Criminal Defense Lawyer Blog

Published on: July 7, 2019

Co-Defendants Convicted In Federal Robbery Trial

The U.S. Attorney’s Office for the District of Maryland recently announced that a federal jury came back with guilty verdicts for two Washington D.C. men charged with committing armed robberies in Prince George’s County. The verdict came after seven days of trial at the U.S. District Court in Greenbelt. According to evidence presented by the government at trial the two men robbed an auto repair business in Clinton, Maryland back in November of 2016, and then just four days later robbed a barbershop close to the D.C. line in Seat Pleasant. During the first robbery the men entered the shop brandishing firearms and ordered the two employees to the ground and stole their money. One employee was bound with zip ties while the other fought back and was shot. The shooting victim was severely injured and according to the government is now paralyzed. After committing the auto repair shop robbery the co-defendants fled in a stolen car and were not captured.

Four days later the same two co-defendants committed another armed robbery in nearby Seat Pleasant, and this time it didn’t end so well for the pair and their unidentified getaway driver. After robbing patrons at a barbershop in a similar manner as the auto repair shop, the co-defendants fled in a stolen minivan. Only this time, police spotted the getaway car at an intersection and attempted to make a stop. The three robbers tried to flee from police and bailed out of the van to attempt to run away on foot, but two were captured almost immediately and other was captured a short time later. Upon searching the stolen van police recovered two loaded 9 mm handguns, one of which had an obliterated serial number.

While one of the defendants was awaiting trial in jail he apparently urged multiple acquaintances to visit the barbershop and dissuade witnesses from testifying. These conversations were recorded and introduced into evidence by the government, which led to a conviction for witness tampering in addition to multiple other convictions including armed robbery, use of a firearm in a crime of violence and possession of a firearm by a convicted felon. Inmates that are incarcerated pending trial often make the mistake of assuming their jailhouse conversations are private, when in fact the government is always listening. These conversations are admissible in court, and are frequently used to convict defendants in cases where other evidence may be lacking. Defendants and their families should conduct their conversations as if the prosecutor or law enforcement were right there in the room, as there is no reasonable expectation of privacy in jail.

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Published on: June 30, 2019

Task Force Begins Work On Marijuana Legalization

By Benjamin Herbst

While legalizing marijuana has been discussed in previous legislative sessions, a legitimate proposal has yet to gain steam in Annapolis. Recreational marijuana will be legalized in Maryland within the next few years one way or another, but the state will move at its own pace. Based off the medical program that pace can be described as deliberate, or just plain slow. In order for legalization to actually have a legitimate shot of becoming law in 2020 the momentum has to start building soon, and it appears the ball has already started rolling. This past week a group of Maryland lawmakers conducted their first meetings as members of the marijuana legalization task force, which is a major sign that legalization has a legitimate shot of passing next year. This is not the first time a task force has been convened to address state marijuana policy, but this year it seems the sole focus is on legalization.

The bi-partisan task force is made up of state senators and delegates, and is expected to make formal recommendations by the end of the calendar year, which will be used to shape legislation when the 2020 session opens in January. Members will divide up into subcommittees that will focus on a variety of issues such as the impact on the criminal justice system, potential tax rates, licensing requirements and the impact on public health. Lawmakers will also seek the advice of outside experts with respect to issues such as the conflict between state legalization and federal laws that still consider marijuana to be a controlled substance.

This being a criminal law Blog, we’ll take a minute to comment on the criminal justice impacts that legalization could produce. The most obvious impact would be that criminal cases for possession of marijuana would likely cease to exist, with the exception being possession by minors and adults under the age of 21. Lawmakers would have to address whether possession by an underage person would be a civil infraction like with alcohol, or a criminal infraction. New regulations on the on the amount of pot a person could possess and where they could possess it would be imposed, but violation of these rules would likely be a civil infraction. Legalization would drastically reduce possession of marijuana with the intent to distribute cases, as the customer base would shrink to those who are unable to purchase at a dispensary, namely those under 21. Finally, charges for manufacturing marijuana (growing at home) would also be drastically reduced, as legalization would likely allow a limited number of plants to be cultivated within the confines of a lawful private residence.

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Published on: June 23, 2019

Fentanyl Dealer Sentenced To Federal Prison

By Benjamin Herbst

The U.S. Attorney’s Office recently announced that a convicted narcotics dealer has been sentenced to 12 years in federal prison for his role in the importation and distribution of fentanyl. The 38-year old Wicomico County man will also be placed on 3 years of probation following his release from federal prison. According to his plea agreement law enforcement began investigating the defendant back in the fall of 2017 for his involvement in large-scale drug trafficking ring. Agencies including ICE, Homeland Security and the Maryland State Police eventually learned that defendant used fictitious names and email addresses to purchase fentanyl directly from China, and had the narcotics shipped to locations throughout the Eastern Shore. After it was mixed with various cutting agents, the defendant and his co-conspirators would package and sell the fentanyl in Baltimore and other locations in Maryland. Law enforcement used confidential informants to engage in a series of controlled buys, which yielded detailed information on how the fentanyl should be mixed and sold. At least two of these controlled buys took place in Baltimore City, and within a month police had obtained a search warrant for the defendant’s home in Salisbury.

Execution of the search warrant yielded over 400 grams of fentanyl and close to $20,000 in cash. Police also recovered drug paraphernalia including baggies, scales and a blender. Fortunately for the defendant law enforcement did not recover any firearms in the home, as this would have triggered a series of additional charges. On the other hand, law enforcement did learn that earlier in 2017 a woman had died of a fentanyl overdose in the same home where the search warrant was executed, and that the defendant was present when it happened. As part of his plea the defendant admitted that he had directed the overdose victim to go to the kitchen where the drugs were mixed, and upon cleaning the kitchen the woman had come into contact with a deadly dose of fentanyl. While the defendant was never charged for his role in the death of the woman, it almost certainly played a large part in the plea offer from the government, and the sentence handed down by the judge.

Readers of the Blog are well aware of the federal government’s involvement with Baltimore City gun and gang prosecutions, but guns and gangs are not all the feds are after. Heroin and fentanyl overdose deaths are at a critical level, and any large-scale narcotics trafficking, especially when it involves international shipments and cross state distribution is going to attract the attention of federal law enforcement. The feds will continue to utilize effective tools such as confidential informants and controlled buys in order to take down mid-level dealers, and lengthy prison sentences may await those who are prosecuted. The federal sentencing guidelines are stricter that the Maryland guidelines, and convicted defendants in federal cases are not eligible for parole as they are in Maryland state cases. Federal inmates typically serve over 80 percent of their sentence, while state inmates can be eligible for parole after only serving 25 percent of their time.

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Published on: June 17, 2019

Should I Request A Jury Trial?

By Benjamin Herbst

Under Maryland law all defendants who are charged with an offense that carries more than 90 days in jail are entitled to a jury trial, but requesting a jury trial and actually going through with one are two entirely different things. Requesting or praying a jury trial occurs when a defendant decides to transfer his or her case from the district court to the circuit court. Almost all criminal cases start out in the district court, but jurors are never summoned to appear in district court and they don’t conduct jury trials. Felony charges (except theft and other exceptions like animal cruelty) must eventually be handled in the circuit court due to jurisdiction rules, but there are countless misdemeanor charges that are handled in district court and provide a jury trial right. Common offenses in this category include second-degree assault, theft (all types over $100), DUI, malicious destruction of property and drug possession. Defendants facing trial in district court for these offenses have the option to stay put or move to the circuit court, and there are conflicting opinions about what the right decision may be.

Circuit court is the higher court and the most serious crimes are handled there, but this should not be a deterrent to defendants who are thinking about requesting a jury trial. Keep in mind that circuit court judges are used to hearing felony cases such as murder, robbery and drug distribution all day, so your misdemeanor case usually won’t seem like the crime of the century in their eyes. Additionally, circuit court prosecutors are more experienced and have a better grasp on the cases where they should ask for a harsh sentence, and the ones where they should take a step back. Generally speaking, if you have a misdemeanor charge or a felony theft charge the judges and prosecutors tend to be more reasonable in circuit court, so it may be beneficial to request a jury trial. In some jurisdictions like Anne Arundel County, Baltimore City and Queen Anne’s County it’s usually a good idea to request a jury trial, and in others it depends on the judge.

Once again, requesting a jury trial and actually going through with a jury trial are two different things. Once the case is in circuit court you will eventually have to decide whether to accept a STET, plead guilty or go to trial with a judge or a jury. As a general rule if the state offers to STET your case (postpone the case indefinitely without a finding of guilt) you should accept. You could always decide to bring the case back and fight it within a year, but usually it’s not worth the gamble if you can guarantee the case will be closed without admitting any type of guilt. Deciding whether to accept a plea is always up to the defendant, but everyone in this position should have a lawyer to consult with before making this important decision. Finally, the last decision if the case can’t be worked out is to decide between a court trial and a jury trial. At a court trial the judge will determine guilt or innocence after hearing the evidence, which basically means the entire trial is in the hands of one person. At a jury trial in Maryland, the state must convince all 12 jurors beyond a reasonable doubt in order for them to come back with a guilty verdict. A good criminal defense lawyer will stress to the jury just how difficult it is to reach the level of proof beyond a reasonable doubt. If the jury is unsure they must acquit, which is something that must be hammered home at all stages of the trial.

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Published on: June 10, 2019

Baltimore Selected To Join National Public Safety Partnership

By Benjamin Herbst

Last week Baltimore joined nine other urban areas in the nation as the newest members of the National Public Safety Partnership. The NPP was created in 2017 to provide federal assistance to areas with sustained levels of violence that are far above the national average. In order to be eligible cities or counties must be in compliance with federal immigration requirements and must demonstrate a commitment to reducing crime. Baltimore was overlooked as a 2017 pilot site, and again in 2018, in favor of other notoriously dangerous cities such as Chicago, Detroit, Oakland, Camden and Newark. But in the program’s third year it became impossible to exclude Baltimore, which has sadly become the nation’s murder capital. The FBI established a recent murder rate for Baltimore of 56 per 100,000 residents, a staggering number considering the next highest is Detroit with 40 per 100,000 residents. Chicago has long been perceived as the U.S. murder capital, but in reality its per capita rate is less than half of Baltimore’s.

Being selected to join the NPP isn’t exactly a cause for celebration, but there is hope that the increased federal funding and involvement will curb the constantly escalating violence in the city. The Maryland governor has routinely voiced his discontent with rising crime in Baltimore and has directed funding and law enforcement officers to the city in order to have gun crimes and other violent offenses prosecuted in federal court under Project Exile. Conviction rates are higher and prison sentences longer in federal court compared to the city’s circuit court. In addition to Project Exile, a violent crime joint operations center with 200 dedicated officers from 16 different agencies is already in the works to put boots on the ground in the city’s most violent areas. Additionally, the state has pledged money to the Baltimore Police Department to increase signing bonuses for new recruits, in response to the department’s high turnover rate.

Though it has only been around since 2017, the NPP has already contributed to the reduction of crime in some of the pilot locations and the hope is that the same can be accomplished here in Maryland. The NPP provides a three-year commitment from the federal government and focuses on core areas of crime fighting. The first is federal partnerships, which basically means general cooperation between the city’s leadership and police department and the DOJ and federal law enforcement. The federal government will provide assistance in crime analysis, technology, gun violence, criminal justice collaboration, community engagement and investigations. The feds will also appoint a strategic liaison to serve as the line of communication between the city and the Justice Department, and conduct an annual training symposium for law enforcement members.

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Published on: June 3, 2019

Remaining Suspects Guilty In Police Officer Murder

By Benjamin Herbst

The three remaining juvenile defendants charged with the murder of a Baltimore County police officer have decided to forgo their right to a jury trial, and instead elected to plead guilty to first-degree murder. The guilty pleas were entered today during a previously scheduled court appearance at the circuit court in Towson, and a sentencing hearing will take place later in the summer. Trial dates that were originally scheduled for September have been cancelled. The plea came a month after the main defendant, a 17-year old, was convicted of first-degree murder, burglary and theft for running over a police officer in a stolen car after committing burglary of a nearby home. This defendant will learn his fate at the end of July, and faces a mandatory life sentence.

As part of the plea for the three remaining defendants, the State’s Attorney’s Office requested that the judge cap the active period of incarceration at 30 years. While a conviction for murder in Maryland carries a mandatory life sentence, the statute does not require the defendant to serve the entire sentence in prison, and a portion of the sentence may be suspended. If the judge accepts the State’s recommendation the three will serve at least 15 years in prison before being parole eligible. Defendants sentenced to state prison are normally eligible for parole after serving 25 percent of their sentence, but for a violent offense must serve at least 50 percent before being considered. Regardless of when they are released, all defendants will likely be placed on probation for a period of 3 to 5 years and will be on parole for life.

All four of the defendants are considered juveniles, but all four were charged directly as adults. Maryland juvenile courts do not have original jurisdiction over cases where the defendant was over the age of 14 at the time of the offense and charged with a serious crime such as murder, first degree assault, robbery, carjacking, firearms offenses and felony sexual offenses. When the juvenile court does not have jurisdiction the police are required to book and charge the defendant in adult court. The juvenile defendants are detained in a secure facility (under state law they must be separated from the adult population) until they see a district or circuit court judge at a bail review hearing. Most defendants in this situation are eligible to have their attorney file for a reverse waiver, which would transfer the case back down to juvenile court. This motion must be filed within 30 days, and DJS is required to do a study before the hearing can take place. If the motion is granted then the defendant will be set for arraignment/ detention hearing in juvenile court, and be subject to supervision by the department until the case is over. If the motion is denied the case will proceed as scheduled in adult court.

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Published on: May 28, 2019

Man Arrested For Theft, Then Steals Police Car

By Benjamin Herbst

Last week Howard County Police arrested a man for theft after he allegedly stole $3,000 worth of merchandise from the Walmart located in Ellicott City off Route 40. The man was handcuffed and placed in the backseat of a county police cruiser while the officer concluded his investigation. But rather than wait for the officer to return and escort him to the police station, the man decided he wasn’t ready to be booked for felony theft just yet. The suspect, who was handcuffed behind his back, found a way to move his arms to to the front of his body and then squeezed through to the driver’s seat of the cruiser. It being a warm day, the air conditioning was likely on with the keys in the ignition, and all the suspect had to do was place the car in drive and he was on his way.

While it may have appeared for a quick minute that he was free as a bird, the fact that police weren’t in hot pursuit as he drove east toward Baltimore only created the illusion that his getaway plan was working. Police knew the exact location of the suspect but chose not to engage in a high-speed chase for safety and tactical reasons. All Howard County police cars are equipped with GPS monitors, so once the car came to a stop the cavalry arrived and took the man into custody. He was located just a few miles away in West Baltimore, which is easily accessed by speeding down Interstate 70 past Woodlawn and Security Blvd. Instead of being booked for theft over $1,500 and less than $25,000, which is a felony with a 5-year maximum penalty the 32 year old Baltimore County man now faces 9 criminal charges and a host of traffic infractions. Also, rather than being released on his own recognizance by the commissioner or posting a small bond for the theft charge, the man is now being held without bond a the Howard County Detention Center in Jessup.

Among the additional charges the defendant now faces is motor vehicle theft, drug possession, unauthorized removal of a motor vehicle, resisting arrest, failing to obey a lawful command of a police officer and escape in the second degree. He was also issued citations for driving without a license, driving on a suspended license, leaving the scene of an accident and fleeing and eluding a police officer. The man was held without bond by both the commissioner and a district court judge, with the main reason likely being that he was considered a flight risk. Anyone charged with escape and even fleeing and eluding to a degree faces an uphill battle at bail review. In this case it appears as though the defendant made an impulsive decision to run, which does not necessarily translate to him being a high risk for failing to appear at court. The man probably should have been granted a bail, but the highly sensational and public facts surrounding the flight likely precluded bail from being an immediate possibility.

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Published on: May 20, 2019

Wine Dealer Pleads Guilty To Fraud

By Benjamin Herbst

The U.S. Attorney’s Office for the District of Maryland recently announced that the owner of a high-end wine storage facility has pled guilty for orchestrating a multi year fraud scheme. The 54-year old Anne Arundel County man was the sole owner and operator of a company that provided storage and delivery service for rare and expensive bottles of wine. He charged a monthly fee for these services, but instead found it more lucrative to sell the bottles to unsuspecting third parties. According to the plea in 2013 the man began offering his customer’s wine bottles for sale to retailers and brokers across the country, including America’s wine capital of Napa, California. He used email and fax to communicate with potential buyers about his “inventory” and provided all the relevant information about the bottles and the asking price. After coming to a sales agreement the man packed and shipped the bottles to the buyer from his facility in Glen Burnie, and then accepted payment via check or wire transfer to his bank account. The proceeds were not shared with, or even disclosed to the rightful owners of the wine.

The scheme lasted for four years until 2017 and began to resemble a makeshift Ponzi, as all the while the defendant was collecting storage fees and accepting new bottles of wine from his current clients. Eventually the owners started asking questions, and the scheme came crashing down like schemes generally do. All told, the defendant stole between $550,000 and $1.5 million worth of his customer’s wine, most of who were private collectors and commercial establishments such as upscale restaurants. Not that it really factored into the case, but the defendant did not posses a license to sell wine within the State of Maryland or any other state, so he wasn’t actually a wine dealer (or a legitimate one at least). The actions described by the government in the guilty plea could have resulted in a number of theft and fraud related charges, but the lawyers decided on a plea to wire fraud. It appears that the government and the defense have agreed to a sentence of 18 months in prison, which will be imposed at a sentencing hearing down the road in the Baltimore federal courthouse.

Fact patterns such as this present an interesting discussion on theft laws, and since this is a Maryland criminal law Blog we’ll stick to offering commentary on that. In Maryland you don’t actually have to steal something to be charged with theft. Obtaining goods such as wine under false pretenses or with the intent to permanently or temporarily deprive the owner of the goods is sufficient for a theft charge. Even if the wine guy had every intention of restoring his customer’s collections he legally committed a theft the second he put them up for sale. There is no separate charge for obtaining goods by deception, as it falls under the general Maryland theft provision that differentiates based on value of the goods. One of the exceptions is failure to return a rental vehicle, which is a separate charge that carries a maximum penalty of 1 year in jail. Theft less than $100 is a misdemeanor punishable by up to 90 days in jail. Theft less than $1,500 but more than $100 is also a misdemeanor but carries a 6-month maximum. Anything over $1,500 is classified as a felony, with maximum penalties ranging from 5 years to 20 years for theft over $100,000.

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Published on: May 13, 2019

D.C. Mayor To Battle Congress Over Marijuana

By Benjamin Herbst

Over four years ago Washington D.C. residents voted to legalize marijuana by a majority of almost two to one, but reality set in soon after the celebrations ended. The natural progression of marijuana legalization (the path Maryland is currently traveling) begins with decriminalization, then the establishment of a medical program and finally full-blown legalization. D.C. seemed to be headed toward the ultimate goal of legalization when Initiative 71 passed, but Congress had other ideas and the progression stalled. The main opposition for legalized marijuana in D.C. came from a Maryland congressman with an M.D. from Hopkins, who has described cannabis as a gateway drug with no proven medical use. This congressman used his influence to insert language in the federal spending bill for D.C., which prohibits the local government from spending federal money on a program that regulates and taxes the recreational sale of marijuana. It was further established that any member of the Washington D.C. government faced prosecution from the Justice Department for spending federal money on legalization, and thus Initiative 71 became all bark and no bite.

You could call Initiative 71 a partial victory, as it ended local criminal prosecution for possession, use and cultivation of marijuana, but to this day there is no legal means to purchase marijuana without a medical license. As a result citizens are forced to illegally purchase a substance that is technically legal, and has been for four years. The whole situation seems like politics at its worst; a congressman from another jurisdiction with strong views has exerted his power over the will of the people because he simply knows better. It’s actually quite frustrating, but it seems the local government in D.C. is not giving up. Last week the mayor revealed a bill that attempts to once again establish a clear path for the District to begin a fully functioning recreational marijuana program. The bill, entitled the Safe Cannabis Sales Act of 2019, aims to topple the illegal marijuana market in the city that is dangerous for residents who are lawfully permitted to use cannabis. A 17% tax on recreational sales would apply, and recreational businesses would be required to employ at least 60% D.C. residents. The purchase of up to one ounce of flower per day would be permitted, as well as limitations on the daily purchase of concentrates and edible products. Tax revenue, would be reinvested in the District’s affordable housing programs and other programs designed to benefit residents.

The D.C. government is confident that their work toward legalization does not constitute a violation of the federal spending limitations, but the program will not get off the ground absent changes in Congress. The Maryland lawmaker originally responsible for the flame out of Initiative 71 has reiterated his disapproval of the Mayor’s efforts in a stern statement. He reaffirmed his believe that recreational marijuana is poor public policy and not so subtly requested that the Mayor respect the Constitution, which gives Congress authority over the District. The statement reads like a threat from a power hungry politician that feels his authority has been questioned.

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Published on: May 2, 2019

Baltimore Teen Found Guilty Of Murder

By Benjamin Herbst

After two days of deliberation a Baltimore County jury found a teenager guilty of first degree murder, burglary and theft for actions that lead to the death of a female police officer almost one year ago. The defendant was 16 at the time he was arrested in Perry Hall after running over the officer with a stolen Jeep. Three other male co-defendants are still awaiting trial in the Circuit Court for Baltimore County. All four were under the age of 18 and all were charged with first-degree murder in adult court. A juvenile who is charged with first degree murder and was 16 or older at the time of the offense is prohibited from requesting a transfer to juvenile court, which in Maryland is called a reverse waiver. Juveniles who have been convicted of a prior violent felony such as robbery or first degree assault or other excluded offense like handgun possession are also prohibited from requesting a reverse waiver, as are juveniles who have already been waived and found delinquent. One of the co-defendants in this case was actually 15 at the time of the incident, but his case was not transferred to juvenile court. The 3 remaining defendants are all scheduled for trial in September, and it remains to be seen whether the State will now be more inclined to offer plea deals to a crime other than first degree murder.

The defendant who was recently convicted now must return to the circuit court for sentencing, but under Maryland law the judge will be required to impose a sentence of life. While the state prison system has a fairly liberal parole policy, (violent offenders are often released after serving one half of their sentence) parole is not a forgone conclusion even for young defendants who receive life in prison. Maryland law provides prosecutors the option of seeking life without parole in murder cases, but this requires advance notice to the defendant and a special sentencing trial where the jury must unanimously approve life without parole. If the jury cannot come to a unanimous decision within a reasonable amount of time then a life sentence must be imposed.

This case has stirred up more debate over the fairness of the felony murder doctrine, which allows the jury to convict in a murder case without the State actually proving the defendant intended to kill. First-degree felony murder only requires that the State satisfy three elements, with the first being that the defendant or co-defendant committed a felony such as burglary, arson, carjacking, escape or a sexual offense. The second element is that the defendant killed the victim, and the third element is that the act resulting in the death of the victim occurred during the commission of, or in the immediate escape from the scene of the felony described in the first element. In co-defendant cases such as this one, all participants are liable for the acts of the other co-defendants. It is for this reason that the three other juvenile defendants face the same first-degree murder charge as the one whose actions actually killed the officer.

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