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Published on: July 6, 2023

Man Attempts to Rob Gas Station with Cup

This past week Anne Arundel County Police were called to a gas station in Linthicum Heights for a bizarre attempted robbery that ended with the suspect fleeing the scene empty handed. According to police a man approached a gas station clerk just before midnight on the eve of July 4^th and requested cigarettes. After requesting the smokes, the man then allegedly placed a cup on the store counter and demanded that the clerk put all the money in said cup. There was no indication that the man ever brandished or possessed an actual weapon, but the clerk apparently told police the suspect implied that he had a weapon. The brief standoff ended when another customer walked into the store, which apparently spooked the attempted robber. Reports described the suspect as being slim, of average height and sporting a blonde beard. He was wearing a hood and a camouflage hat and fled in a silver Honda with another individual.

While this attempted robbery was hardly the crime of the holiday weekend, it does raise a few relevant issues regarding the definition of robbery and armed robbery. Under Maryland law there is no separate statutory crime for attempted robbery or attempted theft as a defendant faces the full punishment even if the crime is unsuccessful. In fact, murder is one of the only charges that provides a separate statutory crime for attempt. Robbery requires the State to prove the defendant intentionally took something of value from another person through the use of force or the threat of force. A defendant does not have to take a tangible object to be charged, as obtaining services through the use of force is also considered robbery. Maryland has specific laws for six different types of robbery. The most common is standard robbery, which is a felony that carries a maximum penalty of 15 years in prison. Robbery is considered a level 4 offense according to the Maryland sentencing guidelines, which means a person with no prior record who is found guilty could still certainly avoid serving any time in jail.

Armed robbery is actually called robbery with a dangerous weapon in Maryland, and it carries a 20-year maximum penalty. Robbery with a dangerous weapon is considered a level 3 offense, which scores significantly higher on the sentencing guidelines. Juveniles 16 and over who are charged with robbery with a dangerous weapon must be charged as adults, which is not the case with standard robbery. Carjacking is also technically part of the robbery statute, and it carries a harsh 30-year maximum penalty. Armed carjacking carries the same 30-year maximum, but is considered a level 2 offense. Finally, the least common of the six is robbery by display of a written instrument claiming to be in possession of a dangerous weapon. This offense is treated like robbery with a dangerous weapon regardless of whether a weapon was recovered by police. It has a 20-year maximum penalty, and is typically seen in bank robbery cases. A defendant in any type of robbery case could also be charged with conspiracy if there was another person involved. Conspiracy makes the offense a misdemeanor, but does not change the maximum penalty.

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Published on: May 5, 2023

Intoxicated Man Arrested for Impersonating Officer, Handgun Possession

By Benjamin Herbst

Anne Arundel County Police recently arrested a 64-year-old man from Annapolis after he was allegedly wandering around Jennifer Road sporting an FBI hat and a gold-colored badge around his neck. Police responded to the scene to make contact with the man, where he allegedly informed officers that he was an ATF agent. To make matters worse the man also reportedly exposed himself and urinated in the road. Police were eventually able to arrest the man, and later charged him with impersonating an officer, indecent exposure, disorderly conduct and a violation of the alcohol and beverage code for disorderly intoxication. The man was ultimately released on his own recognizance for the impersonation charge, but he remains locked up at the detention center due to a separate case involving possession of a loaded handgun and intoxicated endangerment.

Just one day after the defendant was released on the impersonating charge, he allegedly showed up at the Anne Arundel Medical Center and threatened to kill a patient. The threat was made to third party and not directly to the patient. The man was escorted outside the hospital by security, and when police showed up, he was found to be in possession of two firearms. He was arrested and charged with two counts of firearm possession and intoxicated endangerment for his behavior toward the hospital staff. Responding officers initially recommended charges of first-degree assault, but since the threat to kill was made to a third party, the law does not support a charge for assault. The defendant also did not brandish or point his firearms at anyone, and thus there was no evidence to support assault with a firearm. After being arrested and booked the defendant was held without bail and committed to the hospital for further evaluation. At the station he took a preliminary breath test, which revealed an alcohol content of almost three times the legal limit to drive.

During the time between the male defendant’s two arrests, another individual was arrested for impersonating an officer in Anne Arundel County. Just 5 hours after the man was initially arrested on Jennifer Road, a 32-year-old Glen Burnie woman was arrested under similar circumstances. Around 10 p.m. Anne Arundel County Police responded to a gas station for a call about a woman asking to buy drugs from patrons. Police made contact with the woman as she was seated in her vehicle and noticed her sitting with her head slumped over, and suspect cocaine and a straw in the center console. The responding officer also noticed signs of impairment when talking to woman. According to the charging document the woman told the officer she was an undercover police officer herself, but could not provide any further proof. Based on these observations the officer ordered the woman out of the vehicle to investigate further, but she refused to comply. After a struggle that lasted more than 5 minutes the officer was eventually able to detain the woman. She was ultimately charged with DUI, impersonating an officer, possession of CDS, disorderly conduct, resisting arrest, obstructing and hindering and disorderly intoxication. Under Maryland law a person can be charged with DUI even if they were not actually driving. The law only requires the State to prove a person intended to drive. Intent can be proven with evidence a person was in physical control of a motor vehicle, which typically means they are in the driver’s seat with the keys accessible. This defendant was held without bail by a judge at the Glen Burnie District Court the following day, and remains in custody.

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Published on: April 26, 2023

2021 Dundalk Stabbing Trial to Begin Next Week

By Benjamin Herbst

Next week four defendants will be brought to trial at the Baltimore County Circuit Court for their alleged involvement in a stabbing that resulted in the death of a 45-year-old man. The incident occurred in February of 2021 in the parking lot of a Dundalk restaurant and bar, though arrests were not made until April of 2022. Six individuals were initially charged with first-degree murder, conspiracy to commit murder and first-degree assault, but one was cleared a short time later. Two of the defendants were ultimately released from custody pending trial, and three remain held without bail. One of the defendants who was released from custody has agreed to testify as a state’s witness, and this week, lawyers for the remaining four defendants engaged in heated arguments over late evidence and evidence that the State neglected to disclose. Despite numerous evidentiary issues, the case remains on track to be tried beginning on May 1. The cooperating witness’ trial is scheduled separately in June, and assuming he testifies per his agreement with the State, he will likely enter into a favorable plea agreement.

Despite the incident occurring in 2021 and being originally charged in 2022, state prosecutors decided to file a superseding indictment just two weeks ago that added charges of accessory after the fact to murder in the first degree for some of the defendants. This became a major issue for the respective defense teams, who now have to scramble to adjust their defenses to account for the new charges. The state claimed the late charges were due to unavoidable delays related to the FBI’s cell phone location data crime lab. The state maintained that they turned over the evidence as soon as it became available, though far too late in the eyes of the defense lawyers. Cell phone tracking data is often difficult in interpret and can require an expert to explain to

laymen such as jurors in a criminal case. Defense lawyers argued that securing an expert could take weeks if not months, and therefore the late cell phone data should be excluded. Typically, when the state provides late evidence, the remedy would be to postpone the case, but when defendants are sitting in jail this becomes extremely prejudicial. No defendant should have to sit in jail awaiting trial longer than necessary, and unfortunately in a Maryland murder case there is a low chance that the judge would consider releasing a defendant due to a state’s postponement.

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Published on: April 12, 2023

Multiple Gun Bills Approved by General Assembly

By Benjamin Herbst

The House and Senate approved Senate Bill 1 and House Bill 824, and both will almost certainly become law on October 1, 2023. House Bill 824 did not receive much fanfare, but will further tighten Maryland’s already strict gun laws. The Bill, which was introduced by a Delegate who also serves as an Assistant State’s Attorney in Anne Arundel County, expands prohibitions on regulated firearm possession under the Public Safety Code. Starting in the Fall anyone who is one supervised probation for an offense that carries a maximum penalty of 1 year or more in jail will not be able to possess a firearm. The new prohibition also includes those on probation for DUI or DWI under the §21-902 (a) and (b) of the Transportation Article. Defendants on probation for violating a protective order would also be prohibited from possessing a regulated firearm. This provision only applies to individuals who are placed on supervised probation after being convicted, which means that those granted probation before judgment would not be subject to a charge under the Public Safety Code for possessing a firearm while on probation. It is important to remember that those on supervised probation are typically prohibited from possessing firearms unless a judge specifically allows it. This is standard condition of probation in Maryland, though a violation would be considered a technical probation violation and not a new offense. Technical violations of probation carry a presumptive maximum penalty of 15 days in jail, while a violation of this new provision in the Public Safety Code would be a misdemeanor with a 5-year maximum penalty.

House Bill 824 also prohibits a person from obtaining a Maryland wear and carry license if he or she has been convicted of a violation of criminal law section 4-104, which prohibits storing or leaving a loaded firearm in a place where an unsupervised minor could gain access to the firearm, and an injury or death resulted. If there was no injury the prohibition would only extend to a person convicted of a second or subsequent violation of this provision. Offenders who receive a conviction for child’s access to firearms after October 1, 2023 will have to wait five years from the date of the conviction to apply for a handgun permit. The bill also raised the permit fee to $125, up from $75.

Senate Bill 1 received most of the media attention, and will likely continue to create news headlines after it becomes law in October. We wrote about this bill previously, and the version that passed the General Assembly was not substantially altered from our last post. This law will have major restrictions on where licensed individuals can possess firearms, including prohibiting possession at schools, concerts, sporting events, organized youth and adult sports leagues and state government buildings. A violation under this new law would result in a misdemeanor that carries up to 90 days in jail for a first offense, and up to 15 months for each violation thereafter. Firearm possession is already illegal in federal facilities and buildings in Maryland under federal law regardless if a person holds a Maryland concealed carry permit.

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Published on: April 5, 2023

Six Juveniles Arrested for Carjacking, Firearm Possession

By Benjamin Herbst

Over the past week Prince George’s County Police officers arrested six boys in connection with two separate carjacking incidents. The boys were also charged with illegal firearm possession after police located ghost guns in their possession. The first arrest occurred at the end of last week when police located a vehicle that had been carjacked three days earlier. After making a felony traffic stop, officers located four teenaged boys from Washington D.C. inside the vehicle and also recovered a loaded ghost gun. All four were arrested and charged with multiple serious crimes, though it appears they will be charged as juveniles due to the fact that they were 15 at the time of the incident. It is unclear whether the juveniles were released to their parents or remain detained at a secure juvenile facility.

The four boys will cclappear at the Prince George’s County Circuit Court for their respective trials. While the cases will start out in the juvenile court, the State may choose to seek a discretionary waiver for some or all of the juveniles. Maryland law allows a judge to order the transfer of a case to adult court for a 15-year-old defendant if a finding is made that the child is not fit for juvenile rehabilitative measures. A child under 15 can only be prosecuted in adult court for an offense such as murder that carries life in prison. Juvenile discretionary waivers are rare, and in all likelihood would not be utilized for a carjacking case unless the juvenile has an extensive history of violence. Carjacking by definition is a serious offense, but if the facts are especially egregious the Court certainly could consider a discretionary waiver.

Just four days later Prince George’s County officers made yet another carjacking arrest. The suspects in this case were also juveniles, with one being a 16-year-old from Fort Washington, and the other a 17-year-old from Temple Hills. Police received a call for an attempted armed carjacking on April 3 at around 1:30 p.m. in District Heights. When officers arrived, they observed two suspects running from the scene and were ultimately able to take them into custody. Search incident to arrest revealed that both juveniles were in possession of loaded ghost guns. In the first three months of 2023 alone 32 juveniles and 19 adults have been arrested for carjacking in Prince George’s County. This alarming trend

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Published on: December 22, 2022

Anne Arundel County Man Charged Criminally in DUI Accident

By Benjamin Herbst

A 28-year-old Anne Arundel County man has been charged with multiple criminal violations in addition to being issued four traffic citations for allegedly causing a head-on collision in Lothian earlier this week. The accident left three family members injured, including 15 and 9-year-old children. According to Anne Arundel County Police all three of the occupants were treated for life-threatening injuries, while the defendant was uninjured in the crash. Police investigation revealed that the defendant crossed the center line, which caused his Rav4 to strike a smaller Nissan Versa head on. Another vehicle then crashed into the Nissan from the rear as a result of the sudden collision. Police responded to the scene and began a criminal investigation after bystanders informed officers that the driver appeared to be under the influence of drugs or alcohol. The driver then allegedly failed field sobriety tests and was placed under arrest for DUI. He then agreed to submit to a blood alcohol concentration test at the station in lieu of submitting to a mandatory blood draw. The result of the breath test was .18, which is more than twice the legal limit.

In a normal Maryland DUI or DWI case the defendant is usually charged via citation and released to a friend or family member a short time later. While police do have the authority to book a defendant into the jail for drunk driving, going to jail for a DUI charge in Maryland is rare outside of Baltimore City. This case was far from normal due to the severity of the victim’s injuries, and the overall egregious nature of the defendant’s alleged actions. Most people are aware that causing a death in a traffic accident or boat accident while under the influence can result in criminal charges for homicide by vehicle or vessel or manslaughter. But the legislature also chose to criminalize causing a serious injury accident while under the influence. Based on the totality of the circumstances, the defendant was booked and charged with this fairly new criminal violation under §3-211 of the Maryland Criminal Code. This law makes it a criminal violation to cause life threatening injuries by a motor vehicle or vessel while under the influence of drugs or alcohol. A first offense for this violation carries up to 3 years in prison for DUI and up to 2 years for DWI. If a defendant has a prior conviction for impaired driving in Maryland or any other state, the maximum penalty would become 5 years in prison. The defendant in this case was charged with 3 counts, though he can only be lawfully sentenced on one of the counts. He was held without bail by the court commissioner and by a District Court judge the next day at bail review. He is now being held at the Jennifer Road detention center awaiting his trial in March of next year.

Almost all drivers who are charged with drunk driving in Maryland are issued multiple citations, which can be confusing and stressful for someone with no experience dealing with this situation. In reality, the officers are taught to issue multiple citations, typically for DUI, DWI and DUI pe se (if the defendant tested over the limit), because they do not know which of the counts the State’s Attorney will be able to prove at trial. Regardless of the number of citations a driver receives in a drunk driving arrest, most will eventually be dismissed by the State at trial or pursuant to a plea. If a plea agreement is reached, the defendant typically admits to one of the citations and maybe two if the driving pattern is especially alarming to the State.

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Published on: November 19, 2022

Two Baltimore Men Guilty of Firearm Possession in School Zone

By Benjamin Herbst

One Baltimore man was sentenced and another recently pleaded guilty to the federal charge of illegal possession of a firearm in a school zone. Both cases were prosecuted at the Baltimore City federal courthouse, and both defendants were originally chaeged in state court before the feds took over. The first defendant, a 22-year-old man, was arrested back in March of 2021 for possession with intent to distribute fentanyl and firearm charges. Law enforcement including the DEA recovered multiple firearms and upwards of 6 kilograms of fentanyl from a Pikesville stash house that was tied to the defendant. The defendant’s case was transferred from the District Court to the Circuit Court for Baltimore City, but then was dismissed after the feds decided to prosecute. There is rarely one specific reason why the feds choose to pick up a state case, but when a defendant is arrested in the city with a combination of fentanyl and firearms its certainly going to attract their attention. Federal prosecutors have been focusing on fentanyl cases in the Baltimore and D.C. metro areas over the last couple of years, and had already been heavily involved in prosecuting illegal firearm possession. Any time both are present there is a good chance the case will be picked up by the U.S. Attorney’s Office. In this particular case the young man received a 9-year federal prison sentence for illegal possession of a firearm in a school zone and possession with intent to distribute a controlled substance, which means he will likely serve close to 8 years behind bars. There is no parole in the federal criminal justice system, so early release can only be granted based on the defendant’s conduct and the availability of re-entry programs.

Shortly after the first defendant was sentenced, another Baltimore man pleaded guilty to the sole charge of illegal possession of a firearm in a school zone. This defendant, a 31-year-old man, was apparently riding around the city on his bicycle with a construction hat, orange safety vest and a loaded .40 caliber handgun sticking out of his waistband. A call for a potentially armed man was made to Baltimore Police, who were able to locate the suspect on city watch CCTV cameras a short time later. Officers then stopped the suspect for riding his bicycle on the sidewalk, which is violates a city ordinance. The man then allegedly tried to flee but was found a short time later knocking on the door of a random house. Upon detaining the suspect, police located the .40 handgun, which had an obliterated serial number and 15 rounds of ammunition. The suspect then uttered several spontaneous statements claiming ownership of the firearm. This case could easily have been prosecuted by the Baltimore City State’s Attorney’s Office, but the feds likely picked up the case due to the defendant’s proximity to a school upon his arrest. The Gun Fee School Zones Act of 1990 made it a federal crime to possess a firearm within 1,000 feet of a school, and despite being modified several times over the last few decades, the law is still very much intact. Violation of this provision is a felony punishable by up to 5 years in federal prison, which is significantly harsher than the 3-year penalty for wear, transport or carry a firearm under Maryland law. The defendant in this case negotiated a plea deal to serve two years in prison, so he is likely not a convicted felon or otherwise prohibited from possessing a firearm.

The Blog will continue to follow all noteworthy drug and gun cases in Maryland, and will post on federal prosecution of traditional state charges. If you or a loved one is facing adult or juvenile criminal charges contact Maryland gun lawyer Benjamin Herbst anytime for a free consultation at 410-207-2598. Benjamin specializes in charges involving possession with intent to distribute CDS such as heroin, fentanyl, cocaine and marijuana. He also has extensive experience defending clients facing probation violations and gun charges such as possession of a firearm by a convicted felon and possession of a firearm in a federal facility. Contact Benjamin today to learn what defenses may be available in your state or federal case. Benjamin is also licensed to practice in Florida, where he has successfully defended clients in numerous offenses such as drug trafficking, carrying a concealed firearm and aggravated assault.

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Published on: November 10, 2022

Maryland Voters Approve Marijuana Legalization

By Benjamin Herbst

Ten years ago marijuana first became legal in parts of the United States after voters in Washington and Colorado approved recreational cannabis. Over the last decade an additional 17 states and the District of Columbia all followed suit and voted to legalize marijuana use for adults. Maryland lawmakers have been tracking these trends for years, but had been remained hesitant to make any drastic changes to cannabis policy. Rather, lawmakers have steadily been taking small bites at the apple including lowering the maximum punishment for marijuana possession, creating a medical marijuana program, and then eventually decriminalizing possession of small amounts of cannabis. This past year lawmakers in Annapolis finally proved ready to take the big plunge, though they decided to leave it up to the voters to legalize pot once and for all. Passage of the ballot measure was never really in doubt, as previous polls had revealed approximately 60 percent of Maryland voters favored marijuana legalization. A 60/40 split may not seem like a large margin, but in the election world it’s actually fairly wide. The margin however turned out to be even wider in the real vote, as the measure passed with a 65.6 percent approval. Close to 1 million voters said yes to the question of whether citizens 21 and older should be able legally use cannabis Maryland, while just over 500,000 voted no. This signaled a borderline landslide victory for the good guys.

Now that the ballot measure passed there are a few important things to remember, as it is definitely not legal so spark up a joint on the street or fire up the basement hydroponic grow room just yet. First off, cannabis will not be legalized for recreational use until July 1 of 2023. Starting July 1, 2023 possession of up to 1.5 ounces of pot will be fully legal for adults over the age of 21 while possession of 1.5 to 2.5 ounces will constitute a civil infraction. Possession of over 2.5 ounces will be a misdemeanor punishable by 6 months in jail. On January 1, 2023 possession of up to 1.5 ounces will be decriminalized though still illegal (much like possession under 10 grams is currently). On July 1, adults will be able to grow up to two cannabis plants on their property as long as the plants are away from public view and protected from access by minors. Unlawful distribution of marijuana and possession with intent to distribute will no longer be a felony starting on July 1, but will still retain a harsh sentence of up to 3 years in jail. Mandatory expungements for past pot offenses that are no longer crimes will begin next year as well, but there is not definite timetable when recreational sales will begin. Finally, smoking in public will remain illegal, and will be punishable by a civil fine of up to $250. It is unclear whether municipalities such as Ocean City may try to enact harsher punishments as they do with open containers of alcohol.

The Blog will continue to follow Maryland marijuana policy with a close eye, and will also monitor other states and potential federal policy changes. On election day five other states provided voters with the ability to determine whether recreational cannabis would be legal, though only Maryland and Missouri voters approved the measures. Voters in Arkansas, North Dakota and South Dakota all declined to legalize marijuana. South Dakota voters had previously passed legalization in 2020, but the vote was declared invalid by the state’s highest court. If you have a question about the new marijuana laws or a past CDS case feel free to call Maryland drug crime lawyer Benjamin Herbst anytime at 410-207-2598. Benjamin specializes in manufacturing, possession with intent to distribute and drug trafficking charges such as large amount and importation. He also has extensive experience representing those charged with conspiracy and participation in a criminal gangs. Contact Benjamin to find out which defenses may be available in your state or federal drug case anytime, 7 days a week.

Published on: October 26, 2022

PG County Woman Indicted for Arson, Destructive Device

By Benjamin Herbst

A Charles County grand jury recently found probable cause to indict a 21-year-old woman from Upper Marlboro for two separate fire-bombing incidents that occurred just over one year ago. The first incident took place in Waldorf, where the Prince George’s County woman allegedly threw a Molotov cocktail or firebomb in a homeowner’s front yard. The fire bomb in this incident apparently did not properly ignite, and no damage was reported. However, the next night in St. Mary’s County, police were called to investigate another incident where three fire bombs were ignited and thrown just feet from a residence. The homeowner in this case reportedly heard noises outside, and upon opening the front door encountered a burning Molotov cocktail. The homeowner was able to extinguish the burning destructive device without anything catching fire, though he also found two more devices that had already burned out.

Local police from Charles County and St. Mary’s County, as well as the State Fire Marshal investigated the scene but were unable to develop suspects for several months. After about five months the Marshals honed in on the defendant after reviewing phone records and social media posts, and an arrest warrant was issued in March. The defendant was eventually arrested in May, and after being denied bail by the commissioner, was released by a Charles County District Court Judge on private home detention. The case then stayed in the District Court for several months before being indicted, which is not the norm for cases in Maryland. A defendant is typically indicted within 6 weeks of his or her arrest in a District Court case, though this defendant was indicted five months after her arrest.

The 21-year-old Prince George’s County woman is now facing five criminal charges in the Circuit Court for Charles County, including attempted arson in the first degree, malicious destruction of property and possession or manufacture of a destructive device for the first incident in Charles County. She is facing attempted arson in the second degree and destructive device charges for the second incident in St. Mary’s County, though both are charged in the same indictment. First degree arson is a serious felony offense that carries a maximum penalty of 30 years in prison. While the defendant was charged with misdemeanor attempted arson in the first degree, she would theoretically face the same 30-year maximum penalty upon conviction. In Maryland charges for attempt and conspiracy are both considered misdemeanor common law offenses, though the maximum penalties are the same as the underlying crime. First degree arson is charged for burning or attempting to burn a dwelling or an occupied structure, while second degree arson is charged for burning or attempting to burn a structure in general. Second degree arson still carries a harsh 20-year maximum penalty, though it scores significantly lower on the Maryland sentencing guidelines than arson 1.

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Published on: August 30, 2022

Thirteen PG County Police Officers Indicted

By Benjamin Herbst

According to a recent press release by the Prince George’s County Police Department, thirteen of its own officers have been indicted on charges of theft and misconduct in office. The indictment was revealed last week at the Prince George’s County Circuit Court in Upper Marlboro. The defendants in the indictment were mostly experienced members of the police force, as ten were Corporals and one has since retired. Based on the press release the department began an internal investigation after catching wind that several officers were working for a security company and receiving compensation while on duty at police officers. The company serviced more that 20 apartment complexes in the county from at least the end of 2019 until February 2021. The officers were suspended in April of 2021. Among other allegations, the officers allegedly provided false information to the apartment complexes in order to justify their continue employment. The total amount that the officers profited is alleged to be between $1,500 and $25,000, which means they are facing felony charges in addition to the misdemeanor charge for misconduct in office.

The department initiated the investigation after another high-ranking officer pleaded guilty to tax evasion several years ago. In an effort to make sure this type of conduct ends with this indictment, the department has instituted policy changes that began a few months after the officers were suspended. The policy changes include a blanket prohibition on officers working as security guards, as well as hiring a third-party software company to allow officers to clock out of work before beginning secondary employment. The internal affairs division of the department will also conduct site investigations of any secondary employment locations that employees disclose, and these site investigations will be conducted at random.

The officers are charged with theft based on the allegation that they were collecting taxpayer dollars while engaged in private employment. It’s true that the defendants did not physically steal anything, but their pay from the government was accepted under circumstances where the they were clearly double dipping. It is still an interesting and fairly uncommon means of charging a theft case, and if the cases go to trial, there may be some arguments that could sway a jury to acquit. Regardless, state prosecutors seem to be in good shape on the misconduct counts.

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