Criminal Defense Lawyer Blog

Published on: November 3, 2017

Pain Clinic Doctor Found Guilty Of Fraud

The governor announced a state of emergency for the opioid crisis in Maryland less than a year ago, but the fight against these deadly drugs has been escalating for over a decade. The battle has become more sophisticated, evolving from going after users and street level dealers to targeting pharmacies, drug wholesalers, pharmaceutical companies and pain management clinics dubbed as “pill mills”. Numerous pharmacies and pain clinics have been shuttered by federal and state law enforcement, and large companies have received hundreds of millions of dollars in fines by the federal government. The Feds have also demonstrated a willingness to go after any individual involved in the legal narcotics trade that is not playing by the rules, which includes doctors making their living by prescribing powerful and addictive opiates. Opinions differ on whether pain clinic doctors should be able to make a living, and a good one, by rubber-stamping narcotic prescriptions after minimal patient contact, but right or wrong this practice is not illegal. Federal investigators know it’s difficult to bust a doc for writing too many prescriptions, though if they look carefully some of these doctors are bound to step over the line in another way. According to the U.S. Attorney’s Office here in Maryland one group of doctors did just that, and along with two medical providers were found guilty of numerous federal crimes.

The U.S. Attorney’s Office for the District of Maryland recently announced guilty verdicts on 26 felony counts against a pain management doctor. The verdict came after a 13-day jury trial in Baltimore City where federal prosecutors successfully proved the doctor’s involvement in two separate criminal schemes. One of the schemes involved the pain management doctor and his partners sending drug testing lab work, which routinely amounted to 1,000 tests per month, to a testing facility in New Jersey in exchange for cash payments. This particular scheme generated over $4 million in revenue over about 5 years from health insurance companies and Medicare. After expenses were subtracted the lab and the doctor’s office split profits that amounted to $1.3 million apiece in illegal proceeds under the federal Anti-Kickback Act. To add insult to injury, the government also proved this particular doctor hid most of the bounty from his own partners. Other allegations proved by the government included overbilling private insurance companies and Medicare for medical procedures including therapeutic nerve blocks. The doctor would routinely enter false billing codes in order to generate more revenue for a single medical procedure.

In addition to the aforementioned Anti-Kickback Act violation, the doctor was also found guilty of violating the Travel Act, commonly known as mail fraud. The use of mail fraud by federal prosecutors in overbilling cases became part of pop culture after appearing in John Grisham’s The Firm, which was made into a big screen legal drama starring Tom Cruise. Other convictions for the shamed doc include health care fraud and falsifying medical records. Health care fraud carries the highest maximum penalty of all the charges at 10 years, followed by mail fraud and the Anti-Kickback Act, which carry 5-year maximum jail sentences. Sentencing will occur at a later date, and the doctor will likely be handed a split sentence that includes some jail time followed by supervised probation. It is not out of the question that the doctor will be forced to pay a seven-figure criminal restitution amount as well. The doctor and one of his partners are still facing charges of conspiracy to defraud the IRS, though after the result in this case a plea may be on the horizon. The Blog will continue to follow this case and may post an article after sentencing. If you have been charged or are being investigated for any criminal charges including federal fraud allegations, doctor shopping or possessing a fraudulent prescription contact Benjamin Herbst at 410-207-2598 for a free consultation.

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Published on: October 25, 2017

Medical Marijuana Not Cleared For Takeoff Yet

By Benjamin Herbst

Medical marijuana grow facilities across Maryland have been up and running for weeks, yet as of now these growers are still not able to sell their product to the distributors that will ultimately provide to patients. One Anne Arundel County grower has already harvested a batch of pot for testing purposes and is primed to ramp up production when the time comes, but when is the time actually coming? This is a question four years in the making, and each time an answer appears on the horizon new hurdles must be cleared. While it is unlikely that the entire program is in jeopardy, the coming weeks will certainly bring a few sleepless nights for the workers who put in hundreds of hours and the investors who put up millions in order to make medical marijuana a reality here in Maryland.

There are at least three current issues threatening smooth operation of the state’s medical cannabis program, with two being on the state and local level and one on the federal level. The first issue is where to put all the dispensaries. The locations of the grow facilities have been set for months, and are scattered around the state in discrete industrial locations. These facilities are not open to the public, and will do their best to be out of sight and out of mind. The dispensaries are a different story, as they must be in areas that are accessible for the registered patients to pick up their medicine. The problem is that many residents in areas of proposed dispensaries are speaking out as to their disapproval of having medical pot shops in their neighborhoods. While these complaints lack a any sort of factual and rational basis (for example some citizens are concerned that dispensaries will bring crime and loitering riff raff) they are causing a stir that is being heard by state and local politicians. The program cannot function properly without numerous dispensaries to handle the high demand from patients. A limited amount of dispensaries will severely disrupt the flow of the product from the grower to the patient, and will render the program relatively useless. The growers need the dispensaries as much as the dispensaries need the growers, so the hope is that all the zoning issues are sorted out quickly.

Another state based issue threatening the program is a recent decision by a Baltimore City Circuit Court judge that the case involving the disgruntled growers that were denied licenses will proceed to trial. The state had filed a motion to dismiss, but not surprisingly the judge ruled that it was a case left for the fact finder (judge or jury) to decide. A trial date has not been set, but the medical cannabis program will be allowed to operate while the case is pending.

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Published on: October 17, 2017

What Is Maryland Law Regarding Technical Probation Violations?

By Benjamin Herbst

Numerous Maryland criminal laws changed on October 1^st, but no change may have more of an impact in courtrooms around the state than the new sentencing rules for technical violations of probation. In theory probation is a convenient and fair tool for a judge to punish a defendant without imposing a jail sentence. While many defendants complete their probation term without incident and then move on with their lives, a large percentage don’t fair so well. Probation violations are too common in Maryland, and many should never happen in the first place. A probationer that is arrested for a new criminal or jailable traffic offense can expect a violation of probation to be initiated, as the officer really has no choice. But new law violations (also known as rule 4 violations) account for less than half of all VOPs. The majority of violations are technical, and these are the type that have been addressed by the legislature.

A technical violation is a violation of a condition of probation that does not involve an arrest or summons issued after a police officer files a statement of charges, a violation of a no contact or stay away order or generally speaking any violation of criminal law not including minor traffic offenses. Additionally, absconding from probation is not a technical violation. Absconding means avoiding supervision, but in reality missing more than one probation appointment could classify as absconding under the law. Every other type of violation is considered technical; this includes testing positive for drugs or alcohol, missing one appointment or showing up late to an appointment, not completing treatment, community service or anger management, and failing to pay restitution, fines and court costs. There are numerous other ways to be charged with a technical violation, as it depends on the specific conditions of probation. Probation agents can be patient and hold off on informing the judge of certain technicals, but in other cases agents are extremely inpatient and on a power trip. It is this type of agent that has contributed to the overwhelming number of VOPs that are currently clogging up the courts and the jails, but the hope is the new law may bring change.

As of the beginning of this month the maximum sentences for technical violations is now governed by a statute that almost always must be followed by state judges. Any defendant charged with a technical violation faces a maximum sentence of 15 days for a first offense, 30 for a second offense, 45 for a third and the full suspended time after that. In rare cases judges may deviate from these rules by making a finding that adhering to the new limits presents a danger to public safety, a victim or a witness. The new law will not only prevent knit picking judges from slamming a defendant for a positive drug test, but hopefully it will make probation officers think twice before violating one of their defendants. Agents may show more patience in borderline cases where a defendant has shown some progress, but this remains to be seen.

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Published on: October 10, 2017

How Can I Clear My Criminal Record?

By Benjamin Herbst

Each year thousands of defendants are arrested or cited for crimes they did not commit, and thankfully a large percentage of these cases are dismissed in court. Defendants who are not fortunate enough to have their cases dismissed may still walk out of court without a permanent criminal conviction, and others may be given the opportunity to have the conviction stricken down the road. Exiting through the front door of the courthouse without a criminal conviction is only half the battle, as cases do not simply disappear upon being closed or dismissed. While it is certainly a relief to have your criminal case closed, the record of its existence could still be extremely damaging and stressful for years to some.

The question for many former defendants in the days following the closure of their cases is how to limit others from finding out about it. This includes current and prospective employers, academic institutions and professional organizations. Those who are searching for a potential better half also do not want to deal with the horror of a meticulous Google search turning up misleading negative information. Everyone (and their friends) has the tendency to pass quick judgment about a potential romantic interest, and a prior criminal case that is easily viewed online could spell disaster. So how can you prevent this from happening?

The answer to this question depends on a ton of factors including the specific outcome in court, and whether it was a state or federal case. For starters, the federal criminal justice system does not provide an avenue for a defendant to expunge his or her closed case. A defendant wrongfully charged with bank robbery in federal court will not be able to expunge the case even if it was nolle prossed prior to trial. The same goes for defendants charged with minor offenses such as petty theft or drug possession who complete community service in exchange for dismissals. All hope is not lost for federal criminal defendants though, as these cases are often more difficult for the general public to find. Unlike many state cases a federal case listed on PACER will not be visible with a simple web search and you cannot access this system without an account. Additionally some petty offense cases that are initiated via a citation may not show up in certain commercial background checks.

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Published on: October 1, 2017

New Laws Effective In Maryland

By Benjamin Herbst

Each spring the passage of new laws creates numerous headlines coming out of the State House in Annapolis, and no subject creates more buzz than criminal legislation. Marijuana has dominated the last few years of criminal legislation headlines, but this year decriminalization and medical cannabis takes a back seat to a massive new set of laws falling under the Justice Reinvestment Act. Of all the new laws contained in the Act, none will be as impactful as the provision eliminating mandatory minimum jail sentences for a host of drug crimes. For decades a repeat offender for a low level drug dealing crime under 5-602 to 5-606 of the criminal code faced the possibility of a mandatory 10, 25 or 40 year sentence without parole. These mandatory sentences were often used as leverage by prosecutors to pressure defendants into pleading guilty, as the trial judge would have no choice but to slam a convicted defendant who turned down a plea deal. As of today though, a repeat offender for common street level drug dealer crimes such possession with intent to distribute narcotics will no longer face the possibility of a mandatory prison sentence upon conviction.

The new law repealing mandatory minimum sentencing only applies for street level drug dealing crimes and will have no effect on the so-called drug kingpin statute described in 5-612. These crimes, which include possessing, distributing or manufacturing 50 pounds or more of marijuana, 28 grams or more of opiates like heroin and 448 grams or more of cocaine will retain a 5-year mandatory sentence and a massive $100,000 potential fine. Mandatory minimum sentences for possessing a firearm in a drug trafficking crime are also unaffected by the new law.

In crafting the Justice Reinvestment Act lawmakers not only eliminated the mandatory minimum for low-level drug dealing, but also created an avenue for those already serving mandatory sentences for these crimes to file a special motion to modify their sentence. Starting today the courts are accepting motions to modify these sentences and will likely be inclined to grant them unless the state proves keeping the mandatory sentence intact is necessary for the protection of the public. Defendants currently serving prison time will have until September of 2018 to file for this special modification. Those serving mandatory sentences for drug kingpin crimes and firearm crimes are not eligible to file for this modification.

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Published on: September 27, 2017

What Is A Federal Ticket?

By Benjamin Herbst

In years past police officers had almost no other option but to arrest an individual observed committing a crime. This was true with respect to Maryland state cases and federal cases, but over the years the system has evolved to where a police officer can now charge a person with a crime without having to waste hours transporting and booking that person. When you think of federal crimes the first things that come to mind are complex criminal conspiracies like fraud and bribery (such as the recent college basketball recruiting scandal) or big time drug trafficking cases, but not all federal criminal cases are worthy of news headlines. The big cases technically could be handled by local and state law enforcement agencies because they usually occur on state property where state agencies have jurisdiction, but the Feds have their pick due to their vast resources. Federal ticket cases though are petty offenses that actually occur on federal property, where the only cops that have jurisdiction are the ones employed by the U.S. government. In essence, it is not the actual offense that makes the cases federal, but where the offense occurred.

Common state offenses where an officer may issue a citation and release the individual include shoplifting, possession of marijuana and trespassing. After the officer issues a citation the individual will be sent on their way, and told to check their mail for a court notice from the district court. For the most part federal tickets proceed in the same manner, but there are literally hundreds of different petty offenses that may result in a federal police officer issuing a ticket. Another difference is that all federal tickets are processed by one agency called the Central Violations Bureau or CVB. The CVB is the agency that notifies the federal district courts in Baltimore, Greenbelt or Salisbury to set must appear tickets for initial appearance and then trial, and is also the agency that processes the payment of fines.

The state of Maryland contains dozens of areas that are owned by the U.S. government and therefore policed by federal law enforcement agencies. These include Fort Meade, Joint Base Andrews, Aberdeen Proving Ground, NSA, Veteran Affairs medical centers and the NIH (National Institutes of Health). There are also numerous federal highways within the state such as the Baltimore Washington Parkway (295) and the Clara Barton Parkway and national parks such as Assateague National Seashore. All offenses committed in these areas, no matter how minor, must be handled in federal court and mandatory appearance tickets will be heard in front of a United States Magistrate Judge. If you are given probation you will be supervised by the U.S. Probation and Pretrial Services System and if you get a fine you must pay the CVB directly. There is a chance that your case may be resolved without paying a fine or receiving probation or jail time, but this must be pursuant to an agreement with a prosecutor from the U.S. Attorney’s Office.

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Published on: September 19, 2017

Ocean City Police Announce Prostitution Sting

By Benjamin Herbst

The Ocean City Police recently announced a large prostitution sting, which yielded multiple arrests of defendants from numerous states. All told twelve people were arrested on charges ranging from misdemeanor prostitution to felony possession with intent to distribute a controlled substance. Six of the twelve arrested are from Maryland but only two were actually from Ocean City. The other four hail from Cumberland, Severn, Salisbury and nearby Berlin. One defendant is from Alexandria Virginia and two are from Delaware. The other three hail from Pennsylvania, a bordering state that brings thousands of tourists to the local beaches each summer. All but one defendant was released on personal recognizance, which allows for immediate release without a bail being posted. By order of the Chief Judge, the district courts have been more inclined to released defendants on recog over the last few months. The one defendant who was forced to post a bail was later released after putting up $10,000.

While the police announced the sting was part of a human trafficking operation, there were no arrests for the felony charge of human trafficking. An investigation into suspects engaged in this type of criminal activity could be ongoing, and detectives may try to use any evidence recovered in this sting to locate those suspects. Human trafficking may sound like it is a crime limited to the buying and selling of people for profit, but it includes numerous other activities. In fact, anyone who persuades or induces someone to engage in prostitution or who profits from someone else engaging in prostitution could be charged with felony human trafficking. This type of activity is more related to acting as a pimp or pimping than buying and selling people, but the potential criminal charge could be the same.

Like anyone else charged with prostitution in Maryland, these twelve defendants will have a chance to fight their charges in the Ocean City District Court. The crime of prostitution carries maximum 1-year jail sentence so the defendants may choose to request a jury trial, which will result in their cases being transferred to the Worcester County Circuit Court located in Snow Hill.

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Published on: September 12, 2017

What Can I Do If I Have An Arrest Warrant?

By Benjamin Herbst

Many people find out that there is a warrant for their arrest when it is too late to actually do something about it. For example if there is an active warrant and a police officer pulls you over for a traffic violation you will almost always be taken into custody right then and there. Additionally if you show up to probation with a warrant an officer will likely be waiting to take you away in cuffs. But if you are lucky enough to find out about your warrant beforehand there are certain things you can do to avoid having to go to jail.

There are two basic types of warrants in Maryland and it is important to understand the differences before deciding what you can do about the situation. In state court cases a bench warrant is a warrant issued by a judge of either the district or circuit court. The most common cause of a bench warrant would be for a failure to appear at a court date for either a traffic or criminal case. Bench warrants will not be issued for failing to appear at a minor traffic case such as speeding or running a red light. The consequence for not showing up to theses cases is typically the issuing of a failure to comply suspension that may result in the MVA suspending your drivers license. If you fail to appear and a warrant is issued the judge will typically decide bail in court, but could also indicate that bail is to be set by the commissioner. In felony cases or other more serious crimes the judge may decide to issue a no bail bench warrant. The best way to deal with a bench warrant is to file a motion to recall or quash the warrant and request that the judge reset the case for trial. If you hire an attorney to file the motion there is a good chance it will be granted, as the judge will see that by getting a lawyer you have taken steps to deal with the case and are likely to show up for your next court date. You may also decide to file the motion on your own. In this case you should go to the courthouse and request a blank motion form, and then explain to the judge why you missed court.

Bench warrants can also be issued for violation of probation. In this case the probation officer will submit a violation report and will typically recommend that a warrant be issued, a summons to appear be issued or that the court take no action. It is ultimately the judge’s decision what to do, and if he or she decides to issue a warrant then you would have to file a motion to withdraw it, and to set the case for a violation of probation hearing. Once again, it is advisable to have an attorney file this motion but there is no rule preventing you from filing it pro se.

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Published on: September 5, 2017

When Will A DUI Suspend My License?

By Benjamin Herbst

The two main concerns for anyone that is arrested for DUI are typically going to jail and losing the ability to drive legally. We touched on the likelihood for jail sentences in a previous post, so in this post we will stick to a discussion about the potential for dealing with a suspended license. It is important to understand that there are two different events that can result in a suspended license, and one generally has nothing to do with the other. The first event is the initial traffic stop where the officer will ask you to take a breathalyzer test to determine blood alcohol content or BAC. If you refuse to submit to the test then your license will automatically be suspended for 270 days for a first refusal and 2 years for a second or subsequent refusal. The suspension is administrative, and is initiated after the arresting officer submits an order of suspension to the driver, and forwards copies to the MVA. The suspensions were increased to these numbers in October of 2016 after the passage of the Drunk Driving Reduction Act.

The suspension for a refusal will actually go into effect after 45 days from the order of suspension, and you will be able to legally drive during this time. The paper order of suspension will serve as the temporary driver’s license. During these first 45 days defendants have three choices to make. First, they can elect to install the engine interlock device (also known as blow and go) in their car and then obtain a restricted license from the MVA. The restricted license will state that the driver is only allowed to drive a vehicle with the device, and for a refusal must be maintained for a minimum of one year. You can only obtain this type of restricted license after you present the MVA with a certificate of installation from the company that installed the interlock device in your car.

If you refuse the breathalyzer you also have the option of requesting a hearing in front of an administrative law judge. The hearing will take place at an MVA branch office or the OAH in Hunt Valley, Baltimore County. When dealing with a refusal case, a hearing officer may only uphold the suspension or reverse the suspension. They will not issue a restricted, work only license. The only realistic ways to win an administrative hearing are to prove that you didn’t refuse, or that the cop had no legal basis to request the test in the first place, and most hearings end up with the driver walking out disappointed, so think twice before requesting one. The third option for a driver that refuses the test is to accept the 9-month suspension. If the police did not confiscate your license you must turn it into the MVA or sign a form stating you lost it in order to get credit for serving the suspension.

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Published on: August 29, 2017

How Do I Get A Maryland Gun Permit?

By Benjamin Herbst

There are two main types of gun permits that everyday citizens may decide to pursue, and before discussing the question of how a person goes about obtaining a Maryland gun permit it is important to distinguish between these two types. In 2013 state lawmakers passed the firearms safety act, which drastically changed the process for everyday citizens to purchase handguns. In addition to outlawing the sale of any gun with a magazine capacity over ten rounds (including the popular 15 round capacity Beretta M9) lawmakers also decided to require all citizens to obtain a Handgun Qualification License before purchasing any type of handgun. The stated goal of the HQL license was to assure that only the most qualified and educated individuals could purchase handguns, but in reality the state really just maintains extreme control on the legal gun market going forward. The HQL license is not particularly difficult to obtain, as it requires the individual to take a four-hour class (unless exempt for being law enforcement, military etc.) and also pass a background check that requires giving a fingerprint sample. After obtaining a HQL a person will be issued a card that allows them to purchase. This qualification license DOES NOT allow a person to lawfully carry a concealed handgun nor does it provide a legal means for open carry. The process for obtaining a carry permit is much more involved, and difficult for an everyday citizen.

The rules governing carry permits in Maryland were not particularly affected by the firearms safety act of 2013. Rather, these rules are governed by title 5 of the public safety code. Concealed carry permit applications that are denied can be appealed to the Office of Administrative Hearings or (OAH), where an Administrative Law Judge will decide whether a permit shall issue. Without a permit you cannot wear, transport or carry a handgun unless you are going from home to the range/ gun shop or vice versa, and unless the weapon is packaged correctly in a case, unloaded and not readily accessible. The fees to apply for the permit are relatively cheap but the instruction and course could cost a few hundred dollars. Any applicant that hopes to obtain a permit must be an adult who has not been convicted of crimes including drug offenses and other offense where the sentence was more than 1 year, and all applicants must complete 16 hours of training by a qualified instructor, and then 8 hours of additional training for renewals.

Once an applicant meets the basic requirements the board will then conduct an investigation to determine whether the applicant has ever exhibited a propensity for violence or instability. If you have ever been charged with assault or if a peace order or protective order has ever been taken out against you then you can bet this will come back to bite you during the investigation stage. If the board determines you are suitable after the character investigation they will next move to the most difficult stage where the majority of applications fail. Under the law an applicant must prove a good and substantial reason to wear, transport or carry a handgun that rises to the level of finding that the “permit is necessary as a reasonable precaution against apprehended danger”. In a nutshell this means that the applicant must prove that he or she needs the permit to protect against danger that they are likely to encounter. The burden is on the applicant to prove this is the case, but the problem is that many citizens cannot site specific facts that make them likely to encounter danger. It is not enough in Maryland to just be a law-abiding citizen with the desire for extra protection, as the board will need more persuasion under the law. That being said, most applicants who meet the requirements and provide a good and substantial reason will be granted a permit. This law could soon change, as the Supreme Court is set to rule on a similar New York law where the applicant has the burden. We will post a follow-up article after the opinion is released in the coming months.

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