loss could have led Mosby to believe she was eligible.
The defense has said that Mosby took steps to get her travel company started, incorporating a corporation and two trade names in May 2019, then abandoned it due to the pandemic.
Though they haven’t yet cited a dollar figure for the amount she says she lost, an investigation by the city’s Office of the Inspector General previously found she incurred more than $7,600 in expenses in 2019 related to the companies while not generating any revenue.
Complicating matters for the defense, however, is that Griggsby also ruled that prosecutors can present evidence detailing Mosby’s wider financial circumstances, which show she was paid her full gross salary of $247,956 that year, which was actually an increase from the year prior.
The prosecution will also point to statements made on Mosby’s behalf that she had no intention to run the travel business while in office, though such comments were made several months into the pandemic, in July 2020, after The Baltimore Brew reported on the existence of the companies and the fact that she had not disclosed them on ethics forms.
Why is the trial being held in Greenbelt?
Mosby argued that it would be harder for her to receive a fair trial in Baltimore due to negative media attention. Though Griggsby initially denied the request, Mosby’s new defense team raised it again and prevailed. Jurors will be picked from the Southern Division, which pools jurors from Calvert, Charles, Montgomery, Prince George’s and St. Mary’s counties.
Who’s trying the case?
Her initial defense, waged by private lawyers, focused on a claim that federal prosecutors had a political and racial reason for charging her, and that she had once sparred with the lead prosecutor, Assistant U.S. Attorney Leo J. Wise. Wise responded that she had “invented a tale of victimhood” and compared her to President Donald Trump.
Her lead defense attorney, A. Scott Bolden, ran afoul of Griggsby, and he and his team bowed out of the case. Mosby is now represented by the federal public defender’s office, James Wyda and Maggie Grace, as well as Lucius T. Outlaw III, an associate professor of law at Howard University School of Law.
And also gone from the case is Wise, who is instead now entangled in the politically charged prosecution of President Joe Biden’s son, Hunter, in Delaware. The Mosby case will be tried by Assistant U.S. Attorneys Sean Delaney and Aaron Zelinsky.