Gun Crimes

Published on: August 18, 2018

Man Awaiting Driving Test Arrested At MVA

Maryland State Police recently arrested a man who was waiting in line to take his driving test at the MVA headquarters in Glen Burnie, and charged him with numerous drug felonies. The 23-year old from Baltimore was in his mother’s vehicle awaiting his turn with a driving instructor when an MVA employee noticed the smell of marijuana coming from the car. An MSP trooper responded to the scene and initiated a warrantless search of the vehicle based on probable cause that it contained marijuana. The trooper’s suspicion was confirmed and then some, after he located a large plastic bag containing approximately 1 pound of marijuana, a 9 millimeter handgun, a digital scale and more than $15,000 cash. The man was arrested immediately after the contraband was discovered and taken before a commissioner. He was released that same day on an unsecured $7,500 personal bond.

The young man now faces a dozen charges in Anne Arundel County including possession with intent to distribute and possession of marijuana over ten grams. The maximum penalty of PWID marijuana is 5 years, though recent changes to the sentencing guidelines have decreased the amount of jail time most defendants actually see for this offense. Nowadays it is rare for a first time offender to serve much if any jail time unless he or she is involved in a large-scale operation. The concerns for the defendant in this case are the gun charges, especially the crime of possession of a firearm during a drug trafficking crime. A conviction for this felony charge carries a minimum five-year prison sentence, which cannot be suspended and the defendant is not eligible for parole. The defendant is also charged with the less common crime of firearm use during the commission of a felony that also carries a mandatory five years, but is a misdemeanor. Other gun counts include handgun on person and handgun in vehicle, which are essentially the same crime with the same 3-year maximum penalty.

The 9-millimeter Glock that was seized from the car allegedly had an altered or scratched out serial number, and this is a separate crime under the public safety code. Under Maryland law anyone found to be in possession of a gun with an altered serial number is presumed to have altered it. Finally, the defendant in this case was also charged with possession of a detached magazine with over ten rounds. The controversial Firearms Safety Act now limits the capacity of gun magazines to ten bullets, which makes many common firearms illegal in Maryland including the standard military Beretta pistol. The Blog will follow this case as it progresses through the court system. It is currently set for a preliminary hearing in district court, but the State will likely indict the case and it will be transferred to the circuit court in Annapolis. We will post an update if anything of interest happens in this case. If the defendant is found guilty or enters a plea, the sentence will depend on whether he has a prior record of gun, drug or other criminal charges. If you have a question about a criminal case in Maryland or have been charged with a crime feel free to call gun crime attorney Benjamin Herbst anytime at 410-207-2598. Benjamin specializes in gun and drug charges in state and federal court and offers flexible payment plans for all types of cases.

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Published on: June 20, 2018

Feds To Support Baltimore Police This Summer

By Benjamin Herbst

While the crime rate in Baltimore slightly decreased over the last year, violence in the city remains at an unacceptable level. So far in 2018 there have been 130 homicides within the city limit, and hundreds more non-fatal shootings. Just last weekend 5 people were killed and 7 more were shot in Baltimore, which lends credence to the fact that summer always brings a spike in crime to the area. Whether it’s the long days or the warm nights, people spend more time out on the streets during summer, and the streets are where the large majority of violent crimes occur. Baltimore Police has over 3,000 sworn police officers patrolling these streets, but the department has its limitations, especially in times of elevated violence.

For the last few years federal law enforcement agencies have increased their presence in Baltimore, and this summer more than ever the feds plan to lend a hand in taking down the most violent of city criminals. The mayor and the police commissioner recently held a press conference announcing a “summer surge” of law enforcement collaboration designed to get ahead of the violence ushered in by the change in seasons. As expected the press conference did not provide specifics on which federal agencies would be involved and exactly how they would contribute, but the announcement did say that the “worst of the worst” would be the target. No federal agencies have made official statements regarding the collaboration, though the city’s DEA office did say a statement could be forthcoming and the U.S. Marshals Service reiterated their continued willingness to assist.

The collaboration hardly means that we will see uniformed FBI and DEA agents out on the streets of Baltimore. Rather, their involvement will likely be in the form of targeted investigations, arrests and prosecutions of the city’s most dangerous residents. The U.S. Attorney’s Office is already involved in the prosecution of gun crimes that would traditionally be handled in state court. Federal prosecutors routinely notify state prosecutors of their willingness to take over the prosecution of crimes such as possession of a firearm by a prohibited person under 18 U.S.C. 922(g) and the use of a firearm during a drug trafficking crime under 18 U.S.C. 924(g). Under state law the maximum penalty for possession of a firearm by a convicted felon is 15 years with a 5-year mandatory sentence if the prior conviction and resulting sentence was within the last 5 years. This same charge under federal law carries a 10-year mandatory sentence and a $250,000 fine. Under state law possession of a firearm during a drug trafficking crime carries a mandatory 5-year sentence with a maximum 20-year sentence, while under federal law this offense carries a maximum penalty of life imprisonment with a mandatory minimum 5 years consecutive to any other offense.

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Published on: May 23, 2018

Maryland Reports Largest Prison Population Decline

By Benjamin Herbst

The national prison population continues to decline, and for the first time in almost fifteen years the total number of inmates dipped below 1.5 million. Last year Maryland lead the entire nation with a dramatic 10 percent reduction in prisoners, which brought the state inmate population down almost 2 thousand to a total of around 18 thousand. While the simplest explanation for the decline is the passage of the Justice Reinvestment Act, a closer look reveals a variety of factors at play.

The Justice Reinvestment Act or JRA was a groundbreaking and massive piece of legislation that sought to reduce money and manpower dedicated to jailing defendants, and to divert these resources to treating and rehabilitating convicted defendants. The JRA eliminated harsh mandatory sentences for repeat drug offenders convicted of non-violent offenses such as possession with intent to distribute narcotics. The maximum penalty for possession of CDS not marijuana was also lowered to one year, which eliminated the possibility of a prison sentence for drug possession. While most state correctional inmates are serving the original sentence handed down by the judge, a large portion are doing time for violating their probation. Lawmakers became aware that the sentences handed down for probation violations were getting out of control, and used the JRA to do something about it.

Each day dozens of defendants plea out to large suspended sentences in order to be released from jail, and many end up back in court on a violation. Some of these violations are extremely minor, and could be avoided by more patient probation officers. In the past defendants faced years in prison for extremely minor violations, but since the JRA went into effect there are now limits on the sentences handed down for these so called technical violations. The limits are not binding on the judge, but are certainly persuasive when it comes to sentencing a probationer for a positive drug test, failing to complete treatment or not paying restitution.

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Published on: April 15, 2018

Gun Possession Defendant Acquitted

By Benjamin Herbst

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

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

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

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Published on: March 17, 2018

Comprehensive Crime Bill Passes Senate

By Benjamin Herbst

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

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

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

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Published on: January 12, 2018

Medical Marijuana Incompatible With Federal Gun Laws

By Benjamin Herbst

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

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

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

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Published on: December 14, 2017

Feds Use Social Media Video To Prove Gun Possession

By Benjamin Herbst

The 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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Published on: August 29, 2017

How Do I Get A Maryland Gun Permit?

By Benjamin Herbst

There are two main types of gun permits that everyday citizens may decide to pursue, and before discussing the question of how a person goes about obtaining a Maryland gun permit it is important to distinguish between these two types. In 2013 state lawmakers passed the firearms safety act, which drastically changed the process for everyday citizens to purchase handguns. In addition to outlawing the sale of any gun with a magazine capacity over ten rounds (including the popular 15 round capacity Beretta M9) lawmakers also decided to require all citizens to obtain a Handgun Qualification License before purchasing any type of handgun. The stated goal of the HQL license was to assure that only the most qualified and educated individuals could purchase handguns, but in reality the state really just maintains extreme control on the legal gun market going forward. The HQL license is not particularly difficult to obtain, as it requires the individual to take a four-hour class (unless exempt for being law enforcement, military etc.) and also pass a background check that requires giving a fingerprint sample. After obtaining a HQL a person will be issued a card that allows them to purchase. This qualification license DOES NOT allow a person to lawfully carry a concealed handgun nor does it provide a legal means for open carry. The process for obtaining a carry permit is much more involved, and difficult for an everyday citizen.

The rules governing carry permits in Maryland were not particularly affected by the firearms safety act of 2013. Rather, these rules are governed by title 5 of the public safety code. Concealed carry permit applications that are denied can be appealed to the Office of Administrative Hearings or (OAH), where an Administrative Law Judge will decide whether a permit shall issue. Without a permit you cannot wear, transport or carry a handgun unless you are going from home to the range/ gun shop or vice versa, and unless the weapon is packaged correctly in a case, unloaded and not readily accessible. The fees to apply for the permit are relatively cheap but the instruction and course could cost a few hundred dollars. Any applicant that hopes to obtain a permit must be an adult who has not been convicted of crimes including drug offenses and other offense where the sentence was more than 1 year, and all applicants must complete 16 hours of training by a qualified instructor, and then 8 hours of additional training for renewals.

Once an applicant meets the basic requirements the board will then conduct an investigation to determine whether the applicant has ever exhibited a propensity for violence or instability. If you have ever been charged with assault or if a peace order or protective order has ever been taken out against you then you can bet this will come back to bite you during the investigation stage. If the board determines you are suitable after the character investigation they will next move to the most difficult stage where the majority of applications fail. Under the law an applicant must prove a good and substantial reason to wear, transport or carry a handgun that rises to the level of finding that the “permit is necessary as a reasonable precaution against apprehended danger”. In a nutshell this means that the applicant must prove that he or she needs the permit to protect against danger that they are likely to encounter. The burden is on the applicant to prove this is the case, but the problem is that many citizens cannot site specific facts that make them likely to encounter danger. It is not enough in Maryland to just be a law-abiding citizen with the desire for extra protection, as the board will need more persuasion under the law. That being said, most applicants who meet the requirements and provide a good and substantial reason will be granted a permit. This law could soon change, as the Supreme Court is set to rule on a similar New York law where the applicant has the burden. We will post a follow-up article after the opinion is released in the coming months.

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Published on: August 1, 2017

Bowie Man Sentenced In Federal Robbery Case

By Benjamin Herbst

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

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

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

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Published on: July 9, 2017

More Charges For Indicted Baltimore Cops

By Benjamin Herbst

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

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

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

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