United States v. Marilyn Mosby

143 F.4th 264

• Court: Court of Appeals for the Fourth Circuit
• Decided: July 11, 2025
• Docket: 24-4304
• Status: Published

Opinion

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PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 24-4304

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MARILYN J. MOSBY,

Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Baltimore. Lydia Kay Griggsby, District Judge. (1:22-cr-00007-LKG-1)

Argued: January 31, 2025 Decided: July 11, 2025

Before NIEMEYER, AGEE, and THACKER, Circuit Judges.

Affirmed in part, vacated in part, and remanded by published opinion. Judge Thacker wrote the opinion in which Judge Agee joined. Judge Niemeyer wrote a separate opinion, concurring in part and dissenting in part.

ARGUED: Daniel Stephen Volchok, WILMERHALE LLP, Washington, D.C., for Appellant. David Christian Bornstein, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: James Wyda, Maggie Grace, Baltimore, Maryland, Paresh S. Patel, Cullen O. Macbeth, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland; Carrie M. Montgomery, Nitisha Baronia, Washington, D.C., Alan Schoenfeld, Charles C. Bridge, WILMERHALE LLP, New York, New York, for Appellant. Erek L. Barron, United States Attorney, OFFICE USCA4 Appeal: 24-4304 Doc: 87 Filed: 07/11/2025 Pg: 2 of 48

OF THE UNITED STATES ATTORNEY, for Appellee.

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THACKER, Circuit Judge:

Marilyn Mosby (“Appellant”), the former Baltimore City State’s Attorney, was

convicted of mortgage fraud and perjury in bifurcated jury trials. On appeal, Appellant

asserts that her convictions for perjury should be vacated because the question on the

predicate document upon which her perjury convictions were based was fundamentally

ambiguous. She additionally asserts that the district court erroneously admitted evidence

regarding Appellant’s use of the funds she obtained as a result of her perjury. As to her

mortgage fraud conviction, Appellant asserts that it should be vacated because the district

court gave the jury an erroneous venue instruction, the weight of evidence did not support

the jury’s finding with respect to venue, and the district court improperly permitted cross

examination about Appellant’s perjury convictions. Last, Appellant asserts that the district

court’s forfeiture order, which was predicated on her mortgage fraud conviction, must be

vacated because it was not authorized by statute and was unconstitutionally excessive.

We discern no error in the district court’s adjudication of Appellant’s perjury

convictions. But, on the specific circumstances of this case, we agree with Appellant that

the district court’s jury charge with respect to venue in her mortgage fraud trial was

erroneous. On that ground, we vacate Appellant’s mortgage fraud conviction without

reaching her remaining arguments. And because the district court’s forfeiture order hinges

on the mortgage fraud conviction, it is likewise vacated.

Therefore, we affirm in part and vacate in part.

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I.

A.

1.

Background

Appellant served two terms as the Baltimore City State’s Attorney from 2015–2023.

During her second term, Appellant’s marriage began to break down. After deciding that

she would not seek a third term, Appellant sought to “posture [her]self” financially for the

next phase of her life and “establish some sort of financial independence from [her

husband].” J.A. 2060.1 With that intent, in 2019 Appellant incorporated a set of travel

related businesses under the name “Mahogany Elite.” Id. at 634. Appellant’s idea “was to

set up a travel company to help underserved black families who don’t usually have the

opportunity to travel outside of urban cities.” Id. at 2745.

Appellant also began looking for a home that she could purchase in her own name

-- something she had never done before. After her offers on Baltimore properties fell

through, she began looking at properties in Florida via a longtime friend, Monique Holtson-

Greene, who worked as a realtor in the Florida market. Holston-Greene advised Appellant

to work with Gilbert Bennet, a Florida mortgage broker, in order to obtain pre-approval for

a mortgage.

1 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.

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Appellant informed Bennet that she was looking for a vacation rental property in

Florida. After Bennet assisted Appellant in getting pre-approved for a mortgage, Appellant

began looking for properties in Florida to purchase.

2.

Retirement Account Withdrawals

While she was looking for property to purchase in Florida, Appellant made two

withdrawals from the money she had accrued in her retirement account during her years of

working as a Baltimore City employee. At that time, Appellant’s withdrawals were subject

to the 2020 Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No. 116-136,

134 Stat. 281 (“CARES Act”). Pursuant to the CARES Act, individuals who experienced

“adverse financial consequences” could make withdrawals from their retirement accounts

without having to pay the typical tax penalties that are associated with pre-retirement

withdrawals. See 26 U.S.C. § 72 statutory notes (Special Rules for Use of Retirement

Funds).

In relevant part, the Coronavirus-Related Distribution Request form (“the

Distribution Request Form”) that Appellant completed in order to make a CARES Act pre-

retirement withdrawal, asked if the applicant had “experienced adverse financial

consequences stemming from [COVID-19]” as a result of: (1) being quarantined,

furloughed, or laid off; (2) having reduced work hours; (3) being unable to work due to a

lack of child care; or (4) the closing or reduction of hours of a business they own or operate.

J.A. 2738. The Distribution Request Form did not require the applicant to identify which

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of the four categories was applicable. It only asked the applicant to certify that she had

suffered adverse financial consequences stemming from any of those categories.

On May 26, 2020, Appellant submitted a request for a $40,000 coronavirus related

withdrawal from her retirement account, in order to purchase a property in Florida. On the

Distribution Request Form, Appellant certified under penalty of perjury that she had

experienced adverse financial consequences stemming from COVID-19, as a result of one

of the four enumerated options. In September 2020, Appellant used the $40,000 she

obtained from the withdrawal as part of her down payment and closing costs for the

purchase of a home in Kissimmee, Florida (the “Kissimmee Property”).

On December 29, 2020, Appellant requested a second coronavirus related

withdrawal of $50,000 from her retirement account. She subsequently contracted to

purchase a condominium in Longboat Key, Florida (the “Longboat Key Condo”) for

$476,000, based on a $428,400 mortgage with United Wholesale Mortgage. Again,

Appellant used the $50,000 as part of her down payment and closing costs to purchase the

property. The purchase agreement for the Longboat Key Condo gave Appellant until

February 19, 2021, to close on the sale on pain of default.

3.

Longboat Key Condo Closing

On February 2, 2021, Bennet, as Appellant’s mortgage broker, informed her via text

message that due to an accounting error on his part, she was $5,000 short of the amount of

money she needed to have in hand in order to satisfy United Wholesale Mortgage’s

underwriting requirements. In her direct testimony at her mortgage fraud trial, Appellant

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explained that United Wholesale Mortgage would not accept $5,000 of the amount she had

tendered to satisfy the closing requirement because it had come from a joint account that

Appellant shared with her minor daughter.

Appellant informed Bennet that she would be receiving the necessary $5,000 by

February 12, from her standard biweekly paycheck. In response, Bennet told Appellant

that she could make up the missing $5,000 via a “gift letter.” J.A. 1850. As Bennet

explained at trial, a gift letter is a certification by “any disinterested party” -- i.e., “any

party not associated with the transaction” -- that they would provide a mortgagor with

specified funds in order to satisfy a lender’s closing requirements. Id. at 1849–51. The

gift letter “documents who the monies come from,” ensuring that they were obtained from

a “disinterested party, meaning not the seller, not the buyer, not the broker, not the realtor,

et cetera.” Id. at 1849–50.

Bennet proposed that Appellant obtain a gift letter from her husband, because he

was not a listed borrower on Appellant’s mortgage application to purchase the Longboat

Key Condo and, therefore, was a disinterested party. On February 9, Bennet emailed

Appellant a partially completed draft gift letter. The draft gift letter was from Appellant’s

husband to Appellant, specifying that Appellant’s husband “made a gift of $5,000 [to

Appellant] to be transferred [at closing].” S.A. 146.2 The draft gift letter included a

2 Citations to the “S.A.” refer to the Supplemental Joint Appendix filed by the parties in this appeal.

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certification that the $5,000 was “not made available to [Appellant’s husband]” by anyone

“with an interest in the sale of the property . . . [or] associated with [the] transaction.” Id.

Appellant and her husband signed the gift letter template (the “Gift Letter”) on

February 10, 2021, and February 9, 2021, respectively. At trial, Appellant testified that

she wired her husband $5,000 on February 12 when she received her paycheck because she

was “[n]ot necessarily confident that [her husband] would have the $5,000 at closing.” J.A.

2082.

The Government adduced no direct evidence at trial that Appellant was in the

District of Maryland when she transmitted the executed Gift Letter to United Wholesale

Mortgage. Appellant’s bank statement shows debit card transactions Appellant made in

Maryland on February 2, 4, and 8, but not on the date when she received or signed the Gift

Letter, or on any of the dates thereafter up to Appellant’s closing on February 19, 2021.

The Government introduced evidence in its case in chief from a former underwriter

for United Wholesale Mortgage, that the “purpose of the gift letter was to prevent the

interest ‘rate lock’ for [Appellant]’s mortgage loan from expiring.” J.A. 302–03. In a

document prepared by United Wholesale Mortgage and printed on February 10, 2021,

however, United Wholesale Mortgage specified that Appellant’s “rate lock” did not expire

until closing, on February 19, 2021. S.A. 94. That same document referenced the Gift

Letter as a condition for closing: “Gift funds from [Appellant’s husband] are being

transferred prior to release of final closing package.” Id. United Wholesale Mortgage also

prepared an “Enclosed Documents List,” also dated February 10, 2021, containing

Appellant’s mortgage application materials. Id. at 130. The February 10, 2021 mortgage

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application packet referenced an unattributed $5,000 gift, but the packet itself does not

contain the Gift Letter.

The former underwriter for United Wholesale Mortgage testified that Appellant

would have needed an intermediary -- her mortgage broker -- to “upload” the Gift Letter

to the “United Wholesale Mortgage system.” J.A. 1319. However, the Government did

not adduce any direct evidence as to when Appellant transmitted the Gift Letter to her

broker to be uploaded, or where she was at the time.

Per the Government’s evidence, Appellant travelled by airplane to Florida on

February 16. The following day, Appellant’s husband sent Appellant $5,000 consistent

with his obligation pursuant to his attestation in the Gift Letter. On that same day, as the

district court found in its review of the Government’s evidence: “[Appellant]’s mortgage

loan was approved . . . [by United Wholesale Mortgage].” J.A. at 302.

On February 19, 2021, Appellant closed on the Longboat Key Condo in Florida.

B.

Pre-trial Proceedings

Appellant was indicted in January 2022 on four counts: (1) perjury, in violation of

18 U.S.C. § 1621, based on Appellant’s May 26, 2020 withdrawal from her retirement

account (“Count One”); (2) mortgage fraud, in violation of 18 U.S.C. § 1014, based on

Appellant’s mortgage application to purchase the Kissimmee Property (“Count Two”); (3)

perjury, in violation of 18 U.S.C. § 1621, based on Appellant’s December 29, 2020

withdrawal from her retirement account (“Count Three”); and (4) mortgage fraud, in

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violation of 18 U.S.C. § 1014, based on Appellant’s mortgage application to purchase the

Longboat Key Condo (“Count Four”).

Appellant’s two mortgage fraud charges alleged seven predicate false statements.

Specifically, Count Two charged that in Appellant’s mortgage application for the

Kissimmee Property she failed to disclose that she owed federal taxes, falsely stated that

she was not delinquent or in default on any federal debt, and falsely stated that she would

maintain exclusive control over the occupancy or use of the property. Count Four charged

that in Appellant’s mortgage application for the Longboat Key Condo she falsely stated

that she had spent the last 70 days in Florida, failed to disclose that she owed federal taxes,

falsely stated that she was not delinquent or in default on any federal debt, and falsely

stated that her husband gifted her $5,000 to be applied to the purchase of the Longboat Key

Condo.

On Appellant’s motion, the district court severed the perjury charges from the

mortgage fraud charges due to concern that “a joint trial would encumber the [Appellant]’s

decision about whether to assert her Fifth Amendment privilege against self-incrimination

with regards to certain counts in th[e] case.” J.A. 183. As a result, the district court

scheduled the perjury trial to precede the mortgage fraud trial.

Appellant moved to dismiss the perjury counts in the indictment arguing, inter alia,

that the term “adverse financial consequences” on the retirement account Distribution

Request Form was “fundamentally ambiguous.” J.A. 74–80. Accordingly, Appellant

argued that the Distribution Request Form was insufficient to support a jury charge of

perjury as a matter of law because a form that poses a fundamentally ambiguous question

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may not support a perjury conviction. The district court denied the motion, concluding,

“the standards for determining what it means to suffer ‘adverse financial consequences’

stemming from the Coronavirus are set forth in the definition of a ‘[C]oronavirus-related

[D]istribution’ under Section 2202 [of the CARES Act].” Id. at 166.

Prior to the perjury trial, Appellant moved to “exclude evidence regarding how her

withdrawn [retirement funds] were used.” J.A. 138. Appellant argued that such evidence

was irrelevant because neither the CARES Act nor anything else placed limits on how the

withdrawn money could be used. Appellant argued in the alternative that such evidence

would be unduly prejudicial “due to animosity or jealousy that [Appellant] used [] funds

to purchase second homes in Florida during a pandemic,” and that it could both confuse

the jury and waste its time. Id. at 112–13. The district court denied the motion, concluding

that the evidence was “relevant to determining whether [Appellant] experienced ‘adverse

financial consequences’ due to [COVID-19].” Id. at 156. Regarding Appellant’s objection

with respect to prejudice and jury confusion, the court concluded that any potential undue

prejudice, confusion, or wasted time “[would] not substantially outweigh the probative

value of t[he] evidence.” Id. at 156–57.

Perjury Trial

Appellant’s perjury trial began on October 31, 2023. Appellant’s counsel argued

that Appellant reasonably thought that the negative impact of COVID-19 on her travel

business, Mahogany Elite, amounted to an adverse financial consequence as specified on

the Distribution Request Form. The Government countered that Appellant’s business

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never had any income, and that Appellant never had any plans to open the business during

the relevant time frame, based on Appellant’s stipulation that Mahogany Elite was “brand

new and [] not yet conducting business.” J.A. 631. Consequently, the Government argued,

Appellant could not have suffered any “adverse financial consequences,” since Appellant

had not yet started the company, earned any revenue, or incurred any costs. Appellant

exercised her right not to testify. After seven days of trial, on November 9, 2023, the jury

convicted Appellant on both perjury counts.

Following the perjury trial, Appellant moved in limine to preclude the Government

from cross examining her about her perjury convictions if she testified in her mortgage

fraud trial. The district court denied her motion but nonetheless excluded evidence about

the underlying details in connection with Appellant’s perjury convictions, permitting cross

examination only into the fact that she had been convicted. The district court also permitted

the Government to introduce evidence showing that the down payments for the Florida

homes came from retirement funds withdrawn pursuant to the CARES Act. The court

precluded the Government from implying that Appellant’s withdrawals were the basis for

her perjury convictions.

Mortgage Fraud Trial

Appellant’s mortgage fraud trial began on January 17, 2024. Unlike in the perjury

trial, Appellant testified at the mortgage fraud trial. During her direct testimony, Appellant

explained that an accounting mistake by her broker had left her $5,000 short of what she

needed to close on the Longboat Key Condo on February 19, 2021. She further explained

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that to make up the difference, her broker suggested she obtain a gift letter from her

husband. She testified that her husband assured her that he could provide the $5,000 before

the closing and signed the Gift Letter on February 9, 2021. Appellant testified that she

wired her husband $5,000 when she got paid on February 12, because she was not

“confident that he would have the $5,000 at closing.” J.A. 2082.

At the end of her direct testimony, in response to a question from her counsel,

Appellant disclosed that she had a perjury conviction. Appellant’s counsel then asked her,

“why [she was] testifying today?” J.A. 2089. Appellant answered, “[b]ecause I regret not

testifying before, and I want this jury to hear my truth.” Id. Based on that statement, the

Government asserted that Appellant had opened the door to cross examination on the

perjury convictions. The Government argued that Appellant’s testimony implied that

“there was inadequate evidence to convict her in the earlier trial because she didn’t testify”

and that “the prior jury didn’t hear her truth and therefore [] the perjury conviction is

invalid.” Id. at 2094. In the Government’s view, this amounted to an attack on the

sufficiency of the evidence of Appellant’s perjury convictions, thereby warranting “[cross

examination] about the prior trial and the evidence in that trial.” Id.

After hearing argument, the district court determined that its prior ruling granting

Appellant’s motion in limine to exclude the details of the facts underpinning the perjury

convictions did not apply. Specifically, the court noted that its prior ruling “did not address

the circumstance of [Appellant] raising the perjury conviction[s] [i]n [her] direct

[testimony].” J.A. 2096. Rather, the court’s ruling had contemplated permitting the

Government to raise Appellant’s perjury convictions in cross examination in a “limited

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discussion[,]” regarding Appellant’s “[c]haracter [as] to truthfulness.” Id. In that sense,

the court concluded that Appellant’s direct testimony about her perjury convictions was “a

different scenario,” outside the scope of its prior ruling. Id. As a result, the court permitted

the Government to cross examine Appellant about her perjury convictions. Consequently,

the Government elicited testimony on cross examination that Appellant had been convicted

of falsely stating on the Distribution Request Forms that she had suffered “adverse financial

consequences,” and that she had used the obtained funds to purchase two properties in

Florida.

At the close of the Government’s case, Appellant moved pursuant to Federal Rule

of Criminal Procedure 29(a) for a judgment of acquittal arguing, inter alia, that the

Government had failed to prove venue. Appellant argued that our decision in Reass v.

United States, 99 F.2d 754 (4th Cir. 1938) dictated that “venue is only proper in § 1014

cases in the district where the false statement is communicated or received.” J.A. 215. In

Appellant’s view, pursuant to Reass, the Government needed to present evidence that the

Gift Letter was “submitted or received in Maryland” in order to establish venue in that

district. Id. at 216. Appellant argued that the Government had not met this burden with

respect to the Gift Letter, because the Government had only presented circumstantial

evidence that Appellant was likely in Maryland when she signed the Gift Letter on

February 10, 2021. Appellant argued that this evidence permitted only a “speculative”

inference that the Government had proved venue. Id. at 218.

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While Appellant’s motion for a judgment of acquittal was pending, the parties

conferenced with the district court regarding jury instructions. The court declined to give

Appellant’s proposed instruction that:

[V]enue is proper only in a district in which an essential conduct element of the offense took place . . . . The offense of making a false statement under the offense charged does not begin until the false statement has been communicated to the recipient mortgage lender. However, acts which are merely preparatory to the offense cannot provide a basis for venue. Therefore, mere preparation of a false statement cannot provide a basis for venue. Under these terms, the government must prove that [Appellant] communicated each alleged false statement to the recipient mortgage lender from a location within the District of Maryland.

J.A. 241. Instead, over Appellant’s written and verbal objection, the district court adopted

the Government’s instruction: “In addition to the elements of the offense, you must

consider whether any act occurred in the furtherance of this crime in the District of

Maryland.” Id. at 2439.

Appellant argued that this instruction was improper because the phrase “in

furtherance of” opened the door to the jury determining venue based on mere preparatory

conduct as opposed to the essential conduct elements that are required to establish venue.

Appellant argued that such an overbroad instruction was prohibited by our decision in

United States v. Sterling, 860 F.3d 233, 241 (4th Cir. 2017) (holding that “[a]cts which are

merely ‘preparatory’” are not a basis for venue). The district court’s instruction, Appellant

argued, would permit the jury to “find venue merely based on preparatory acts in

Maryland—even if they believe [Appellant] was not in Maryland when she communicated

the alleged false statements to the lenders.” J.A. 239.

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After three weeks of trial, on February 7, 2024, Appellant was convicted on a single

mortgage fraud predicate: the Gift Letter from her husband that she used to purchase the

Longboat Key Condo.3 After the jury returned its verdict, the district court denied

Appellant’s motion for acquittal, concluding that the Government “sufficiently established

during its case-in-chief that [Appellant] was in the District of Maryland when she submitted

the [] Gift Letter to United Wholesale Mortgage.” J.A. 303.

4.

Sentencing

The district court sentenced Appellant to three years of supervised release, with the

first year to be served in home confinement. Additionally, the court granted the

Government’s motion to forfeit the Longboat Key Condo, holding that the Government

had “established by a preponderance of the evidence that [Appellant] obtained [the

Longboat Key Condo] as the result of her criminal conviction [for mortgage fraud].” J.A.

330. The court rejected Appellant’s arguments that forfeiture: (1) was not statutorily

authorized because the Government had not proven that Appellant would not have obtained

the home but for the Gift Letter; and (2) constituted an unconstitutionally excessive fine in

violation of the Eighth Amendment. Therefore, the court ordered Appellant to forfeit 90%

3 The jury acquitted Appellant on the Count Two charge relating to the Kissimmee property. On Count Four, the jury only found Appellant guilty with respect to the Gift Letter predicate; the jury did not find Appellant guilty on the remaining three fraud predicates proffered by the Government relating to other alleged fraudulent statements Appellant made in connection with her mortgage application to purchase the Longboat Key Condo.

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of her interest in the Longboat Key Condo, amounting to approximately $773,200

according to Appellant’s calculation.4

Appellant timely noted her appeal.

II.

Appellant raises several challenges on appeal.

With respect to her perjury convictions, Appellant asserts that the district court erred

by denying her motion to dismiss the perjury counts in the indictment. Specifically,

Appellant alleges that the predicate false statements set out in the indictment were

fundamentally ambiguous and thus could not form the basis for her perjury convictions as

a matter of law. Appellant also alleges that the district court erred by admitting evidence

as to Appellant’s use of the funds that she withdrew from her retirement accounts, which

unduly prejudiced and confused the jury.

With respect to her mortgage fraud conviction, Appellant alleges that the district

court erroneously instructed the jury on venue, and that the evidence that was presented to

the jury was legally insufficient to establish venue in the District of Maryland. She also

alleges that the district court improperly permitted the Government to cross examine

Appellant about her perjury convictions.

4 On October 11, 2024, a prior panel of this court granted Appellant’s motion to stay the district court’s forfeiture order pending appeal.

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Last, Appellant argues the district court erred by issuing the forfeiture order because

Appellant’s property was not subject to forfeiture by statute and because the forfeiture

order itself was unconstitutionally excessive in violation of the Eighth Amendment.

Perjury Convictions

Appellant’s arguments on appeal as to her perjury convictions are without merit.

Motion to Dismiss

Turning first to the district court’s denial of Appellant’s motion to dismiss the

perjury counts, we review the district court’s factual findings on a motion to dismiss an

indictment for clear error and its legal conclusions de novo. United States v. Barringer, 25

F.4th 239, 246 (4th Cir. 2022).

The question we are faced with here is whether the term “adverse financial

consequences” on the Distribution Request Form is too ambiguous to support a perjury

charge. “[An] answer to a fundamentally ambiguous question may not, as a matter of law,

form the basis for a false statement.” United States v. Sarwari, 669 F.3d 401, 407 (4th Cir.

2012). Restated, the answer to a fundamentally ambiguous question cannot be perjurious.

Here, Appellant asserts that the phrase “adverse financial consequences” on the

Distribution Request Form was “fundamentally ambiguous.” Therefore, Appellant argues,

the question on the Distribution Request Form asking whether the applicant had suffered

“adverse financial consequences” was a “fundamentally ambiguous question,” which could

not serve as the basis for a perjury conviction as a matter of law. Accordingly, Appellant

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argues the district court should have dismissed Counts One and Three because they charged

Appellant with committing perjury by answering a “fundamentally ambiguous” question.

A phrase is “fundamentally ambiguous” when it “is not a phrase with a meaning

about which [people] of ordinary intellect could agree, nor one which could be used with

mutual understanding by a questioner and answerer unless it were defined at the time.”

Sarwari, 669 F.3d at 407 (quoting United States v. Lighte, 782 F.2d 367, 375 (2d Cir.

1986)). Yet “[f]undamental ambiguity is the exception, not the rule.” Id. (citing United

States v. Farmer, 137 F.3d 1265, 1269 (10th Cir. 1998)). Indeed, a district court cannot

“dismiss a charge of perjury when it is entirely reasonable to expect a defendant to have

understood the terms used in the questions.” Id. (citations omitted).

Appellant seeks to establish ambiguity on the ground that “financial” could have

multiple meanings. But just because words “have different meanings in different situations

does not make them fundamentally ambiguous.” Sarwari, 669 F.3d at 407 (quoting Lighte,

782 F.2d at 375). Indeed, the district court explained how “adverse financial

consequences” is “a phrase with a meaning about which [persons] of ordinary intellect

could agree,” id., by its instruction that “[a]dverse financial consequences means an

unfavorable or negative outcome related to money[,]” J.A. 901. This simple and accurate

definition of the phrase, “adverse financial consequences” is one we have no trouble

believing people of ordinary intellect would understand.

Moreover, Appellant may not establish ambiguity by “isolating a question from its

context.” Sarwari, 669 F.3d at 408 (quoting United Farmer, 137 F.3d at 1269). And, here,

the allegedly ambiguous term, “adverse financial consequences,” was followed by the

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qualifier “stemming from [COVID-19] as a result of” four enumerated examples: (1) being

quarantined, furloughed or laid off; (2) having reduced work hours; (3) being unable to

work due to lack of child care; and (4) the closing or reduction of hours of a business the

applicant owns or operates. J.A. 2738. Read in its full context, therefore, the term is

adequately clear because the specific parameters of an “adverse financial consequence” are

set out in the Distribution Request Form itself. Spelled out in full, an “adverse financial

consequence” is an unfavorable or negative outcome related to money, stemming from

COVID-19, and resulting from one of the four examples identified on the Distribution

Request Form.

In sum, the term “adverse financial consequences” is not “fundamentally

ambiguous.” This means the Distribution Request Form did not pose a fundamentally

ambiguous question and is, therefore, legally adequate to support a perjury conviction. The

district court did not err in denying Appellant’s motion to dismiss.

Motion In Limine Ruling

We turn next to Appellant’s assertion that the district court erred in ruling in limine

that the Government could admit evidence as to how Appellant used the $90,000 she

withdrew from her retirement accounts. We review “a district court’s evidentiary rulings

for abuse of discretion.” United States of Am. v. Freitekh, 114 F.4th 292, 315 (4th Cir.

2024) (citation omitted). We apply a “highly deferential standard of review to . . . a trial

court’s decision to admit evidence over a Rule 403 objection, and that decision will not be

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overturned except under the most extraordinary circumstances, where that discretion has

been plainly abused.” Id. (quotation marks omitted).

Appellant argues that evidence regarding her use of the $90,000 was irrelevant and,

alternatively, unduly prejudicial and confusing to the jury. Her contentions are without

merit.

As the district court concluded, evidence as to how Appellant utilized the withdrawn

funds was relevant because it was probative on the factual question of whether she suffered

an adverse financial consequence as a result of COVID-19. Moreover, the probative value

of the admitted evidence was not “substantially outweighed by the danger of unfair

prejudice [or] confusion of the issues.” Old Chief v. United States, 519 U.S. 172, 180

(1997) (quoting Fed. R. Evid. 403). Indeed, Rule 403 “requires exclusion of evidence only

in those instances where the trial judge believes that there is a genuine risk that the emotions

of the jury will be excited to irrational behavior, and that this risk is disproportionate to the

probative value of the offered evidence.” Freitekh, 114 F.4th at 316 (citations omitted).

Here, Appellant argues the evidence that she used the $90,000 to purchase vacation

homes in Florida prompted the jurors to convict her “because they viewed her as a wealthy

woman and a public figure motivated by greed.” Appellant Br. at 46. In support of her

argument, Appellant chiefly relies on the Government’s statements during closing

argument that Appellant committed perjury “for ‘her own private gain . . . to access

$90,000 to purchase a million dollars[’] worth of Florida vacation homes.’” Id. at 45

(quoting J.A. 810).

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But Rule 403 requires more than a mere showing of “general prejudice.” United

States v. Byers, 649 F.3d 197, 210 (4th Cir. 2011) (cleaned up). While a juror might have

inferred from the Government’s statements that Appellant was wealthy and held that

against her, this is not the kind of prejudice that “substantially outweighs the probative

value of the evidence.” Byers, 649 F.3d at 210 (emphasis in original). At best, Appellant’s

theory alludes to a generalized risk of prejudice, based on the presumption that reasonable

jurors are generally hostile to wealthy people. This purported risk did not warrant

exclusion pursuant to Rule 403.

Next, Appellant argues that the district court’s failure to exclude evidence about

how Appellant used the funds she withdrew from her retirement accounts risked confusing

the jury. Namely, she argues that the evidence could “misle[ad] jurors into believing that

their task was to determine whether the adverse financial consequences [Appellant]

experienced were severe enough to justify the amounts withdrawn, and/or whether the

money was used for a permissible purpose.” Appellant Br. at 47.

In support of her argument, Appellant relies on Zayyad, where we affirmed a district

court’s exclusion of cross examination of a Government witness regarding “irrelevant”

testimony, on the ground that it could “distract” the jury. United States v. Zayyad, 741

F.3d 452, 460 (4th Cir. 2014) (“[A] defendant cannot distract the jury by introducing

evidence concerning a potential defense that he never raised . . . . Relevance, after all, must

‘be determined in relation to the charges and claims being tried.’”) (citation omitted). This

authority is inapposite to Appellant’s argument. The portion of Zayyad upon which

Appellant relies discussed the test for determining relevance, not the test for excluding

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relevant evidence that risks unduly confusing the jury.5 See United States v. Nsahlai, 121

F.4th 1052, 1061 (4th Cir. 2024) (“[Pursuant to Federal Rule of Evidence 403], evidence

that is relevant may nonetheless be excluded for any of several reasons including that ‘its

probative value is substantially outweighed by a danger of’ ‘unfair prejudice, confusing the

issues, [or] misleading the jury.’” (quoting Fed. R. Evid. 403))).

On the merits, the district court’s ruling was not an abuse of discretion. The

probative value of the evidence as to how Appellant used the funds she withdrew from her

retirement accounts was not substantially outweighed by the risk of confusing the jury.

Appellant speculates that the jury could have confused determining whether the

Government carried its burden to prove that Appellant had committed perjury with

determining whether the adverse financial consequences Appellant experienced were

severe enough to justify the amounts withdrawn. But as Appellant concedes, the district

court properly instructed the jury on the elements of perjury, and “[w]e presume juries

follow the court’s instructions.” United States v. Ortiz-Orellana, 90 F.4th 689, 699 (4th

Cir. 2024). Thus, given that the court properly instructed the jury on the underlying

offense, and the alleged confusion derives from relevant evidence, Appellant’s speculative

concern that the admitted evidence “likely mislead [the] jurors,” Appellant Br. at 47, rings

hollow.

5 Zayyad did briefly consider a Rule 403 jury confusion issue, but only to sustain the district court’s ruling, as we do here. Zayyad, 741 F.3d at 461–62 (“It is not an easy thing to overturn a Rule 403 ruling on appeal.”).

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In sum, the district court did not err in permitting the Government to introduce

evidence as to how Appellant utilized the funds she withdrew from her retirement accounts.

That evidence was probative as to whether Appellant suffered “adverse financial

consequences.” And the probative value of that evidence was not substantially outweighed

by a risk of undue prejudice or jury confusion.

C.

Mortgage Fraud Conviction

We turn next to Appellant’s argument relative to her mortgage fraud conviction.

Appellant asserts that the district court erroneously instructed the jury on venue in her

mortgage fraud trial.

We review “whether a jury instruction incorrectly stated the law de novo.” United

States v. McCabe, 103 F.4th 259, 278 (4th Cir. 2024). If a jury instruction did incorrectly

state the law, “[then] we decide under either harmless error or plain error whether the

conviction must be set aside.” United States v. Smithers, 92 F.4th 237, 246 (4th Cir. 2024).

A preserved error is “harmless if it is ‘clear beyond a reasonable doubt that a rational jury

would have found the defendant guilty absent the error.’” United States v. Said, 26 F.4th

653, 660 (4th Cir. 2022) (citing Chapman v. California, 386 U.S. 18, 24 (1967)).

Venue is no “mere technicality.” United States v. Moran-Garcia, 966 F.3d 966, 969

(9th Cir. 2020); accord United States v. Miller, 111 F.3d 747, 749 (10th Cir. 1997). Nor

is it just a “matter[] of formal legal procedure.” United States v. Johnson, 323 U.S. 273,

276 (1944). Rather, “[q]uestions of venue in criminal cases . . . raise deep issues of public

policy,” id., which is why “[p]roper venue in criminal proceedings was a matter of concern

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to the Nation’s founders.” United States v. Cabrales, 524 U.S. 1, 6 (1998). Indeed, the

Constitution “twice safeguards the defendant’s venue right.” Id. Article III instructs that

the “Trial of all Crimes . . . shall be held in the State where the said Crimes shall have been

committed.” U.S. Const. art. III, § 2, cl. 3. And the Sixth Amendment requires trial “by

an impartial jury of the . . . district wherein the crime shall have been committed.” Id.

amend. VI. The Federal Rules “echo the[se] constitutional commands,” providing that

“‘prosecution shall be had in a district in which the offense was committed.’” Cabrales,

524 U.S. at 6 (quoting Fed. R. Crim. P. 18).

The district court instructed the jury in Appellant’s mortgage fraud trial as follows:

In addition to the elements of the offense, you must consider whether any act occurred in the furtherance of this crime in the District of Maryland . . . . In this regard, the Government need not prove that the crime itself was committed in this district or that the Defendant herself was present here. It is sufficient to satisfy this element if any act in furtherance of the crime occurred within the District of Maryland. If you find that the Government has failed to prove that any act in the furtherance of the crime occurred within the District of Maryland, or if you have any reasonable doubt on this issue, you must then find [Appellant] not guilty of the charges.

J.A. 2439. This instruction, taken from the model federal jury instructions on venue,

Leonard B. Sand et al., 1 Modern Federal Jury Instructions – Criminal ¶ 3–11 (2023),

instructs that venue existed in the District of Maryland “if any act in furtherance of the

crime occurred [there].” J.A. 2439. The question we must answer is whether this rule

suffices to establish venue for violations of the federal mortgage fraud criminal statute, 18

U.S.C. § 1014.

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In United States v. Sterling, we recognized that where, as here, “a criminal statute

does not contain a venue provision, we must examine the criminal offense and the location

of the acts constituting it.” 860 F.3d 233, 240 (4th Cir. 2017). And venue is proper “only

in a district in which an essential conduct element of the offense took place.” Id. (quoting

United States v. Smith, 452 F.3d 323, 334–35 (4th Cir. 2006)). Therefore, determining

where proper venue lies is a two step process. Id. at 241; see also United States v.

Rodriguez-Moreno, 526 U.S. 275, 279–80 (1999) (outlining two step venue inquiry in

criminal prosecutions). First, we must “identify the conduct constituting the offense” --

i.e., the offense’s “essential conduct” elements. Sterling, 860 F.3d at 241 (citation

omitted). Second, we must “determine where the criminal conduct was committed.” Id.

(citation omitted).

Of particular relevance to this appeal, in Sterling we held that “[a]cts which are

merely ‘preparatory’ to the underlying offense and its essential conduct . . . cannot provide

a basis for venue.” Id. (quoting United States v. Ramirez, 420 F.3d 134, 144 (2d Cir. 2005)

(finding that for purposes of mail fraud, venue lies where an individual actually misuses

the mails, and not where an individual only devises a scheme to defraud)). That is,

preparatory conduct does not satisfy the first step of the venue inquiry because it is not the

type of essential conduct that is required for the establishment of venue.

The controlling authority to discern the line between essential conduct and mere

preparatory conduct for § 1014 is our decision in Reass v. United States, 99 F.2d 752 (4th

Cir. 1938). In Reass, we reversed a defendant’s conviction for violating 12 U.S.C.

§ 1441(a) (1932 ed.), the predecessor to § 1014. See United States v. Wells, 519 U.S. 482,

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492 (1997) (discussing the history of § 1014). At the time, § 1441(a), criminalized

knowingly making a false statement “for the purpose of influencing in any way the action

of a Federal Home Loan Bank upon any application for loan.” Reass, 99 F.2d at 752. In

Reass, the defendant was convicted by a jury in the Northern District of West Virginia for

preparing, filling out, and signing a fraudulent loan application, and then submitting it in

person to a federal bank in Pittsburgh, Pennsylvania. Id. at 753.

We recognized that the underlying statute “was passed to protect the Federal Home

Loan Banks from fraudulent attempts to secure favorable action on applications for loans

and like matters.” Reass, 99 F.2d at 755. Thus, we held that the “gist of the offense [was]

the attempt to influence the corporation” which made the “communication of the false

statements . . . the very essence of the crime.” Id. This meant that, with respect to venue,

“[t]he mere assembling of the material and its arrangement in a written composition

containing the misrepresentations of fact c[ould] have no effect.” Id. Rather, it was only

when the fraudulent material was “communicated . . . that the crime takes place.” Id.

Thus, “the acts performed by the defendant in Wheeling, [West Virginia,] although

preparatory to the commission of the crime, were no part of the crime itself.” Id.

Our disposition of § 1441 in 1938 binds our disposition of § 1014 today.6 Congress

enacted § 1014 in 1948 “as part of its recodification of the federal criminal code.” Wells,

6 The dissent asserts that our decision in Blecker modified our rule from Reass that signing or otherwise preparing a fraudulent document amounts to mere preparatory conduct with respect to venue for the federal statute on criminal mortgage fraud. Not so. As the dissent concedes, Blecker dealt with a different statute than the one at issue here. United States v. Blecker, 657 F.2d 629, 632 (4th Cir. 1981) (looking to “the language of the false (Continued) 27 USCA4 Appeal: 24-4304 Doc: 87 Filed: 07/11/2025 Pg: 28 of 48

519 U.S. at 492 (citing 62 Stat. 752). In doing so, it brought together 13 statutory

provisions, including § 1441, into a single criminal statute. Id. Yet, critical for our

purposes here, the relevant statutory language remained substantially the same. Compare

12 U.S.C. § 1441(a) (1932 ed.) (“Whoever makes any statement, knowing it to be

false . . . for the purpose of influencing in any way the action of a Federal Home Loan

Bank.”) with § 1014 (“Whoever knowingly makes any false statement or report . . . for the

purpose of influencing in any way the action of . . . any Federal home loan bank.”). That

is, the criminal defendant must knowingly “make” a false statement, in order to run afoul

of the statue, both in 1938 and today.

Reass remains good law in this Circuit.7 See United States v. Collins, 415 F.3d 304,

311 (4th Cir. 2005) (“A decision of a panel of this court becomes the law of the circuit and

claims statute, [18 U.S.C. § 287]” to derive the rule that venue is proper with regard to that statute “in either the district in which the claims were made or prepared”). Concerning that statute, the Blecker court considered the distinct question of whether venue was also proper in the district “in which the false claim was submitted to an intermediary[,]” who then passed on the fraudulent documents to a government agency. Id. at 633. The disposition of that issue in Blecker is irrelevant to this appeal because it has no bearing on whether venue for the mortgage fraud statue may be established by a defendant signing or otherwise preparing a fraudulent document, as was considered in Reass. In fact, Blecker cited Reass merely in passing, to note that the question at issue in Blecker was not resolved by the Reass decision. Id. (recognizing that Reass had not “dealt with th[is] clearly distinct context”). This perfunctory treatment of Reass neither modified nor overruled the venue rule from that decision -- defining preparatory conduct in the venue inquiry for the federal statute on criminal mortgage fraud -- as the dissent suggests. 7 In attempt to avoid this reality, the Government argues in a footnote that Reass was abrogated by the Supreme Court in Williams v. United States, 458 U.S. 279 (1982). While we need not consider such an argument, see United States v. Arbaugh, 951 F.3d 167, 174 n.2 (4th Cir. 2020) (recognizing “[w]e do not ordinarily entertain arguments made solely in a footnote because they lack the development required by Federal Rule of (Continued) 28 USCA4 Appeal: 24-4304 Doc: 87 Filed: 07/11/2025 Pg: 29 of 48

is binding on other panels unless it is overruled by a subsequent en banc opinion of this

court or a superseding contrary decision of the Supreme Court.”); see also McMellon v.

United States, 387 F.3d 329, 333 (4th Cir. 2004) (recognizing that “the basic rule that one

panel cannot overrule another requires a panel to follow the earlier of the conflicting

opinions”). Therefore, to establish venue pursuant to Sterling, the jury here had to find that

Appellant transmitted the Gift Letter to her Florida mortgage lender from the District of

Maryland. Preparatory acts, such as preparing, filling out, or signing the Gift Letter do not

suffice.

Applying this framework, the district court’s venue instruction to the jury was

erroneously overbroad. By instructing the jury that “[i]t [wa]s sufficient to [establish

venue] if any act in furtherance of the crime occurred within the District of Maryland,”

J.A. 2439, the district court permitted the jury to establish venue based on mere preparatory

acts.

Indeed, the district court’s venue instruction is substantially identical to the

erroneous instruction that we found to be “ambiguous” in Sterling, wherein the district

court instructed the jury that it needed to find “that at least one act in furtherance of that

Appellate Procedure 28”), the Government is incorrect on the merits. The Supreme Court did hold in Williams that the elements of a § 1014 charge are: (1) the defendant made a “false statement or report,” or “willfully overvalue[d] any land, property or security”; and (2) he did so “for the purpose of influencing in any way the action of [a described financial institution] upon any application, advance, . . . commitment, or loan.” 458 U.S. at 284. But, as Appellant aptly points out, the fraudulent statement must still be “made” to someone. Therefore, the venue related holding in Reass remains undisturbed by Williams. Indeed, Williams itself says nothing about venue.

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offense occurred in the . . . District.” Sterling, 860 F.3d at 244–45 (emphasis omitted). As

in Sterling, the district court’s instruction here impermissibly permitted the jury to find

venue based on preparatory acts because the instruction did not distinguish between

essential acts and preparatory acts. The instruction merely instructed, “any act in

furtherance of the crime” was sufficient to establish venue. J.A. 2439.

Unlike in Sterling, however, the district court’s additional instructions in this case

do not cure the deficiency in its venue instruction. In Sterling, we held that the ambiguity

in the venue instruction was rendered harmless by “an earlier statement to the jury that the

defendant must be tried ‘where the offense was committed.’” Sterling, 860 F.3d at 245

(explaining that this instruction “helped dispel any ambiguity, by clarifying that ‘willful

retention’ (and not just mere preparation for such retention) needed to occur in the [trial

district] for the jury to find proper venue”). No such instruction appears in this case.

Instead, the venue instruction here specifies only that the jury was to establish venue “[i]n

addition to the elements of the offense.” J.A. 2439. And the jury instruction here even

went so far as to say that the Government did not need to “prove that the crime itself was

committed in this district.” Id. Read cumulatively, these instructions expressly permitted

the improper inference that venue could be established by the type of preparatory acts that

are prohibited by Reass. This was error.

Having determined that the district court’s instruction to the jury with respect to

venue in the mortgage fraud trial was erroneous, we must assess whether the error was

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harmless.8 To make that assessment, we ask whether the “record contains evidence that

could rationally lead to a contrary finding with respect to that omitted element.” Smithers,

92 F.4th at 251 (quoting United States v. Brown, 202 F.3d 691, 701 (4th Cir. 2000)). If

“there is evidence upon which a jury could have reached a contrary finding, the error is not

harmless . . . because . . . we cannot determine beyond a reasonable doubt that the ‘jury

verdict would have been the same absent the error.’” Id. (quoting Brown, 202 F.3d at 701)

(citation omitted). In this case the question is: could the jury have found that venue was

not proper in Maryland because the Government had not satisfactorily demonstrated that

the essential conduct of the offense -- as defined by Reass -- occurred in Maryland.

On this record, we conclude that the jury could indeed have determined that the

Government did not meet its burden to establish venue in the District of Maryland, meaning

that the instructional error was not harmless. The Government’s own closing argument

highlights the issue. In its closing argument, the Government focused exclusively on

impermissible preparatory acts with respect to venue: “[Appellant] signed the gift letter in

Baltimore, and she transferred funds to and from her husband’s accounts . . . in Maryland

banks.” J.A. 2327. This underscores that, from the perspective of both the Government

8 The Government argues that we should review for plain error. The Government asserts that Appellant failed to preserve her challenge to this instruction because she did not object after the district court delivered the charge and before the jury retired. Federal Rule of Criminal Procedure 30(d) obligates a defendant to raise her objection to a jury charge “before the jury retires to deliberate.” McCabe, 103 F.4th at 278 (quoting Fed. R. Crim. P. 30(d)). As the Government concedes, however, Appellant objected to the instruction at the charge conference, and she filed a written objection before the charge was delivered. This suffices to preserve the error.

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and the jury, the venue determination that was being made rested on (impermissible)

preparatory acts. J.A. 2326 (Government stating at closing: “The judge’s instruction will

say the Government doesn’t need to prove the crime itself was committed in this

district . . . it is sufficient to satisfy this element if any act in furtherance occurred in the

district”).

In fact, it is uncontested 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.

The district court itself stated, “the Government’s evidence to establish venue in this

District is certainly circumstantial.” J.A. 303. And that circumstantial evidence could go

either way. For example, the Government adduced no direct evidence as to where

Appellant was after she received the draft gift letter on February 9. Nor did the

Government adduce any direct evidence as to where Appellant was when she transmitted

the Gift Letter to her broker in Florida, or even when that transmission occurred. The

February 10, 2021 mortgage application packet did reference the Gift Letter, but it was

conspicuously absent from the application packet. Further, the evidence presented at trial

indicated that Appellant signed the Gift Letter on February 10, but then traveled to Florida

on February 16 for her closing. And United Wholesale Mortgage did not approve

Appellant’s loan until February 17. On these facts, a rational factfinder could infer that

Appellant sent the Gift Letter from her home in Baltimore. But it could also reasonably

conclude that there was insufficient evidence to determine that fact, one way or the other.

Perhaps Appellant took the Gift Letter with her when she travelled to Florida on February

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16 and transmitted it to her broker from that district. There is no evidence solidifying what

actually happened, where, or when.

This error could have been remedied by direction from the district court that the jury

could establish venue by finding that an element of the crime was committed in Maryland.

But that is not what the jury was told. Instead, both the district court and the Government

told the jury, “the Government need not prove that the crime itself was committed in this

district [to establish venue].” J.A. 2439 (district court instruction); id. at 2326 (Government

stating at closing: “The judge’s instruction will say the Government doesn’t need to prove

the crime itself was committed in this district”). 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.” Id. at 2439.

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.

For these reasons, we vacate Appellant’s conviction for mortgage fraud and remand

for further proceedings.9 In rendering this disposition, we emphasize that our holding is

cabined to the unique circumstances of this case.

9 Because we vacate the mortgage fraud conviction, we decline to review Appellant’s remaining arguments concerning her mortgage fraud conviction.

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D.

Forfeiture

As a result of our decision to vacate the mortgage fraud conviction, the forfeiture

order related to Appellant’s Longboat Key Condo, which was obtained as the fruit of the

alleged mortgage fraud, is also vacated. See, e.g., United States v. Aramony, 88 F.3d 1369,

1387 n.11 (4th Cir. 1996).

III.

For the foregoing reasons, the judgments of the district court are

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

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NIEMEYER, Circuit Judge, concurring in part and dissenting in part:

The majority opinion sustains Marilyn Mosby’s venue-related challenges to her

conviction of mortgage fraud under 18 U.S.C. § 1014. Mosby contends (1) that the

government failed to introduce evidence sufficient to show that the crime was committed

in Maryland, and (2) that the district court’s venue instruction was erroneous. I would

reject both arguments and affirm the district court’s judgment.

I

Mosby, as the elected State’s Attorney for Baltimore City, Maryland, lived and

worked in Baltimore. Evidence introduced at trial allowed the jury to find that, while in

Maryland, she prepared, signed, and transmitted a false gift letter to an out-of-state

mortgage lending business to satisfy financial requirements for closing her purchase of real

property in Florida. She was indicted for mortgage fraud in the District of Maryland, where

she made and from where she transmitted the false gift letter, and a jury impaneled in the

District of Maryland convicted her for violating 18 U.S.C. § 1014.

Section 1014 provides, in relevant part:

Whoever knowingly makes any false statement . . . for the purpose of influencing in any way the action of . . . a mortgage lending business . . . upon any application, . . . commitment, [or] loan . . . shall be [punished].

18 U.S.C. § 1014 (emphasis added). The elements that the government must prove for a

conviction under the statute are (1) that the defendant knowingly made a false statement;

(2) that the defendant made the statement for the purpose of influencing a financial

institution such as, in this case, a mortgage lending business; (3) that the defendant

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submitted the false statement to the mortgage lending business, and (4) that the false

statement was made in relation to an application, commitment, or loan, among other

transactions. See, e.g., United States v. Smith, 838 F.2d 436, 439–40 (10th Cir. 1988);

3 Leonard B. Sand et al., Modern Federal Jury Instructions – Criminal ¶ 15.41 (2025).

II

At trial, Mosby challenged the Maryland venue for prosecution of the § 1014 crime,

contending that the government introduced insufficient evidence for the jury to conclude

that she committed the crime in Maryland. The jury, however, found that venue in

Maryland was appropriate. Mosby now challenges this finding on appeal, relying mainly

on our decision in Reass v. United States, a 1938 opinion in which we concluded that

“communication of the false statements to the corporation constitutes the very essence of

the crime,” 99 F.2d 752, 755 (4th Cir. 1938) (emphasis added), and arguing that she

“communicated” her gift letter to the lender in Florida.

The rule is well established, under both Supreme Court and Fourth Circuit

precedents, that venue lies in any State where any conduct element of the crime was

committed, such that, in a prosecution under § 1014, venue is plainly proper in any State

in which the defendant prepares or transmits the false statement. See, e.g., United States

v. Blecker, 657 F.2d 629, 632–33 (4th Cir. 1981). In this case, 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.

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To begin, Article III, § 2, of the U.S. Constitution provides in relevant part, “The

Trial of all Crimes . . . shall be held in the State where the said Crimes shall have been

committed . . . . ” This Venue Clause is reinforced by the Vicinage Clause in the Sixth

Amendment, which guarantees “an impartial jury of the State and district wherein the crime

shall have been committed.” U.S. Const. amend. VI; see also Fed. R. Crim. P. 18 (“Unless

a statute or these rules permit otherwise, the government must prosecute an offense in a

district where the offense was committed”). When a crime is committed in more than one

State, Congress has provided, “[A]ny offense against the United States begun in one district

and completed in another, or committed in more than one district, may be inquired of and

prosecuted in any district in which such offense was begun, continued, or completed.”

18 U.S.C. § 3237(a).

The controlling analysis for locating where a crime has been committed — the

Constitution’s venue determinant — begins with the identification of “the act or acts

constituting [the crime].” United States v. Cabrales, 524 U.S. 1, 6–7 (1998) (quoting

United States v. Anderson, 328 U.S. 699, 703 (1946)). Once the “essential conduct

elements” of the crime are identified, a court must then discern where they were committed.

United States v. Rodriguez-Moreno, 526 U.S. 275, 279–80 (1999) (articulating the two-

step process). And when a crime’s conduct elements are committed in different localities,

“venue . . . [is] appropriate in any of them.” Id. at 282; see also 18 U.S.C. § 3237(a). In

short, a court must conduct a two-step analysis by first identifying the conduct elements of

the crime and second determining the location where each was committed.

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We have repeatedly articulated and followed this process. In Blecker, when

determining venue for the crime of “mak[ing] or present[ing]” a false claim to a federal

agency, in violation of 18 U.S.C. § 287, we applied the two-step analysis and held that

venue was “unquestionably appropriate in the District of Maryland in which the false

claims were prepared or in the District of Columbia in which they ultimately came to rest

with the [agency].” 657 F.2d at 632 (emphasis added). In United States v. Barsanti, when

determining venue for the crime of making a materially false statement in a “matter” within

federal jurisdiction, in violation of 18 U.S.C. § 1001(a), we applied this two-step analysis

and observed that venue was appropriate in Washington, D.C., or Virginia when the false

statements at issue were signed in Washington, D.C., sent to a mortgage bank in Virginia,

and then transmitted to an agency in Washington, D.C. 943 F.2d 428, 434–35 (4th Cir.

1991). In United States v. Bowens, when determining venue for the crime of illegally

harboring a fugitive, in violation of 18 U.S.C. § 1071, we noted that the task involved

identifying the conduct elements of the crime and then the location where each was

committed and found venue proper in each such location. 224 F.3d 302, 308–09 (4th Cir.

2000). In United States v. Wilson, when determining venue for the crime of escape under

18 U.S.C. § 751(a), we conducted the same analysis, determining the conduct elements of

the crime and then the location of each, and indicated that venue lay in Nevada, where the

defendant was erroneously released from custody, and in North Carolina, where he had

been legally incarcerated. 262 F.3d 305, 320–21 (4th Cir. 2001). In United States v. Smith,

when determining venue for the offense of murder while engaged in a drug-trafficking

crime, in violation of 21 U.S.C. § 848(e), we identified various acts committed “in

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furtherance of the drug conspiracy” in Virginia, making venue proper there even though

the killing took place in Washington, D.C. 452 F.3d 323, 334–35 (4th Cir. 2006) (emphasis

added). While we concluded that venue may have been appropriate in either location, we

observed that “our venue rules make clear that where venue lies, the choice among

acceptable fora is one for the prosecution.” Id. at 336. In United States v. Sterling, when

determining venue for national security crimes, such as wrongfully disclosing classified

information, we applied the two-step process established in Rodriguez-Moreno, noting that

we must (1) “identify the conduct constituting the offense” and (2) “determine where the

criminal conduct was committed.” 860 F.3d 233, 241 (4th Cir. 2017) (cleaned up). We

explained that “if essential criminal conduct takes place in more than one district, the

government may prosecute those offenses in any district in which such offense was begun,

continued, or completed.” Id. (cleaned up). And in United States v. Ayon-Brito, we applied

Rodriguez-Moreno’s two-step analysis, again recognizing that venue lay in any State where

a conduct element was committed. 981 F.3d 265, 269 (4th Cir. 2020). In sum, we have

repeatedly and consistently followed Rodriguez-Moreno’s two-step analysis to hold that

criminal venue lies in any State where an essential conduct element of the offense was

committed.

When the sufficiency of the evidence is challenged, we will affirm the jury’s finding

of venue whenever, “viewing the evidence in the light most favorable to the government,

any rational trier of fact could have found venue by a preponderance of the evidence.”

Sterling, 860 F.3d at 241 (emphasis added).

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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. Moreover,

Mosby received the falsely gifted money from her husband, who drew it from the

Municipal Employees Credit Union in Maryland and transmitted it to the escrow agent for

the transaction. Thus, the false statement was “made” in Maryland, a conduct element of

the § 1014 crime, and transmitted from Maryland to Florida, also a conduct element of the

crime.

In denying Mosby’s challenge to the sufficiency of the evidence that conduct

elements were committed in Maryland, the district court pointed to specific evidence that

the government had introduced and concluded that the evidence was sufficient to show that

“the defendant submitted the False Gift Letter to United Wholesale Mortgage on February

10, 2021, while she was in the District of Maryland.” The court identified evidence

showing that United Wholesale Mortgage accounted for the gift letter in its documentation

on February 10, 2021, in preparation for the subsequent closing in Florida. The court also

observed that evidence showed that Mosby had signed the gift letter on the same day.

Additionally, the court noted that Mosby’s broker had told Mosby that he would get her

mortgage “Clear to Close” on February 10th, which would have required Mosby to have

“no more underwriting conditions on the loan itself” and have, at that point in time,

sufficient funds with which to close. In short, the district court recognized the obvious:

Mosby had signed and uploaded the gift letter on February 10th.

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As for evidence demonstrating that Mosby was in Maryland on February 10, the

court noted that the government had introduced evidence of Mosby’s Bank of America

bank statements showing debit card transactions executed in Baltimore, Maryland, and

Cockeysville, Maryland, dated February 2, 4, and 8, 2021. The government had also

introduced records showing that Mosby’s husband completed several bank transactions at

Maryland financial institutions on February 9, 10, and 11, 2021. Finally, the court noted,

the government had introduced evidence that on February 16, 2021, Mosby incurred a

charge with Spirit Airlines, presumably for her trip from Maryland to Florida, where, on

that same day, she used her debit card, showing that “the Defendant traveled from

Maryland to Florida on February 16, 2021.” Evidence showed that the mortgage loan was

in fact approved on February 17 and that it closed in Florida two days later, with Mosby

present.

In sum, this evidence showed that the false gift letter was prepared and executed in

Maryland by Mosby and her husband on or before February 10, 2021, when it was

transmitted to her broker in Florida to enable approval of the loan before closing; that

Mosby was in Maryland during that period up until February 16, 2021, when she traveled

to Florida; and that she attended the closing in Florida on February 19, 2021, which was

enabled by the false gift letter. In these circumstances, venue was clearly proper in either

Maryland or Florida, where the conduct elements of a § 1014 violation were carried out.

To support her venue challenge, Mosby relies on United States v. Reass, which we

decided in 1938 — i.e., before all of the governing Supreme Court decisions were handed

down, prescribing the appropriate analysis, and before we thereafter applied that prescribed

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analysis in numerous cases. In Reass, the defendant prepared an application for a loan in

Wheeling, West Virginia, and carried it personally to Pittsburgh, Pennsylvania. 99 F.2d at

753. We held that a loan fraud violation under a predecessor to § 1014 “took place entirely

in Pittsburg[h] where the writing previously prepared was presented to the bank.” Id. at

755 (emphasis added). We did not perform the two-step analysis later required by

Rodriguez-Moreno to identify the conduct elements of the offense and determine where

those conduct elements had been committed because Rodriguez-Moreno had not yet been

decided. Nonetheless, we did limit our holding, stating, “We have no occasion in this case

to consider whether the offense would have been cognizable in West Virginia, if the

defendant had entrusted the application to the mails in Wheeling for delivery to the bank

in Pittsburg[h] . . . .” Id. (emphasis added).

And what was left undecided in Reass is precisely the circumstance we have before

us in the case. Mosby did not prepare the false gift letter in Maryland and then carry it to

Florida to present it. 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.

Were this issue not expressly left open by Reass, we made clear that this was so in

our subsequent decision in Blecker, where we held that both the preparation of the false

claim and its mailing were conduct elements sufficient to justify venue under 18 U.S.C.

§ 287, a statute materially similar to § 1014. Indeed, we concluded,

That statute provides that any person who “makes or presents” a false claim to any agency of the United States is guilty of a crime. Thus, venue lies to prosecute a violator of this statute in either the district in which the claims

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were made or prepared, or the one in which they were presented to the government. Venue in the present case was therefore unquestionably appropriate in the District of Maryland in which the false claims were prepared or in the District of Columbia in which they ultimately came to rest with the [agency].

Blecker, 657 F.2d at 632 (emphasis added) (citations omitted). Moreover, we explicitly

addressed Reass and noted that it applied only to cases where the false statement was

actually delivered in person. As we explained:

[I]n Reass we expressly refused to pass on the question “whether the offense would have been cognizable in West Virginia, if the defendant had entrusted the application to the mails in Wheeling for delivery to the bank in Pittsburgh.”

Id. at 633 (emphasis added) (quoting 99 F.2d at 755). Because Blecker construed Reass,

rather than overruling it, we are bound by Blecker and our numerous similar decisions

handed down thereafter, which have uniformly applied the two-step process. And to the

extent Reass is in tension with Blecker, it is also in tension with the decisions of the

Supreme Court, which unmistakably require that venue be determined by (1) identifying

the conduct elements and then (2) locating where each of those conduct elements was

Consistent with this conclusion, at least two of our sister circuits have looked to

Blecker as providing the default venue rule with respect to false-statement crimes — even

under 18 U.S.C. § 1014. See United States v. Leahy, 82 F.3d 624, 633 (5th Cir. 1996)

(relying on Blecker for the “general venue rule for false claim crimes”); United States v.

Wuagneux, 683 F.2d 1343, 1356 (11th Cir. 1982) (citing Blecker as providing “the general

rule of venue under the various false statement and false claims statutes” when determining

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venue for § 1014). They have, by contrast, declined to draw guidance from Reass. United

States v. Brown, 898 F.3d 636, 639–41 (5th Cir. 2018) (observing that Reass “appears to

be a relic” and holding that venue was proper where the defendant signed the false

statement). This would be beside the point, of course, if Reass controlled. But because the

facts before us are the very facts that Reass tabled for another day, Reass does not.

The district court’s ruling on venue was not only consistent with universally

established principles, as demanded by decisions of both the Supreme Court and also our

court, but also with most of the decisions across the country. See, e.g., United States v.

Clark, 728 F.3d 622, 623–24 (7th Cir. 2013) (finding venue appropriate in Illinois where

false statements were made even though they were sent to a contractor in Missouri); United

States v. Sutton, 13 F.3d 595, 598–99 (2d Cir. 1994) (finding venue appropriate either

where false driver’s license applications were processed or where clients received them);

United States v. Redfearn, 906 F.2d 352, 353–54 (8th Cir. 1990) (indicating that venue was

appropriate where loan application was filled out or where it was approved); United States

v. Candella, 487 F.2d 1223, 1227–28 (2d Cir. 1973) (finding venue either where false

statements were “prepared, executed and handed” off or where the agency made the

decision to approve the application); Haddad v. United States, 349 F.2d 511, 515 (9th Cir.

1965) (finding venue appropriate where fraudulent statement was prepared even though it

was delivered to the American consulate in Jordan); United States v. Ruehrup, 333 F.2d

641, 642–44 (7th Cir. 1964) (finding venue appropriate where false statement was

prepared and deposited in the mail even though it was received in another State); Henslee

v. United States, 262 F.2d 750, 753 (5th Cir. 1959) (finding venue appropriate where false

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statement was prepared and mailed or where it was received); United States v. Miller, 246

F.2d 486, 487–88 (2d Cir. 1957) (indicating that venue would be appropriate where false

claim was transmitted even though it was mailed to another State).

In restricting venue based on Reass, which expressly excepted from its holding the

circumstances presented here, the majority not only misapplies Reass, but it also ignores

the well-established rule that we have clearly announced — in no less than 7 decisions

following Reass — that venue lies where any conduct element of the offense was carried

out. And 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. See Blecker, 657 F.2d at 632.

At bottom, venue for prosecution of the § 1014 charge against Mosby was clearly

appropriate in the District of Maryland, and I would affirm the district court in that regard.

III

Mosby also challenges the language of the model jury instruction for venue that the

district court gave to the jury, claiming that it was overbroad such that a jury could consider

preparatory acts, as distinguished from essential conduct elements, in determining venue.

See Sterling, 860 F.3d at 241 (“Acts which are merely ‘preparatory’ to the underlying

offense and its essential conduct . . . cannot provide a basis for venue”). In submitting the

venue issue to the jury, however, the district court did not tell the jury that it could find

venue on the basis of preparatory acts. It instructed:

In addition to the elements of the offense, you must consider whether any act occurred in the furtherance of this crime in the District of Maryland. . . .

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If you find that the Government has failed to prove that any act in the furtherance of the crime occurred within the District of Maryland, . . . you must then find Ms. Mosby not guilty of the charges.

(Emphasis added). And as to the elements of the crime, the court instructed the jury:

In order for the Defendant to be found guilty of mortgage fraud as charged, the Government must prove beyond a reasonable doubt each of the following four elements: First, that the Defendant made a false statement or report relating to an application to a mortgage lending business; second, that the Defendant acted knowingly; third, that the false statement or report was made for the purpose of influencing in any way the mortgage lending business’ actions; and fourth, that the statement was submitted to a mortgage lending business.

(Emphasis added). The venue instruction was taken almost verbatim from the model

federal jury instructions. See 1 Leonard B. Sand et al., Modern Federal Jury Instructions

– Criminal ¶ 3-11 (2025). Similar instructions have also been adopted for use by several

circuits. See, e.g., Third Circuit Model Criminal Jury Instructions § 3.09, at 22 (2024);

Ninth Circuit Model Criminal Jury Instructions § 6.32, at 149 (2022). Mosby nonetheless

challenges the instruction’s use of the “in the furtherance of this crime” language, arguing

that it is too broad.

I cannot agree that the use of the phrase “in the furtherance of this crime” in the

standard venue jury instruction requires reversal. First, the meaning of the words “in the

furtherance of” is more restricted than Mosby would have it. “In furtherance of” or “to

further” something is to help it forward; to promote it; to advance it. See “Further” and

“Furtherance,” Merriam-Webster’s Collegiate Dictionary 509 (11th ed. 2020). Thus, we

have concluded that conduct “in furtherance of” a crime is conduct that satisfies its

elements. See Smith, 452 F.3d at 335 (emphasis added) (noting that “various acts in

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furtherance of the drug conspiracy” satisfied conduct elements and thus supported venue

(emphasis added)); United States v. Al-Talib, 55 F.3d 923, 928 (4th Cir. 1995) (noting that

“a prosecution may be brought in any district in which any act in furtherance of the

conspiracy was committed” (emphasis added)); United States v. Anderson, 611 F.2d 504,

509 n.5 (4th Cir. 1979) (noting that an act “in furtherance of the conspiracy” is sufficient

to render venue proper in the district in which the act was committed (emphasis added)

(citation omitted)). While the underlying crime in these cases was a conspiracy, for which

an act in furtherance of the crime is an essential conduct element, the jurors in each case

were, all the same, trusted to distinguish essential element conduct — the acts in

furtherance of the conspiracy — from preparatory acts. Thus, instructing the jury that

venue lies where any act in furtherance of the crime was committed is entirely consistent

with the words’ plain meaning; our historical use of the words, especially when coupled

with instructions specifying the conduct elements of the crime, as the district court gave

here; and their use in model jury instructions. See Sand et al., supra, ¶ 3-11; Smith, 452

F.3d at 335; Al-Talib, 55 F.3d at 928; Anderson, 611 F.2d at 509 n.5.

Moreover, if the instruction was indeed erroneous, the error was harmless. See

United States v. Raza, 876 F.3d 604, 614 (4th Cir. 2017) (noting that erroneous instructions

are subject to harmless error review). The evidence presented at trial amply and clearly

demonstrated that venue was proper in Maryland by a preponderance of the evidence. It

showed that Mosby made the false statement in Maryland by obtaining and signing the

false gift letter in Maryland and that she transmitted the statement from Maryland by

uploading it to the Internet for use at the closing in Florida. She also engaged her husband

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to wire the funds from Maryland in support of the gift letter. Both “making” and

“transmitting” are conduct elements of the § 1014 crime and justify venue where they were

Mosby’s concern that the instruction allowed the jury to consider preparatory acts

in finding venue is abated by the fact that the government introduced no preparatory acts

when presenting evidence of conduct for purposes of venue.

* * *

For these reasons, I would affirm the jury’s finding of venue in Maryland, the district

court’s approval of that finding, and the court’s instructions to the jury with respect to

venue.