Criminal Defense Lawyer Blog

Published on: November 19, 2019

Marijuana Definition Change Could Lead To Dismissed Charges

This past summer the Maryland Governor signed off on a bill that changed the definition of marijuana, and now the impacts of this bill could have a real effect in courtrooms across the state. The bill did not receive much media attention despite the fact that it was marijuana related because the bill was created with the intent to modify agricultural laws rather than continue to reform marijuana policy. House Bill 1123 was signed into law back in April, and went into effect on June 1, 2019. The bill was characterized as agricultural and focused on hemp research and production. It had numerous components, but the main emphasis was to expand hemp production and establish safeguards for assuring that hemp and marijuana remained two separate crops.

In order to separate hemp and marijuana, which is still highly regulated in Maryland and a controlled substance under federal law, the state legislature had to strictly define the meanings of the two crops. Lawmakers came up with a threshold amount of 0.3% THC to separate the two; any cannabis plants with a THC level above 0.3% would be classified as marijuana while anything under would be classified as hemp. In establishing this threshold, lawmakers not only changed the agricultural laws but also were forced to modify the Maryland controlled dangerous substance laws. Under criminal law section 5-101, marijuana does not include hemp for the purpose of criminal prosecution. Hemp as defined in section 14-101 of the agriculture code “means the plant Cannabis sativa L. and any part of that plant, including all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta–9–tetrahydrocannabinol concentration that does not exceed 0.3% on a dry weight basis”. This fancy language boils down to the fact that cannabis plants that do not have a THC over 0.3% are not marijuana for the purpose of a criminal prosecution, and the impacts of this clause could be huge.

In all drug crimes cases the state is required to prove beyond a reasonable doubt that the substance that is the basis of the charging document is actually what the police say it is. It is not proof beyond a reasonable doubt for an officer to simply look at a substance and say that it is cocaine, heroin, marijuana etc. The state has to test the substance police take in evidence, and this is traditionally done is by sending it off to the crime lab at the Maryland State Police in Pikesville or the city’s lab in Baltimore. Chemists do their tests and send a lab reports to the prosecutor, which are then introduced into evidence as proof the substance is CDS. But, the kicker is that the crime labs do not test marijuana for THC content, so now there might not be a way for the state to prove beyond a reasonable doubt whether the green vegetable matter police confiscated from your plastic baggie, jar or personal grow room is marijuana or hemp.

Continue reading →

Published on: November 11, 2019

How Do You Appeal A Criminal Case?

By Benjamin Herbst

There are a number of different ways to appeal or modify a criminal case in Maryland, and the rights of a defendant depend on where the case took place and whether it ended in a plea or a trial. All defendants with cases heard in the District Court of Maryland have an absolute right to appeal the outcome within 30 days to the circuit court. This includes criminal cases, traffic citations, peace orders, protective orders and civil cases. The appeal must be filed in writing with the district court clerk, and if the 30^th day falls on a weekend or holiday the next business day is the final day. District court cases that are appealed will be assigned a new case number in the circuit court, and start over form scratch, which is called a de novo appeal. The circuit court judge will not (or is not supposed to) place any weight on the verdict or judgment from the district court in making his or her rulings.

The amount of time it takes for an appeal to be scheduled in circuit court depends on the jurisdiction. It can be as little as a few weeks in some, and a few months in others. During the time between the appeal and the new circuit court date a defendant who was placed on probation is still required to report as directed. If jail time was a part of the sentence, the defendant may still be required to serve unless the sentence is stayed or the defendant posts an appeal bond. The one exception to the automatic appeal rule is cases where probation before judgment is granted and accepted. Defendants who receive PBJ in any case waive their right to appeal to the circuit court, and their case is effectively over once the sentence is announced. The right to an automatic circuit court appeal is the same regardless of whether the case went to trial or the defendant took a plea.

Appealing a Maryland circuit court case is an entirely different animal, and the defendant’s rights depend on whether the case ended in a plea or a trial. A defendant who is found guilty after trial has an automatic right to appeal to the Court of Special Appeals in Annapolis, which is the state’s intermediate appellate court. The notice of appeal must be filed within 30 days at the circuit court clerk’s office, but the actual appellate brief will be filed several months down the road. In order to write an appellate brief the attorney will review transcripts of the entire trial, and then pick out any issues that may have been reversible error. In criminal cases where the defendant pled guilty he or she will not have an automatic right to appeal, but will actually have to ask for permission or leave to appeal from the court. Receiving leave to appeal is very rare, and in most cases will be denied. This should be something to consider when deciding to accept or reject a plea offer.

Continue reading →

Published on: November 4, 2019

Baltimore Business Owner Convicted Of Arson

By Benjamin Herbst

A federal jury recently convicted a Baltimore business owner of multiple felonies for setting fire to his commercial property with the intent to fraudulently reap insurance benefits. The trial took a whopping seven weeks to complete, and now the defendant faces a minimum sentence of 15 years in federal prison. According to evidence presented by the government at trial, back in July of 2015 the business owner began to devise a plan to illegally recoup millions of dollars his company had been losing in the previous few years. The government established a motive by presenting financial records that showed the business lost about $2 million in 2014 and was on pace to lose approximately $3 million in 2015. The government also presented evidence that the defendant defaulted on numerous loans and the company’s debt exceeded total assets by $900,000.

On July 28 of 2015 the government showed that the defendant himself used adhesive tape to defeat security measures at his commercial property so that co-conspirators could enter the building. Just after midnight another person entered the building and disarmed the alarm system by entering the four-digit code, and one hour later a bystander called 911 and reported smoke emanating form the building. The Baltimore City Fire Department responded to the scene but only after fire destroyed an office on the shop floor of the building and damaged the ceiling. On the same calendar day firefighters extinguished the blaze the business owner contacted a public adjusting company to notify them about the fire and request their help with filing an insurance claim. Days after that, the adjusters acting on behalf of the defendant’s company submitted claims for over $20 million and were awarded just over $15 million once all the dust settled.

Law enforcement including the ATF, Baltimore Police and the Maryland State Fire Marshal were never convinced the blaze was caused by an accident or equipment malfunction. They continued to investigate the fire as the insurance company was paying out millions to the business owner, and investigators never took their eyes off the money. It came out in trial that half of the $15 million was used for building restoration and new equipment purchases, but $600,000 was transferred to the defendant’s wife, $98,000 was used to purchase a new Mercedes, $52,000 was used to buy a BMW, $25,000 for a Harley and $35,000 was spent on new jewelry. Although the defendant’s questionable purchases were not direct evidence of his criminal involvement, the government undoubtedly used them to bolster the argument that the defendant’s intentions were never pure. These purchases combined with evidence of the defendant’s presence on the scene and his immediate consultation with insurance adjusters laid the foundation for a case that the defense was unable to crack. A jury at the Baltimore federal courthouse found the business owner guilty of malicious destruction of property by fire, the use of fire to commit a federal felony and two counts of wire fraud. The malicious destruction count carries a five-year mandatory sentence and the use of fire in a felony count carries a consecutive 10-year mandatory sentence. This means that the defendant will serve at least 15 years in prison when he is sentenced at a future hearing in January.

Continue reading →

Published on: October 28, 2019

What Happens If You Leave The Scene Of An Accident?

By Benjamin Herbst

Maryland has numerous laws governing the responsibilities of drivers who are involved in accidents, and understanding these laws can mean the difference between a simple traffic ticket and a serious criminal charge. The main requirement under Maryland law is that all drivers involved in an accident have a duty to remain at the scene, and drivers who are forced to move their vehicles after the accident due to safety reasons must immediately return. Drivers are only allowed to leave the scene after they have complied with section 20-104. This section actually requires drivers to render reasonable assistance to any person injured in the accident, which may include arranging for transportation to the hospital. The requirement to render aid is typically satisfied by calling 911 and waiting for emergency vehicles to arrive. Drivers are also required to give certain information including their name, address and registration of the vehicle they were driving. If feasible a driver may also be required to furnish his or her driver’s license to any person injured in the accident or any owner of property that was damaged in the accident. If nobody is on the scene of the accident other than the one driver, that driver has a duty to report the accident to the nearest authorized police authority. Failure to comply with these requirements is actually a jailable offense under the duty to give information and render aid statute. A driver who does not comply with these requirements may be charged with a number of different offenses, with some even being felony criminal charges.

Leaving the scene of an accident that has only resulted in property damage is still a crime under 20-103 of the Maryland transportation article. If you knock down and sign, clip and damage a concrete barrier or guardrail or give an adjacent car a little love tap you are required to remain on the scene until completing the requirements of 20-104. Any driver that leaves the scene may be prosecuted for an offense that carries up to 60 days in jail and a $500 fine. This offense also carries 8 points upon conviction, which could result in a notice of suspension from the MVA. There are defenses to cases for leaving the scene of an accident, so if you feel you may be charged it is important to contact a lawyer first. Law enforcement will still have to identify you as the driver, as a license plate number is typically not enough to establish that a particular person was driving when the accident occurred.

Leaving the scene of an accident involving injury is treated harshly under Maryland law, and enhanced punishment can occur even if there was not a serious injury. The penalty for leaving the scene of an accident involving injury is up to 1 year in jail and a $3,000 fine. Leaving the scene of an accident involving a death carries a 5-year maximum penalty and a $5,000 fine. These offenses both carry 12 points upon conviction, which will result in driver’s license revocation proceedings being initiated by the MVA. If the driver knew or should have known the accident would cause serious bodily injury and left the scene the state may charge the driver with a 5-year felony. If the driver knew or should have known the accident would cause death and a death occurred the maximum penalty becomes 10 years.

Continue reading →

Published on: October 21, 2019

Prince George’s County Lawmaker Guilty Of Fraud

By Benjamin Herbst

Two weeks ago a lawmaker in the Maryland House of Delegates abruptly resigned from her position, and this past week it became apparent why. According to the U.S. Attorney’s Office the former Prince George’s County lawmaker, who served from 2001 until the present, pled guilty to one count of wire fraud for converting more than $22,000 of campaign money to her personal use. The guilty plea took place in the United States District Court in Greenbelt, and lasted just over 30 minutes. Some of the facts that came to light during the plea hearing included that the former lawmaker had used campaign funds to pay for dental appointments, fast food, hair styling and even a cover for the home’s pool. The charges covered illegal activity from 2015 to 2018, when the former delegate accepted campaign funds from donors who had expected these funds to be used for reelection and maintaining leadership positions with the General Assembly. The funds were accepted by the defendant via a campaign PayPal account and then directly transferred to her personal bank account or withdrawn as cash from ATMs. None of the withdrawals in question were reported to the Maryland State Board of Elections.

The former lawmaker faces up to 20 years in prison wire fraud, but she will likely face less than 3 years of active incarceration. The sentencing guidelines call for an active jail sentence of 8 to 33 months, and the defense could argue for home detention or even probation. Regardless of whether the defendant serves active jail time, she will almost certainly be on supervised probation and will be a convicted felon for the rest of her life. As part of the plea the former lawmaker will also have to pay back $22,565.03 in restitution to the citizens or organizations that contributed to her campaign. The defendant is currently out on pre-trial supervision after being released on her own recognizance, and will be able to spend the holidays with her family in advance of the January sentencing hearing.

The FBI was the main law enforcement agency responsible for the investigation that led to federal prosecution of the former Prince George’s County Delegate, though it was not made public how the lawmaker arrived on the agency’s radar. It did however come to light that the defendant was not a first offender when it came to campaign finance rules. Over the course of her career she was cited more than ten times for bookkeeping errors in campaign finance reports, and even fined $2,000. She was referred to the Office of the State Prosecutor in 2016, and this state agency could have easily passed her case off to the FBI.

Continue reading →

Published on: October 15, 2019

Can I Drop Criminal Charges Against Someone?

By Benjamin Herbst

Once the criminal justice system starts moving against a defendant in Maryland it becomes extremely difficult to undo the process. We are often contacted by victims who are requesting assistance in dropping charges against a defendant, and if you happen to be in this situation there are a few things to keep in mind. First off, victims in a criminal case never have total control over the prosecution of the case. The State is the plaintiff in all Maryland criminal actions, and it is represented by the State’s Attorney’s Office in the county (or Baltimore City) where the case is prosecuted. The assistant State’s Attorney or the supervisor assigned to the case will have the ultimate decision whether to drop the charges or prosecute. As a general rule prosecutors will not simply drop a charge because the victim has had a change of heart, but this does not mean it’s out of the question. If you are a victim and want to have criminal charges dropped your best bet in many jurisdictions is to reach out to the State’s Attorney’s Office, and inform them in writing of your desire to drop the charges. Keep in mind that you should not make any incriminating statements, whether written or verbal. You should also never admit that you lied or exaggerated with respect to any statements made to the police or written in a statement of charges. Doing so could subject you to criminal prosecution for false statement to a law enforcement officer and in some extreme cases even perjury, so we advise consulting to a lawyer before speaking to the State’s Attorney’s Office about dropping charges.

In some jurisdictions the prosecutors are too busy to prosecute cases with uncooperative victims. Dozens of cases are dropped each day in places such as Baltimore City and Prince George’s County because victims fail to show up for court, but there is no blanket policy for this. A defendant should never expect his or her case to be dropped if the victim fails to show up for court, especially in cases where there the defendant and victim have had prior contacts with the criminal justice system. In cases where the victim does not show up for court, prosecutors have the ability to seek a body attachment for witnesses that have been served with a summons to appear in court. This means the sheriff could actually arrest a victim of a case and hold them in custody until the trial has concluded. This is pretty rare, but is not out of the question in felony assault cases and even second-degree assault cases involving injuries or repeat offenders.

A victim who is summonsed to appear in court must legally comply with the summons regardless of whether they want the case to move forward. But there are still ways to have the case dismissed or nolle prossed upon showing up for court. In cases where the victim and defendant are married, the victim cannot be compelled to testify against his or her spouse. The marital privilege has a few exceptions including that it cannot be invoked in a case involving child abuse and cannot be used more that once in an assault case, but other than that it is usually a foolproof way to have a case dropped. Keep in mind that the State could still choose to move forward without the testimony of the victim, but they would need some sort of other evidence such as independent witness testimony or the recording of a 911 call. In addition to marital privilege, a victim may also be able to invoke the 5^th Amendment. No person can be compelled to testify in a criminal case if their testimony could be incriminating and result in potential charges. 5^th Amendment invocation is common when two people are victims and defendants over the same incident, but it can be used in assault cases where only one person was charged. There are some exceptions to 5^th Amendment invocation, and Benjamin Herbst is a Maryland second-degree and first-degree assault lawyer that offers free consultations about this and all other criminal matters. He is available 7 days a week at 410-207-2598.

Published on: October 8, 2019

Baltimore Cop Charged With Assault Is Highest Paid In City

By Benjamin Herbst

Back in June a Baltimore Police sergeant was arrested and charged with second degree assault, false imprisonment and misconduct in office for wrongfully arresting a bystander. There hasn’t been much movement on his criminal case that is currently set for jury trial in mid December, but the suspended sergeant is back in the news in an embarrassing twist for the city. According to data recently made public online, the sergeant was actually Baltimore City’s highest paid employee in the 2018 fiscal year that ended June 30 with a gross salary of a whopping 260 thousand dollars. His take home salary was 10k more than the next highest paid city employee, who as it turns out was the former director of information technology who was forced to step down after a ransomware attack cost taxpayers $10 million to fix. The suspended police sergeant’s gross salary was significantly more than the mayor’s salary of about $185k and 10 percent higher that the elected State’s Attorney’s salary. The sergeant was also the second highest paid city employee in the 2017 fiscal year, making slightly less than $250k.

The incident that led to the sergeant’s arrest and suspension occurred on May 30 when police officers were conducting a warrants check on a pedestrian. A bystander expressed his disapproval of police ordering the pedestrian to sit on the wet sidewalk. Rather than ignore the commentary or simply tell the bystander to keep walking, the sergeant charged after the bystander and tackled him from behind. The sergeant and another officer forcibly held the man down on the street with their knees in his back and placed him under arrest.

Each time a police officer uses force against an individual they must fill out certain forms to explain their actions. Apparently the sergeant justified his actions by stating that the bystander challenged him and became aggressive and combative, but body cameral footage reviewed by police officials painted an entirely different picture of the incident. Ultimately the police commissioner made the swift decision to charge the sergeant just one week after the incident. A warrant was issued for his arrest on June 6 for the three aforementioned misdemeanor counts and the sergeant turned himself in to the jail. He was released that same day on an unsecured personal bond of $200k, which means he did not have to put up any money or collateral in order to be released.

Continue reading →

Published on: October 2, 2019

Howard County Doctor Sentenced To Prison

By Benjamin Herbst

The U.S. Attorney’s Office recently announced that a Howard County physician was sentenced to 15 months of federal prison followed by 3 years of probation for passport fraud. The 50-year old doctor had been held without bail in a federal detention facility since his arrest back in May, meaning he will have to serve about one year of additional incarceration. He also may face deportation, as Homeland Security has initiated removal proceedings. According to his prior guilty plea, the doctor entered the United States from Ghana back in 1995 and applied for certification of his medical license in 1996. In 1998 the doctor married a U.S. citizen in Virginia, but his petition for citizenship was denied after immigration officials concluded the marriage was a sham and only for the purpose of gaining citizenship. Regardless, the doctor was granted a license to practice medicine in Maryland in 2001 and opened an office in Laurel. In 2007 and again in 2009 the doctor applied for United States passports for his minor children. On the applications for his minor children the doctor fraudulently stated that he was in fact a U.S. citizen who was born in North Carolina. In between applying for passports for his children, he applied for his own passport in 2008, again stating on the application and in subsequent interviews that he was born in North Carolina. The doctor even included a false affidavit from a family friend who claimed to have witnessed the doctor’s birth in America. Based on the information provided, the doctor was issued a U.S. passport in 2008.

For over 10 years the doctor used his fraudulent U.S. passport numerous times for international travel, and when it came time to renew the passport in 2018 he again told federal officials that he was born in North Carolina. The U.S. Department of State’s Diplomatic Security Service was the main law enforcement agency responsible for investigating this case, and executed a search warrant of the doctor’s home in Fulton. Investigators found several incriminating documents, which supported their suspicions including his Ghanaian passport, additional false affidavits and draft petitions for the Howard County Circuit Court that attempted to further perpetuate the scam.

There are a number of different passport crimes, and the feds treat all of them seriously. Forgery, false use of a passport and misuse of a passport are all classified as felonies, with maximum prison sentences ranging between 10 and 25 years. The 25-year penalty is reserved for the misuse of a passport to facilitate international terrorism. This means that any person who provided a fake passport to a terrorist or in some way assisted a terrorist in obtaining a passport could be on the hook for a 25-year sentence. A similar provision applies to drug trafficking crimes, but the maximum penalty is slightly less at 20 years. Any other type of passport misuse including making false statements on a passport application, altering or counterfeiting a passport, using a fake or altered passport or even using a passport that belongs to another person could trigger felony charges with a 10-year penalty.

Continue reading →

Published on: September 24, 2019

Medical Marijuana Still Growing

By Benjamin Herbst

As we approach the two-year anniversary of the first medical marijuana sales in Maryland all signs point to the program’s continued growth. On December 1^st of 2017 dozens of patients lined up at a Montgomery County dispensary to become the first purchasers of legal cannabis in the state. The Rockville dispensary stocked its shelves as soon as the products arrived that Friday afternoon, and there has been no looking back since then. Close to 20,000 patients signed up to legally purchase when the program began, and now that number is approaching 60,000. According to the MMCC (the state organization that oversees medical cannabis) between 250 and 350 new patients apply for their cards each day. If these numbers continue there could be a quarter of a million medical marijuana patients in the Maryland within the next couple of years.

In 2018 state dispensaries sold close to 100 million dollars worth of medical marijuana to patients. Revenue totals for 2019 won’t be released until the winter, but officials expect a 50 percent increase, which would bring revenue to about 150 million dollars. The temporary ban on out of state purchases may slow revenue numbers a tiny bit, but we believe the estimations are still on the conservative side, and that a 2019 revenue total of 200 million dollars is not out of the question. With increased sales come increased employment opportunity, and the larger dispensaries can easily employ over 50 full timers. A large Allegany County dispensary reports that it employs 90 people full time, and is currently planning an expansion. Along with more jobs at the grow houses and dispensaries, medical marijuana is also expanding the roles of caretakers who are able to administer cannabis to their own patients. As of now there are about 5,000 caretakers registered with the state to provide medical cannabis that is prescribed by the 1,300 licensed medical professionals approved by the MMCC.

At this point the only thing that could possibly derail the steadily increasing number of medical marijuana patients would be legalization. In states where pot is legal for recreational use, medical patients are typically able to purchase more powerful products for cheaper prices, but this incentive is often outweighed by the hassle (however small) and privacy concerns over becoming a registered patient. Some potential patients continue to express concerns about their ability to purchase firearms if they were to register for medical marijuana, as federal law prohibits any drug user from purchasing or possessing a firearm. As long as marijuana is classified as a controlled substance under federal law, medical users could be at risk of federal prosecution. The federal government is far more concerned with firearms falling in the hands of those disqualified by previous criminal convictions, and rightly so, but many potential medical marijuana patients still feel they must choose between cannabis and firearm ownership. Other potential patients are against their name being listed in a government database for marijuana use, and would simply prefer to be able to walk into a store anonymously and purchase cannabis products.

Continue reading →

Published on: September 16, 2019

Anne Arundel County Man Indicted For Arson

By Benjamin Herbst

In the summer of 2017 a dangerous multi-alarm fire broke out a popular local bar in Pasadena an hour after closing time. More than 75 firefighters responded to the scene and one suffered injuries trying to battle the blaze, which spread from the side of the building and into the attic. After an hour and a half of intense work Anne Arundel County firefighters were able to extinguish the fire, but not after it caused over $200,000 worth of damage and shuttered the bar indefinitely. The fire began around 3 a.m. on a Friday morning, and by Saturday law enforcement already had determined that the fire was likely set intentionally. The ATF immediately began an arson investigation, but charging a suspect for setting the fire probably took a little longer than they had expected.

Just over two years after the fire, federal law enforcement has announced the indictment of a 34-year old Pasadena man who was a regular patron at the bar. The defendant and his attorney have not made a statement, and law enforcement has not yet released details on a possible motive. The bar owner was interviewed by local news outlets and stated he was not surprised to learn the identity of the arsonist, but did no go into further detail just why he felt the way he did. Unlike the large majority of cases that are investigated by the state fire marshal and prosecuted in state court, this particular arson case will be prosecuted in federal court under a statute that carries a 5-year minimum mandatory prison sentence upon conviction. 18 U.S. Code 844 states that anyone who damages or destroys a building or other real property that is either owned by the United States, receives federal financial assistance or is a part of interstate commerce faces up to 20 years in prison with the aforementioned 5-year minimum. The U.S. Attorney’s Office did not specify how the building was tied to the federal government in any way, so the defendant must have been charged under the interstate commerce section of the statute. Interstate commerce has long since been a way for the federal government to intervene in matters traditionally reserved for state and local governments, but we’ll say no more there at the risk of this post turning into an Interstate Commerce Clause discussion.

Under Maryland law there is no minimum mandatory prison sentence for arson. The maximum penalty for arson in the first degree is 30 years, while the max penalty for arson in the second degree is 20 years. Second-degree arson is defined as intentionally and maliciously setting fire to a structure. First-degree arson requires the state to prove the defendant set fire to a dwelling (home) or an occupied structure. Both are serious felony crimes, but only first-degree arson is considered a violent crime. Arson is not as common as its misdemeanor counterpart, malicious burning. In Maryland malicious burning is defined as intentionally setting fire to another person’s property. The two degrees depend on the value of the property, with first-degree being over $1,000 and second-degree being under $1,000. First-degree malicious burning is a felony and carries a 5-year maximum penalty, while second degree carries an 18-month maximum jail sentence. Other common fire related crimes in Maryland include burning with the intent to defraud, which is a five-year misdemeanor and threat of arson, which is a ten-year misdemeanor.

Continue reading →