Criminal Defense Lawyer Blog

Published on: January 28, 2020

Violent Firearms Offender Act Introduced

The Maryland Senate and the House of Delegates recently cross-filled the Violent Firearms Offenders Act, and it is almost certain that a large portion of the bill will become law in October. The bill aims to toughen penalties for certain firearms offenses that were seen as too lenient in light of escalating gun violence in Baltimore City and across Maryland. The bill is part of a package of violence prevention initiatives that the governor announced at a press conference last month in Baltimore, which also includes increased penalties for witness intimidation and measures to track the sentencing records of judges in violent offenses.

The Violent Firearms Offenders Act begins by introducing a provision that adds possession or use of a firearm to the list of non-technical probation violations. Normally a person who is on probation would be charged with a crime for possession or use of a firearm, and thus a rule 4 violation, so the issue would be moot. But this provision gives the state an easier path to prove a non-technical violation if criminal charges are not filed, dismissed or placed on STET. If the state shows the defendant possessed a firearm at any point while on probation the defendant could be found in violation and face the full backup time. The bill also includes a section that reclassifies the crime of using a firearm in the commission of a crime of violence from a misdemeanor to a felony. Once again, this is usually not a major issue because the underlying charge will undoubtedly be a felony. On the other hand, it never made sense for an offense with a five-year minimum mandatory penalty like use of a firearm in violent crime to be classified as a misdemeanor, so there is no major argument against the change. This section also adds a ten-year mandatory penalty for anyone convicted of using a firearm in a crime of violence for a second or subsequent time, which shall run consecutive to the sentence for the underlying crime. Mandatory minimum sentences may not be suspended, and the defendant is never eligible for parole.

Perhaps the most impactful change in the Violent Offender Firearm Act is the new provision that adds a mandatory minimum jail sentence for the crime of theft of a firearm. Theft of a firearm is currently part of the general theft laws, and the penalty is dependent on the value of the firearm. Since most guns have a value of less than $1,500, theft of a firearm is usually treated as a misdemeanor with an 18-month maximum penalty. If this bill passes, and we believe it will, come October anyone who is convicted of stealing a firearm (including an antique firearm or replica), faces a felony conviction with a 2-year minimum mandatory penalty. This two-year minimum mandatory penalty is a new sentencing provision in Maryland, and is not applicable to other criminal statutes. The law does specify that any defendant convicted faces the mandatory two-year sentence, so the issue of whether a defendant is eligible or probation before judgment may have to be addressed at some point. Currently there is a 30-day minimum mandatory penalty for wear, carry or transportation of a handgun in Maryland, but it can be avoided if the lawyer argues for, and the judge grants PBJ. The same is true for the 60-day minimum sentence for carrying a loaded handgun. Lawmakers may choose to exclude theft of a handgun from 6-220, which governs when a judge can grant probation before judgment. In Maryland a defendant who is sentenced to a mandatory term of incarceration may serve the time on house arrest, though house arrest sentences rarely extend beyond one year. It will be interesting to see if 2-year house arrests sentences start becoming the norm, as theft of a firearm is not a violent offense and many defendants will be first time offenders. Judges should hesitate sending a first-time non-violent offender to prison for two years.

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Published on: January 21, 2020

Suspects Arrested For Kicking Baltimore Officer

By Benjamin Herbst

This past Friday night a Baltimore Police sergeant was conducting a routine check on a local business when a suspect allegedly became irate and spat in the officer’s face. A struggle ensued after the officer attempted to arrest the suspect, and both men ended up wresting on the sidewalk. The incident attracted a crowd of bystanders, and at least three of those bystanders were seen on cell phone video kicking the officer during the struggle. On Monday, law enforcement reported that two men and one male juvenile have been arrested for their actions toward the police sergeant. The two male defendants are both under the age of 24, with one hailing from Dundalk, and the other from Windsor Mill. No identifying information about the juvenile has been released, except that he is 17. The two men have been charged with assault on a police officer, which is a felony under Maryland law. Assault on a police officer, firefighter or any other first responder carries the same 10-year maximum penalty as 2^nd degree misdemeanor assault, but scores higher on the sentencing guidelines. The two men were also charged with interfering arrest, which is a 3-year misdemeanor. Interfering arrest is the listed under the same statue as resisting arrest, and both carry the same penalties.

The blog will continue to follow the prosecutions of the two men who were charged in the highly publicized case. Both the mayor of Baltimore and the Maryland governor have already weighed in, calling the incident disgusting and appalling. This means there will be increased pressure on the State’s Attorney’s Office to assure both men are punished. The police officer did not appear to suffer any serious injuries from the assault, as the majority of kicks were focused on the officer’s buttocks. Still, the case will be under a microscope and the chances are high that the men will not be treated the same as defendants in a non-publicized case. The hope is always that the judge who presides over the case will not bow to any outside pressures and judge the case entirely on the facts presented at trial or sentencing.

In addition to the incident and the subsequent arrests three days later, the other headline surrounding the video recorded melee was the public sparring between the police union and the mayor of Baltimore. The police union released a statement basically calling out the city’s leadership for its inability to establish any type of plan or direction to reduce the rising crime rate. The union’s press release argued that the public will continue to disrespect city police and the crime rate will not go down until new leadership is elected. In no uncertain terms the powerful police union basically said the current administration is unfit to serve the city’s needs. The mayor’s office responded that the union leadership should spend more time out on the streets of Baltimore, which is not really a logical response. The mayor’s office would be better served avoiding public bickering and focusing instead on making Baltimore a better and safer city.

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Published on: January 14, 2020

Wicomico County May Criminalize Public Pot Smoking

By Benjamin Herbst

Fruitland is a small Eastern Shore city located off of Route 13, just south of Salisbury and a few miles north of Princess Anne. As an incorporated municipality, Fruitland maintains a city council that can enact legislation, and a police department to enforce its laws. With a population of around five thousand residents though, it’s no surprise that major news headlines do not appear when Fruitland passes new laws. Last month, Fruitland lawmakers passed an ordinance making it a crime to smoke marijuana in public. There was little fanfare surrounding the passage of this law despite the fact that almost everything cannabis makes it to the various online news site. Last month there wasn’t a peep about the Fruitland law anywhere on the internets. But other local government agencies were paying attention, and now Wicomico County officials have proposed the same type of legislation to their respective lawmakers in the county council.

The State’s Attorney’s Office and the Sheriff of Wicomico County have asked the council to consider sprucing up the county’s marijuana laws in order to give police arresting authority for public marijuana consumption. In a time where marijuana laws are becoming more lenient some jurisdictions are pushing for the opposite. As a criminal defense lawyer Blog we are almost always on the opposite side of law enforcement when it comes to reforming drug laws. Public consumption of marijuana though is a complicated issue, and it’s hard to disregard either side of the argument. For starters, nobody should ever be subject to criminal prosecution and the potential for a jail sentence for smoking marijuana. At the same time, citizens have a right to object to being exposed to marijuana use when they are in public, and law enforcement has a right to speak for the public on this.

We have long since believed that marijuana should be treated the same as alcohol, as both are recreational drugs that people enjoy, and both cause impairment. The purchase and sale of both should be legal, taxed and regulated, and the public consumption of both should be unlawful but not punishable by incarceration. Public consumption of alcohol is a civil infraction under Maryland law, which is punishable by a fine, but certain municipalities have criminalized this offense. When examining the utility of a stricter statute for public consumption of marijuana we can easily look to similar alcohol ordinances for comparison.

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Published on: January 6, 2020

Maryland Legislative Session Set to Kick Off

By Benjamin Herbst

The 2020 Maryland legislative session is set to kick off this week and there are a host of criminal law issues that will be debated in Annapolis. While it’s too early to tell exactly the kind of bills that may cross the governor’s desk in April, it’s never too early to speculate what will become a hot topic. One thing we can almost guarantee is that there will be serious debate about whether to legalize recreational marijuana, but it will not actually happen. Medical marijuana took years to develop, and even when it passed it was a shell of the flourishing program that exists today. Recreational marijuana will likely follow the same arduous course toward implementation, as it does not appear that lawmakers are in any type of hurry.

With respect to criminal law, there are definitely more pressing issues that will be debated in the next couple of months. We expect to see numerous bills related to Maryland gun laws, with some directly targeted at reducing the critical violent crime epidemic in Baltimore City. The governor has expressed a great deal of frustration over the gun violence in Baltimore and has already dedicated millions of taxpayer dollars to multi agency crime suppression initiatives. But the fight will not stop at money and manpower, as we expect stricter gun legislation to be up for debate this year. The Maryland gun laws are already tough, but generally speaking it is the law-abiding citizens that are most impacted by the state’s strict firearm regulations. New laws increasing the minimum mandatory penalty for certain gun crimes may show up in Annapolis, as well as bills requiring background checks for rifle and shotguns purchases. Rifle and shotgun buyers are currently only required to fill out the federally mandated ATF weapons purchase application, and are not required to submit to fingerprinting and background checks. It is unclear whether this requirement will directly correlate to crime reduction though, as the large majority of gun violence involves the use of handguns.

There has been a persistent push to liberalize the concealed carry permit policy in Maryland, and 2020 may be the year where process is scrutinized. A law-abiding resident currently has to prove to state authorities that he or she has a good and substantial reason for seeking a concealed carry permit, which unequivocally reduces the number of citizens with permits. The requirements in neighboring states like West Virginia and Virginia are far more liberal, and there is zero evidence that this has contributed to increased incidents involving handgun use. On the contrary, it is widely argued that more law-abiding citizens with concealed carry permits could actually lower the crime rate, and potentially limit the severity of public incidents involving weapon violence.

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Published on: December 30, 2019

Inmate’s Father And Sister Plead Guilty To Racketeering

By Benjamin Herbst

A father and daughter recently pled guilty to federal racketeering charges stemming from an ongoing prison corruption scheme that took place back in the summer of 2017. According to federal prosecutors a 28-year old woman and her 55-year old father were recruited by a family member who was serving a Maryland state prison sentence to smuggle contraband into an Anne Arundel County correctional facility. The medium security prison going by the name of MCIJ is located in the Jessup area on the border of Anne Arundel and Howard Counties, and houses about 1,100 male inmates. One inmate happened to be a 29-year old who used his father and sister to obtain and package contraband, bribe correctional officers and manage the proceeds of the illegal contraband trade within the prison. The 29-year old inmate also pled guilty for his involvement in the conspiracy and previously admitted that he was the leader.

The evidence mentioned in plea hearing consisted of recorded jailhouse phone calls between the inmate and his family members discussing meetings with corrupt prison employees. The calls also contained conversations with other co-conspirators where money was exchanged in order to smuggle various controlled substances into the facility. The controlled substances included Percocet and Ecstasy, which can either come in pill or powder form and easily be concealed inside clothing or on the person. Suboxone was also mentioned as one of the controlled substances, which typically is manufactured on small sheets of paper that can be easily concealed. Recent Maryland laws have restricted the types of books that are allowed to pass through prison security due to the ease that these substances can be transported on paper. Tobacco and synthetic marijuana were other forms of contraband that were smuggled into the jail by the co-conspirators. These items have little value on the street, but inside a secure prison facility can be worth 5 to 10 times their street value.

Both defendants are scheduled for sentencing hearings in March, while 29-year old ring leader has yet to be given a sentencing date. Whether the sister or the father will be sentenced to prison time themselves depends on a variety of factors including their specific involvement in the scheme, how cooperative they were with law enforcement and whether either has a prior criminal record. The judge may examine how much each of the individual defendants actually profited off the scheme, as defense lawyers will likely argue the defendants never would have committed the criminal acts absent immense pressure from the incarcerated family member. Other factors that may be relevant include the length of the conspiracy and how many times, if ever, either defendants tried to end involvement with the scheme.

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Published on: December 23, 2019

Two Businessmen Indicted For Maryland Wire Fraud

By Benjamin Herbst

The U.S. Attorney’s Office for the District of Maryland recently announced indictments in two cases against men who ran lucrative businesses in and around Maryland. Both men now face federal charges for wire fraud, which has become one of the main catch-all tools for federal prosecutors in cases involving fraudulent activity. The first indictment was announced on December 19, and involved a 45-year old Carroll County man who now faces up to 20 years in federal prison for multiple felony charges. This defendant is accused of defrauding the government out of up to $2 million through his Frederick County based construction business. The company was tasked with providing repair and maintenance services to several Maryland USPS facilities including local Post Offices. The indictment alleges that the defendant’s company under the direction of the defendant systematically overbilled the federal government for these services, and concealed its use of subcontractors to carry out the scheme. In total the businessman is facing 30 counts of wire fraud, and will face the charges in the Baltimore Federal Courthouse downtown. The indictment was announced by the U.S. Attorney’s Office and the U.S. Postal Service Office of the Inspector General. An initial appearance has been not yet been scheduled, and the case will likely take several months to play out.

In a separate case the U.S. Attorney’s Office announced that a Virginia businessman has been indicted for wire fraud related to a scheme to defraud the U.S. Navy and the State Department by unlawfully selling body armor and other protective gear manufactured in China. The indictment alleges that the businessman accepted contracts to deliver tactical helmets to the Navy and while working with a Navy contract specialist to fulfil the contract fraudulently stated the helmets were being manufactured in Southern Virginia. The government is alleging the helmets were actually manufactured in China, which is not an approved country under the TAA or Trade Agreements Act. Any defense equipment manufactured in China must be separately identified and approved before it can be involved in a business transaction with the government. The government allegedly located a payment made to a Chinese company that manufactures the same exact helmets the business had agreed to sell to the Navy. A United States Magistrate Judge agreed to release man, who is still listed as the founder and CEO of the company, on home detention and a $75,000 bail. This case will proceed at the Greenbelt Federal Courthouse, which handles all cases arising out of the Southern Maryland.

Wire fraud under 18 U.S. Code 1343 is one of the most powerful charging tools utilized by federal prosecutors in part because of its broad definition. The government need only prove that the defendant used an interstate telephone call or electronic communication to further an unlawful scheme. Almost all business these days is conducted using some sort of electronic communication, and it’s hard to find a business that operates exclusively in one state. This makes establishing federal jurisdiction a foregone conclusion if investigators catch wind of any business operating on the wrong side of the law. The wire fraud statute also carries a harsh 20-year maximum penalty, that carries heavy weight as a bargaining chip in order to induce cooperation or a plea.

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Published on: December 17, 2019

D.C Man Sentenced In BW Parkway Vehicular Manslaughter

By Benjamin Herbst

A 24-year old Washington D.C. man was recently sentenced to over 4 years in federal prison followed by 3 years of probation for striking an SUV and killing the driver on the Baltimore-Washington Parkway. According to the plea agreement the man was involved in a collision with a D.C. Metro police vehicle but rather than stop he fled the scene into Maryland via the parkway. Despite being pursued by a Metro police vehicle the young man kept fleeing at a high rate of speed even after one of his tires blew out. He then began to pass slower moving vehicles on the right shoulder and veered over several lanes of traffic at a ramp to Interstate 495. It was at this point that the D.C. man struck a Honda CR-V that was stopped in a painted safety zone between lanes of travel causing it to spin around and eventually roll over on its side.

The plea to one count of involuntary manslaughter took place back in September at the Greenbelt federal courthouse in front of a United States District Judge. It seems from the press release that the man was sentenced under a 18 U.S. Code section 1112, which makes it illegal under federal law to commit manslaughter in the territorial jurisdiction of the United States. Involuntary manslaughter is a felony under federal law, which carries a maximum penalty of 8 years in prison. Manslaughter is defined as the unlawful killing of a human being without malice. This basically means that the defendant did not possess the intent to kill, but by his or her unlawful actions caused the death of another person. Voluntary manslaughter, a 15-year felony, occurs when the defendant kills another person after a sudden quarrel or in the heat of passion. Voluntary manslaughter cases are frequently charged along with murder, as there can be a fine line between the two. Involuntary manslaughter on the other hand occurs when the defendant kills another during the commission of an unlawful act not amounting to a felony, or when the defendant kills another doing committing act without due caution. In this case fleeing the police and leaving the scene of an accident were the acts that caused the accident, which ultimately caused the death of the victim.

The federal government is responsible for maintaining and policing the B-W Parkway, and therefore territorial jurisdiction is satisfied. Typically, the Maryland-National Capital Park Police is the arresting agency that handles cases on the B-W Parkway and other parkways such as the Clara Barton. In criminal cases occurring on the parkways in Maryland law enforcement can choose to charge a defendant under federal law or under any applicable Maryland law. The defendant could have been charged under Title 2 of the Maryland Criminal Code for manslaughter by vehicle or vessel (boats). State law breaks up manslaughter by vehicle or vessel in two categories, with the most serious being with gross negligence. This charge is a felony that carries a 15-year maximum penalty, while the lesser form, criminal negligence, is a misdemeanor with a 3-year maximum penalty.

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Published on: December 9, 2019

Casino Dealer Sentenced To Prison

By Benjamin Herbst

The U.S. Attorney’s Office recently announced that a former dealer at a Maryland casino was sentenced to 18 months in federal prison for his role in a card table scam, which resulted in the casino losing in excess of $1 million. The convicted defendant will be placed on probation after he is released from prison, and ordered to pay restitution totaling $1,046,560. The scam took place at the Baccarat table, where the dealer conspired with players by giving them a glimpse of the cards before they were placed in the shoe to be dealt. The players involved in the conspiracy would then drastically increase their bets when the previously revealed cards were about to be dealt into the game. The government did not state how it caught on to the scam or whether there were any cooperating defendants, but all bets are on camera and large winnings will always be scrutinized by casino security. In this particular case the FBI eventually became involved likely due to the large amount of money that was involved in the conspiracy, and the fact that the scheme took place in more than one county. The defendant admitted that he taught other co-conspirators at a different casino about the scam, and then was paid a percentage of the illegitimate winnings. According to the government to scheme took place from July 2017 to September 2017.

The actual charge the former dealer pled to was conspiracy to transport stolen funds, which is a felony under federal law. The defendant likely would have faced a great deal more than 18 months in prison if he unsuccessfully took his case to trial. Typically when there is a theft or fraud case with a large amount of restitution the judge will take into account that a long prison sentence will negatively impact the defendant’s ability to repay the money to the victim. Some victims will tell the judge their main concern is recovering the stolen money, which usually benefits the defendant. Defendants that are spared a large prison sentence in order to pay restitution may find themselves back before the court on a violation of probation if they do not pay the money. Some judges have reservations about jailing a defendant for failing to pay restitution, but if no effort is made then judges will say they have no choice. The Blog will follow this story and may post another article if there is news from the Greenbelt federal courthouse about any of the co-defendants. The FBI will continue to be involved with fraud cases at the Maryland casinos in order to punish those involved and send a message to future offenders. There are so many new casinos popping up around the country and many can be vulnerable to theft schemes due to inexperienced or improperly trained security staff.

The legalization of casino gambling several years ago has generated hundreds of millions of dollars for the state of Maryland, but there are now numerous criminal cases coming from the numerous casino cases across the state. Maryland Live in Anne Arundel County, MGM in Prince George’s County and the Horseshoe in Baltimore City are the largest and most visited casinos in the state, and also the source of the numerous criminal charges. Casinos take all offenses committed on their property extremely seriously and often have overzealous security staff who are itching to have patrons charged. Benjamin Herbst has represented dozens of defendants charged with crimes at the Maryland casinos, and is available for a free consultation anytime at 410-207-2598. Benjamin has handled casino theft, counterfeit currency, gun possession and trespass charges occurring at the Maryland casinos. He also specializes in federal conspiracy charges, representing out of state defendants, and defendants facing violations of the Maryland Voluntary Exclusion Program.

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Published on: December 3, 2019

Convicted Robber Sentenced To 33 Years

By Benjamin Herbst

Over the summer a federal jury convicted two Washington D.C. men of multiple felonies after they were charged with committing two separate armed robberies in Prince George’s County. This week at the United States District Court in Greenbelt one of the men was sentenced to 33 years in prison followed by 5 years of probation on charges including conspiracy to commit commercial robbery, discharging a firearm during a crime of violence, being a felon in possession of a firearm and interstate transport of a stole vehicle. At least two of these counts carry mandatory minimum sentences of up to 10 years in prison. Since parole has been abolished in the federal justice system the 46-year old defendant will likely be behind bars for close to 30 years. He may be eligible for time off his sentence for good behavior, but it is safe to say that he will not be released until his seventies.

The facts that came to light during the week long trial were about as bad as an armed robbery could get without someone actually being murdered. Assistant U.S. Attorneys proved the man and his co-conspirators entered an auto repair shop brandishing handguns and then bound and gagged one employee and shot the other when he resisted. The employee who was shot suffered life-threatening injuries, and is now paralyzed. Just four days later the men robbed a barbershop in Prince George’s County in the same manner, but this time they were caught after a brief chase that ended in Washington D.C. To make matters worse, the defendant was also recorded on jailhouse phone calls attempting to persuade several different acquaintances to go to the barbershop and pressure witnesses not to testify at trial or before the grand jury. These phone calls were played in court, and resulted in a witness tampering conviction that was almost certainly factored into sentencing.

As we discussed in our previous post about this incident the driver of the stolen getaway vehicle used in the barbershop robbery was not a co-defendant in the trial, which could indicate that he was a cooperating witness. The names of cooperating witnesses will eventually be revealed if they are called to testify at trial, though it is typical for the prosecutors to leave this information out of official press releases. Cooperating witnesses are an essential law enforcement tool, and though they can’t be hidden forever, police and prosecutors will still try to protect them to some degree. The exact terms of cooperation agreements are never announced in open court, though the agreements may be used by defense lawyers during cross examination. Cooperation agreements with the federal government typically contain some sort of sealed supplement that is part of the plea agreement, and when the sealed supplement is read in court only the judge, court staff, law enforcement officers and lawyers are permitted in the courtroom.

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Published on: November 25, 2019

Former Baltimore Mayor Pleads Guilty

By Benjamin Herbst

Rising crime rates, falling population and police and prison corruption have marred Baltimore City for the past few years, but now more than ever it is obvious that lawlessness starts from the top and trickles down. It has been several months since federal agents from the FBI and the IRS raided the former mayor’s home and office, so it came as no surprise that she was eventually charged. Still the news headlines were widespread when the government unsealed an 11 count criminal indictment last week, which was signed by the grand jury on November 14. The U.S. Attorney’s Office announced that the mayor was charged with conspiracy to commit wire fraud, conspiracy to defraud the United States, seven counts of wire fraud, and two counts of tax evasion. One day after the indictment was unsealed the former mayor surrendered to federal law enforcement and then promptly pled guilty at her arraignment. There’s little doubt defense lawyers worked diligently to come to a swift plea agreement in order to avoid further embarrassment to the city in exchange for more favorable treatment when sentencing arrives.

The former mayor’s sentence won’t determined for at least a couple months, as a pre-sentence investigation must be completed first. She is currently being supervised by federal pre-trial services, which means she as avoided incarceration for now. It is hard to imagine that this will be the case after sentencing though, as the breach of trust was massive. According to the plea the former mayor engaged in a criminal course of conduct from at least 2011 until this past spring when law enforcement made their investigation public. The specific allegations are heavily related to the former mayor’s ownership of a publishing company she used to market and sell children’s books she authored. On numerous occasions the former mayor conspired with her former legislative aid to defraud purchasers of the children’s books, including The University of Maryland Medical System (UMMS), which paid a total of $300,000 for 60,000 books. UMMS purchased the books on the condition they would be distributed to Baltimore City Public Schools as part of a community outreach program, but many never made it to public school students. Instead they were kept by the former mayor or double sold by charities that had no knowledge of the scam.

The plea also included admissions that the former mayor used payments from the children’s books to fund her own campaign under the guise of fictitious or straw donors. She used cash or untraceable money orders to conceal the origination of the funds, which totaled over $60,000. Finally, and not surprisingly the former mayor neglected to report any of the fraudulent earnings from the children’s book, and filed multiple false tax returns. In 2016 she reported around $31,000 of income and paid $4,000 in taxes when in reality her income was over $300,000 and her tax liability over $100,000. Of the 11 counts in the indictment, the former mayor ended up pleading guilty to 4, including conspiracy to commit wire fraud, conspiracy to defraud the United States, and two counts of tax evasion. She faces up to 20 years in prison on the first count and 5 years each on the other 3 counts, and will likely learn her fate at a sentencing hearing in the late winter or spring of 2020.

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