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IMG_7858-e1515083729598-225x300Multiple police departments in Maryland have posted messages on social media warning local residents to take proper care of their pets amidst the current run of frigid cold temperatures. Anne Arundel County Police sent the word out via Facebook post, which focused on dog owners who choose to leave their pup outside unattended in the cold weather. The police department provided specific guidelines during a severe weather animal emergency including maintaining a constant supply of non-frozen drinking water and using a dog house that is equipped to protect against the elements. The houses must have a usable door flap pointed away from prevailing winds, abundant dry bedding and be situated at least 2 inches above the ground (or any snowfall on top of the ground). Police also warned that houses or shelters that are too large to maintain a temperature above 33 degrees are unsafe for dogs, and any shelter may not be suitable if the “feels like” temperature drops below 20 degrees. During the last week and for the next few days a “feels like” temperature of 20 degrees may seem like summer, and thus no dogs should be left unattended outside for the foreseeable future. Those who fail to comply with the Anne Arundel County law during severe weather animal emergencies face civil fines up $1,000, confiscation of the animal and the potential for criminal charges for animal abuse or neglect.

Montgomery County issued a similar message, reminding residents that during weather emergencies pets must not be left outside unattended. The county police department gave a stern warning that leaving animals outside in these conditions may be considered an act of cruelty, and owners could be subject to criminal charges. The Montgomery County code provides a civil fine of up to $500,which police officers could charge in addition to the state statute regarding abuse or neglect of an animal. Under section 10-604 of the Maryland criminal code anyone who deprives an animal of necessary sustenance or inflicts unnecessary pain or suffering upon an animal could be found guilty of a misdemeanor and sentenced to up to 90 days in jail and a $1,000 fine. In addition, a conviction could result in the defendant being prohibited from owning pets in the future and being compelled to participate in psychological counseling at their own expense. If the police deem that the cruelty was intentional they may charge a defendant with aggravated animal cruelty under 10-606, which is a felony with a 3-year maximum prison sentence and a $5,000 fine. As with many criminal cases in Maryland, police officers will typically charge a suspect with the maximum relevant offense even if there is unconvincing evidence that it occurred.

Animal cruelty is a serious charge in Maryland and should be handled with extreme care to prevent penalties including a permanent criminal conviction and even jail time. An attorney could help obtain a dismissal or prevent criminal charges from being filed in the first place. In some cases police officers or animal control will confiscate the pet before making a determination whether to file charges. A lawyer can communicate with these agencies to try to work out an alternative resolution to the filing of criminal charges. Benjamin Herbst is an experienced Maryland animal abuse attorney who handles cases in all jurisdictions. Contact Benjamin today at 410–207-2598 for a free consultation.

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arguing-1296392_1280-300x212The holiday season is supposed to be a time for families to come together and enjoy each other’s company, but unfortunately it takes more than holiday cheer to keep relationships from going awry. Most couples, friends, family members and neighbors are able to get along with each other just fine and will never have to deal with the stress of the court system. For those that aren’t so lucky it is important to understand your rights and the avenues available in order to clear your name. In Maryland there are two types of legal proceedings where the courts will assist in keeping the peace between feuding individuals. The most common is called a protective order, which applies to family members, current and former spouses, partners who have been sexually active within the last year and parents who share a child. If a person wants the courts assistance with an individual who does not fit in one of these categories then a peace order must be filed. Former friends, co-workers or others in a business relationship, and neighbors who can’t get along are the most common parties to a peace order.   Peace orders can last up to 6 months or 1 year with good cause and protective orders up to 1 year or 2 with good cause.

Peace orders and Protective orders begin in the District Court where the petitioner asking for a no contact order or order to vacate a home fills out a sworn statement and submits it to the court commissioner. The petitioner will then appear before a judge at a temporary hearing to swear to the alleged facts under oath. Judges will typically grant temporary protective orders or peace orders because the standard is low and they only last about 7 days. The judge must only find reasonable grounds to believe the respondent (defendant) committed the acts alleged. If a judge grants a temporary protective order against you it is important to remain calm and seek legal advice. A temporary protective or peace order is not final and you still have a chance to defend yourself at an evidentiary hearing, and if you win the final hearing and the order is dismissed you will be able to shield the case from public view. The standard of proof at a final hearing is called preponderance of the evidence, which means the petitioner must convince the judge more likely than not that the allegations occurred.

Preponderance of the evidence is the same standard used in violation of probation hearings, and while it is not as high as proof beyond a reasonable doubt used in criminal trials, it still requires that the petitioner convince the judge. If there is no objective evidence, unbiased witnesses such as a police officers, and the respondent denies the allegation then the judge should dismiss the order. One party’s word against the other’s with nothing more should not be enough to satisfy the burden of proof, but judges have the final say. It is always important to prepare an effective cross examination of the accuser and contacting a lawyer is one way to make sure this happens. Bringing evidence such as pictures or text messages may be another effective way to challenge the petitioner’s accusations.

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Heroin2-300x180Maryland law enforcement agencies have devoted millions of dollars to combat the state heroin epidemic but despite their efforts most agencies are still playing catch up when it comes to the infamous synthetic opioid known as fentanyl. The powerful substance is not a new commodity, though its popularity has skyrocketed over the last couple of years. Fentanyl is now so common that many street level narcotics dealers don’t even realize they’re selling it to customers looking to buy heroin. The availability of fentanyl is based on the most elementary economic principle of supply and demand. It began with the rebirth of heroin, which arguably was created by the nationwide crackdown of prescription narcotic abuse spearheaded by the DEA. Heroin became a viable replacement for the thousands of people that were once hooked on oxycodone and similar substances, but whom were not able to find a constant supply due to restrictions on pharmaceutical companies, pharmacies, and pain clinics.

While heroin became easier to obtain than powerful prescription narcotics, it is not a substance that’s native to the United States, and is still not readily available in large quantities. To fill the void, drug dealers began to realize that mixing small amounts of synthetic fentanyl would increase or keep the potency of their product while decreasing the amount of heroin necessary. In some cases synthetic fentanyl has completely replaced heroin on the streets, as most users cannot even tell the difference. Add to the equation that synthetic fentanyl is exponentially stronger than heroin, thus requiring smaller amounts per street level capsule, and the fact that there is an unlimited supply from illegal laboratories overseas, and it’s easy to see how fentanyl became an epidemic almost overnight. Demand is as high as ever and the supply keeps coming in from all corners of the globe, a reality that is not lost on law enforcement agencies in Maryland.

Police departments around have ramped up their efforts to take down fentanyl suppliers, and this past week the state police announced the arrest of a major supplier on the Eastern Shore. A 37-year old Salisbury man was taken into custody and charged with several CDS violations including possession of a large amount, manufacturing and possession with intent to distribute narcotics. After tracking the man for a few months police ultimately executed search warrants that yielded close to one pound of an especially potent fentanyl compound. Police also recovered marijuana and drug paraphernalia they say is consistent with distribution. The large amount charges were unaffected by the justice reinvestment act that became law in October, and still carry mandatory prison sentences upon conviction. The defendant is still being held at the Wicomico County Detention Center, and has a preliminary hearing set for early January in the district court. Prosecutors will no doubt try to make an example of this defendant, thus making a competent defense attorney extremely important.

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

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

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

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police-224426__180A veteran Baltimore City Police officer pled guilty this week to a racketeering conspiracy that included as many as nine robberies, many of which took place at the homes of city residents. The Maryland U.S. Attorney’s Office announced the guilty plea after a hearing at the Baltimore federal courthouse. While the officer is not the first, and likely won’t be the last, to admit to robbing private citizens he is the highest-ranking officer implicated. The 59-year old sergeant from the Linthicum Heights area of Anne Arundel County has been on the force since 1996, and became officer-in-charge of the department’s gun trace task force in 2013. BPD formed the task force with the hopes of establishing a specialized unit more capable of solving firearm crimes, but the crimes committed by members of the task has outweighed any positive crime-fighting impacts.

The veteran officer admitted by way of his plea that he participated in nine robberies while employed by Baltimore Police, and that during the robberies he was armed with his service weapon. There is no indication the officer pled guilty to armed robbery, but these charges could have been dismissed pursuant to the plea agreement. Some of the robberies occurred as the officer and his co-conspirators carried out search warrants at the homes of individuals that were under investigation for drug distribution. The guilty officers often found large amounts of cash at these homes, and rather than submit the cash into evidence as required they would pocket most of the money, and then create false property receipts for the small remaining sums. Federal prosecutors even alleged that one of the robbery victims was shot and killed as a result of becoming indebted to a drug dealer after the officers stole $10,000 from his home.

Perhaps the most egregious part of the plea were the allegations made by federal prosecutors that the co-conspirators robbed citizens who were not even suspected of criminal activity. In order to cover up these robberies as lawful police activity this sergeant assisted in crafting fictitious arrest reports, incident reports and charging documents, that were sworn to and sent to judicial officers. Innocent citizens were basically terrorized by armed police officers in their homes and then jailed for the sole reason of covering up the theft of a few thousand dollars. The officer admitted to personally participating in the theft of over $90,000, but this money was likely divided up between other co-conspirators. Regardless, no amount of money would be worth the 20 years in prison the officer will face at a February sentencing hearing.

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weed4-300x194Almost five years ago Maryland residents began hearing talk that a state sponsored medical marijuana program was on the horizon. Despite numerous states already having established successful medical cannabis programs, our elected officials decided to pave their own way and craft a program that was unique to Maryland. These lawmakers eventually passed a severely underwhelming medical cannabis bill that only allowed academic institutions to administer the program. To the surprise of approximately nobody there weren’t any takers of this ridiculous platform requiring universities to dedicate time and money to study something that they already knew the answer (marijuana helps people). After a wasted year lawmakers once again convened and passed laws establishing an actual functioning program that would be run by the private sector and heavily policed by the state. A commission was formed to craft rules and regulations, and eventually to set up procedure for grower and dispensary applications.

On paper everything seemed in place, but actually building the program from the ground up proved more difficult for all parties involved (despite the abundance of information and resources from other states). The commission was underfunded and appointed members lacked expertise and experience, which led to delays and disgruntled applicants. Fast-forward to today and all the medical marijuana investors are still waiting to make their first buck from the program, and most will never recoup their losses. Now though, the day is finally imminent when the first legal marijuana transaction will take place.

The founder of a dispensary in Frederick was recently on record stating he believes his shop will begin selling marijuana by the first week in December, which is hard to believe for those that have been following the progress (or lack thereof) of the program. On the other hand, the day has to come eventually so why not be optimistic about at early holiday season? While the dispensary founder was cautious to put a guarantee on this statement he did add that his staff of ten is ready to serve the patients who are undoubtedly growing impatient. Owners of another dispensary in Salisbury are also confident of a 2017 opening, though this Wicomico County shop is not expecting a grand opening next week.

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apple-256261_1280-300x199Public school officials in Wicomico County have confirmed the arrest of one of their teachers for numerous drug offenses, including five felony drug violations. The 51-year old female Salisbury special education teacher was arrested by deputy sheriffs as she drove off school property, and a search of her car allegedly yielded over 100 capsules of heroin along with several hundred oxycodone pills. Police also recovered suboxone strips and $3,000 cash. She was taken to the detention center and booked on numerous Maryland drug crimes including possession with intent to distribute narcotics and CDS possession of a large amount. The latter charge carries a 5-year mandatory prison sentence upon conviction, and also the possibility of a $100,000 fine. Just one day after her arrest the teacher was released from the detention center on a $50,000 bail set by a district court judge. A preliminary hearing is currently set for December 7th, but this hearing will likely be cancelled in lieu of the State’s Attorney filing a criminal information or bringing the case before a grand jury.

In addition to the drug crimes mentioned above the teacher also faces two counts of possession with intent to distribute on school property under 5-627 of the criminal code. Many states have crafted laws that impose additional sanctions for conducting drug activity on school property, and Maryland also has similar laws regarding firearms and other weapons. The statute defines school property as the grounds of an elementary or secondary school plus a 1000-foot radius extending outward in all directions. At trial the state would introduce a certified copy of a map depicting the boundary to prove the offense occurred on school property. A defendant found guilty of this offense faces a 20-year maximum prison sentence, which is the same as possession with intent to distribute narcotics. There is a 5-year mandatory sentence, but it only applies to repeat offenders. The real kicker is that a sentence imposed under the school drug dealing law must be consecutive with any other sentenced imposed in the case. A defendant found guilty of this offense thus faces double the amount of time he or she normally would in a possession with intent case. This consecutive sentencing provision gives the law teeth, and in theory should act as a true deterrent.

The teacher has been placed on administrative leave pending the outcome of the court case, but an internal investigation by the school board could be wrapped up much sooner. It appears the Salisbury woman was already given a second chance, as she received a probation before judgment for a theft charge in Howard County back in 2011. That case was eligible for expungement, but now that the teacher has pending charges it appears the theft case will stay part of the public record. You cannot expunge a criminal case in Maryland while you have unresolved criminal cases or if you have received a conviction for a different case between the time you became eligible and the time you filed for expungement. The Blog will follow this Wicomico County case and others involving public officials or government employees. The media seems to really grasp hold of these cases, but our hope is always that these defendants will be treated as any other defendant that enters a criminal court.

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packs-163497_1280-300x200Last spring a large-scale investigation began in order to locate nearly $40,000 in funds that went missing from the Montgomery County Council of PTAs. The council represents 192 parent-teacher associations from individual schools, making it the single largest PTA organization in the state of Maryland. Members first noticed irregularities in the books back in March and then conducted a three-week internal audit, which revealed that money had been improperly taken from the council’s checking account for about nine months. The money consisted of donations and fundraising event proceeds that would ultimately be used to better the public school experience for students, teachers and parents, and the loss of $40,000 severely limited the council’s ability to plan for the upcoming school year. While the audit did provide some answers, the person or persons responsible for the missing funds remained somewhat of a mystery (at least publicly) and the case was forwarded over to the Montgomery County Police.

Those familiar with the day-to-day operations of the council likely had their suspicions that the newly appointed treasurer was responsible for the missing money. The irregularities began around the time she began her post, and ended after she had resigned in March. Apparently around $10,000 was actually returned to the account in February, around the time that council members noticed something wasn’t right and began asking questions. The former treasurer was not officially charged by the State’s Attorney’s Office in the circuit court until last month, though negotiations between lawyers on both sides had been ongoing before that. A plea agreement was filed by both parties on the same day as the charging document, and the former treasurer will learn her fate at a disposition hearing set for later this month. Maryland sentencing guidelines in this particular case call for a sentence of probation to 6 months in jail, and judges typically adhere to these guidelines. It would be reasonable to expect the judge to invoke a split sentence of county jail time under 6 months followed by probation with the condition that restitution to the council be paid in full.

While the amount in question certainly rises to a felony level theft, the charge of embezzlement is actually a misdemeanor under Maryland criminal law section 7-113. The new theft law as of October 1st makes it a felony to steal anything over $1,500 but legally speaking embezzlement and theft are two separate concepts. Theft consists of unlawfully obtaining the property or services of another, while embezzlement occurs when a person has lawful possession or control of something (money in this case) and uses or secretes if for the wrong purpose. In this case the former treasurer had control over the council’s account, so she did not actually steal anything. Rather, she used the account for a purpose that was contrary to her duty as a fiduciary. The embezzlement law still carries a mandatory jail sentence of one year, but this can be avoided by the imposition of a probation before judgment, or by the imposition of a suspended sentence. Most crimes with minimum mandatory sentences, like firearm crimes, specifically do not allow for suspended sentences or PBJs but this statute does not contain any such language. The Blog will follow this case and may post a follow up article if anything unpredictable occurs at the disposition hearing.

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pills-384846_1280-300x200The governor announced a state of emergency for the opioid crisis in Maryland less than a year ago, but the fight against these deadly drugs has been escalating for over a decade. The battle has become more sophisticated, evolving from going after users and street level dealers to targeting pharmacies, drug wholesalers, pharmaceutical companies and pain management clinics dubbed as “pill mills”. Numerous pharmacies and pain clinics have been shuttered by federal and state law enforcement, and large companies have received hundreds of millions of dollars in fines by the federal government. The Feds have also demonstrated a willingness to go after any individual involved in the legal narcotics trade that is not playing by the rules, which includes doctors making their living by prescribing powerful and addictive opiates. Opinions differ on whether pain clinic doctors should be able to make a living, and a good one, by rubber-stamping narcotic prescriptions after minimal patient contact, but right or wrong this practice is not illegal. Federal investigators know it’s difficult to bust a doc for writing too many prescriptions, though if they look carefully some of these doctors are bound to step over the line in another way. According to the U.S. Attorney’s Office here in Maryland one group of doctors did just that, and along with two medical providers were found guilty of numerous federal crimes.

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

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

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marijuana-1281540_1280-300x225Medical marijuana grow facilities across Maryland have been up and running for weeks, yet as of now these growers are still not able to sell their product to the distributors that will ultimately provide to patients. One Anne Arundel County grower has already harvested a batch of pot for testing purposes and is primed to ramp up production when the time comes, but when is the time actually coming? This is a question four years in the making, and each time an answer appears on the horizon new hurdles must be cleared. While it is unlikely that the entire program is in jeopardy, the coming weeks will certainly bring a few sleepless nights for the workers who put in hundreds of hours and the investors who put up millions in order to make medical marijuana a reality here in Maryland.

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

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