Frank DeFilippo: There’s Nothing Grand About a Grand Jury Investigation

Baltimore City State's Attorney Marilyn J. Mosby (D) and Baltimore City Council President Nick J. Mosby (D-Baltimore City) attend the 2017 BET Awards Official After Party in Los Angeles. Photo by Bennett Raglin/Getty Images for BET.

Google is everybody’s rap sheet. Grand juries usually launch with a paper trail and people wearing badges riffling through swatches of newspaper clippings, or, these days, printouts from news sites.

Those stacks of paper are a form of autobiography. They tell who a person is, what the person does, where the person’s been, and, if the proctoscopic analysis is thorough, where the pot of gold is buried.

That inevitably leads to a “net worth” – an exercise in addition and subtraction into whether lifestyle and income are out of sync as they were, say, in former mayor Catherine Pugh’s “Healthy Holly” scam, or of the haute couture tastes of former mayor Sheila Dixon.

To the prosecutors, IRS and FBI agents circling their prey, “Follow the money” is more than a memorable phrase from a movie. It’s the bulls-eye of a probe. Tax returns are the main building blocks of net worth examination. Charitable and home office deductions without convincing documentation are booby traps.

Frank!
Frank A. DeFilippo

Tax returns reveal the flow of money in and out in and out of pockets and bank accounts. Add to them the scrap paper of life – receipts, vouchers, medical and pharmaceutical bills, travel and gasoline receipts, cancelled checks and whatever other minutiae contributes to the cost of living, or living it up.

In the case of elected officials, campaign finance reports are the centerpiece. Notes, diaries and schedules are a bonus. The search point is imbalance.

And soon subpoenas are flying like confetti on New Year’s Eve. Nobody outside the prosecutor’s office knows exactly what they’re looking for, and it’s possible they don’t either, until they stumble on it.

Partners, business associates, colleagues and campaign officials are especially valuable witnesses. The feds are always searching for someone they can “flip” and turn testimony against the target(s). As prosecutors say, they like to deal up, a little fish for a big fish.

Grand jury investigations heighten bladder activity. It is the nature of grand jury investigations to, literally, scare the stuffing out of people, the innocent as well as the guilty, the piano player in the whorehouse as well as the whores themselves.

And once in the sanctum of the grand jury room, there are no lawyers, no rules. Just a court reporter, two, maybe three prosecutors who work the good-cop, bad-cop routine, and 16-23 of your peers who look the way you’d expect them to look. Bored. Bored silly.

(Federal grand jurors in Maryland are chosen from a statewide jury pool of randomly selected citizens from lists of registered voters. The selection process is designed to represent a fair cross-section of the state.)

A life, a family, a career is in their hands, and for the most part they’d rather be home slouching in front of a television set or playing tic-tac-toe on a smartphone.

A prosecutor has rarely lost a case before a grand jury. The popular saying has it right: A prosecutor can get a grand jury to indict a ham sandwich.

The trick to appearing before a grand jury is to wriggle and writhe, slip and slide, work the room and find a friendly face, then play to it. Most of all, look sincere, fake it if you have to. Shave the truth, dissemble, let the memory do the old dipsy-doodle, but never lie unless you sure you’re the only one who knows the answer.

Perjury is the only crime a person can commit before a grand jury. Knowing about a crime is not a crime. Lying about it is.

The last person(s) asked to appear before a grand jury is (are) the target(s) of the investigation. They are usually “invited” to appear and not subpoenaed, ever mindful that they are shrouded in the Fifth Amendment. They rarely, if ever, voluntarily appear out of fear of the perjury trap.

So meet Baltimore’s fun couple, Marilyn and Nick Mosby, wife and husband. Marilyn’s the city’s state’s attorney, real estate baroness, world traveler, and letterhead name on several other businesses. And Nick is City Council president, a former delegate and City Council member, and, so far as we know, proprietor of a consulting business.

Together, Marilyn and Nick have a comfortable income. Marilyn earns $238,772 as state’s attorney, and Nick is paid $128,583 as City Council president – together that’s $367,355. They apparently own a home in Baltimore’s Reservoir Hill neighborhood, assessment unknown, which was the subject of an IRS lien for $45,000 for three years of unpaid taxes – $23,000 in 2014, $19,000 in 2015, and $3,000 in 2016 – which Nick attributed to tapping a retirement fund early because of family difficulties.

In Marilyn’s name there is ownership of two houses in Florida purchased for more than $1 million, much of it in loans – one in Kissimmee for $545,000 with a $490,000 loan, and the other in Longboat Key, for $476,000 with a $428,000 loan.

Which prompted the Mosbys’ lawyer, A. Scott Bolden, of Washington – not from Baltimore, mind you – to offer a novel line of defense:

“So What?” A snappy retort he repeated several times in a longer statement as kind of a brash exclamation point.

In one statement Bolden said, “She [Marilyn] has a legitimate ability to purchase properties and invest her money any way she chooses.”

In another, Bolden said, the Mosbys “quite frankly don’t make enough money to have a criminal investigation about them.”

Huh?

Even more baffling, was another of Bolden’s remarks: “My clients are progressive change agents, making them unfair targets of unnecessary scrutiny by federal investigators.” Could it be inferred from that remark that liberals (the old name for progressive change agents) should not be subject to investigation?

So far, Marilyn and Nick have been mum, barely a peep, except for Marilyn’s new/old manifesto about excusing low-level crime.

Which raises another problem for the defense: When public officials are under investigation, there often arises a clash between their attorneys and communications advisers. Attorneys for the defense, more often than not, advise their clients to be neither seen nor heard. Let the lawyers do the talking. The communications team, by contrast, argues that public officials must be highly visible, out front and viewed by the public as doing their jobs, projecting an air of casual innocence.

What really got a lot of folks riled up was Marilyn’s absenteeism and her jet-setting travels on company time. They aroused such a fuss that she personally asked the city’s inspector general for an independent review that she hoped would quash the commotion.

Well, the headline here is that no good deed goes unpunished. The IG’s report only made matters worse for Marilyn.

The report showed that Marilyn Mosby had been absent from her office for 144 days in 2018 and 2019 – the equivalent of about five months, according to the IG’s calculations.

Worse, according to the findings, Mosby failed to obtain the required city approval for 15 of her trips. Mosby’s travels took her for extended visits to Germany, Portugal, Kenya, Scotland and about a dozen states. They also involved about $30,000 in reimbursements as well as a number of gifts she received, which, according to her office, Mosby donated for auction.

And, of course, there’s the tetchy matter of $3,250 in campaign funds that Mosby used to pay legal fees. And another bold-faced question mark concerns Nick’s charitable contributions, apparently to his church, which prompted one wit to remark that he spent more money at Starbucks.

That’s pretty much what we know. Of course, we, the people, do not have subpoena power, the IRS and the FBI at our disposal, all the time we need to build a case and the federal budget to fund it. Only a grand jury does.

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Footnote: As matter of interest for those who brood about such things, if a vacancy occurs in the state’s attorney’s office, a successor is appointed by the Circuit Court judges of Baltimore City. That last occurred in the 1970s, when Chief Judge Meyer Cardin, of the Supreme Bench (reformed and renamed the Circuit Court), used his authority to force the appointment of his son, Howard Cardin, brother of now-U.S. Sen. Benjamin Cardin, as state’s attorney. Howard Cardin was defeated in the next election. City Council members fill their president’s vacancy.

Frank A. DeFilippo
Frank A. DeFilippo is an award-winning political commentator who lives and writes in Baltimore. DeFilippo has been writing about the comic opera of politics for more than 50 years. He reported on the Maryland General Assembly for 10 years before joining the administration of former Gov. Marvin Mandel (D) as press secretary and speechwriter. Between times, he was a White House correspondent during the administration of President Lyndon Baines Johnson, and he has covered six national political conventions. DeFilippo is the author of Hooked, an alleged work of fiction, and an unpublished manuscript, Shiksa: The Rise and Fall of Marvin Mandel.