4th Circuit reverses Marilyn Mosby’s mortgage fraud conviction, upholds perjury counts

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In a split decision, the U.S. Court of Appeals for the 4th Circuit on Friday vacated former Baltimore State’s Attorney Marilyn Mosby‘s conviction for mortgage fraud but upheld her perjury convictions, delivering a mixed result for Baltimore’s former top prosecutor that also reverses the forfeiture of her Florida condominium.

In a 2-1 decision with Judge Stephanie Thacker writing for the majority, the 4th Circuit held the U.S. District Court for the District of Maryland did not err in permitting the government to introduce evidence as to how Mosby used the funds she withdrew from her retirement accounts, ruling the evidence was probative as to whether Mosby suffered “adverse financial consequences.”

But the 4th Circuit agreed with Mosby that the district court’s venue instruction was erroneous, finding the jury could have determined that the government did not meet its burden to establish venue in the District of Maryland, and thus that the instructional error was not harmless.

“The court instructed that the jury had to find venue ‘[i]n addition to the elements of the offense[,]’ and that it could do so by finding that ‘any act in furtherance of the crime occurred in the District of Maryland,’ ” Thacker wrote. “This excision of the elements of the offense from any act in furtherance of the crime leaves us in the dark about what venue determination was reached by the jury. We are thus left to conclude that the error was sufficiently prejudicial to warrant reversal.”

In February 2024, a federal jury found Mosby lied when she submitted a “gift letter” in 2021 claiming that her then-husband would send her $5,000 when she closed on a condominium in Florida. In fact, prosecutors said, the money came from Mosby herself.

Previously, in November 2023, a federal jury found Mosby lied about experiencing a pandemic-related financial loss to withdraw money from her city retirement account under the federal CARES Act.

Though a federal judge split the charges into two separate trials, prosecutors said the charges were linked: Mosby lied to withdraw the retirement money, which she used to put down payments on a pair of luxury Florida vacation homes and lied about her finances when she applied for mortgages on the properties.

A spokesperson for the Maryland U.S. Attorney’s Office declined to comment, and counsel for Mosby did not immediately return requests for comment Friday.

In a separate opinion concurring in part and dissenting in part, Judge Paul Niemeyer wrote he would have found that venue in Maryland for the mortgage fraud charge was appropriate, and therefore would have affirmed the district court’s judgment.

“In this case, the evidence supported a finding that Mosby made the false statements in and transmitted them from the District of Maryland, where she lived and worked, by obtaining a gift letter in Maryland, signing it in Maryland, and ‘uploading’ it from Maryland to Florida, where it was downloaded for use at closing in Florida,” Niemeyer wrote, adding the district court’s ruling on venue was consistent with both “universally established principles” and “with most of the decisions across the country.”

In her brief before the 4th Circuit, Mosby argued the district court erroneously admitted details of her perjury convictions as substantive evidence, which she argued “was exceedingly prejudicial because the conduct alleged in each trial was the same.” On her improper venue argument, Mosby claimed the jury instruction “was erroneous under binding precedent” and that the jury lacked sufficient evidence of venue to convict her.

Mosby has called her prosecution “ill-advised and ill-conceived from the beginning.” She had also contended that the forfeiture of her Longboat Key condominium, which was previously valued in June 2024 at approximately $912,000, would be “grossly disproportional” to the offense of her perjury conviction concerning the $5,000 gift letter.

U.S. District Judge Lydia K. Griggsby sentenced Mosby in May 2024 to home detention for one year and three years of supervised release, in addition to ruling that 90% of Mosby’s Longboat Key condominium is subject to criminal forfeiture. Mosby’s home detention ended last month, with a federal judge ordering the return of her passport and waiving a location monitoring fee.

Mosby, who spent two terms as Baltimore’s top prosecutor, previously sought a presidential pardon. The Maryland Supreme Court allowed her to keep her law license during her appeal.

This article has been updated.