Articles Posted in Gun Crimes

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Gun-evidence-box-300x225Last week a Baltimore City jury found a 21-year old man not guilty on all counts of gun possession after a circuit court trial, but this type of verdict alone is typically not enough to create news headlines.  City prosecutors have recently struggled to earn convictions for gun possession cases due in large part to mistrust of city police offers in the aftermath of the gun trace task force scandal, and an acquittal for a possession charge is hardly out of the ordinary.  What made this result newsworthy is the fact that the lead arresting officer is now the commissioner of the Baltimore Police Department.

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

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

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handgun-231699_640-300x169Maryland State Senators recently passed a sweeping bill that would modify a number of existing criminal laws ranging from drug dealing to gun possession, and now the bill moves on to the House for a vote later this month. The measure passed by a wide margin in the Senate, and the governor’s approval is expected as long as it arrives at his desk. The bill made headlines for including provisions that increase jail sentences for repeat offenders and adding funding for crime prevention initiatives, but there are numerous other proposals that could have major impacts in courthouses around the state.

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

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

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weed4-300x194Maryland already has some of the toughest gun laws in the country, and now the medical marijuana program may contribute to even tighter restrictions on gun ownership in the state. The Attorney General recently went on record stating his office would no longer sit back and let the states implement marijuana policy without the threat of federal government interference. This doesn’t necessarily mean (we hope) that the DEA is plotting to raid recreational and medical marijuana grow houses and dispensaries across the country, but there is certainly some cause for concern. Here in Maryland the medical marijuana program just became functional after years of work by thousands of people who put in time and millions of dollars for the little green plant to become available with a doctor’s approval. The program is not going anywhere, so patients and investors probably need not fear the worst. But there may have to be some sort of effort to keep the feds at bay, and a firearms crackdown could serve this purpose.

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

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

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handgun-231699_640-300x169The U.S. Attorney’s Office for the District of Maryland recently announced that a Prince George’s County man has been sentenced to more than four years in federal prison for illegal possession of a firearm. While a gun possession case may not seem like a newsworthy headline considering all the violent crime and police corruption currently taking place in the Baltimore metro area, this case is worthy of discussion because law enforcement never actually recovered a gun. Rather, state and federal officers built their case around a video they viewed on Twitter, which depicted the defendant in possession of a semi-automatic handgun.

Law enforcement used the Twitter video to obtain warrants to view additional social media accounts as well as search warrants for the defendants two known residences. The social media warrants yielded more pictures of the defendant with guns and the home search warrants produced a box of ammunition with the defendant’s fingerprints on it, but there was never an actual physical gun that police tied to the defendant. Nonetheless the defendant and counsel must have felt the government had enough evidence and struck a plea deal for the four-year sentence. Firearms have a broad meaning under federal law, and there is no requirement that the gun be working and operable at the time of the offense. Possession of anything readily converted to expel a projectile is all the government needs to prove, and detailed pictures or videos along with testimony from a firearms expert could be enough. The video in this case apparently showed a close up of the gun’s magazine and the bullets, and feds stated the defendant could be clearly seen loading the gun.

The defendant ultimately pled guilty to one count of possession of a firearm by a prohibited person. This offense is similar to the Maryland state law that prohibits certain individuals from possessing guns under the public safety code. There are nine categories of prohibited persons including convicted felons, fugitives, habitual drug users and those who have been involuntarily committed to a mental institution. Also included in the prohibition are persons who have been convicted of a misdemeanor crime of domestic violence or who are subject to a qualifying domestic protection order. The defendant was recently found guilty of second degree assault in the Ellicott City district court, and has numerous other offenses and prior protection orders that may have disqualified him from gun possession. Under federal law the penalty for illegal possession of a firearm is a maximum of ten years, but the actual sentence is typically based on the guidelines. Naturally those found guilty of this offense almost always have a criminal record that will contribute to a higher guideline score, though the bottom of the guidelines with no record is still more than a year in jail for this offense.

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holster-648014__480-300x206There 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 unfortunately extremely 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. All carry permits must go through the Handgun Permit Review Board at the Department of Public Safety and Correctional Services or DPSCS, which is the same department that controls state prisons and parole and probation. The review board consists of 5 citizens that are appointed by the governor to serve 3-year terms, and these are the people that will decide if your request for a carry permit is granted or denied. 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. The fees to apply for the permit are relatively cheap but the qualifications to actually obtain one are far from it. 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 8 hours of training by a qualified instructor. The requirements get much harder though after that.

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.

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handgun-231699_640-300x169A federal judge recently sentenced a 24-year old Prince George’s County man to 16 years in prison after he pled guilty to a botched robbery that occurred back in September. The young man from Bowie was convicted of commercial robbery and brandishing and discharging a firearm during a crime of violence, which carries a mandatory minimum jail term. This means the defendant will not be eligible for parole for at least 5 years, and he will be on supervised probation when he does get released. The robbery took place at the University of Maryland University College Inn and Conference center located in Adelphi, just outside of College Park.

The plea agreement described a frantic few minutes that began with the armed defendant approaching a security guard at the inn and stating he was on the premises to make a delivery. As the two men walked toward the loading dock the defendant grabbed the security guard and a struggle ensued. During the struggle the defendant’s gun was discharged but did not strike anyone. Around the same time the masked and also armed co-conspirator entered building’s security office with his gun drawn and ordered all occupants to the ground while demanding money. Around the same time the security guard at the loading dock managed to break free from the defendant and made it back to the security office to seek help, only to come face to face with the gun brandishing co-conspirator. The co-conspirator shot in the direction of the guard and the bullet struck him in the arm and came to rest near his spine. Seconds later the defendant appeared at the security office and joined up with his co-conspirator to steal three safes. Both fled the scene, but one did not get very far.

Prince George’s County Police responded to the scene immediately and dispatched a K9 unit and a helicopter to locate the suspects. Eventually the police K9 located the defendant hiding in an area of overgrown trees and shrubs right near the loading dock where the doomed heist began. A search of the area turned up all three safes and a .40 caliber semi automatic pistol loaded with 7 rounds of ammunition. Forensic evidence revealed that the fingerprints taken from the gun’s magazine matched the defendant’s, and ballistics matched the .40 caliber shell casing with the gun that was found. Police later recovered clear surveillance footage of the unmasked defendant carrying out the robbery, and also recovered recorded PG county jail phone calls where the defendant admitted to firing his gun, but stated he did not hit anyone. Needless to say federal prosecutors had more than enough evidence at their disposal if the defendant had elected to reject the guilty plea and take his case to trial in the Greenbelt federal courthouse.

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police-224426__180Back in February seven Baltimore Police officers from the department’s gun task force were indicted on federal racketeering charges with allegations that the officers extorted and stole money from citizens, falsified police reports and collected fraudulent overtime payments. While all of the cases are still pending, it is now expected that four of the officers will enter guilty pleas sometime in the near future. The other three officers though appear to be in more hot water after the U.S. Attorney’s Office announced a federal grand jury returned a new indictment last week. The superseding indictment charges the three officers with additional counts of robbery, conspiracy, and possession of a firearm in furtherance of a crime of violence. All told the offers were implicated in as many as 13 robberies that yielded over $280,000 in cash, firearms and 2 kilograms of cocaine, and now the details of some of these criminal acts are coming to light.

The new six-count indictment alleges that as far back as 2011 the officers illegally detained or entered the homes of suspected drug dealers with the intent to steal their narcotics and money. The officers allegedly conducted traffic stops without probable cause and even went as far as swearing to made up search warrant affidavits to gain access to suspects’ homes and vehicles. There are also allegations of burglarizing a storage unit to carry out a cocaine theft, stealing 20 pounds of marijuana during a drug deal and robbing a stripper. The incident that is gaining the most media attention though was a brazen home invasion robbery where the officers hired two civilians to steal a large amount of cash from the owner of a pigeon store in the southern Baltimore neighborhood of Brooklyn. While conducting a search warrant on the store the gun task force officers learned that the owner was in possession of $20,000 cash that was to be used to pay off a tax debt to the IRS. The officers left the store without taking any money, but later conspired with two civilians to steal the cash at a later date. After locating the store owner’s home address using a law enforcement database the officers provided the address as well as tactical gear including bullet proof vests and weapons to the civilians. The two civilians then robbed the store owner at gunpoint after posing as cops attempting to execute a search warrant.

The store owner reported the incident to the Baltimore Police several times, and filed an internal affairs complaint to no avail. While there was no official word from BPD on what exactly happened with the IA report, it is now assumed that the investigation was turned over to the feds in order to continue to build a case against the corrupt city cops. All seven of the officers face up to 20 years in prison for the racketeering and conspiracy charges and some may face additional penalties for robbery and felony firearms offenses. The firearm offenses could trigger mandatory minimum sentences as well, so it will be interesting to see what type of plea deals the first four officers agree to accept. The Blog will continue to follow all of these cases and may post a follow up article in the near future with an update. If you or a loved one is facing state or federal criminal charges contact Benjamin Herbst. He has represented hundreds of defendants charged with gun crimes, robbery, theft and drug trafficking and is available anytime for a free consultation.

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handgun-231699_640-300x169Federal law enforcement officers from agencies such as the FBI, DEA and ATF rarely patrol our streets, and they have far less contact with the public than state and local officers. As a result, common firearms crimes such as possession of a handgun are typically handled in state court, as local police officers are usually the ones making the arrests on these cases. A typical federal firearms case could involve the ATF busting an illegal gun trafficking ring or the DEA making a drug bust and seizing firearms in the process. Each of these examples usually involves a formal investigation possibly including confidential informants, wiretaps and search warrants where the feds continue to build a case as the crime is ongoing. In contrast a state firearms case typically starts as a traffic stop or a call to investigate a completed crime. This type of case rarely ends up in U.S. court, but federal prosecutors in Baltimore are trying to get the word out that no gun case is too trivial for their caseload.

The U.S. Attorney’s Office for the District of Maryland recently announced that five men have been found guilty of federal firearms crimes that originated in state court. Four were Baltimore City cases and one was an Anne Arundel County case. The men were originally facing charges in the respective state circuit courts, but these cases were all closed after the assistant state’s attorneys announced them as nolle prosequi and forwarded the files over to their federal counterparts. The charges the men are facing vary, as two are charged with illegal gun possession, two are charged in relation to drug trafficking and one in relation to an assault. But the one constant is that all five of the defendants were convicted of a felony prior to being arrested on the current charges. Federal prosecutors in Baltimore are taking affirmative measures to let state prosecutors know they will gladly take any case that involves possession of a firearm by a convicted felon. With resources that dwarf its state court neighbors, the Baltimore federal court has a much higher conviction rate for gun crimes, and the  criminal code may provide higher penalties in some cases. Currently a defendant in U.S. court for illegal possession of a handgun faces up to 10 years in prison. A defendant who carries a firearm during the commission of a crime of violence or a drug trafficking crime faces an additional 5-year mandatory sentence. If the gun is brandished the mandatory sentence increases to 7 years, and if it is fired it increases yet again to 10 years. There are also mandatory penalties for crimes involving assault weapons and short-barreled shotguns and rifles.

There is a broad class of individuals that are prohibited from possessing a firearm under U.S. law; if you think only convicted felons are prohibited then think again. In reality any person convicted of a crime that carries a maximum penalty of more than a year, anyone who is an unlawful user of a controlled substance and anyone convicted of a misdemeanor crime of domestic violence could face federal firearms charges for possessing a gun. Each of the five men currently in custody and awaiting sentencing has learned the hard way that the feds are not messing around when it comes to gun possession in Baltimore. However it remains to be seen whether these efforts will serve as a deterrent to future offenders. The Blog will continue to follow these five cases as well as other state cases that are picked up by the feds. We may post a follow up article in the future so stay tuned. Benjamin Herbst is a state and federal gun lawyer that handles illegal possession by a convicted felon and transportation cases in all Maryland courts. Contact Benjamin for a free consultation about your case anytime at 410-207-2598.

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firearm-409000__480-200x300A Prince George’s County man was recently sentenced to just over ten years in prison followed by three years of probation for robbing a fast food restaurant in Hyattsville. The sentencing occurred last week at the United States District Court of Maryland in Greenbelt after the man pled guilty back in December. According to facts stated in the plea agreement the defendant, who was once an employee at the restaurant, entered wearing a hooded sweatshirt and a mask of the popular Marvel Comics superhero Iron Man. Upon entering the restaurant the masked robber brandished a revolver type handgun at one of the store employees and demanded access to the safe. After realizing the employee did not have access to the safe the robber could have fled the scene, but instead hid behind a wall and waited for the manager to return. The defendant later used his gun to corral the manager and other employees into the manager’s office, where he stole cash from the safe and then from a register on his way out. Before leaving the restaurant the defendant also sprayed and lit lighter fluid on the wall and floor, and fired multiple rounds from his revolver that struck the building. Prince George’s County Police were alerted to the scene during the robbery and located the defendant as he was attempting to flee in his vehicle. Rather than surrender, the masked robber led cops on a high speed chase. The chase did not last long, as the defendant eventually stopped his vehicle and was taken into custody without any further violence. Police ultimately recovered and entered into evidence over $2,000 cash and a revolver with three live rounds and three spent cartridges.

The defendant was charged with numerous offenses, but ultimately pled guilty to robbery and using, brandishing and discharging a firearm. The plea agreement called for a sentence of between 121 months and 14 years prison under the federal guidelines, and the judge ended up going with the lower end. While this case certainly had some terrible facts, the defense probably provided mitigation to offer to the judge on sentencing. It does not appear that the defendant has a prior criminal record in Maryland, and there may have been some mental health issues involved with the case, as the defendant apparently decided to rob the restaurant because he was upset over being fired.

The robbery actually occurred on Christmas Eve of 2014, which is a relatively long period of time for a case of this magnitude. There are several reasons why a case that seems open and shut could last over two years. Cases where the defendant has or is suspected to have a mental health disorder often taken longer to settle due to the need for professional evaluations and treatment prior to plea or trial. Despite an arrest by county officers, this particular case did not appear to originate in state court before the feds took over. Some cases, especially cases involving robbery and firearm use, are filed in state court and then later dismissed and refiled in federal court. This process can cause delays, although a 2+ year gap between arrest and sentencing is still high.

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handgun-231699_640-300x169Marijuana grabbed many of the criminal law headlines over the last few state legislative sessions, but this year it has taken a back seat to other pressing issues such as prescription narcotics, heroin and firearms. We recently posted about proposed bills targeting heroin dealers and there has been heated debate about potential laws designed to limit the amount of prescription pain killers a patient may receive. While the fate of these bills remains to be seen, there are also multiple guns bills that have recently appeared on the House and Senate floors in Annapolis.

The first bill is an attempt to alter a strict state law prohibiting the possession of firearms on public college campuses. As it stands now any person arrested for possessing a handgun at a state university or public school faces a felony charge with a 3-year maximum jail sentence. Possession of a knife or other deadly weapon on school property is a misdemeanor, albeit with the same maximum punishment. The new bill would alter the statute by eliminating the possibility of a felony charge for a person caught possessing a handgun on a college campus. Rather, this offense would become a civil infraction only punishable by a fine of up to $1,000 come this October year if the bill passes. The changes would not apply to gun possession at a public elementary, middle or high school.

A civil citation for possession of a handgun on a public college campus would be handled in the same manner as a citation for offenses such as possession of alcohol by a minor, or using a fake ID. The defendant would be summoned to appear in court, and failure to appear could result in the issuance of a warrant. Failure to pay any fine imposed could result in the defendant being held in criminal contempt of court. Despite these possible sanctions, which can include jail time, this type of citation is not criminal and may not be considered a criminal conviction if the defendant is found guilty. On the other hand, if these citations are not expunged they will be accessible to the public and negative collateral consequences could follow. This is in contrast to the marijuana civil citation statute, which does not permit public access on casesearch and at the courthouse. Defendants would be entitled to have an attorney present at court hearings for these citations, and the prosecutor could elect to place the case on STET or enter a nolle prosequi pursuant to an agreement.