The U.S. Court of Appeals for the 4th Circuit today upheld former Baltimore State’s Attorney Marilyn Mosby’s two perjury convictions, but overturned her conviction for mortgage fraud.

In a 2-1 decision, Circuit Judges Stephanie D. Thacker and G. Steven Agee concluded that the jury instructions regarding the proper venue for the mortgage fraud case was “erroneously overbroad.”

In the second of two trials, Mosby was convicted In February 2024 of lying on mortgage application forms to buy a Florida condominium on Longboat Key.

The jury found that Mosby falsely claimed that her husband at the time, then-City Council President Nick Mosby, had agreed to “gift” her $5,000 at closing for the condo.

Prosecutors said she made this statement to secure a lower interest rate and that she actually transferred $5,000 of her own money to her husband, who then transferred the $5,000 back to her.

Judges Thacker and Agee agreed with Mosby’s attorneys that U.S. District Judge Lydia Kay Griggsby improperly instructed the jury that the crime could be considered to have taken place in Maryland “if any act in furtherance of the crime occurred within the District of Maryland.”

Griggsby should simply have said that “the jury could establish venue by finding that an element of the crime was committed in Maryland.” the judges wrote. The wording of her instruction “permitted the jury to establish venue based on mere preparatory acts.”

“It is uncontested,” Thacker also wrote, “that there is no direct evidence in the record specifying that Appellant transmitted the Gift Letter to her mortgage lender from the District of Maryland.”

Strongly Worded Dissent

Circuit Judge Paul V. Niemeyer disagreed both about the instructions and the facts.

Mosby contended that prosecutors failed to show that the crime was committed in Maryland and that Griggsby’s instruction was erroneous. “I reject both arguments,” Niemeyer wrote.

“There was ample evidence for the jury to conclude that Mosby both prepared and transmitted the false gift letter in Maryland and that venue in that forum was therefore proper.

“Mosby did not prepare the false gift letter in Maryland and then carry it to Florida to present it,” Niemeyer continued. “Rather, she both prepared it in Maryland and uploaded it in Maryland to the Internet for the purpose of influencing the mortgage lending business outside of Maryland.”

He chided the majority for ignoring the well-established rule that “we have clearly announced in no less than seven decisions . . . that venue lies where any conduct element of the offense was carried out.

“Compounding that error, the majority fails to give effect to our previous recognition that preparing and transmitting false statements are conduct elements for this type of crime.”

As for Griggsby’s instructions, he said they were taken “almost verbatim from model federal jury instructions,” and that if there was any error, “the error was harmless.”

“The evidence presented at trial,” Niemeyer concluded, “amply and clearly demonstrated that venue was proper in Maryland by a preponderance of the evidence.”

Keeping the Condo

As part of her mortgage fraud conviction, Griggsby had ordered Mosby to forfeit the condominium at Longboat Key, near Sarasota.

“The defendant should not get to profit from her crime merely because she invested fraudulently invested proceeds in an asset that happens to have appreciated in value,” the prosecution said at the time.

The appeals court today vacated the forfeiture order because it hinged on the mortgage fraud conviction.

As The Brew first reported in 2021, Mosby paid $476,000 for the Gulf Coast property. It had appreciated to as much as $890,000 by 2024, Griggsby was told.

Zillow currently places the condo’s value at $674,700.

Perjury Convictions Upheld

The two perjury charges upheld by the court today were the result of Mosby’s November 2023 conviction that she falsely claimed that she suffered from Covid-related financial hardship in order to early withdraw about $90,000 from her city retirement account.

At the time, she was making nearly $250,000 a year as Baltimore’s top prosecutor.

Among Mosby’s arguments on appeal was that the term “adverse financial consequences” on the retirement account’s Distribution Request Form was “fundamentally ambiguous.”

“Financial” could have multiple meanings, Mosby’s lawyers had argued. The appellate court disagreed.

Just because words “have different meanings in different situations does not make them fundamentally ambiguous,” Judge Thacker wrote.

Case law defines “adverse financial consequences” as “an unfavorable or negative outcome related to money,” she continued, adding “this simple and accurate definition of the phrase is one we have no trouble believing people of ordinary intellect would understand.”

Therefore, Judge Griggsby “did not err in denying” Mosby’s motion to dismiss.