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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.

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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.

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hammer-719066_960_720-300x225Under Maryland law all defendants who are charged with an offense that carries more than 90 days in jail are entitled to a jury trial, but requesting a jury trial and actually going through with one are two entirely different things. Requesting or praying a jury trial occurs when a defendant decides to transfer his or her case from the district court to the circuit court. Almost all criminal cases start out in the district court, but jurors are never summoned to appear in district court and they don’t conduct jury trials. Felony charges (except theft and other exceptions like animal cruelty) must eventually be handled in the circuit court due to jurisdiction rules, but there are countless misdemeanor charges that are handled in district court and provide a jury trial right. Common offenses in this category include second-degree assault, theft (all types over $100), DUI, malicious destruction of property and drug possession. Defendants facing trial in district court for these offenses have the option to stay put or move to the circuit court, and there are conflicting opinions about what the right decision may be.

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

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

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car-1531277__480-300x200Last week Howard County Police arrested a man for theft after he allegedly stole $3,000 worth of merchandise from the Walmart located in Ellicott City off Route 40. The man was handcuffed and placed in the backseat of a county police cruiser while the officer concluded his investigation. But rather than wait for the officer to return and escort him to the police station, the man decided he wasn’t ready to be booked for felony theft just yet. The suspect, who was handcuffed behind his back, found a way to move his arms to to the front of his body and then squeezed through to the driver’s seat of the cruiser. It being a warm day, the air conditioning was likely on with the keys in the ignition, and all the suspect had to do was place the car in drive and he was on his way.

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

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

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wine-426466__480-300x225The U.S. Attorney’s Office for the District of Maryland recently announced that the owner of a high-end wine storage facility has pled guilty for orchestrating a multi year fraud scheme. The 54-year old Anne Arundel County man was the sole owner and operator of a company that provided storage and delivery service for rare and expensive bottles of wine. He charged a monthly fee for these services, but instead found it more lucrative to sell the bottles to unsuspecting third parties. According to the plea in 2013 the man began offering his customer’s wine bottles for sale to retailers and brokers across the country, including America’s wine capital of Napa, California. He used email and fax to communicate with potential buyers about his “inventory” and provided all the relevant information about the bottles and the asking price. After coming to a sales agreement the man packed and shipped the bottles to the buyer from his facility in Glen Burnie, and then accepted payment via check or wire transfer to his bank account. The proceeds were not shared with, or even disclosed to the rightful owners of the wine.

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

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

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e-cigarette-1881957__480-300x200While marijuana laws have changed drastically over the last several years the legislature has largely avoided the subject of tobacco. The state has regularly raised taxes on cigarettes and other tobacco products in order to dissuade use, but no major tobacco legislation has crossed the governor’s desk in years. That will change this summer, when the governor will be presented with a bill that effectively raises the age of lawful tobacco use from 18 to 21. The proposed law will modify section 10-107 of the Maryland criminal code, which currently makes it illegal to sell or distribute tobacco products to a minor under the age of 18. Under the new law a person could be subject to criminal charges for selling, or otherwise distributing tobacco products to anyone under the age of 21, unless the person is a member of the United States Military. There is no current proposal to address possession of tobacco products for those under the age of 21, but such legislation could be proposed in the future. If the legislature decides to address underage possession of tobacco it would probably be in the form of a civil citation, much like the current offense for underage possession of alcohol.

It is safe to say that traditional cigarette smoking was not the main target of this piece of legislation, but rather vaping that was the objective. The popularity of vaping has spiked dramatically over the past few years due to the technological advances of electronic cigarettes. These devices are discrete and easy to use, and can be charged via USB outlets that are the used with almost every cell phone. Electronic cigarette smoke can contain high amounts of nicotine and offer the smoking sensation without the lingering stale smell, and cartridges come in hundreds of different flavors. The CDC recently reported that more than 20 percent of high school students have tried vaping in the last month, compared to about 1.5 percent in 2011. Additional studies have shown that raising the tobacco use to 21 could dramatically reduce e-cigarette use among high school students, and Maryland lawmakers have taken notice.

The new tobacco law will likely go into effect in October, and enforcement should be expected immediately. Shop owners and employees could face a misdemeanor conviction and hefty fines for violating the new law. A first offense carries a maximum penalty of a $300 fine, but repeat offenders face a $1,000 fine after that. A third offense within 2 years and any subsequent offense after that carries a massive $3,000 fine, which will surely cause tobacco dealers to think twice before selling. This offense is not a strict liability crime, as lawmakers included a provision that allows for an affirmative defense. If upon purchase, a valid form of identification was presented that positively identified the purchaser as over the age of 21 then the seller may not be found guilty of violating the statute. This seems to protect sellers in fake ID cases, as a store clerk should not reasonably be expected to be an expert in facial recognition. Under the law, sellers would be required to card anyone who appears under the age of 30, and businesses would have to present new signage that states nobody under the age of 21 is permitted to purchase tobacco products. Electronic cigarettes and other smoking devices are considered tobacco products, so the new law would likely prevent anyone under the age of 21 from making a purchase at or even entering the local smoke shop.

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hammer-719066_960_720-300x225While it is not stated in any official statute or case law the primary purposes of the adult criminal system are punishment and deterrence of future crime. The term “corrections” is more of a euphemism than the actual truth, and a more accurate term for the agency that oversees the prisons would be the Department of Punishment. But regardless of what the state decides to call it, the bottom line is that prison and probation does not exist for the benefit of those convicted of crimes in the adult criminal justice system. Thankfully the same harsh reality does not apply to the juvenile criminal justice system. While it’s far from perfect, the juvenile criminal justice system was designed from top to bottom with the best interests of minor defendants in mind. The primary goals of juvenile system are treatment, care and rehabilitation of the defendants. This does not mean that judges and magistrates will shy away from imposing punitive conditions on a child in order to protect the public or deter future unlawful behavior, but the main goal is to help the defendants. For this reason it is extremely important for minor defendants and those that have recently turned 18 to do whatever it takes under state law to keep their cases in juvenile court, or transfer them away from adult court. Before the issue of transfer comes up it is important to understand the Maryland laws governing when a child can be charged as an adult in the first place.

All children ages 7 to 17 at the time of the offense in question are considered juveniles, but this does not mean that everyone within this age group will be charged as such. Under Maryland law there are certain statutory provisions that serve to exclude the juvenile court from original jurisdiction over a criminal case (original jurisdiction simply means where the case starts). Any child that is 14 or older and charged with a crime punishable by life in prison will be excluded from having their case heard in juvenile court. These cases (typically murder) will start out in the District Court, and then eventually make their way into the Circuit Court if the State decides to continue prosecution. The next set of exceptions applies to defendants that were 16 or older at the time of the alleged offense, if the offense falls under the statutory exclusion list. Maryland rule 3-804 lists several offenses that disqualify 16 and 17 year old defendants from being charged as juveniles. These defendants will be arrested and charged as adults, and their cases will be listed in the public casesearch database. State law requires that these defendants be housed in a separate facility from adult offenders, but if the child turns 18 while detained he or she will be sent to an adult jail unless a motion to transfer physical custody is filed by a lawyer or filed pro se.

There are numerous offenses that will disqualify a defendant from being charged as a juvenile, and all are either felonies or crimes involving firearms. Common disqualifying offenses are first-degree assault, armed robbery, carjacking and possession of a firearm in furtherance of a drug trafficking offense. Second-degree murder, attempted murder and manslaughter are also excluding offenses. Any juvenile that is charged as an adult for one of these crimes will have the opportunity to argue that their case should be transferred to juvenile court. This process is called a reverse waiver transfer, and the motion must be filed within 30 days or it could be waived. Any defendant that is 16 or older and charged with first-degree murder is excluded from transfer, as well as any defendant who was previously transferred and adjudicated delinquent.

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hammer-719066_960_720-300x225Maryland offers an extremely just and reasonable expungement process for defendants who have been charged in criminal, serious traffic and civil citation cases. And, while the application process is fairly simple and now free, the hardest part can be figuring out if the case is eligible for expungement in the first place.   There are some simple rules that we’ll start with, but keep in mind that even the simple rules have exceptions. Remember the one exception that trumps all the other exceptions is that a judge may grant a petition for expungement at anytime upon a showing of good cause, so hope is never lost if your case doesn’t qualify.

The most common scenarios when a defendant may be eligible for expungement are when their case results in a probation before judgment, nolle pross. dismissal, STET, acquittal or not guilty verdict. Criminal cases based on violations that are not longer illegal (possession of marijuana under 10 grams) are also eligible regardless of the outcome. The timing for when the case is eligible varies greatly. Dismissals, not guilty verdicts, nolle pross., acquittals and law change cases are immediately eligible for expungement unless the defendant is currently a defendant in another criminal proceeding. This is obviously a major exception, and there is really no logical reason for this exception other than to take a shot against those who are supposed to be presumed innocent. Former defendants with no current matters whose cases got dropped can file for expungement right away at the court where the case ended. A minor exception is defendants that receive a conditional nolle pross. (common in Montgomery County) must satisfy the conditions first.

Cases that end in a probation before judgment are eligible for expungement 3 years after any sentence or period of probation ends. The three years clock rarely starts from the last court appearance, so a little record searching may be in order in cases where a defendant serves a split sentence. A major exception is that DUI and DWI cases are not eligible to be expunged in Maryland when the defendant receives PBJ. This was not always the case, but the DUI lobby is strong and the laws continue to become stricter. Another major exception is that a defendant can lose the ability to expunge a PBJ if he or she is convicted of a crime within three years after receiving that PBJ. A new conviction can’t reopen a closed PBJ case but it can definitely make it permanent.  Cases that end in a STET are eligible for expungement three years from when the STET began. If there are conditions such as drug and alcohol treatment they must be satisfied before an expungement can be granted.

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package-1850776_1280-208x300A former letter carrier for the United States Postal Service was recently sentenced in federal court for his role in a drug conspiracy that spanned from the West Coast to Bethesda, Maryland. The 49-year old postman received a sentence of 4 years in prison followed by 3 years of supervised probation for the crimes of conspiracy to distribute and possession with intent to distribute cocaine. In total the feds linked the former USPS employee to 5 kilograms of cocaine, which according to law enforcement has a total street value of approximately $187,600.

According to the guilty plea that the court accepted a few months prior the ex-postal worker conspired with business associates on the West Coast to send multiple packages containing cocaine from California and Nevada to Maryland. The packages were shipped via U.S. mail and destined for addresses on the defendant’s Montgomery County mailing route. This investigation began back in September of 2016 though federal law enforcement seems to believe it had gone on longer. In April of 2017 a postal inspection service drug detection dog made a positive hit on five packages that were yet to be delivered, and the inspectors sought and received a search warrant. Upon opening the packages the inspectors discovered that all five contained one kilogram of cocaine packaged in the same manner. The addresses were valid Bethesda locations, but the names associated with the addresses were fake.

While the U.S. Attorney’s press release does not detail what occurred after cocaine was discovered, the packages were probably sealed back up and placed in circulation for the defendant to deliver. Only this time odds were the former postal worker had unwanted company following him along his route. Montgomery County police assisted the feds in this investigation, and they could have been involved in either a pretextual traffic stop of the defendant or a probable cause arrest. Law enforcement likely waited until the defendant took some sort of action indicating he had knowledge of the contents of each package before making an arrest. During his plea hearing the former mailman admitted that he took possession of the packages in the Bethesda post office and then notified his co-conspirators by text that he had marked the packages as delivered. After scanning the packages in he delivered them to the co-conspirators at different locations than the addresses written on the packages.

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money-1428594__480-300x200Over the course of six years as Chief Operating Officer of the Department of Development for Montgomery County a 59-year old Germantown man embezzled close to $7 million of taxpayer money, and last week he plead guilty to some of his crimes. The recent guilty plea to wire fraud and making false statements on his tax returns took place in the Greenbelt federal courthouse. Sentencing is set for February of next year, and he faces up to 20 years in prison for the wire fraud count and 3 years in prison for lying on his tax returns. According to the U.S. Attorney’s Office the defendant must also plead guilty in the Circuit Court for Montgomery County to state criminal charges of felony theft scheme and misconduct in office. Finally, the convicted public official has a pending civil action against him that is scheduled for settlement conference the day before his federal sentencing hearing in Greenbelt.

Pursuant to the plea agreement the former employee admitted that from 2010 to 2016 he unlawfully authorized payments totaling $6.7 million from the Montgomery County government to the bank accounts of fraudulent business entities he created. The payments were in the form of checks mailed to the addresses of the scam businesses and direct deposits sent to bank accounts he controlled. One of the fake LLCs even listed his home address as the main office.   On top of stealing millions of dollars the federal government also prosecuted for failing to report any of the income on his tax returns, which resulted in $2.3 million in back taxes due to the IRS. As if this wasn’t enough the plea also required an admission to lying on his county financial disclosures by failing to reveal his interest in one of the fraudulent entities that was receiving government money. Government officials with the authority to spend public money are generally required to disclose their business ventures to prevent impropriety or the appearance of it, but this defendant was way past that point.

This case brings up an interesting issue that we have touched on in the past regarding the crossover of state and federal prosecution. You’ll notice that the former county official did not plead guilty to theft in federal court because he did not steal federal property, and there is no general catchall theft statute in the federal code. The feds commonly use wire fraud and tax evasion laws to prosecute activity related to theft and embezzlement, and in many cases these convictions would be enough to satisfy the state that justice has been served. But is seems in this case Montgomery County felt it wasn’t enough just to have their former employee found guilty of federal charges, as they appear to want their pound of flesh as well. Theft scheme over $100,000 is a felony under Maryland law with a maximum penalty of 20 years in jail, and misconduct in office is a common law crime with a maximum penalty subject only to limitations imposed by the 8th Amendment. The county could theoretically seek a consecutive state sentence for the defendant but this is unlikely. It is more likely that a state prison sentence would be suspended in order to assure that restitution payments are completed to the best of the defendant’s ability.