Articles Posted in Uncategorized

Published on:

police-224426_640-300x189This past Friday night a Baltimore Police sergeant was conducting a routine check on a local business when a suspect allegedly became irate and spat in the officer’s face.  A struggle ensued after the officer attempted to arrest the suspect, and both men ended up wresting on the sidewalk.  The incident attracted a crowd of bystanders, and at least three of those bystanders were seen on cell phone video kicking the officer during the struggle.  On Monday, law enforcement reported that two men and one male juvenile have been arrested for their actions toward the police sergeant.  The two male defendants are both under the age of 24, with one hailing from Dundalk, and the other from Windsor Mill.  No identifying information about the juvenile has been released, except that he is 17.  The two men have been charged with assault on a police officer, which is a felony under Maryland law.  Assault on a police officer, firefighter or any other first responder carries the same 10-year maximum penalty as 2nd degree misdemeanor assault, but scores higher on the sentencing guidelines.  The two men were also charged with interfering arrest, which is a 3-year misdemeanor.  Interfering arrest is the listed under the same statue as resisting arrest, and both carry the same penalties.

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

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

Published on:

cannabis-1418332__480-261x300Fruitland is a small Eastern Shore city located off of Route 13, just south of Salisbury and a few miles north of Princess Anne.  As an incorporated municipality, Fruitland maintains a city council that can enact legislation, and a police department to enforce its laws.  With a population of around five thousand residents though, it’s no surprise that major news headlines do not appear when Fruitland passes new laws.  Last month, Fruitland lawmakers passed an ordinance making it a crime to smoke marijuana in public.  There was little fanfare surrounding the passage of this law despite the fact that almost everything cannabis makes it to the various online news site.  Last month there wasn’t a peep about the Fruitland law anywhere on the internets.  But other local government agencies were paying attention, and now Wicomico County officials have proposed the same type of legislation to their respective lawmakers in the county council.

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

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

Published on:

car-1531277__480-300x200A 24-year old Washington D.C. man was recently sentenced to over 4 years in federal prison followed by 3 years of probation for striking an SUV and killing the driver on the Baltimore-Washington Parkway.  According to the plea agreement the man was involved in a collision with a D.C. Metro police vehicle but rather than stop he fled the scene into Maryland via the parkway.  Despite being pursued by a Metro police vehicle the young man kept fleeing at a high rate of speed even after one of his tires blew out.  He then began to pass slower moving vehicles on the right shoulder and veered over several lanes of traffic at a ramp to Interstate 495.  It was at this point that the D.C. man struck a Honda CR-V that was stopped in a painted safety zone between lanes of travel causing it to spin around and eventually roll over on its side.

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

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

Published on:

dollar-1362244_1280-1-300x200The U.S. Attorney’s Office recently announced that a former dealer at a Maryland casino was sentenced to 18 months in federal prison for his role in a card table scam, which resulted in the casino losing in excess of $1 million. The convicted defendant will be placed on probation after he is released from prison, and ordered to pay restitution totaling $1,046,560. The scam took place at the Baccarat table, where the dealer conspired with players by giving them a glimpse of the cards before they were placed in the shoe to be dealt. The players involved in the conspiracy would then drastically increase their bets when the previously revealed cards were about to be dealt into the game. The government did not state how it caught on to the scam or whether there were any cooperating defendants, but all bets are on camera and large winnings will always be scrutinized by casino security. In this particular case the FBI eventually became involved likely due to the large amount of money that was involved in the conspiracy, and the fact that the scheme took place in more than one county. The defendant admitted that he taught other co-conspirators at a different casino about the scam, and then was paid a percentage of the illegitimate winnings. According to the government to scheme took place from July 2017 to September 2017.

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

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

Published on:

cityhall-300x214Rising crime rates, falling population and police and prison corruption have marred Baltimore City for the past few years, but now more than ever it is obvious that lawlessness starts from the top and trickles down. It has been several months since federal agents from the FBI and the IRS raided the former mayor’s home and office, so it came as no surprise that she was eventually charged. Still the news headlines were widespread when the government unsealed an 11 count criminal indictment last week, which was signed by the grand jury on November 14. The U.S. Attorney’s Office announced that the mayor was charged with conspiracy to commit wire fraud, conspiracy to defraud the United States, seven counts of wire fraud, and two counts of tax evasion. One day after the indictment was unsealed the former mayor surrendered to federal law enforcement and then promptly pled guilty at her arraignment. There’s little doubt defense lawyers worked diligently to come to a swift plea agreement in order to avoid further embarrassment to the city in exchange for more favorable treatment when sentencing arrives.

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

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

Published on:

graphics-882726_640-300x207There are a number of different ways to appeal or modify a criminal case in Maryland, and the rights of a defendant depend on where the case took place and whether it ended in a plea or a trial. All defendants with cases heard in the District Court of Maryland have an absolute right to appeal the outcome within 30 days to the circuit court. This includes criminal cases, traffic citations, peace orders, protective orders and civil cases. The appeal must be filed in writing with the district court clerk, and if the 30th day falls on a weekend or holiday the next business day is the final day. District court cases that are appealed will be assigned a new case number in the circuit court, and start over form scratch, which is called a de novo appeal. The circuit court judge will not (or is not supposed to) place any weight on the verdict or judgment from the district court in making his or her rulings.

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

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

Published on:

courtroom-898931_1280-300x226Once the criminal justice system starts moving against a defendant in Maryland it becomes extremely difficult to undo the process. We are often contacted by victims who are requesting assistance in dropping charges against a defendant, and if you happen to be in this situation there are a few things to keep in mind. First off, victims in a criminal case never have total control over the prosecution of the case.   The State is the plaintiff in all Maryland criminal actions, and it is represented by the State’s Attorney’s Office in the county (or Baltimore City) where the case is prosecuted. The assistant State’s Attorney or the supervisor assigned to the case will have the ultimate decision whether to drop the charges or prosecute. As a general rule prosecutors will not simply drop a charge because the victim has had a change of heart, but this does not mean it’s out of the question. If you are a victim and want to have criminal charges dropped your best bet in many jurisdictions is to reach out to the State’s Attorney’s Office, and inform them in writing of your desire to drop the charges. Keep in mind that you should not make any incriminating statements, whether written or verbal. You should also never admit that you lied or exaggerated with respect to any statements made to the police or written in a statement of charges. Doing so could subject you to criminal prosecution for false statement to a law enforcement officer and in some extreme cases even perjury, so we advise consulting to a lawyer before speaking to the State’s Attorney’s Office about dropping charges.

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

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

Published on:

handcuffs-2102488__480-300x169Finding out that there is a warrant for your arrest is stressful and frightening, but it’s even worse if you think there is a warrant but you can’t find out for sure. The uncertainty and the waiting can often be a great deal more stressful than just taking care of the warrant and moving on with your life, but unfortunately in Maryland the judicial system is set up to keep many warrants sealed. The two types of arrest warrants in Maryland are bench warrants and arrest warrants. District or circuit court judges commonly issue bench warrants in cases where the defendant fails to appear or has violated a condition of his or her probation or pre-trial release. A judge can also issue a bench warrant for failure to pay fines or court costs, though this is much less common. Bench warrants are pubic and easily accessible by searching online or going to the clerk’s office. Arrest warrants on the other hand are issued by court commissioners or judges upon receiving a charging document from the State’s Attorney’s Office, a police officer or a civilian. Arrest warrants are sealed for 90 days or until served, which means the public will not be able to look them up on the case search website.

If you think you may have an arrest warrant there may be ways for you to confirm it, but this depends where your case is located. Some police departments such as Montgomery County are more than happy to check to see if you have a warrant, and even have warrants departments for this very purpose. It seems in their eyes there is a greater likelihood a person will schedule a turn in if they can know for sure there is a warrant. Other counties like Baltimore County have a strict policy where they will only give out warrant information to the defendant in person by showing up at a precinct. Baltimore County and many other police departments around Maryland do not give out warrant information over the phone, even to a lawyer. This obviously makes it more difficult to plan for a surrender prior to a warrant squad coming to get you at an inconvenient time. There is really no sound logic to keeping all warrants sealed, as most people who think they have a warrant will behave as if they do have one, and not just sit back and wait to be arrested. The exception is the issuance of a warrant pursuant to a sealed indictment in a complex criminal investigation where the risk of flight is high, but these cases are not the norm (especially in the state court system).

If you are able to find out that there is an arrest warrant the two most sensible options are to attempt to file a motion to convert the warrant into a summons or to surrender on your own terms.   A criminal defense lawyer can file a motion to convert an arrest warrant into a summons as long as he or she can locate the case number. Some district court judges will deny these motions as a matter of course and cite the District Court Administrative Regulations, but these regulations do not clearly prohibit a judge from converting a warrant into a summons, so it’s always worth a shot. If the motion is denied the next best option is to schedule a surrender at a police precinct or a commissioner’s office that is next to a jail or police station. Defendants who are served with an arrest warrant will have to be booked before seeing the commissioner, so the process may take several hours. In arrest warrant cases where there is a pre-set bail the defendant will not see the commissioner and can post bail as soon as the booking process is completed. Defendants can also wait until the next day to see the judge to request a reduced or unsecured bail, or release on recognizance.

Published on:

the-sea-1252182__480-300x200Nine recreational boaters were arrested for operating a vessel under the influence during the July 4th weekend according to the Maryland Natural Resources Police. The Natural Resources Police or NRP is the enforcement arm the Department of Natural Resources or DNR, and among other duties is responsible for patrolling the state’s hundreds of navigable waterways. They are especially busy during the summer months, with July 4th and Labor Day being perhaps the single two busiest days on the water each year. The main duty of NRP officers during these heightened times is to keep boat operators and their passengers safe out on the water, and boat safety checks are one of the most effective ways to achieve this goal. NRP officers conducted close to 2,000 safety checks over the holiday weekend and issued almost 700 citations for violations of the State Boat Act, which is part of the Waters section of the Natural Resources code.

If you are operating a vessel on a Maryland waterway during a holiday weekend there is a good chance you will be approached by an NRP officer for a safety check. Unlike a traffic stop on state roadways, boating officers do not need reasonable suspicion to approach a vessel to conduct a safety check. NRP officers can make close contact with vessel operators and their passengers at basically any time, and this contact can quickly turn into a criminal investigation.

During boat safety checks the officers will make sure the required safety equipment is present and that the number of occupants does not exceed Coast Guard limits, but the officers are always on the lookout for the possibility of drug use or an impaired operator. If an officer suspects that the operator is under the influence he or she may request the operator to submit to field sobriety exercises and a breath test similar to what occurs during a DUI investigation out on the road. A boat operator is not required to submit to a breath test unless there is an accident involving death or serious injury, but refusing could trigger a one-year suspension of operating privileges. The penalties for operating a vessel under the influence of alcohol or drugs are basically the same as the penalties for drunk driving. Boating under the influence of alcohol carries a 1-year maximum jail sentence and a $1,000 fine, while boating while impaired carries a 60-day jail sentence and a $500 fine. These citations are often accompanied by charges for operating a vessel in a reckless or dangerous manner. Unlike its traffic counterpart in the transportation code, under the Maryland boat law operating a vessel in a reckless or dangerous manner carries a potential 30-day jail sentence for a first offense and a 60-day sentence for a subsequent offense. These citations are criminal must appear citations, and failure to appear could trigger an arrest warrant. While a conviction for operating a vessel under the influence or reckless operation could result in a criminal record, they do not trigger driver’s license suspensions.

Published on:

marijuana-1281540_1280-300x225While 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.