United States v. Mosby, 626 F.Supp.3d 847

Background

Marilyn J. Mosby (State’s Attorney for Baltimore City) indicted in a four‑count superseding indictment charging two counts of perjury (18 U.S.C. § 1621) and two counts of false statements on mortgage loan applications (18 U.S.C. § 1014) tied to two COVID‑19 457(b) hardship withdrawals used as down payments on Florida properties.
Government moved in limine to exclude evidence/argument about the investigation/prosecution and to limit/strike three defense experts (Forster, Schmitt, Wagner); Mosby filed multiple in limine motions seeking to exclude certain witnesses, evidence about use of withdrawn funds, prior investigations, and to strike “hardship” language from the indictment.
The court held a hearing and resolved pretrial disputes: excluded prosecution‑related evidence, granted partial exclusions of Forster and Wagner, ordered supplementation of disclosures for Forster and Schmitt, denied exclusion of government witnesses (Bender, Lopes), allowed evidence of how withdrawn 457(b) funds were used, and excluded evidence of unrelated prior investigations.
The court found many proposed expert topics inadmissible either because they would not help the jury (Fed. R. Evid. 702/403), would impermissibly opine on the defendant’s mental state (Fed. R. Evid. 704(b)), or would impermissibly state legal conclusions.
Mosby’s motion to strike the terms “hardship,” “hardship withdrawal,” and “financial hardship” was denied as untimely; the court directed the defense to supplement expert disclosures by a deadline.

Issues

Issue	Plaintiff's Argument (Gov't)	Defendant's Argument (Mosby)	Held
Should evidence/argument about the investigation or alleged selective/vindictive/prosecutorial misconduct be admitted at trial?	Such evidence is irrelevant to jury, was already rejected pretrial, and would confuse jury.	Evidence of selective/vindictive/prosecutorial motive is relevant to defense.	Excluded: court barred such evidence/argument (pretrial remedy required; previously litigated and rejected).
Admissibility of Eric Forster (real‑estate/mortgage expert): broad industry practice and lending standard opinions	Forster’s broad industry opinions won’t assist jury, risk confusing/jury, and attempt to shift blame to lenders; some topics impermissibly address Mosby’s intent.	Forster will explain underwriting, second‑home riders, gift letters, property‑management effect on lending—helpful context.	Partial grant: exclude general industry/underwriting topics and opinion that Mosby reasonably believed she could use properties as income‑producing (704(b)); allow testimony limited to Second Home Rider, gift letters, and property‑management agreements, subject to supplemented disclosure.
Admissibility of Marcia Wagner (ERISA/457(b)/CARES Act expert)	Wagner would essentially instruct jury on statutory/legal standards (CARES/457(b)) and opine on plan administrator duties—impermissible legal conclusions.	Wagner will explain plan practices, CARES Act exceptions, legislative history, tax consequences, and administrator’s role to show how withdrawals were processed.	Grant in part: exclude testimony that states or applies legal standards or draws legal conclusions about CARES/457(b) and plan fiduciary duties; defense must show relevance for any remaining factual/industry testimony.
Adequacy of disclosure for Jerome Schmitt (forensic accountant)	Disclosures lack sufficient detail about specific opinions, timeframes, and bases.	Schmitt will opine on Mosby’s income, expenses, assets, debts, net worth, and COVID‑19 impact.	Grant: ordered Mosby to supplement Rule 16(b) disclosures to state specific opinions, bases, and timeframes.
Are government witnesses Jenna Bender (FBI forensic accountant) and Matthew Lopes (IRS officer) experts or admissible lay witnesses?	They will testify as lay witnesses (summaries, tax amounts, form language); no expert disclosure required.	Defense contends their testimony rests on specialized knowledge and requires expert disclosure under Rule 16/702.	Denied: Bender and Lopes may testify as lay witnesses (Fed. R. Evid. 701) and under Rule 1006 summaries; their proffered testimony does not require expert treatment.
Should evidence of how Mosby used withdrawn 457(b) funds be excluded?	Govt: such evidence is relevant to whether Mosby suffered adverse financial consequences from COVID and to the truth of her hardship claims.	Mosby: use‑of‑funds evidence is prejudicial, irrelevant, or will distract/produce juror bias.	Denied: court held use‑of‑funds evidence relevant and probative to the hardship issue; not substantially outweighed by unfair prejudice.
Should evidence of prior/unrelated investigations into Mosby be admitted?	Govt: prior investigations may be relevant in limited ways.	Mosby: prior investigations are irrelevant and unfairly prejudicial.	Granted: excluded evidence of prior unrelated investigations under Rules 401/403/404(b).
Motion to strike "hardship/financial hardship" language from indictment as surplusage	-	Mosby argued language is prejudicial surplusage.	Denied as untimely; scheduling order governed Rule 7(d) timing; topic reserved for separate motion to dismiss proceedings.

Key Cases Cited

Daubert v. Merrell Dow Pharm., 509 U.S. 579 (gatekeeping requirement for expert admissibility)
Kumho Tire Co. v. Carmichael, 526 U.S. 137 (Daubert gatekeeping applies to non‑scientific expert testimony)
United States v. McIver, 470 F.3d 550 (4th Cir.) (experts may not state legal standards or draw legal conclusions)
Adalman v. Baker, Watts & Co., 807 F.2d 359 (4th Cir.) (court, not expert, must instruct jury on law; experts cannot interpret domestic law for jury)
United States v. Jones, 356 F.3d 529 (4th Cir.) (district court has broad discretion over evidentiary rulings)
Herring v. New York, 422 U.S. 853 (trial judge has wide latitude to control argument and evidence)
Palmieri v. Defaria, 88 F.3d 136 (2d Cir.) (purpose and efficiency of motions in limine)
Nease v. Ford Motor Co., 848 F.3d 219 (4th Cir.) (expert testimony must rest on reliable foundation and be relevant)