Gun Crimes

Published on: March 22, 2019

Feds Announce Gun Possession Plea

Federal prosecutors have a reputation for taking on the largest and most complex criminal cases, and recent news headlines have done nothing but support this reputation. In the last few months the feds have convicted one of the largest drug traffickers in history, placed the entire college and amateur basketball world on notice and publicly shamed Hollywood actors for engaging in university admissions scandals. It seems no case is too large, but when it comes to guns in Baltimore no case is too small either. The U.S. Attorney’s Office recently announced that a 24-year old Baltimore man pleaded guilty to unlicensed gun dealing and possession of a firearm by a convicted felon. This case was not tied to any other federal indictment, and the defendant was not part of any large-scale criminal conspiracy that the feds typically prosecute. There were no bank robbery, drug trafficking or gang related RICO claims against the defendant. The facts were straightforward and the case could have been prosecuted by the State of Maryland in the Baltimore City Circuit Court, yet the federal government decided take over.

This particular defendant, who had a prior conviction for first degree assault from 2015, pleaded guilty in Howard County to a separate gun related offense in the fall of 2017. Sentencing on the Howard County case was set for the winter of 2018 and the defendant was out of custody, presumably getting is affects in order before he began his sentence. Before the sentencing hearing, a violation of probation warrant from the original assault case became active, and Baltimore Police officers were sent to serve the warrant. Upon initiating a traffic stop the defendant fled from his vehicle and was arrested after a brief pursuit. A handgun was recovered along the path where the defendant allegedly fled. After this arrest law enforcement obtained a search warrant for the defendant’s social medial accounts and discovered numerous references to illegal gun sales, which prompted the feds to assume prosecution of the case. The 24-year old was sentenced on the two Howard County cases where he received the full backup time for the violation of probation and five years for the unlawful firearm possession case. He now faces up to 15 years in federal prison for the case where he recently pleaded guilty.

Regular readers of the Blog are well aware of federal government’s increased involvement with Baltimore City gun cases. It has become clear over the last decade that the local government simply cannot control violence in the city. It’s not just the murder rate, which is the highest among any major U.S. city but also the shootings, robberies, burglaries and carjackings that are all at critical levels. For the most part people just do not feel safe in Baltimore, and the population is declining as a result. The city is also having trouble hiring new police officer and retaining its own.

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Published on: March 1, 2019

What Prohibits Someone From Owning A Gun?

By Benjamin Herbst

Over the last decade Maryland lawmakers have specifically targeted handguns by making them harder to purchase, sell and even manufacture. The legislature has made specific findings that are part of the criminal code that basically hold handguns responsible for the alarming increase in serious injuries and deaths that occur during the commission of violent crimes. As a result of these findings lawmakers have passed some of the toughest gun laws in the country. These laws can carry lengthy prison sentences, and in jurisdictions like Baltimore City they can cause defendants to be held pretrial without bail for months. This is true even for non-violent gun possession cases where there were no injuries and the gun was not brandished or used in a threatening manner. For some defendants simple gun possession is enough to cause a no bail hold and the real possibility of jail.

The gun laws in Maryland are strict and complicated, which makes understanding them extremely important. Simply possessing or transporting a handgun in an improper manner can result in a misdemeanor charge for wear, transport and carry. This offense has a 3-year maximum penalty and a 30-day mandatory jail sentence that must be imposed upon conviction unless the court grants probation before judgment. While it is not out of the question, most defendants that are only charged with misdemeanor gun possession will be able to either post bail or be released or their recognizance. With good representation these defendants could avoid serving any jail time. Misdemeanor possession is a pretty straightforward offense, as you cannot carry a gun in public or drive with a gun unless it is unloaded, in a case and separated from the ammunition. You also may only drive with a handgun if you are going to and from you house, the shop or the range.

The complex part of the Maryland gun law is figuring out who is actually disqualified from owning or possessing a firearm in any manner. While there are different laws that separate handguns from rifles and shotguns, a disqualified individual cannot possess any type of firearm. There are numerous reasons why a person can be disqualified from firearm possession, with the most obvious being a felony conviction. Many people think that a felony conviction is the only reason that they may be prohibited from possessing a gun, but in Maryland this is not the case. A person who is convicted of a disqualifying crime may not possess a firearm, and faces the possibility of a felony charge under Title 5 of the Public Safety Code. This law carries a 15-year maximum penalty with the possibility of a 5-year minimum, so avoiding this charge at all costs is key.

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Published on: October 19, 2018

Can Medical Marijuana Patients Purchase Guns?

By Benjamin Herbst

For the last few years Maryland residents have been required to obtain a license to legally purchase a handgun. The handgun qualification license or HQL has been in effect since October of 2013 and requires purchasers to complete safety training and pass a full background check with the state police that includes fingerprinting. Those wishing to purchase rifles and shotguns are not subject to these requirements, and must only fill out a federally issued form and pass an instant background check. If you come with proper identification and pass the ATF’s check you can easily buy a semi-automatic shotgun or rifle in under an hour. But handguns are different, and despite anticipated backlash from the gun lobby the HQL requirement has largely remained out of the news since 2013.

Fast forward 5 years and the HQL law is back in the news after medical marijuana users are discovering they may have given up their right to purchase a handgun simply for registering as patients. In addition to convicted felons and those found guilty of other crimes such as second degree assault, the Maryland public safety code prohibits drug addicts and habitual drunkards from possessing any type of firearm. The language of the statute is key, as Maryland law does not broadly prohibit those who use drugs or drink alcohol from possessing or purchasing guns. Federal law on the other hand has prohibited the sale of guns to users of controlled substances since the Gun Control Act of 1968 and the Brady act of 1993, and it is this decades old legislation that is now the reason more than 20 medical marijuana patients have been denied the right to purchase a handgun. Marijuana is still defined as a controlled substance under federal law, and while the feds have yet to show signs they would enforce these acts as they relate to medical marijuana in Maryland, the state police apparently do not wish to assist citizens in breaking the dated law.

Patients who register with the Maryland Medical Cannabis Commission are protected by federal HIPAA regulations, and their identities cannot be disclosed anyone, especially to law enforcement. But within the last year the state police have added a question in their HQL application that asks the applicant whether they are a registered user of medical marijuana. The police may not have access to the database, but lying on the application is a federal offense that carries up to 10 years in prison, making it unreasonable to risk criminal prosecution simply to purchase a handgun. Therefore by simply asking the question the state police are effectively banning medical marijuana patients from lawfully purchasing a handgun, and are covering their butts from the feds in the process. The questionnaire also adds a layer of protection to state gun dealers, who risk federal prosecution for unlawfully selling handguns in violation of the Brady Act. Violating the act is not a strict liability crime, meaning the shop would have to know or have reason to believe they are selling to a prohibited person. The impression we get from the HQL is that the state is not interested in subjecting its citizens to federal prosecution, but at the same time does not want to be complicit in violating federal law.

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Published on: September 24, 2018

Final Defendant Sentenced In Gun Shop Robbery

By Benjamin Herbst

This past week a 23-year old man from Baltimore was sentenced to 13 years in prison for his role in a brazen gun store robbery that left one victim locked in a vault and others fearing for their lives. Four other co-defendants had already been sentenced at the U.S. District court in Baltimore, including the principal planner who received 20 years for armed commercial robbery. The fifth and final sentencing hearing closes a case that federal law enforcement officers and prosecutors had been working on since August of 2016.

According to the plea agreement the five co-defendants targeted an independently owned firearms and bait and tackle store in the Dundalk area of Baltimore County. The principal planner drove his four cohorts to the store in a stolen pickup truck. The defendant and another co-defendant then entered the store brandishing their own firearms and bound one of the employees with zip-ties while making the other employee empty the cash register at gunpoint. Two other co-defendants then entered the store while the planner backed the stolen pickup to the front door of the shop. The four men then proceeded to load 37 firearms into duffel bags and then ran to the truck, but not before shoving one employee into a vault and locking her inside. Three assault rifles were included in the 37, along with a silencer and cash.

After fleeing to Baltimore the five co-defendants divided up the cash and guns and went their separate ways. The FBI, ATF and Baltimore County Police Department all went to work immediately on the case, and their investigation resulted in numerous search warrants that yielded evidence of the robbery. Video surveillance showed that the 23-year old defendant left earbuds inside the store, and also handled a shotgun that he did not ultimately steal. Law enforcement was able to recover a fingerprint from the shotgun that led to a database match, which in turn provided probable cause for a search warrant. Law enforcement also could have recovered DNA from the earbuds used in the robbery in their investigation. A search of this defendant’s home produced numerous firearms from the store with the tags still attached, and also the loaded pistol that the defendant used in the robbery. Additionally, law enforcement recovered evidence that the defendant committed other robberies just weeks before hitting the Dundalk shop. The defendant likely avoided prosecution in these cases by striking a plea deal with the government.

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Published on: August 18, 2018

Man Awaiting Driving Test Arrested At MVA

By Benjamin Herbst

Maryland State Police recently arrested a man who was waiting in line to take his driving test at the MVA headquarters in Glen Burnie, and charged him with numerous drug felonies. The 23-year old from Baltimore was in his mother’s vehicle awaiting his turn with a driving instructor when an MVA employee noticed the smell of marijuana coming from the car. An MSP trooper responded to the scene and initiated a warrantless search of the vehicle based on probable cause that it contained marijuana. The trooper’s suspicion was confirmed and then some, after he located a large plastic bag containing approximately 1 pound of marijuana, a 9 millimeter handgun, a digital scale and more than $15,000 cash. The man was arrested immediately after the contraband was discovered and taken before a commissioner. He was released that same day on an unsecured $7,500 personal bond.

The young man now faces a dozen charges in Anne Arundel County including possession with intent to distribute and possession of marijuana over ten grams. The maximum penalty of PWID marijuana is 5 years, though recent changes to the sentencing guidelines have decreased the amount of jail time most defendants actually see for this offense. Nowadays it is rare for a first time offender to serve much if any jail time unless he or she is involved in a large-scale operation. The concerns for the defendant in this case are the gun charges, especially the crime of possession of a firearm during a drug trafficking crime. A conviction for this felony charge carries a minimum five-year prison sentence, which cannot be suspended and the defendant is not eligible for parole. The defendant is also charged with the less common crime of firearm use during the commission of a felony that also carries a mandatory five years, but is a misdemeanor. Other gun counts include handgun on person and handgun in vehicle, which are essentially the same crime with the same 3-year maximum penalty.

The 9-millimeter Glock that was seized from the car allegedly had an altered or scratched out serial number, and this is a separate crime under the public safety code. Under Maryland law anyone found to be in possession of a gun with an altered serial number is presumed to have altered it. Finally, the defendant in this case was also charged with possession of a detached magazine with over ten rounds. The controversial Firearms Safety Act now limits the capacity of gun magazines to ten bullets, which makes many common firearms illegal in Maryland including the standard military Beretta pistol. The Blog will follow this case as it progresses through the court system. It is currently set for a preliminary hearing in district court, but the State will likely indict the case and it will be transferred to the circuit court in Annapolis. We will post an update if anything of interest happens in this case. If the defendant is found guilty or enters a plea, the sentence will depend on whether he has a prior record of gun, drug or other criminal charges. If you have a question about a criminal case in Maryland or have been charged with a crime feel free to call gun crime attorney Benjamin Herbst anytime at 410-207-2598. Benjamin specializes in gun and drug charges in state and federal court and offers flexible payment plans for all types of cases.

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Published on: June 20, 2018

Feds To Support Baltimore Police This Summer

By Benjamin Herbst

While the crime rate in Baltimore slightly decreased over the last year, violence in the city remains at an unacceptable level. So far in 2018 there have been 130 homicides within the city limit, and hundreds more non-fatal shootings. Just last weekend 5 people were killed and 7 more were shot in Baltimore, which lends credence to the fact that summer always brings a spike in crime to the area. Whether it’s the long days or the warm nights, people spend more time out on the streets during summer, and the streets are where the large majority of violent crimes occur. Baltimore Police has over 3,000 sworn police officers patrolling these streets, but the department has its limitations, especially in times of elevated violence.

For the last few years federal law enforcement agencies have increased their presence in Baltimore, and this summer more than ever the feds plan to lend a hand in taking down the most violent of city criminals. The mayor and the police commissioner recently held a press conference announcing a “summer surge” of law enforcement collaboration designed to get ahead of the violence ushered in by the change in seasons. As expected the press conference did not provide specifics on which federal agencies would be involved and exactly how they would contribute, but the announcement did say that the “worst of the worst” would be the target. No federal agencies have made official statements regarding the collaboration, though the city’s DEA office did say a statement could be forthcoming and the U.S. Marshals Service reiterated their continued willingness to assist.

The collaboration hardly means that we will see uniformed FBI and DEA agents out on the streets of Baltimore. Rather, their involvement will likely be in the form of targeted investigations, arrests and prosecutions of the city’s most dangerous residents. The U.S. Attorney’s Office is already involved in the prosecution of gun crimes that would traditionally be handled in state court. Federal prosecutors routinely notify state prosecutors of their willingness to take over the prosecution of crimes such as possession of a firearm by a prohibited person under 18 U.S.C. 922(g) and the use of a firearm during a drug trafficking crime under 18 U.S.C. 924(g). Under state law the maximum penalty for possession of a firearm by a convicted felon is 15 years with a 5-year mandatory sentence if the prior conviction and resulting sentence was within the last 5 years. This same charge under federal law carries a 10-year mandatory sentence and a $250,000 fine. Under state law possession of a firearm during a drug trafficking crime carries a mandatory 5-year sentence with a maximum 20-year sentence, while under federal law this offense carries a maximum penalty of life imprisonment with a mandatory minimum 5 years consecutive to any other offense.

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Published on: May 23, 2018

Maryland Reports Largest Prison Population Decline

By Benjamin Herbst

The national prison population continues to decline, and for the first time in almost fifteen years the total number of inmates dipped below 1.5 million. Last year Maryland lead the entire nation with a dramatic 10 percent reduction in prisoners, which brought the state inmate population down almost 2 thousand to a total of around 18 thousand. While the simplest explanation for the decline is the passage of the Justice Reinvestment Act, a closer look reveals a variety of factors at play.

The Justice Reinvestment Act or JRA was a groundbreaking and massive piece of legislation that sought to reduce money and manpower dedicated to jailing defendants, and to divert these resources to treating and rehabilitating convicted defendants. The JRA eliminated harsh mandatory sentences for repeat drug offenders convicted of non-violent offenses such as possession with intent to distribute narcotics. The maximum penalty for possession of CDS not marijuana was also lowered to one year, which eliminated the possibility of a prison sentence for drug possession. While most state correctional inmates are serving the original sentence handed down by the judge, a large portion are doing time for violating their probation. Lawmakers became aware that the sentences handed down for probation violations were getting out of control, and used the JRA to do something about it.

Each day dozens of defendants plea out to large suspended sentences in order to be released from jail, and many end up back in court on a violation. Some of these violations are extremely minor, and could be avoided by more patient probation officers. In the past defendants faced years in prison for extremely minor violations, but since the JRA went into effect there are now limits on the sentences handed down for these so called technical violations. The limits are not binding on the judge, but are certainly persuasive when it comes to sentencing a probationer for a positive drug test, failing to complete treatment or not paying restitution.

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Published on: April 15, 2018

Gun Possession Defendant Acquitted

By Benjamin Herbst

Last week a Baltimore City jury found a 21-year old man not guilty on all counts of gun possession after a circuit court trial, but this type of verdict alone is typically not enough to create news headlines. City prosecutors have recently struggled to earn convictions for gun possession cases due in large part to mistrust of city police offers in the aftermath of the gun trace task force scandal, and an acquittal for a possession charge is hardly out of the ordinary. What made this result newsworthy is the fact that the lead arresting officer is now the commissioner of the Baltimore Police Department.

At trial the commissioner took the stand and testified how he pulled a vehicle over, in which the defendant was a passenger, for traveling with a broken headlight. According to the acting commissioner, upon the vehicle coming to a stop the defendant immediately took flight. As other officers gave chase the commissioner checked the glove box and allegedly located a handgun. The problem with the state’s case was that the only evidence that the gun belonged to the defendant was the testimony of the officers. Neither the commissioner or his fellow officers had their body cameras activated at the time of the stop, and none provided an adequate explanation for this inexcusable lack of evidence. Further, the commissioner failed to photograph the firearm in the place it was alleged to have been recovered, and the evidence was never submitted to the crime lab for fingerprint or DNA analysis.

In a case like this, where the only evidence of possession is the word of police officers, prosecutors try to convince the jury that it’s a simple open and shut case. They introduce the gun as evidence and sometimes even allow the jurors to hold it (albeit secured in an evidence box). The state will tell the jurors they’ve seen the gun and heard the testimony and the rest is just a distraction. Fortunately for defendants our justice system places a higher burden on the state, and thankfully most jurors take their job seriously, and hold the state to this burden. Jurors can’t simply be expected to believe a police officer simply because he or she comes to court with a badge and a uniform or shirt and tie. This is not to suggest that physical evidence linking the defendant to the gun or drugs at issue is required, but in cases where this evidence is readily available to law enforcement there is no excuse for its absence. In this case officers failed to have their body cameras activated, failed to preserve the crime scene with photographs and did not even consider submitting the gun to the crime lab for print or DNA work. Each of these failures came without justification or explanation, and therefore the jury got it right. Proof beyond a reasonable doubt means that the finder of fact must be sure that the defendant did what the state alleges, and even seasoned officers must be held accountable for sloppy police work. Decades of experience and smooth demeanor on the stand are no replacement for cold hard evidence, and it’s reassuring to know these jurors agreed.

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Published on: March 17, 2018

Comprehensive Crime Bill Passes Senate

By Benjamin Herbst

Maryland State Senators recently passed a sweeping bill that would modify a number of existing criminal laws ranging from drug dealing to gun possession, and now the bill moves on to the House for a vote later this month. The measure passed by a wide margin in the Senate, and the governor’s approval is expected as long as it arrives at his desk. The bill made headlines for including provisions that increase jail sentences for repeat offenders and adding funding for crime prevention initiatives, but there are numerous other proposals that could have major impacts in courthouses around the state.

Firearms and fentanyl have become two of the main hot button criminal law issues of the past few months, and the comprehensive criminal bill touches on both. With respect to firearms, the bill adds a provision that would enable police officers and prosecutors to apply for wiretaps in cases involving certain public safety code gun laws. These laws include the sale of stolen firearms and the transportation of guns for the purpose of illegal trafficking. Crimes involving straw purchases of regulated firearms may also be investigated through the use of wiretaps under the proposed law. A straw purchase would be buying a gun for someone who cannot or does not want to buy one, and while straw purchases are generally legally, when it comes to firearms the opposite is true. Other firearm provisions in the new bill include raising the maximum and minimum penalty for certain crimes involving handguns. Under the law a second conviction for wear, transport and carry of a handgun would carry a 15-year maximum penalty, up from 10 years. If the second offense occurs on school property the minimum sentence would be increased to 5 years, up from 3. The 5-year minimum sentence for use of a firearm during the commission of a crime would remain under the proposed law, but it would be classified as a felony instead of a misdemeanor. A second offense of this provision would carry a new 10-year minimum sentence.

In addition to stricter gun laws the Senate version of the crime bill also enhances the potential punishment for crimes involving fentanyl. This powerful synthetic narcotic has been responsible for thousands of overdoses, and in many cases the user had no idea that he or she was using it. The strength of fentanyl makes it an easy swap for heroin, and the abundance of it leads to higher profits for dealers. Previously fentanyl was grouped with morphine and opium derivatives with respect to the large amount section of the Maryland drug distribution laws, which meant that it would take more than 28 grams to trigger the 5-year mandatory penalty. Under the proposed law possession of more than 5 grams of fentanyl would trigger enhanced penalties reserved for suspected volume dealers.

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Published on: January 12, 2018

Medical Marijuana Incompatible With Federal Gun Laws

By Benjamin Herbst

Maryland already has some of the toughest gun laws in the country, and now the medical marijuana program may contribute to even tighter restrictions on gun ownership in the state. The Attorney General recently went on record stating his office would no longer sit back and let the states implement marijuana policy without the threat of federal government interference. This doesn’t necessarily mean (we hope) that the DEA is plotting to raid recreational and medical marijuana grow houses and dispensaries across the country, but there is certainly some cause for concern. Here in Maryland the medical marijuana program just became functional after years of work by thousands of people who put in time and millions of dollars for the little green plant to become available with a doctor’s approval. The program is not going anywhere, so patients and investors probably need not fear the worst. But there may have to be some sort of effort to keep the feds at bay, and a firearms crackdown could serve this purpose.

In order to appease the justice department, the Maryland State Police may become more involved in policing long standing federal policy that users of illegal drugs are prohibited from purchasing or receiving guns. The gun control act under 18 U.S.C 921 lays out certain prohibitions for receiving a firearm, and a violation of this federal statute could be punishable by up to 10 years in prison and a whopping $250,000 fine. Each person who purchases a firearm in Maryland is required to fill out a federal firearms transaction record, which is monitored by the ATF. One of the questions on the form asks whether the gun purchaser is an unlawful user of marijuana, narcotics, or any other controlled substances, and then in bold type states that “the use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside”. A person who answers yes to this question is unequivocally barred from purchasing a gun, and a Maryland medical marijuana card will do nothing to prevent the feds from filing charges.

It is difficult to enforce the provision of the gun control act that bars illegal drug users from purchasing handguns for obvious reasons. Gun shops are not administering polygraph tests to prospective buyers, and the ATF cannot show up at a recent gun purchaser’s door to administer a drug test. But in Maryland all medical marijuana patients are required to sign a release allowing the state health department to disclose the identity of cardholders to the state police. This would give the state police all the ammunition it needs to assist the feds in enforcing the federal gun control act. The worry is that state and local law enforcement may start arresting medical marijuana patients who purchase guns in order to set an example, and to appease the justice department now that its leader has taken a public stance against weed. For the near future Maryland residents will have to choose between purchasing or receiving a firearm and enrolling in the medical marijuana program. Even card holders who have yet to make their first purchase of medical pot should worry when buying a firearm, as the mere fact of their enrollment in the program could lead to major criminal liability. After all the progress we have made in last decade with respect to marijuana policy, the AG’s recent statements are a major step in the wrong direction. The only real solution is for Congress to get together and scrap federal laws making marijuana a controlled substance. We are confident this will happen eventually, but waiting on lawmakers to right a wrong is a frustrating proposition to say the least.

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