Perjury trial begins for former Baltimore State’s Attorney Marilyn Mosby

In early 2019, at the beginning of her second term as Baltimore’s top prosecutor, Marilyn Mosby went on a professional women’s retreat that was “transformative.”

She came back and diligently began starting the process to create her own business that would host such trips and also set her up for financial stability beyond public life, her attorney Maggie Grace told jurors Monday. But when the COVID-19 pandemic dashed those plans, she pivoted to investing in Florida real estate.

Mosby is on trial on two counts of perjury, with federal prosecutors saying she lied about suffering a financial hardship brought on by COVID in order to access $90,000 in retirement funds that was used to buy two vacation homes.

Grace told jurors the failure of the side business to launch resulted in an “adverse financial consequence,” which the defense said was a vaguely defined requirement under the CARES Act that she had to meet in order to access the funds.

Federal prosecutors told jurors that Mosby’s argument doesn’t hold water, and that she simply wanted to dabble in the real estate market and didn’t have enough money. They also presented evidence suggesting she double-counted state’s attorney-related and personal trips as expenses for the business.

“How can a business close if it was never operable?” said Assistant U.S. Attorney Sean Delaney. “How can a business suffer reduced work hours if it didn’t have any clients? How can your business suffer adverse financial consequences … if it never made a single cent?”

Delaney said the case is “about a lawyer and a public servant, who placed her own selfish interests in front of the truth.”

Mosby, 43, was indicted by a federal grand jury in January 2022 and is charged with two counts of perjury, as well as making false statements on mortgage applications. The mortgage charges were severed and will be tried separately; the case is being held in U.S. District Court in Greenbelt, where Mosby argued she was more likely to receive a fair trial.

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.

Mosby served two terms as Baltimore’s state’s attorney, taking office in 2015 as one of the youngest top prosecutors in the country and rocketing to national prominence after charging six city police officers in the death of Freddie Gray. She lost reelection last year.

Throughout the first day of testimony, Mosby sat up, looked toward the witnesses and exhibits, and appeared from time to time to take notes on a yellow legal pad. She occasionally leaned over to her right to whisper to one of her attorneys, Lucius Outlaw III. Among those in courtroom supporting her were attorney J. Wyndal Gordon and former Del. Bilal Ali.

Mosby earned $250,000 annually as state’s attorney, and had funds in a retirement account with the city. She took two disbursements from that account in 2020.

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.

In opening statements, Delaney, one of the prosecutors, said that members of Mosby’s office were placed on furlough and faced a financial hardship. But Mosby herself did not. She experienced no reduction in salary or hours worked.

“The evidence will show the defendant saw an opportunity. She wanted to purchase real estate,” Delaney said.

They presented text messages exchanged in the spring of 2020 between Mosby and a real estate agent discussing multiple properties around Baltimore, and she eventually started looking in Florida. Prosecutors say she did not have sufficient funds available in her accounts for such a purchase, causing her to turn to the retirement account.

The defense said Mosby wanted to run a side company hosting retreats for professional women of color, “to help them escape the demands of their jobs and lives, and to empower and support themselves,” Grace said.

She filed paperwork with the state in 2019 to incorporate Mahogany Elite Enterprises LLC, with intentions of operating it while in public office. She intended to keep it separate from her duties as state’s attorney, Grace said.

“We all make time for things we love to do; things we’re passionate about, things that are important to us,” Grace said.

Mosby took a $5,000 tax deduction for 2019, saying she incurred travel expenses related to Mahogany even as it had no clients or revenue.

But an FBI analysis of the trips she claimed as business-related contrasted with her credit card expenditures that appeared to show that she listed trips that were part of her duties as State’s Attorney, including one even booked by her staff, and personal trips to places like Boston, her hometown, and Cancun, a trip that records showed husband Nick Mosby accompanied her on.

The defense, outside of the jury’s earshot, said prosecutors were implying she had committed tax fraud, while prosecutors called the testimony “damning” and showed she double-counted expenses. Both sides indicated the information had only recently come to light in the past week.

Grace said Mosby reached out to Nationwide inquiring about a loan, and said it was Nationwide that informed her of the possibility of taking disbursements from her 457(b) retirement account. Prosecutors played a recording of Mosby discussing her options with representatives.

“Mrs. Mosby did the best she could,” Grace said. “She reviewed it, she determined she qualified, and she submitted the form.”

When the existence of the side business came to light in the summer of 2020 through reporting in The Baltimore Brew, Mosby said it was a long-term venture that she had no plans to run while in public office. But that was also months after she says she had decided to abandon it due to the pandemic.

David Randall, the executive director of the Baltimore City Employees’ Retirement System, testified that prior to the pandemic, the 457(b) plan had strict requirements for when a participant could withdraw funds: if they died, quit or retired from their city job, or an unforeseen circumstances as defined by the IRS. Administrators of the plan sought proof, and could deny requests.

But the new requirements implemented during COVID called for participants to “self-certify” with no proof required. They did so only under penalty of perjury.

“There was no process for determining whether someone actually qualified under the CARES act?” asked Outlaw, one of the members of the defense team.

“That is correct,” Randall said.

There were 739 city employees who withdrew retirement funds citing the CARES Act; only three of them were in the State’s Attorney’s Office.

Jurors also got a walk through Mosby’s finances in 2019 and 2020 from FBI forensic accountant Jenna Bender, showing that “inflows” to her finances increased year-over-year, while her “outflows” decreased.

Prosecutors also showed incorporation documents related to her side businesses, listing travel and hospitality.

“Does it say anything about ‘women of color taking various retreats’?” Delaney asked.

“No,” said Bender.

justin.fenton@thebaltimorebanner.com

dylan.segelbaum@thebaltimorebanner.com

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