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Published on: March 30, 2020

Maryland Court Closure Extended

Last week the Chief Judge of the Court of Appeals issued an order extending the closure of all state courts to the public through May 1, 2020. Anyone who had a criminal trial set in the Month of April will have their case automatically reset to a later date, likely in June or beyond. This applies to circuit and district court trials, and any motions that require witness testimony. Judges and court staff will still be working at courthouses around the state, and will be ruling on motions that do not require witness testimony or the introduction of evidence. This includes motions to recall bench warrants and arrest warrants. Anyone who has a warrant for a failure to appear or for a violation of probation should write to the judge or contact a lawyer to file a motion to recall that warrant. This is not the time to be picked up on an outstanding warrant and taken to jail.

If a person happens arrested on a district court bench warrant, he or she will be taken before a court commissioner, who hopefully will order release on recognizance. Defendants that are not released by the commissioner will be taken before a district court judge the next business day. The defense lawyer and a prosecutor will be the only non-staff members to be permitted into the building for the bail review hearing. Family members and witnesses will not be permitted to enter and attend the hearing. Anyone arrested on a circuit court bench warrant will not see the commissioner, and be taken directly before a circuit court judge on the next business day. The same rules apply in the circuit court regarding who may attend the hearing. Maryland circuit courts will also conduct habeas corpus bail review hearings as normal, and in many cases the hearings will be set sooner than normal due to the circumstances.

In addition to bail reviews, the district court judges will also continue to handle body attachments and emergency evaluation petitions. District court judges will also preside over new quarantine and isolation violations that the governor put in place. District court commissioners will hear protective order petitions, and if granted they will remain in place as temporary protective orders until court is back in session. District court commissioners will also hear bench warrant satisfactions, which means that if a motion to recall bench warrant is denied the defendant may report to a commissioner to take care of the warrant. Any defendant who turns him or herself in with the commissioner may have an attorney present at the hearing.

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Published on: March 22, 2020

Baltimore Dismissing Certain New Criminal Cases

By Benjamin Herbst

Last week the Baltimore City State’s Attorney made headlines for publicly directing her prosecutors to dismiss numerous non-violent cases. The cases that will be dismissed involve defendants who are arrested on new charges in Baltimore City during these extremely unique times. The charges specifically mentioned by the State’s Attorney include CDS drug possession, prostitution, trespassing, attempted distribution of CDS, open container, traffic citations, rogue and vagabond and urinating in public. It is important to understand that anyone who has already been charged with these offenses will not simply get a pass when their case eventually is scheduled for trial. The directive only applies to the prosecutors that are working in the Central Booking jail facility, which means only defendants taken to jail will have their cases dropped.

At first glance the press release makes it seem like the Baltimore City prosecutor is softening up on non-violent crime in these trying times, but in reality the purpose of the directive seems to be aimed at reducing the population at central booking. Police officers are now on notice that if they arrest a defendant for certain non-violent offenses, their work will be in vain. But arresting a suspect for a non-violent crime is hardly the norm these days, nor should it be. Police in Baltimore City can still detain individuals for drug possession, trespassing, prostitution and for breaking into cars (rogue and vagabond), but they will have to charge those suspects by issuing a citation or a summons to appear in court. For the time being in Baltimore City, it will be catch and release for most non-violent offenders.

This press release came a few months after the State’s Attorney had already directed her prosecutors to dismiss all marijuana possession cases. She has received pushback for ignoring the legislative process by choosing not to prosecute certain laws, so it’s easy to see why the critics might be jumping up and down about this news. A Baltimore mayoral candidate called the directive a PR stunt and insinuated that the prosecutor is abusing her power. In a less direct criticism, the Carroll County State’s Attorney publicly stated that his office would continue to enforce all Maryland laws, and that no suspect would be given a free pass. He also went on to state that his office will continue to prosecute any violations of the governor’s temporary executive orders, which among other things closed down gyms, restaurants for dining in, bars and prohibits gatherings of more than 10 people. Any violation of these and potential future executive orders could result in a jail sentence of up to 1 year and a $5,000 fine.

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Published on: March 14, 2020

Bail Reviews Heard During Maryland Court Closure

By Benjamin Herbst

On Friday the Chief Judge of Maryland’s highest court signed an administrative order closing all state courthouses to the public for at least the next three weeks. The announcement may have initially been a surprise, but as the impact of the coronavirus continued to unfold it was clear the judiciary had no other option. It is important to know that the closure only applies to the public and not judiciary employees. The district and circuit courthouses will continue to operate, and judges will continue to issue rulings on motions. All criminal trials and most other hearings will be postponed. One of the main exceptions is that bail reviews will still proceed as normal. Defendants arrested during the next three weeks will still see the district court commissioner within 24 hours to determine whether bail, pre-trial supervision or recognizance is appropriate. If release is denied by the commissioner, defendants will then see a district court judge at a video bail review the next business day. In Baltimore City it could take two business days to see the judge, and as many as 3 or 4 total days if the arrest occurred on a Friday. Defendants arrested on circuit court arrest warrants will be taken before a circuit court judge the next business day, and those with preset bails will be permitted have bail bondsmen post. It is unclear at this point whether family members will be permitted to attend bail review hearings. The most likely scenario is that attendance will be limited to the defendant’s lawyer.

In addition to bail reviews proceeding as normal, habeas corpus motions will also be heard in the circuit courts. Habeas corpus motions are filed when a district court judge denies bail, and are typically the fastest and sometimes only way to have a defendant released prior to trial. Habeas motions are popular in larger jurisdictions such as Baltimore County, where the turnaround time of 10 days to 2 weeks will likely speed up due to the postponement of most other hearings. Habeas motions are often successful due to the circuit court judges having the experience and knowledge required to make the unpopular decision to release a defendant who is facing serious charges. It is safe to say at least some district court judges are known for not abiding by the principal of using the least restrictive means to assure the public’s safety and the defendant’s return to court.

Other district and circuit court hearings that will proceed normally include peace order and protective order petitions, arraignments, initial appearances, extradition hearings, and various juvenile hearings such as shelter hearings and juvenile detention hearings. Contempt hearings and appeals from district court peace orders will also be held in the circuit court. The judge also included text in the order to allow the courts to conduct quarantine and isolation hearings should they be placed into effect during this extraordinary time. We obviously hope these lines prove to be merely a precautionary measure.

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Published on: February 3, 2020

Mail Carrier Charged with Theft

By Benjamin Herbst

Montgomery County Police have charged a 32-year old mail carrier with multiple counts of theft for stealing numerous pieces of mail including a package containing rare coins worth close to $3,000. The Greenbelt man has likely worked his last shift as a federal employee after allegedly confessing to the crime. In addition to the confession, U.S. Postal Police Agents searched the defendant’s home and found other pieces of stolen mail from his delivery route in Silver Spring. The mail carrier now faces six charges in the Montgomery County District Court, including two felonies for theft over $1,500 but less than $25,000. He is also charged with theft scheme, and conspiracy to commit theft over $1,500, for allegedly working with another person to sell the stolen goods. Trial is currently set for February 25, 2020 in the Silver Spring courthouse. Online court records show the man is represented by the Public Defender, though his income as a federal employee may bar their continued representation.

Like many theft defendants, the mail carrier may have sealed fate by trying to flip the stolen coins for cash too soon, and in the same general location as the theft. It seems as if the defendant conspired with another person to sell the goods to a coin shop in downtown Silver Spring, in an effort to conceal his own identity. Unbeknownst to the co-conspirator, the coin shop, and other coin shops in the area, had already been tipped off about the possibility of these specific rare coins potentially being stolen. An email was apparently circulated to pawn shops in the region. The Silver Spring coin shop refused to engage in a transaction, and contacted law enforcement to inform them of the development. The investigation led officers to the mail carrier in Greenbelt, and upon being questioned he apparently admitted to everything.

The mail carrier likely does not have a criminal record, as the requirements to work for the USPS include strict background checks. The strict requirements are consistent with the mail carrier’s important responsibility of safeguarding private and potentially valuable pieces of mail. In an age where we are shipping more things of value than ever before, USPS mail carriers have remained reliable and trustworthy. By far the main concern with shipping packages in modern times is porch piracy, or the act of stealing delivered packages off a person’s property. Having a mail carrier actually steal your mail is the last thing we expect or can imagine, so an incident like this is definitely disconcerting.

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Published on: January 28, 2020

Violent Firearms Offender Act Introduced

By Benjamin Herbst

The Maryland Senate and the House of Delegates recently cross-filled the Violent Firearms Offenders Act, and it is almost certain that a large portion of the bill will become law in October. The bill aims to toughen penalties for certain firearms offenses that were seen as too lenient in light of escalating gun violence in Baltimore City and across Maryland. The bill is part of a package of violence prevention initiatives that the governor announced at a press conference last month in Baltimore, which also includes increased penalties for witness intimidation and measures to track the sentencing records of judges in violent offenses.

The Violent Firearms Offenders Act begins by introducing a provision that adds possession or use of a firearm to the list of non-technical probation violations. Normally a person who is on probation would be charged with a crime for possession or use of a firearm, and thus a rule 4 violation, so the issue would be moot. But this provision gives the state an easier path to prove a non-technical violation if criminal charges are not filed, dismissed or placed on STET. If the state shows the defendant possessed a firearm at any point while on probation the defendant could be found in violation and face the full backup time. The bill also includes a section that reclassifies the crime of using a firearm in the commission of a crime of violence from a misdemeanor to a felony. Once again, this is usually not a major issue because the underlying charge will undoubtedly be a felony. On the other hand, it never made sense for an offense with a five-year minimum mandatory penalty like use of a firearm in violent crime to be classified as a misdemeanor, so there is no major argument against the change. This section also adds a ten-year mandatory penalty for anyone convicted of using a firearm in a crime of violence for a second or subsequent time, which shall run consecutive to the sentence for the underlying crime. Mandatory minimum sentences may not be suspended, and the defendant is never eligible for parole.

Perhaps the most impactful change in the Violent Offender Firearm Act is the new provision that adds a mandatory minimum jail sentence for the crime of theft of a firearm. Theft of a firearm is currently part of the general theft laws, and the penalty is dependent on the value of the firearm. Since most guns have a value of less than $1,500, theft of a firearm is usually treated as a misdemeanor with an 18-month maximum penalty. If this bill passes, and we believe it will, come October anyone who is convicted of stealing a firearm (including an antique firearm or replica), faces a felony conviction with a 2-year minimum mandatory penalty. This two-year minimum mandatory penalty is a new sentencing provision in Maryland, and is not applicable to other criminal statutes. The law does specify that any defendant convicted faces the mandatory two-year sentence, so the issue of whether a defendant is eligible or probation before judgment may have to be addressed at some point. Currently there is a 30-day minimum mandatory penalty for wear, carry or transportation of a handgun in Maryland, but it can be avoided if the lawyer argues for, and the judge grants PBJ. The same is true for the 60-day minimum sentence for carrying a loaded handgun. Lawmakers may choose to exclude theft of a handgun from 6-220, which governs when a judge can grant probation before judgment. In Maryland a defendant who is sentenced to a mandatory term of incarceration may serve the time on house arrest, though house arrest sentences rarely extend beyond one year. It will be interesting to see if 2-year house arrests sentences start becoming the norm, as theft of a firearm is not a violent offense and many defendants will be first time offenders. Judges should hesitate sending a first-time non-violent offender to prison for two years.

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Published on: January 21, 2020

Suspects Arrested For Kicking Baltimore Officer

By Benjamin Herbst

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

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

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

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Published on: January 14, 2020

Wicomico County May Criminalize Public Pot Smoking

By Benjamin Herbst

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

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

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

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Published on: December 17, 2019

D.C Man Sentenced In BW Parkway Vehicular Manslaughter

By Benjamin Herbst

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

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

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

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Published on: December 9, 2019

Casino Dealer Sentenced To Prison

By Benjamin Herbst

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

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

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

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Published on: November 25, 2019

Former Baltimore Mayor Pleads Guilty

By Benjamin Herbst

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

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

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

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