Marilyn Mosby case: Former Baltimore state's attorney wants comments about her ex, Nick Mosby, admitted at trial

Dec. 19—By Alex Mann — amann@baltsun.com

December 19, 2023 at 10:06 a.m.

When then-Baltimore State's Attorney Marilyn Mosby found out she had a federal tax lien against her, she called her mortgage broker in Florida "livid because it was news to her," new court documents in her case show.

"She thought her husband took care of it because it was his deal to clear up," the broker told investigators, referring to Mosby's former husband, Baltimore City Council President Nick Mosby.

A city Circuit Court judge signed off on the power couple's divorce in November, according to online court records, but Nick Mosby still could play a significant role in his ex-wife's trial, new filings in Mosby's federal case show.

Though a witness's testimony about what someone else said is typically not admissible in court, Mosby's lawyers want the mortgage broker's comments to be allowed at her mortgage fraud trial in January. It was one of several requests they recently made to U.S. District Judge Lydia Kay Griggsby.

The mortgage broker's remarks, and others Mosby made in text messages, go to the essence of her defense: She didn't lie knowingly on mortgage applications for two Florida vacation homes.

Mosby faces two counts of making false statements on mortgage applications, with each count carrying a maximum penalty of 10 years in prison. Prosecutors say she lied by failing to disclose an approximately $69,000 federal tax debt and claiming one property as a second home when she'd already hired a company to run it as a rental — a maneuver that locked in a lower interest rate.

The mortgage fraud trial comes after a jury in November found Mosby guilty of two counts of perjury, finding she lied about suffering financial hardship during the coronavirus to take money from her retirement savings to buy the Florida properties worth a combined $1 million.

Her perjury convictions tied into another defense request: If she testifies at trial, her lawyers want prosecutors to be prohibited from asking her about the guilty verdicts. Calling it "an utterly damning fact," her lawyers said such questioning in front of a jury would violate her Fifth Amendment rights against self incrimination and prevent her from getting a fair trial.

"No doubt, the government would hammer the jury's guilty verdicts repeatedly in closing, urging jurors not to trust the word of someone who has been found guilty, beyond a reasonable doubt, of telling lies," Mosby's lawyers wrote. "And even if the Court provides a limiting jury instruction, jurors are bound to engage in impermissible propensity reasoning: Ms. Mosby lied in the past, so she probably lied on her mortgage applications, too."

Mosby chose not to testify in the perjury case. Her decision followed a preview from federal prosecutors about the type of things they planned to ask her about to challenge her credibility in court, including an apparent tax fraud that an FBI forensic accountant described during the perjury trial and the time a Baltimore judge held Mosby, who was state's attorney at the time, in contempt of court in a high-profile murder case.

Federal Public Defender James Wyda and Assistant Federal Public Defenders Cullen Macbeth, Sedira Banan and Maggie Grace argued in a new filing that prosecutors shouldn't be allowed to question Mosby about those issues if she chooses to testify at the forthcoming trial. They said the queries were irrelevant to her honesty and unfairly damaging to Mosby.

"The image the government would surely paint — of a defendant who thumbs her nose at judicial process, while in the midst of a trial for which jurors have been asked to sacrifice time and effort — would be hugely prejudicial," the public defenders wrote. "And because there is no obvious connection between the contempt finding and Ms. Mosby's truthfulness, permitting cross-examination on this topic would waste time, confuse the issues, and mislead the jury."

Mosby's lawyers are also seeking to limit evidence about the Florida properties: an eight-bedroom rental near Disney World and a condo on the state's Gulf Coast. They want to prohibit prosecutors from introducing pictures of the homes, mentioning the costs or referring to them as "luxury properties."

In previous court papers, federal prosecutors argued descriptions of the homes were pertinent to Mosby's motive for "committing the crime in the first place."

The government has until Friday to respond to the requests from Mosby's lawyers.

Griggsby, who has presided over Mosby's case since she was indicted in January 2022, will rule on the legal questions at a hearing about the motions Jan. 5.

Mosby's attorneys successfully argued to have her case moved from the federal courthouse in Baltimore to the one in Prince George's County, citing more publicity about the case in the region surrounding the city where she held office for eight years. The defense also won the right to have separate trials for the perjury and mortgage fraud trials.

The perjury conviction for Mosby represented a stunning fall from grace for the woman once heralded as a pioneering progressive prosecutor and who made up half of the city's most powerful couple. Her defense lawyers long signaled they could call Nick Mosby as a witness.

Investigators interviewed a commercial banker who spoke to Nick Mosby sometime in 2020, according to filings from Mosby's lawyers. The banker said he was looking to take out a loan to pay off the couple's tax lien.

The banker told investigators that he asked Nick Mosby why his wife wasn't included in the loan.

"It's my obligation. I want to take care of it," the banker recalled Nick Mosby saying, according to the filing.

Mosby's attorneys want to admit that comment at trial, arguing that it speaks to Nick Mosby's state of mind at the time. They say that's an exception to hearsay.

The defense shielded the identities of the banker, mortgage broker and others in the filings to "protect their privacy."

In a separate call with the banker, Marilyn Mosby described the tax lien as "Nick's issue," according to the filing.

Her lawyers say that comment is admissible because Mosby is not offering it to prove that it's true but "to show that she believed Nick was responsible for taking care of the lien."

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