Criminal Defense Lawyer Blog

Published on: June 14, 2021

Ocean City Police Arrest Three on Gun Charges

Summer is almost in full swing, and with COVID-19 numbers sharply on the decline thousands of tourists have already started to flock to Ocean City to enjoy the surf and sand. Tourist season in Maryland’s only beachfront town supports hundreds of businesses and creates thousands of jobs, but it also brings a dramatic increase in crime. Most of the offenses are non-violent in nature and occur in the overnight hours when family vacationers are back in their hotels, but the crime does not go unnoticed. Year after year the local, county and even state government has made a point to address rising crime in Ocean City, and recently have developed special event zones to combat street crimes. But increased boardwalk patrols and the threat of arrest can only do so much to deter criminal activity. Last week was a perfect example of this, as three teenaged defendants were arrested on gun charges after police attempted to break up a large disorderly crowd in downtown Ocean City. Fortunately, the disturbance did not escalate to an especially violent incident, but based on the police officer’s alleged observations it appears escalation was only narrowly avoided.

According to the Ocean City Police Department, a bike patrol officer that responded to the disturbance observed a 19-year-old Baltimore man in the back of a vehicle actively loading a semi-automatic handgun. As officers were in the process of detaining the passenger and arresting him for multiple firearm charges, another teenaged male approached and allegedly became hostile toward the police and tried to interfere with the arrest. This young man turned out to also be 19 but hails from Pennsylvania. These two young men were both arrested and taken to the Ocean City jail for processing along with an 18-year-old female that was the driver of the vehicle in question.

The defendant from Baltimore was charged with loaded handgun on person, handgun in vehicle and possession of a firearm by a person under 21. The Pennsylvania defendant was charged with handgun in vehicle and several additional charges for his alleged interference with the police including obstructing and hindering, resisting/interfering with arrest, assault second-degree of a law enforcement officer, disorderly conduct and reckless endangerment. Both male defendants were initially held without bail by the District Court Commissioner and then released on $50,000 bail when seen by a judge the next day. The female. defendant was released on her own recognizance by the commissioner. All three co-defendants have a trial date on August 3, 2021 in the Ocean City District Court.

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Published on: June 5, 2021

Anne Arundel County Officer Arrested

By Benjamin Herbst

A veteran officer of the Anne Arundel County Police Department was arrested last week in Howard County on multiple charges including assault second degree, resisting arrest and disorderly conduct. The 35-year-old corporal from Pasadena has been with the department for 8 years, and was suspended with pay following the arrest. He currently is scheduled for trial in Ellicott City on July 13, though the case may be postponed or moved to the circuit court before it is resolved. All of the charges are classified as misdemeanors, but the defendant can elect to have a jury trial if he and his attorney prefer the case to be handled in circuit court.

According to the statement of charges, Howard County Police officers responded to a bar on Washington Blvd. in Elkridge shortly before 2 a.m. after a fight broke out. As officers dispersed the crowd one person remained on the scene and was showing signs of intoxication. This intoxicated individual turned out to be an off-duty police officer, and was placed under arrest after failing to comply with the Howard County cops and then allegedly kicking one of them. The off-duty Anne Arundel officer was taken to central booking in Jessup and released on his own recognizance by the commissioner the same morning. Assault in the second degree is the most serious charge that the suspended officer is facing, and under Maryland law it carries a maximum penalty of up to 10 years in jail. A person convicted of second-degree assault in Maryland is also prohibited from owning or possessing a firearm according to the public safety code. The public safety code in Maryland classifies assault in the second degree as a crime of violence, which can be confusing, as it is not considered a crime of violence under criminal law §14-101 for purposes of parole eligibility.

In Maryland, a defendant who has a conviction for second-degree assault faces a 5-year mandatory sentence if he or she is arrested for illegal possession of a firearm. Even if the defendant who received probation before judgment faces this mandatory prison sentence if the case was marked domestically related. In the case of the off-duty Anne Arundel cop, the case is not domestically related and thus he will not lose his ability to own or possess a firearm if probation before judgment is granted (after probation has been completed). In all likelihood the suspended officer’s lawyer should be able to convince the State to dismiss or nolle pros. the assault charge in favor of one of the lesser charges. The most likely outcome in this case would probably look something like a plea to the disorderly conduct or a STET with the condition that the defendant complete some sort of alcohol treatment. The officer is likely a first-time offender and will certainly face discipline for his actions from his employer, which is something the prosecution and judge should consider. On the other hand, the judge and State may point out that a police officer should be held to a higher standard even when off-duty. It will be interesting to see how this case plays out, and the Blog will post a follow up article upon resolution of the matter.

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Published on: May 26, 2021

Two Former Public Officials Guilty of Theft

By Benjamin Herbst

Within the same week in mid-May two former government employees in Maryland were found guilty of felony theft while on the job. The first guilty finding came by way of a two-day jury trial in Somerset County that resulted in a guilty verdict for both counts in the criminal information charging document. A jury agreed with the State’s Attorney’s theory that the former of Princess Anne employee was responsible for $100,748.93 in missing cash that was received at Town Hall but never deposited into the town’s operating account. Prosecutors introduced evidence showing the defendant had deposited over $43k into her personal account, but the jury must have believed the former employee stole the remaining $58k as well. The difference between prosecuting the defendant for the full $100k+ and just the $43k in her account is twofold. First, the potential punishment for theft over $100k is double the 10-year maximum provided under the Maryland law for theft $25k to $100k, and the offense has a higher score in the sentencing guidelines. Assuming the defendant has no prior criminal record, she faces a guideline sentencing range of probation to 2 years in prison, while the lesser theft offense would have carried a guideline range of probation to 6 months. Second, the State is now justified in seeking the full amount of restitution from the defendant, which the judge will almost certainly order and make a condition of her probation.

While the former town manager will only be sentenced on one of the counts due to the doctrine of merger and will not end up serving anywhere close to the 20-year maximum provided by law, she does face a realistic possibility of serving several months in jail or even at the division of corrections. The case has been postponed for sentencing and a pre-sentence investigation or PSI has been ordered. Two days after the Eastern Shore jury found the Somerset County defendant guilty a former Air Force employee pleaded guilty to theft of government property. The 60-year-old Prince Georg’s County was working as a civilian travel coordinator for the Air Force, and was responsible for planning and scheduling congressional travel and approving expenses for trip escorts. The defendant held a government issued credit card for employment purposes, which he misused secure cash advances that were then deposited into a work-related bank account that he controlled. According to the plea the defendant then wrote checks to himself and deposited the same into his personal bank account for living expenses, family vacations, a Harley motorcycle and a baby grand piano. All told the former Air Force employee stole over $750k and cost the government over $1 million after factoring in banking and services fees for the cash advances. A search warrant was executed at his Brandywine home, and over $15k in cash was seized. The defendant faces up to 10 years in prison and will be ordered to pay the full amount of restitution when he appears for sentencing at the Greenbelt federal courthouse in September.

The Blog will continue to follow these two cases and may post a follow up article after the two defendants are sentenced. We will continue to monitor cases involving public corruption, fraud and theft in Maryland and in Florida and are available anytime to answer legal questions. Benjamin Herbst is a criminal defense lawyer who specializes in theft, misconduct in office, counterfeiting and fraud. He has successfully represented hundreds of clients charged with a range of offenses from shoplifting and employee theft to embezzlement and felony theft scheme. Contact Benjamin anytime at 410-207-2598 or at 954-543-0305 in Florida anytime for a free consultation.

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Published on: May 21, 2021

Feds Announce Regional Carjacking Task Force

By Benjamin Herbst

Maryland’s top federal prosecutor recently announced the formation of a regional law enforcement task force specifically aimed at arresting and prosecuting carjacking suspects. The formation of this task force comes at a time when carjacking cases have spiked dramatically in Montgomery County, Prince George’s County and Washington D.C. According to the U.S. Attorney’s Office the number of carjackings in the region more than doubled from 2019 to 2020, and 2021 is on pace to meet or exceed those numbers. Montgomery County recorded 17 carjackings in December of 2020 alone, and D.C. has recorded 129 cases since the start of 2021. Prince George’s County has also seen a spike in carjackings over the last few years, and has seen juveniles as young as 13 participate in the offenses. Baltimore City was not mentioned in the press release and may not be part of this particular task force, though the feds have already been highly involved with the investigation and prosecution of gun crimes in the city. Carjackings are actually down in Baltimore, though the rate of violent crime is far from satisfactory.

The stated goal of the task force is to ensure prosecution of suspects who engage in carjacking and robbery in multiple jurisdictions. In a press release the Maryland U.S. Attorney’s Office described challenges to holding multijurisdictional offenders fully accountable for their actions. It is unclear exactly what type of challenges the office is referring to, but it could relate to establishing the requisite proof that a firearm was used in the crime. Carjacking and robbery suspects who are charged days or weeks after the incident are rarely arrested with a firearm in their possession, which leaves law enforcement and prosecutors with the challenge of placing a gun in the hands of the suspect at the time of the crime. While armed robbery and carjacking are serious offenses, they often do not trigger the same minimum mandatory prison sentences as firearm crimes. In Maryland the use of a firearm in a crime of violence such as robbery or carjacking brings a minimum 5-year sentence without parole and a maximum 20-years that can run consecutive to any other sentence imposed. A defendant indicted under federal law may face a minimum 7-year sentence and a maximum life sentence for using, carrying and brandishing a firearm in a crime.

While the idea of state and federal multi-jurisdictional carjacking suppression team sounds like a novel idea, in practice the most important component likely comes down to information sharing and simple communication. Unlike drug conspiracies that require organization and multiple actors working together along the supply and distribution chain, robbery and carjacking are generally unorganized and unsophisticated crimes. They are often carried out by juveniles or young adults with no real criminal plan. This is not to say the crimes are not serious, but rather to make the point that the incidents in different jurisdictions are rarely connected in any manner. Information sharing may not help bring down a ring of carjackers, but it could help with the prosecution of suspects for more serious offenses than what they normally would face. This could mean more federal prosecutions for robbery and carjacking defendants, with stiffer penalties and no parole. Three defendants have already been indicted for carjacking in federal court, with one facing trial in Greenbelt and the other two in D.C.

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Published on: May 11, 2021

Smell of Marijuana Not Enough to Justify Frisk

By Benjamin Herbst

Possession of less than 10 grams of marijuana has not been a crime in Maryland for more than 5 years, but the full impact of decriminalization is still a work in progress. When simple possession of marijuana became a civil offense, it did far more than simply end thousands of criminal prosecutions. For decades the odor of marijuana has been a powerful tool for law enforcement officers to initiate investigations of individuals out in public. The smell of marijuana has justified thousands of searches of people, cars and even homes, and the fruits of these searches have resulted in criminal prosecutions for weapons, narcotics, stolen property and other contraband. While State’s Attorneys have not been able to prosecute simple marijuana possession since the fall of 2014, police officers did not simply stop using the smell of pot to justify searches. And frankly, at the time they had no reason to do so, as the law offered no guidance on how to police in the decriminalization age. As is typically the case, the Courts had to fill the gaping holes left by lawmakers, though this took a few years and is still an on-going process.

Separation of powers dictates that the Courts cannot simply step in and establish policy; defendants have to be arrested and their lawyers have to file suppression motions. Then the trial courts have to deny these motions and appellate lawyers have to file briefs and make arguments in Annapolis. The whole process from arrest to an appellate decision that clarifies a law typically takes 2-3 years or more in some cases if the case goes past the intermediate appellate court. With respect to decriminalization of marijuana, the first major ruling came in 2019 when the Court of Appeals held that police are not permitted to search a vehicle occupant based on the odor of marijuana in State v. Pacheco. However, due to the automobile exception and the fact that marijuana is not technically a legal substance (decriminalized does not mean legalized) cops are still permitted for now to search a vehicle based on the smell of marijuana. One year later the State’s highest court again clarified the bounds of decriminalization by ruling in State v. Lewis that police officers do not have probable cause to arrest and then search a person based on the odor of marijuana. The court did not address whether a police officer would have reasonable suspicion to briefly detain and pat down a person for weapons based on the odor of pot because Lewis was placed in handcuffs and effectively arrested. A stop and frisk detention is less intrusive than an arrest, and only requires police be able to identify a specific suspicion of criminal activity.

It took another year after the Lewis case for a stop and frisk based on the smell of marijuana to reach the appeals court, but we now have an answer to that issue as well. As of two weeks ago it is officially impermissible for a police officer to briefly detain and frisk an individual based on the smell of marijuana. The ruling is hardly a surprise, but nonetheless was another hole in the Maryland marijuana policy that needed to be filled. The case involved a juvenile in Prince George’s County who was detained and frisked on the steps of an apartment complex after a call came in to police that individuals were smoking pot and hanging out. The responding officer ordered 4 juveniles to sit on the steps after smelling marijuana, and found a handgun on one of the individuals after conducting a pat-down search. This juvenile was then arrested and charged with illegal possession of firearm by a person under 21 and wear transport carry of a firearm. His motion to suppress was denied and then he was found involved (similar to guilty in an adult case) of the crime and sentenced to probation. As a result of the ruling the case will be vacated and the juvenile will have his record cleared.

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Published on: April 29, 2021

What are the Repeat Offender Laws for DUI in Maryland?

By Benjamin Herbst

Impaired driving laws are constantly evolving in almost every state, and Maryland is no exception. It seems that each year the legislature makes a firm commitment to steadily increase the potential punishments for drunk driving. While many of these initiatives do not end up becoming law, they do garner a degree of attention from the media. This in turn gets the message out to the public and provides a layer of deterrence, which is one of the main goals of lawmakers and anti DUI lobbyists. In order to keep up, we feel it is important to provide our readers with an overview of the state drunk driving laws every couple of years.

The potential punishments for a first offense DUI and DWI have changed little in recent time. In Maryland a person who is arrested for impaired driving will almost always be charged with both DUI and DWI. While it is rarely brought up in court unless the case goes to jury trial, DWI is considered a lesser offense and as a result has a lower maximum penalty of 60 days in jail, a $500 fine and 8 points if there is a conviction. Defendants who are charged with drunk driving and are seeking a plea deal should always inquire about the possibility of pleading to DWI in exchange for a dismissal of the DUI counts. A defendant who submits to a breath test and is over the legal limit will likely not have this option, but it still does not hurt to try. The maximum penalty for DUI and DUI per se is 1 year in jail, a $1,000 fine and 12 points upon conviction. The per se count is charged as a result of a breath test that is over the legal limit of .08.

A defendant who is charged as a repeat offender faces far stricter penalties, as the maximum jail sentence for DUI with one prior conviction is 2 years, and for DWI is 1 year in jail. The fines and license suspension times also increase and there is also the possibility of mandatory jail time if the prior offense occurred within 5 years of the current offense. The punishments for a second offense have not changed in the past few years, but the legislature has addressed punishing those who have two or more prior convictions for DUI, DWI or other impaired driving offense in a different state. Anyone with two prior convictions faces up to 5 years in prison upon being charged with either DWI or DUI. Probation before judgment or PBJ does not count as a conviction under this provision. A defendant with 3 prior convictions for drunk or impaired driving faces up to 10 years in prison upon being charged with a 4^th DUI or DWI. The 10-year maximum penalty also applies to anyone with a criminal conviction for homicide by vehicle or vessel while impaired or under the influence. A defendant who has been convicted of causing life-threatening injury by motor vehicle or vessel while impaired or under the influence also faces up to 10 years in prison if subsequently charged with DUI or DWI.

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Published on: April 19, 2021

Ocean City Considers Criminalizing Excessive Boardwalk Noise

By Benjamin Herbst

The Town of Ocean City, Maryland’s only incorporated beach town, is considering strict noise ordinances that would potentially criminalize loud behavior on the popular boardwalk. The regionally famous boardwalk is home to dozens of businesses including restaurants and hotels, and many have expressed frustration over the unpoliced noise. The same boisterous activity that attracts the crowds to the southern end of town may also be pushing tourists from actually doing business on the boardwalk. Families and other visitors still love coming to visit the boardwalk, but many are inclined to sleep or have a sit-down meal elsewhere due to the noise and commotion.

Last summer the town retained noise consultants to establish baseline decibel levels for certain parts of the boardwalk, and then worked from there to propose potential limits. These limits would be based on the specific location and time of day, with enforcement being conducted in a standardized method. The city has already established that daytime activities run from 7 a.m. to 10 p.m. on weekdays and 7 a.m. to midnight on weekends. If the ordinance becomes effective this summer there would likely be an influx to town police officers hitting the boardwalk with handheld decibel meters when the clock strikes 12. Anyone convicted of the new noise violations would likely face up to 90 days in jail and a $500 fine if the ordinance classifies the offense as a misdemeanor. Ocean City already has some of the strictest local ordinances in the state, and various acts that would otherwise be punishable as a civil infraction are criminalized in in OCMD.

Alcohol violations are typically charged as civil infractions under Maryland law, and violators are ticketed and told to appear in court. Their cases are classified as CZs rather than CRs and are not punishable by the possibility of incarceration. On the other hand, in Ocean City these same violations carry the potential for up to 90 days in the Worcester County jail. Thankfully, three months in the county lockup is an unrealistic punishment for walking down Coastal Highway with a White Claw, but the bigger issue is that any offense punishable by jail time gives the police the authority to arrest. Not only does an arrest trigger irreversible consequences such as a permanent FBI record, but it also allows the police to search a person and his or her belongings. Search incident to arrest is a powerful evidence gathering tool for police, and often the secondary offenses based on items recovered in searches are greater than the initial reason for the arrest.

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Published on: April 7, 2021

Man Pleads Guilty to Arson Offense in Pasadena Bar Fire

By Benjamin Herbst

It has been almost four years since a popular neighborhood bar in Pasadena burned down and was permanently shuttered, and now an end to the criminal case that followed is in sight. A 36-year-old man from the same Anne Arundel County neighborhood as the bar recently pled guilty to a federal arson charge after being indicted back in September of 2019. He now faces a minimum of 5 years in prison and a maximum of 20 years for his actions, and will learn his fate in July when the case is set for sentencing at the Baltimore federal courthouse.

Law enforcement officers likely made the initial determination that the fire was incendiary or set deliberately while the wood building was still smoking, though the bizarre details surrounding the fire unfolded in the weeks that followed. Investigators from the ATF and the Anne Arundel County Fire and Explosives Investigation Unit confirmed their suspicions about an intentional fire by locating charred remains of homemade explosive devices and traces of gasoline, which is a common accelerant in arson cases. Law enforcement officers were also able to view surveillance footage that captured several flashes of light preceding areas of the building catching fire that were likely the incendiary devices making contact with the building. A police K9 unit was also able to locate the presence of gasoline on the other side of a fence that surrounded the bar, which was determined to be the area where the makeshift explosive devices or Molotov cocktails were ignited and thrown. Finally, law enforcement recovered a glove that contained both traces of an accelerant and the defendant’s DNA.

The case against the defendant quickly became open and shut, but the motivation for his actions is what made this case bizarre. According to the plea agreement and Maryland public case search records, the defendant was charged with a domestic second-degree assault and a petty theft for an incident that occurred outside of the bar about a week before the fire. This assault was captured on the bar’s surveillance cameras, which the defendant attempted to destroy by setting fire to the whole building. The irony in this situation is twofold, as a police officer actually witnessed the assault, thus making the surveillance cameras a bonus rather than an essential part of the assault case. In addition, the surveillance system not only survived the fire, but recorded the defendant’s actions on the night of the fire. The defendant ended up pleading guilty to the assault in the Circuit Court for Anne Arundel County in Annapolis, and was given a 3-year suspended sentence.

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Published on: April 1, 2021

Marijuana Legalization Bills Fail

By Benjamin Herbst

The legalization of marijuana for recreational use will not become a reality in Maryland this year, as state politicians have conceded that their efforts will have to wait until 2022. The work of several lawmakers in Annapolis sparked interest across party lines over the possibility of regulating marijuana for recreational use. Lawmakers and lobbyists were excited by the opportunity to end needless criminal prosecution over a substance that Maryland residents want to access, while also generating millions of dollars in tax revenue for the state. Both the House and the Senate debated bills that would have established a licensing process for recreational marijuana sales, along with a tax structure to generate revenue. The bills were wordy and complex, but produced several interesting snippets that appeared in news headlines across the state’s media outlets.

The House and Senate bills aimed to establish a lawful possession threshold of 4 ounces of flower cannabis, which is roughly ten times the amount that currently separates a civil infraction from criminal possession of marijuana. Many lawmakers have taken issue with the current marijuana possession law due to the arbitrary assignment of 10 grams as the amount that triggers criminal prosecution. There has never been any logical explanation why the legislature settled on 10 grams other than it being a nice round number. Marijuana is not typically sold in increments of 10 grams either legally or on the street, and it is entirely reasonable for regular marijuana users to purchase more than 10 grams at a time for their own personal use. In addition to drastically increasing the amount of pot that could be lawfully possessed, lawmakers likely would have allowed Maryland residents to grow their own marijuana plants. There were provisions in both bills that would have mandated personal cultivation to be out of public view and carried out in a manner that would not provide access to minors. Lawmakers could have agreed on these issues in time for a unified bill to be presented to the governor. What they could not agree upon however were more complex issues such as the potential tax rates and the amount of licenses that would be issued.

It has always been our position that a cap on the number of licenses is unfair and encourages a corrupt application process, where those with connections seem to come out on top. There is no logical reason to place a limit on the number of recreational licenses, just as there is no reason to limit medical grow and dispense licenses. The state could easily develop a strict and well-funded regulatory arm for recreational marijuana, and all qualified applicants should be permitted to engage in the marijuana business provided they could adhere to the regulations. Arguments that without license caps recreational marijuana stores could then line the streets of every neighborhood are naïve and unfounded. It is a great expense and a time-consuming endeavor to open a dispensary, and no investor would make this commitment only to fail due to an overly saturated market.

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Published on: March 23, 2021

State Allows Full Capacity for Casinos- Revenue Still Down

By Benjamin Herbst

The Maryland governor recently announced that state casinos will no longer be prohibited from operating at full capacity under state law, but some local restrictions are still in place and revenues remain lower at all gaming establishments. State orders had previously limited capacity to 50 percent at each of the six casinos around the state, a number that had been in place since December. The state’s largest casino, MGM National Harbor in Prince George’s County, and the Horseshoe in Baltimore City are still operating at limited capacity per local government orders. These two casinos had been operating at 25% percent capacity, and will continue with some restrictions for the foreseeable future. In total, the state’s casinos produced over $120 million in gross gaming revenue last month, but this number was down over 16% from February of 2020.

While profits are down across the state, the revenue numbers tell us a different story about social behavior in the COVID-19 era. Despite capacity limits of 50% the gaming profits are down less than 17%. This means the public have not proven hesitant to return to the casinos to spend their hard-earned dollars. And since this is a criminal law blog, it also means criminal cases taking place on casino property are likely returning to pre-covid levels. The most common cases that we have seen from the casinos are trespass and disorderly conduct citations. Casino trespass cases usually begin one of two ways, with perhaps the most common cause being violations of the state’s voluntary exclusion program. A person who has placed themselves on the VEP list for two years or for life will be prohibited from returning to the grounds of the casino (not just the casino floor) indefinitely until they follow the steps required to be taken off the list. Voluntary exclusion violations will result in criminal trespass citation being issued that comes with a mandatory court appearance. Upon conviction a defendant faces up to 60 days in jail, a $500 and the possibility of a permanent criminal record. The large majority (if any) of these cases do not result in jail time, but the consequences can still be severe for a person with a clean record who may have a security clearance, professional license and/or immigration issues. Casino trespass cases are also quite common for those individuals that have received a no-trespass warning by a member of the casino staff. Upon violation of these warnings and individual can be cited and removed from the property. In addition, a person who is cited for casino trespass would forfeit all of their earnings, even if they have a strong argument that the warning was insufficient.

Disorderly conduct and other petit offenses are also relatively common at casinos due to the heightened emotions of gambling and perhaps the heavy flow of alcohol, but for the most part the facilities maintain a relatively safe environment. The casinos are equipped with sophisticated security systems and even facial recognition technology, and security does not hesitate to use these systems to initiate charges against a person. The Blog will continue to follow the revenue numbers and incidents of crime at casino facilities across the state, and will post a follow-up article in the future. Legalized sports gambling is around the corner in Maryland, and this will undoubtedly pump up the revenue as well as the crowds in all the casinos. More people equals the potential for more trespass, theft, assault, theft and disorderly conduct violations, and we will be there for anyone who needs assistance.

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