Case 1:22-cr-00007-LKG Document 72 Filed 06/30/22 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

UNITED STATES OF AMERICA Criminal No. LKG-22-7

v.

MARILYN J. MOSBY,

Defendant

The United States of America, by and through its undersigned attorneys, hereby submits

this opposition to the Defendant’s untimely motion to dismiss Counts 1 and 3 of the Superseding

Indictment and for disclosure of any legal instructions given to the grand jury on these counts.

ECF 70 (filed June 16, 2022). The Defendant’s motion is meritless and should be denied.

I. PROCEDURAL HISTORY

On January 13, 2022, and again on March 10, 2022, a federal grand jury sitting in Baltimore

indicted the Defendant on two counts of perjury because she falsely claimed to have suffered

“adverse financial consequences” from COVID-19 in order to obtain restricted retirement funds

that would have been unavailable to her had she not made these false statements. The grand jury

also charged the Defendant with two counts of making false statements on multiple mortgage

applications in connection with the purchase of two Florida vacation homes.

On February 18, 2022, the Defendant moved to dismiss all the counts in the indictment and

to disqualify Government counsel claiming that she was the victim of vindictive and selective

prosecution. ECF Nos. 17 and 18. These motions were meritless and were denied by the Court.

As to the Defendant’s baseless vindictive prosecution claim, the Court held the following:

Because the Defense has neither shown with objective evidence that AUSA Wise
has acted with personal animus towards Defendant, nor that the Government would
 Case 1:22-cr-00007-LKG Document 72 Filed 06/30/22 Page 2 of 18

not have brought this case but for such animus, the Court DENIES Defendant’s
motion to dismiss upon the ground of vindictive prosecution.

Order of April 14, 2022, ECF 52 at 13. As to the Defendant’s claim of selective prosecution, the

Court held the following:

For many of the same reasons, the Defense’s selective prosecution

argument is also problematic. To make a showing of a selective prosecution, the
Defense “must ‘establish both (1) that similarly situated individuals of a different
race were not prosecuted, and (2) that the decision to prosecute was invidious or in
bad faith.’” Venable, 666 F.3d at 900 (citation omitted).

The Defense neither argues nor shows that similarly situated individuals of
a different race than Defendant were not prosecuted for similar offenses. See
generally Def. Mot to Dismiss; Def. Reply (failing to show that similarly situated
individuals of a different race have not been prosecuted for the offenses charged in
this case to establish a selective prosecution). Nor does the Defense show that the
prosecution of this case was undertaken in bad faith. See generally Def. Mot to
Dismiss; Def. Reply. Given this, the Court must also DENY Defendant’s motion to
dismiss upon the ground of selective prosecution.

Id. at 13.

As to the Moton to Disqualify AUSA Wise, the Court held the following:

As discussed above, the Defense has not shown with objective evidence that AUSA
Wise has been motivated by any personal animus towards Defendant in prosecuting
this case. The Defense has also not shown that AUSA Wise violated the Maryland
Rules of Professional Conduct in connection with the investigation and prosecution
of this case. Nor is there any evidence before the Court to show that AUSA Wise
violated the Department of Justice Manual during the investigation of this case, by
either declining to allow Defendant to testify before the Grand Jury, or by failing
to disclose exculpatory information from Defendant’s former campaign treasurer
to the Grand Jury.

Id. at 14.

Despite the Court’s clear and unambiguous rulings, immediately after the hearing, the

Defendant falsely claimed – on the courthouse steps – that the Court had accepted “most of the

defense’s arguments as facts.” https://www.baltimoresun.com/news/crime/bs-md-ci-cr-mosby-

motions-hearing-20220414-ymibtg67b5gw5lp6uu4aeqebsm-story.html. As the Baltimore Sun

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accurately reported, “Griggsby did not.” Id. What actually happened was that the Court held that,

“[a]ccepting all of the allegations advanced by the Defense to be true, for the purpose of resolving

the pending motion to dismiss, these allegations do not individually, or collectively, establish a

presumption of a vindictive prosecution in this case.” ECF 52 at 12. The Defendant, a lawyer,

undoubtedly understood the difference but chose to mispresent what the Court had actually ruled.

Now, the Defendant claims in another motion to dismiss, and in Orwellian fashion, that her

lies aren’t material, in other words, that they don’t matter.

They do.

II. MOTION TO DISMISS

The Defendant has moved to dismiss Counts 1 and 3 of the Superseding Indictment

pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B)(v), which authorizes the filing of a

motion that alleges a “defect in the indictment” including “failure to state an offense,”

In support of her motion to dismiss, the Defendant makes two arguments: (1) that the

Defendant’s sworn statements that she had suffered “adverse financial consequences stemming

from” COVID-19 were not material, despite the fact that had she not made them she would not

have been able to access $90,000 in her City of Baltimore Deferred Compensation Plan; and (2)

that the phrase “adverse financial consequences,” is “fundamentally ambiguous” and therefore

“insufficient to support a charge of perjury under § 1621.” Mot. at 4. Much like the Defendant’s

prior motions, about which the Defendant herself stated, “We did not expect to prevail,” her newest

motion is also without merit and should be denied. See

https://www.baltimoresun.com/news/crime/bs-md-ci-cr-mosby-motions-hearing-20220414-

ymibtg67b5gw5lp6uu4aeqebsm-story.html.

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A. The Defendant’s False Representations that She Suffered Adverse Financial

Consequences Stemming from COVID-19 Were Material

The first argument the Defendant makes as to materiality is that “missing from the

Superseding Indictment is a ‘statement of the essential facts’ showing that the ‘matter’ or statement

that State’s Attorney Mosby certified as true, that is, the specific reasons she qualified for the

distribution themselves, were material.” Mot. at 7 (emphasis in original).

This argument ignores the fact that Superseding Indictment alleges in four separate

paragraphs that the misrepresentations the Defendant made that she suffered from adverse

financial consequences stemming from COVID-19 were material to the decision to approve her

distribution request.

In paragraph 4, the Superseding Indictment quotes the specific language from the “City of

Baltimore Retirement Savings and Deferred Compensation Plans 457(b) Coronavirus-Related

Distribution Request” that informed the Defendant that her representations as to having suffered

“adverse financial consequences” stemming from COVID-19 were material. Specifically, that

form, which is quoted in the Superseding Indictment, told the Defendant that “[t]he CARES Act

permits qualifying members to receive a coronavirus-related distribution,” and that “…the City of

Baltimore Deferred Compensation Plan is relying on my certifications in determining that I

qualify for a coronavirus-related distribution. . . ” Superseding Indictment ¶ 4 (emphasis in

original).

In paragraph 5, the Superseding Indictment then alleged the specific representations that

the Defendant falsely certified were true, namely:

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Superseding Indictment ¶ 5.

In paragraph 11 the Superseding Indictment alleged that:

At the time and place aforesaid Nationwide, the administrator of the City of
Baltimore’s Deferred Compensation Plans, did require that distribution requests be
in writing and executed in the format provided by 28 U.S.C. § 1746. It was
material to such distribution requests that the applicant certify that s/he met
at least one of the qualifications for a distribution as defined under the CARES
Act Section 2202(a)(4)(A) as summarized on the distribution request.

Superseding Indictment ¶ 11. (emphasis added).

And in paragraph 12 the Superseding Indictment alleged that:

At the time and place aforesaid, MOSBY submitted a signed written distribution
request to Nationwide, the administrator of the City of Baltimore’s Deferred
Compensation Plans, which contained the following statement: “I consent to a
distribution as elected above and affirm under penalties for perjury the
statements and acknowledgements made in this request.” This affirmation was
made on May 26, 2020, and was signed by MOSBY. The distribution request
signed and submitted by MOSBY did falsely state that she experienced adverse
financial consequences stemming 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 childcare; or the closing or reduction of hours of a
business she owned or operated.

Superseding Indictment ¶ 12. (emphasis added).

In sum, as the Superseding Indictment plainly alleges, the four enumerated “adverse

financial consequence[s]” stemming from COVID-19 are the statements upon which the City of

Baltimore Deferred Compensation Plan relied to determine whether the Defendant qualified for a

coronavirus-related distribution. Thus, the Defendant’s argument that, “the government’s

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allegations here are akin to saying that a witness’ taking of the oath to testify truthfully is material

instead of the actual testimony itself,” clearly fails. Mot. at 7, footnote 4. The above cited four

misrepresentations are the “actual testimony itself,” and the Defendant is unambiguously on notice

that she is charged with perjury for having made these false statements and is unambiguously on

notice that the City of Baltimore Deferred Compensation Plan told her they would rely on them

and did in fact rely when they approved her withdrawal.1

The second materiality argument the Defendant makes is that:

[t]he Superseding Indictment fails to set forth facts showing that the alleged false
statements were directed to or capable of influencing a “decision-making body”
because there is no “decision of [a] decision-making body” as contemplated by §
1621, involved in the process for making a CRD.

Mot. to Dismiss at 8.

This argument also ignores the allegations contained in the Superseding Indictment and

confuses questions of facts that only the jury can decide with questions of law. “A statement is

material if it has a natural tendency to influence, or is capable of influencing, the decision-making

body to which it was addressed.” United States v. Littleton, 76 F.3d 614, 618 (4th Cir. 1996). The

Superseding Indictment specifically alleges that the City of Baltimore’s Deferred Compensation

Plan is the “decision-making body” to whom her false statements were addressed and, as discussed

above, that the City of Baltimore’s Deferred Compensation Plans relied on her representations in

making the decision to approve her distribution request. See Superseding Indictment ¶¶ 2-4. At

paragraph 2, the Superseding Indictment alleges:

 
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  The Defendant’s assertion that the language in the charging paragraphs “confusingly
claims something else was material,” is clearly not correct. Mot. to Dismiss at 7. The specific
charging language the Defendant quotes expressly cites these four “adverse financial
consequences” which were enumerated in the CARES Act, on the Nationwide from that the
Defendant filled out to get the distribution and in the Superseding Indictment itself.  
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The City of Baltimore provided payroll services, including a Deferred

Compensation Plan pursuant to section 457(b) of the Internal Revenue Code
(hereafter referred to as a “457(b) plan”), to the Baltimore City State’s
Attorney's Office, including for State's Attorney MOSBY. Only state and local
governments and some non-profit organizations can offer 457(b) plans to
employees. Employees participating in 457(b) plans can contribute a portion of
their salary to a retirement account. That money and any earnings accumulated by
the employee are not taxed until they are withdrawn. A state or local government
employee may withdraw money from their 457(b) plan when they leave their job
and must begin taking distributions by the age of seventy and a half years old.
Employees may also make withdrawals from a 457(b) plan for unforeseen
emergencies that meet certain legal criteria, if all other financial resources are
exhausted. The Coronavirus Aid, Relief, and Economic Security (CARES) Act
created a new withdrawal option in calendar year 2020 only for 457(b) plan
participants who were affected by COVID-19.

Superseding Indictment ¶ 2 (emphasis added).

Then in paragraph 3, the Superseding Indictment alleges that:

On May 26, 2020, MOSBY emailed a “City of Baltimore Retirement Savings

and Deferred Compensation Plans 457(b) Coronavirus-Related Distribution
Request” to Nationwide, the financial services firm that managed
MOSBY’s City of Baltimore Deferred Compensation Plan account. Using
this form, MOSBY requested a one-time withdrawal of $40,000 from her City
of Baltimore employee retirement account.

Superseding Indictment ¶ 3 (emphasis added).

Paragraph 4 specifically quotes the “City of Baltimore Retirement Savings and Deferred

Compensation Plans 457(b) Coronavirus-Related Distribution Request,” which told the

Defendant that:

I further acknowledge that the City of Baltimore Deferred Compensation

Plan is relying on my certifications in determining that I qualify for a
coronavirus-related distribution and that I will not exceed the applicable
limit.

Superseding Indictment ¶ 4 (emphasis in original).

Thus, the Defendant’s argument that, “the Superseding Indictment fails to set forth facts

showing that the alleged false statements were directed to or capable of influencing a ‘decision-

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making body’ fails because the Superseding Indictment specifically alleges that the City of

Baltimore Deferred Compensation Plan was the “decision-making body” to whom her false

statements were addressed.

The Defendant’s argument that “there is no ‘decision of [a] decision-making body’ as

contemplated by § 1621, involved in the process for making a [Coronavirus Related

Distribution],’” is a factual question that can only be resolved at trial and cannot be resolved,

pretrial, in a motion to dismiss. Rule 12, which is the basis for the Defendant’s motion, offers no

relief. “A district court may dismiss an indictment under Rule 12 where there is an infirmity of

law in the prosecution; a court may not dismiss an indictment, however, on a determination of

facts that should have been developed at trial.” United States v. Engle, 676 F.3d 405, 415 (4th Cir.

2012) (quotation omitted). “A court cannot grant the motion to dismiss under Rule 12 if a

defendant’s legal contentions are inextricably bound up with the facts of the case.” United States

v. Pinson, No. 2:19-CR-00250, 2020 WL 2601659, at *2 (S.D.W. Va. May 21, 2020)

(unpublished) (quotation omitted); United States v. Regaldo, 497 F. Supp. 3d 56, 58 (E.D.N.C.

2020). A 12(b) motion is permissible only when it “involves a question of law rather than

fact.” United States v. Shabbir, 64 F. Supp. 2d 479, 481 (D. Md. 1999) (quoting United States v.

Nukida, 8 F.3d 665, 669 (9th Cir.1993) (citation omitted)).

And the Fourth Circuit has specifically addressed materiality as a jury question:

In fact, a defendant cannot be convicted of perjury or making a false statement

unless the government proves beyond a reasonable doubt that the false statement
was capable of influencing the decision making body to which it was addressed.
Again, the jury is the ultimate arbiter of whether the government has met its burden
of proof.

United States v. Sarihifard, 155 F.3d 301, 306–07 (4th Cir. 1998) (internal citations omitted).

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At trial, the United States will present evidence that the certifications the Defendant made were

highly material. Specifically, the evidence will show that the City of Baltimore Deferred

Compensation Plan relied on the Defendant’s representation that she had suffered adverse financial

consequences stemming from COVID-19 in approving the Defendant’s withdrawals. Had she not

made these false representations, the withdrawals would not have been approved.

The Defendant concedes, as she must, that the CARES Act provides that a plan

administrator “may rely on an individual’s certification” that they are qualified. Mot. to Dismiss

at 8. That means that the Defendant’s false representation “ha[ve] a natural tendency to influence,

or [are] capable of influencing, the decision-making body to which it was addressed,” the very

definition of materiality. Littleton, 76 F.3d at 618.

The fact that the CARES Act authorizes a retirement plan to rely on a self-certification

does not mean that the retirement plan is not making a decision based on those self-certifications.

Just the opposite. The Defendant’s argument would only work if the CARES Act directed that a

plan may not rely on self-certifications. Then, arguably, the Defendant’s misrepresentations about

having suffered from adverse financial consequences stemming from COVID-19 would be

immaterial.

The Defendant argues that when she submitted the 457(b) distribution form to Nationwide

“she was not submitting it for Nationwide to decide whether she was qualified based on the

veracity of the statements that corresponded to the box she checked, that is, the specific reasons

she self-certified qualified her for a distribution.” Mot. to Dismiss at 8-9. That is true. The City

of Baltimore Deferred Compensation Plan instead relied on the fact that she certified, under

penalties of perjury, that her representations were true. Again, that means the representations were

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highly material, not immaterial. The fact that the Plan didn’t have to independently verify the

Defendant’s representations doesn’t mean they didn’t rely on them.

The Defendant points to the fact that there are differences between how Coronavirus

Related Distributions (CRD) and “hardship” or “emergency” withdrawals from 457(b) plans are

administered and how the funds can be used. Mot. to Dismiss at 10. The principal difference is

that self-certification authorization contained in the CARES Act for CRDs relieves the retirement

plan of any obligation to confirm the veracity of a plan participant’s assertions that they suffered

from adverse financial consequences stemming from COVID-19. However, that does not mean

that the retirement plan can approve a withdrawal without the plan participant certifying that they

have suffered from one or more of the four specifically articulated adverse financial consequences

stemming from COVID-19. And it does not mean that a plan participant can lie to the plan to

obtain the distribution.

Instead of creating the “adverse financial consequences” stemming from COVID-19

distribution, Congress could have written the CARES Act to allow retirement plans to approve

distributions during the pandemic whenever a plan participant asked for one. But it didn’t. Instead

it tied the distribution to specific factual triggers, articulated in Section 2202(a)(4)(A) of the

CARES Act. The Defendant’s argument is essentially that Congress cared enough to write into

the law the specific “adverse financial consequences” that allow a plan participant to make a

withdrawal but at the same time the Congress didn’t care if the Defendant actually suffered from

them. Such an argument is nonsensical.

The Defendant further claims that “checking the box is required to completely fill out the

form,” and thus is “merely relevant but not material.” Id. The Defendant cites two cases in support

of this “relevant” but not “material” distinction, a decision of the United States Supreme Court

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from 1956, Weinstock v. United States, 231 F.2d 699 (1956) and a decision of the Second Circuit,

United States v. Rigas, 490 F.3d 208 (2d Cir. 2007). Neither one of these cases bears any

resemblance to the charges and facts in this case and, as a result, neither one supports the

contention that the Defendant’s representations were relevant but not material.

B. The Phrase “Adverse Financial Consequences” is Not “Fundamentally Ambiguous”

The Defendant next argues that counts one and three should be dismissed because the

phrase “adverse financial consequences,” is “fundamentally ambiguous” and therefore

“insufficient to support a charge of perjury under § 1621.” Mot. at 4. The Defendant claims that

Section 2202 of the CARES Act does not define “adverse financial consequences.” It does.

Section 2202 of the CARES Act provides:

(4) DEFINITIONS.—For purposes of this subsection—

(A) CORONAVIRUS-RELATED DISTRIBUTION.—Except as provided in
paragraph (2), the term ‘‘coronavirus-related distribution’’ means any distribution
from an eligible retirement plan made—
(i) on or after January 1, 2020, and before December 31, 2020,
(ii) to an individual—
(I) who is diagnosed with the virus SARS–CoV–2 or with coronavirus disease 2019
(COVID–19) by a test approved by the Centers for Disease Control and Prevention,
(II) whose spouse or dependent (as defined in section 152 of the Internal Revenue
Code of 1986) is diagnosed with such virus or disease by such a test, or
(III) who experiences adverse financial consequences as a result of being
quarantined, being furloughed or laid off or having work hours reduced due
to such virus or disease, being unable to work due to lack of child care due to
such virus or disease, closing or reducing hours of a business owned or
operated by the individual due to such virus or disease, or other factors as
determined by the Secretary of the Treasury (or the Secretary’s delegate).
(B) EMPLOYEE CERTIFICATION.—The administrator of an eligible retirement
plan may rely on an employee’s certification that the employee satisfies the
conditions of subparagraph (A)(ii) in determining whether any distribution is a
coronavirus-related distribution.

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The Coronavirus Aid, Relief, and Economic Security (CARES) Act (2020), Public Law

116-136, 116th Congress (emphasis added). Thus the CARES Act specifically provides four

definitions, in the alternative, for “adverse financial consequences.”

The Defendant also claims that the “adverse financial consequences” is not defined on the

distribution form. It is. The “City of Baltimore Retirement Savings and Deferred

Compensation Plans 457(b) Coronavirus-Related Distribution Request,” which the Defendant

filled out and which is quoted in paragraph 5 the Superseding Indictment defines “adverse

financial consequences” using the four specific definitions contained in Section 2202:

Superseding Indictment ¶ 5.

The Defendant next argues that “[c]onfronted by this fundamental ambiguity, the

government has created multiple standards for ‘adverse financial consequences.’” Mot. to Dismiss

at 15. It has not and what the Defendant calls “standards” are factual allegations that cannot be

resolved pretrial in a motion to dismiss. The Superseding Indictment alleges that

MOSBY had not experienced adverse financial consequences stemming from the
Coronavirus as a result of “being quarantined, furloughed or laid off” or “having
reduced work hours” or “being unable to work due to lack of childcare” or “the
closing or reduction of hours of a business I own or operate.”

Superseding Indictment ¶ 7 (emphasis in original). The evidence at trial will show that the

Defendant did not, in fact, experience any of the four enumerated definitions of “adverse financial

consequences.” The evidence at trial will show that she was not “quarantined, furloughed or laid

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off” from the Baltimore City State’s Attorney’s Office, which was her only source of employment

in 2020. The evidence at trial will also show that she did not have reduced work hours at the

Baltimore City State’s Attorney’s Office in 2020. The evidence at trial will show that the

Defendant was not “unable to work due to lack of childcare.” And finally, the evidence at trial

will show that the Defendant did not own or operate a business that closed or experienced a

reduction of hours.

The Defendant next argues that the Superseding Indictment’s allegations about her salary,

which was her only source of income in 2020, are “pure fiction by the government, because nothing

about Section 2202 supports a finding that ‘adverse financial consequences’ is dictated by a

person’s salary.” Mot. to Dismiss at 15. There is nothing fictional about the Superseding

Indictment’s allegations about the Defendant’s salary. The specific allegation in the Superseding

Indictment is the following:

In fact, MOSBY’s gross salary in 2020 was $247,955.58, and it was never reduced.
She received bi-weekly gross pay direct deposits in the amount of $9,183.54 in all
the months leading up to her “City of Baltimore Retirement Savings and Deferred
Compensation Plans 457(b) Coronavirus-Related Distribution Request” in May
2020. Rather than experiencing a reduction in income in 2020, MOSBY’s gross
salary in 2020 increased over her gross salary in 2019, which was $238,772.04.

Superseding Indictment ¶ 8 (emphasis in original). And this is what the evidence at trial will show.

The fact that the Defendant’s salary never decreased and, in fact increased, is relevant to whether

the defendant suffered adverse financial consequences stemming from COVID-19 because the

evidence at trial will show that if the Defendant had been “quarantined, furloughed or laid off” her

salary would have decreased. Similarly, if the Defendant experienced “reduced work hours” her

salary would have decreased. And finally, if the Defendant had been “unable to work due to lack

of childcare,” the Defendant’s salary would have decreased.

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Relatedly, the Defendant’s argument that the Superseding Indictment “tether[s] adverse

financial consequences solely to a person’s salary” ignores the allegations contained in the

Superseding Indictment. Mot. to Dismiss at 16. As quoted above, the Superseding Indictment, at

paragraph 7 alleges:

7. MOSBY had not experienced adverse financial consequences stemming

from the Coronavirus as a result of “being quarantined, furloughed or laid off” or
“having reduced work hours” or “being unable to work due to lack of childcare” or
“the closing or reduction of hours of a business I own or operate.”

Superseding Indictment ¶ 7 (emphasis in original). The Superseding Indictment then alleges, in a

separate paragraph, that:

8. In fact, MOSBY’s gross salary in 2020 was $247,955.58, and it was never
reduced. She received bi-weekly gross pay direct deposits in the amount of
$9,183.54 in all the months leading up to her “City of Baltimore Retirement Savings
and Deferred Compensation Plans 457(b) Coronavirus-Related Distribution
Request” in May 2020. Rather than experiencing a reduction in income in 2020,
MOSBY’s gross salary in 2020 increased over her gross salary in 2019, which was
$238,772.04.

Superseding Indictment ¶ 8 (emphasis in original). Thus, the Superseding Indictment does not

“tether[s] adverse financial consequences solely to a person’s salary,” as the Defendant incorrectly

claims.

The Defendant next claims that the government “changes the standard for qualification for

a Section 2202 CRD by improperly equating ‘adverse financial consequences’ (the language in the

statute) with ‘financial hardship.’” Mot. to Dismiss at 16. Like allegations concerning the

Defendant’s salary, the Defendant claims the use of the word “hardship” to describe the four

enumerated definitions of “adverse financial consequences” as “hardships” “illustrates the

phrase’s fundamental ambiguity.”

The Defendant goes so far as to call this a “insidious change,” which, like all of her

accusations, is baseless hyperbole.

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The Government first notes that the Defendant asserts that the Superseding Indictment uses

the word “hardship” in two paragraphs, paragraphs 5 and 14, although she does not articulate

which count she is referring to. In neither Count One nor Three does paragraph 5 make any

reference to “hardship.” Also, Count One does not contain a paragraph 14. Count Three does and

it refers to the four enumerated definitions of “adverse financial consequences” as “hardships.”

Paragraph 13 of Count One contains identical language. And the four enumerated definitions of

“adverse financial consequences” can all be understood as hardships. The word “hardship” has

both practical and legal definitions. While the Congress chose to use “hardship” to describe a

specific kind of withdrawal from a 457(b) plan, that does not mean that the word, in practical

terms, also does not describe the four enumerated definitions of “adverse financial consequences”

in the CARES Act. The Defendant notes that Black’s Law Dictionary defines a “consequence” as

a “result that follows an effect of something that came before” and defines “hardship” as

“privation” or “suffering.” Mot. to Dismiss at 17. But the Defendant’s argument ignores the fact

that Congress chose to describe the “consequences” as “adverse financial ones.” And these

definitions are not mutually exclusive. In plan terms, the four definitions of “adverse financial

consequences” are all hardships of one kind or another. In practical terms, “being quarantined,

furloughed or laid off” is a privation and is therefore a hardship; “having reduced work hours” is

a privation and therefore a hardship; “being unable to work due to lack of childcare” is a privation

and therefore a hardship; and “the closing or reduction of hours of a business I own or operate,” is

a privation and therefore a hardship.

III. MOTION FOR DISCLOSURE OF LEGAL INSTRUCTIONS GIVEN TO

THE GRAND JURY

The Defendant has moved, in the alternative, for production of grand jury transcripts

“containing the instructions of law for Counts 1 and 3 that were provided to the grand jury,”

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pursuant to Federal Rule of Criminal Procedure 6(e)(3)(E)(ii). The basis for the Defendant’s

motion is (1) “Counts 1 and 3 are based on a theory of perjury that has never been prosecuted,” an

factual assertion that she offers no support for and, frankly, has no way of determining and (2) the

fact that two sub-headings within the Superseding Indictment refer to the Defendant’s withdrawals

as “COVID 19 HARDSHIP WITHDRAWAL[s]” and the fact that the Superseding Indictment

referred to the four definitions of “adverse financial consequences” as “enumerated financial

hardships.” Neither of these are a basis for the disclosure of any legal instructions given to the

grand jury.

Rule 6(e)(3)(E)(ii) provides that, “[t]he court may authorize disclosure—at a time, in a

manner, and subject to any other conditions that it directs—of a grand-jury matter . . . (ii) at the

request of a defendant who shows that a ground may exist to dismiss the indictment because of a

matter that occurred before the grand jury.” This provision is not an invitation to engage in a

fishing expedition to search for grand jury wrongdoing and abuse when there are no grounds to

believe that any wrongdoing or abuse has occurred. United States v. Loc Tien Nguyen, 314

F.Supp.2d 612, 616 (E.D.Va. 2004). This is precisely what the defendant seeks, a fishing

expedition, born out of the hope that the Government took some action the Defendant can make

the subject of additional baseless motions practice. “Because grand jury proceedings are entitled

to a strong presumption of regularity, a defendant seeking disclosure of grand jury information

under Rule 6(e)(3)(E)(ii) bears the heavy burden of establishing that ‘particularized and factually

based grounds exist to support the proposition that irregularities in the grand jury proceedings may

create a basis for dismissal of the indictment.’” Id. (citing Hamling v. United States, 418 U.S. 87,

139 n. 23 (1974)). “Thus, courts should not reveal the secrecy of grand jury proceedings unless

there is a “‘strong showing of particularized need.’” United States v. Johnson, 2013 WL 3880148,

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at *1 (D.S.C. Jul. 26, 2013) (quoting United States v. Sells Eng'g, Inc., 463 U.S. 418, 443, (1983));

see also Dennis v. United States, 384 U.S. 855, 870, 86 (1966). “Generally, this requires the

moving party to show that without access to the materials, the ‘defense would be greatly

prejudiced’ or ‘an injustice would be done.’” United States v. Eury, No. 1:20CR38-1, 2021 WL

276227, at *12 (M.D.N.C. Jan. 27, 2021) (citing United States v. Procter & Gamble Co., 356 U.S.

677, 682 (1958)).

The Defendant has failed to meet her burden. They offer no authority for the proposition

that the first time a prosecution is brought on a specific set of facts that fact alone establishes

particularized need for the grand jury transcripts they request. And there is none. To be clear, the

perjury statute at issue is not new. Its application to the CARES Act is obviously something that

could only occur more recently since the CARES Act was enacted in 2020. Further, the use of the

word “hardship” to describe what plainly are hardships does not establish particularized need.

Finally, they never address how the “defense would be greatly prejudiced” or “an injustice would

be done,” if disclosure was not ordered because they cannot.

The Defendant erroneously cites United States v. Stevens in support of her position that she

has demonstrated particularized need. Mot. to Dismiss at 19. However, a review of the district

court’s memorandum opinion in the Stevens case reveals that the district court did not base its

decision on the particularized showings advanced by Stevens, namely, that the grand jury may

have received an erroneous legal instruction on the advice of counsel defense. United States v.

Stevens, 771 F.Supp.2d 556, 564 (D.Md. 2011). Thus, the decision in Stevens does not support

the Defendant’s argument. The government, in responding to Stevens’ motion for disclosure of

the legal instructions given to the grand jury, apparently filed with the district court, under seal for

the court’s in camera review, a redacted grand jury transcript that revealed that a grand juror had

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asked a question about the advice of counsel defense. Id. The Government’s redacted transcript

did not include the Government’s answer to the grand juror’s question. Id. The district court then

ordered the Government to disclose the answer the prosecutor had given to the grand juror’s

question and the district court then disclosed a brief excerpt from the grand jury transcripts to

Stevens to allow for further briefing on whether the grand jury was properly instructed on the

advice of counsel defense. Id. The court’s order makes no reference to the arguments set forth in

Stevens’ briefs and does not indicate whether a particularized showing would have been made

absent the Government’s admission of the fact that a grand juror specifically raised a question

about the advice of counsel defense. Thus, Stevens does not address the issue before this Court,

namely, whether the Defendant has met her burden of showing particularized need for disclosure.

IV. CONCLUSION

For the foregoing reasons the Defendant’s motion should be denied.

Respectfully submitted,

EREK L. BARRON
UNITED STATES ATTORNEY

By: _________/s/__________________
Leo J. Wise
Sean R. Delaney
Aaron S.J. Zelinsky
Assistant United States Attorneys

CERTIFICATE OF SERVICE

I hereby certify that this filing was served on the Defendant via ECF electronic filing.

___/s/__________________
Leo J. Wise
Assistant United States Attorney

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