Criminal Defense Lawyer Blog

Published on: December 31, 2018

Former Police Commissioner Pleads Guilty To Tax Evasion

Almost one year ago the Baltimore Police Department welcomed a new commissioner with high hopes he would be the one best suited to reverse the rising crime rate and restore the department’s reputation in the community. The department had become a nationwide embarrassment after numerous officers were convicted in severe cases of corruption, which included the armed robbery of citizens. There were also lingering allegations that the department unjustly targeted minority suspects, and also ignored service calls in the city’s most dangerous areas. At the time the Mayor was convinced her candidate for commissioner could begin to repair all the damage, but this vision came to an abrupt end four months later after the former top cop resigned amidst federal tax evasion charges. Recently the ex-commissioner pled guilty to those charges in a federal courthouse just a few blocks away from his former office atop police headquarters.

According to the Department of Justice the former commissioner pled guilty to three counts of failing to file individual federal tax returns in 2013, 2014 and 2015. Pursuant to the plea agreement the ex-cop also admitted to substantially reducing the amount of taxes withheld from his salary each year by claiming extra allowances and deductions. He went as far as claiming mortgage interest deductions and deductions for local property taxes when he didn’t actually have a mortgage or own any real property. He claimed business losses without owning any businesses, which all served to reduce the amount of taxes owed to the IRS and the State of Maryland. Additionally, the defendant did not file his 2011 and 2012 tax returns until 2014, and cooked the books when he did file in order to unlawfully save money. The former commissioner’s tax issues cost him his job back in May, and now they may cost him his freedom come March when the case is set for sentencing. Each of these charges carries a $100,000 fine and up to one year in prison. There will also be $67,587.72 in restitution that must be paid to the federal and state governments.

As a first time offender the former top cop will is unlikely to face a lengthy jail sentence for these misdemeanor offenses. On the other hand the judge will balk at any argument that the defendant simply “made a mistake” as the Mayor once characterized it. This was an ongoing course of conduct, and the continuous misrepresentations showed a certain degree of knowledge and intent. If the conduct was believed to have been a mistake or even straight ignorance the U.S. Attorney’s Office probably wouldn’t have charged the former police officer in criminal court. And even if the feds brought charges, if not for the recurring misrepresentations federal prosecutors likely would have entertained some sort of deferred prosecution agreement instead of going after three convictions.

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Published on: December 22, 2018

Lawmakers Pass Federal Prison Reform

By Benjamin Herbst

Maryland is notorious in the region for its harsh gun laws, but overall has a fairly liberal criminal justice system compared with other states and especially the federal government. Two years ago Annapolis lawmakers passed sweeping criminal justice reform that eliminated most mandatory prison sentences for drug crimes and lowered the maximum penalties for dozens of offenses. The Judicial Reinvestment Act will save the state millions of dollars by significantly reducing the prison population, and a good chunk of these savings will be invested toward treatment and reentry programs. Not all defendants in Maryland have been able to reap the benefits of the JRA though, as it does not apply to federal cases. To the contrary, federal defendants continue to face harsh penalties for non-violent drug crimes, and often even sympathetic judges have their hands tied at sentencing. As a result federal prisons are filled with inmates serving archaic mandatory sentences, but finally lawmakers have decided to do something about it.

The First Step Act recently passed by a wide margin in the U.S. Senate, and is expected to be signed into law fairly soon. While not as powerful as the JRA, the First Step Act is expected to significantly lower the federal prison population and allow judges more discretion by eliminating or reducing some mandatory sentences. It will also redirect money once spent on keeping defendants behind bars to establishing rehabilitation programs to prevent recidivism. The federal strikes laws are responsible for some of the most unjust prison sentences in the entire country, as a three-time drug offender faces mandatory life in prison upon conviction. While the strikes laws won’t be entirely scrapped, the Act will reduce the mandatory penalty from life to 25 years for a third strike and from 20 years to 15 years for a second strike.

The Act will also provide more opportunities for inmates to earn good behavior credit to reduce their stay, and allow offenders serving time for distribution crack cocaine to petition the court for sentence modifications. In 2010 the federal laws regarding crack were changed to mirror powder cocaine laws, but defendants convicted prior to 2010 were not permitted to take advantage of these changes retroactively until now. This provision alone could result in the imminent release of hundreds of prisoners that have been unfairly serving lengthy sentences. There are currently around 2,600 inmates serving time under the old crack cocaine law that was a shameful product of the war on drugs. The First Step Act is estimated to reduce the federal inmate population by around 50,000 over the coming years. This is a huge number considering there are currently around 200,000 federal prisoners, which translates to about 10 percent of the total U.S. prison population.

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Published on: December 12, 2018

Holiday DUI Patrols Producing Arrests

By Benjamin Herbst

Holiday DUI patrols have been operational in Maryland for years, but until recently many of these enhanced law enforcement efforts have taken place on the Eastern Shore during the summer months. Memorial Day and Labor Day weekends along with July 4^th have traditionally drawn the most attention of various police departments including the State Police. These law enforcement agencies run DUI checkpoints and deploy extra patrol officers during the nighttime hours in an effort to deter drunk driving and enforce the laws when the message doesn’t register. When a special holiday task force is operational it typically produces a greater number of arrests that a normal weekend, but this is expected as more law enforcement resources are in use. Before we begin a cost benefit analysis of drunk driving task forces, we’ll stop and say the purpose of this post is simply to point out that they are becoming more common throughout the state and coming to a county near you this holiday season.

Various law enforcement agencies in Montgomery County are about to begin their fifth weekend of the local DUI holiday task force, which has already produced close to 200 drunk driving arrests. This particular task force is made up of officers from the state and county police and the local police departments of Rockville, Gaithersburg and Takoma Park. Officers from the Maryland National Capital Park Police are also participating in the task force on the stretches of Montgomery County highway that are within the jurisdiction of federal law enforcement such as the Clara Barton Parkway. These agencies are not limiting their activity to standard proactive road patrols, rather they are also running sobriety checkpoints and compliance checks of local business that sell alcohol. Additionally law enforcement has also taken a more aggressive stance in issuing citations to adults that have allowed minors to consume alcohol on their property. Under Alex and Calvin’s law (section 10-119 of the criminal law code) adults who host parties where alcohol is served to minors face fines of up to $2,500 for a first offense and $5,000 for a second or subsequent offense. These citations are not considered criminal, but failure to pay could result in a criminal contempt charge that carries jail time. Additionally a conviction for one of these civil citations could become part of the permanent court record, which could lead to adverse consequences for the defendant.

Drunk driving has been an especially contentious issue in Montgomery County for the last few years, and for good reason. In 2015 a young law enforcement officer was killed by a repeat DUI offender, which led to the state enacting a law requiring installation of the interlock device for offenders. The engine interlock device is viewed as one of the most effective means to curtail impaired driving by lawmakers, prosecutors and judges alike. The device also spares defendants the possibility of losing their ability to drive, which in Maryland can be crippling due to the shortcomings of public transportation. The obvious downsides of the device are the high cost, frequent malfunctioning and embarrassing look, but most would agree that it’s worth it to be able to drive legally. The Montgomery County task force will continue to operate until January 5, 2019 and the Blog may post a follow up article after the final data on the program is released. If you or a loved one has been charged or arrested for any traffic offense in Maryland feel free to contact DUI lawyer Benjamin Herbst anytime for a free consultation. Benjamin specializes in representing out of state defendants, repeat offenders and drivers charged with federal DUI by the Park Police and other federal law enforcement agencies.

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Published on: December 6, 2018

Medical Marijuana Sales Shattering Expectations

By Benjamin Herbst

Just one year ago dozens of medical marijuana patients lined up outside a Montgomery County dispensary to make the first legal pot purchases in Maryland. This past Saturday marked the official one-year anniversary of those historic medical cannabis sales, and business is now booming for the industry. The Maryland Medical Cannabis Commission or MMCC originally estimated first year sales to total $46 million, but now it looks like their prediction was off by a wide margin. After posting modest revenue of $1.8 million in the launch month last year, revenues then increased dramatically each month thereafter. January produced $2.6 million in revenue, February jumped to $3.8 million, and March to $5.5 million. This August and September both produced total revenues over $10 million and the numbers continue to climb. At this point it is a not so conservative estimate that sales for 2018 will top $100 million, more than twice the number thrown out by the MMCC.

The revenue prediction from the MMCC was hardly a guess and likely based on data such as polling of potential patients and comparing revenues from other states. Though regardless of their scientific approach it’s easy to see how the state drastically underestimated the power of its own program. Most people just don’t want to talk about their marijuana use to those outside their close circle of friends, and they especially don’t want to discuss it with the government. Unfair as it is, there is still a major negative stigma attached to marijuana that alcohol has managed to avoid. In America it’s still perfectly acceptable to have a few beers after work, but take a puff or two and all the sudden you are a drug user. Numerous private companies and government agencies have drug polices that prohibit marijuana use, and a soldier can easily be kicked out of the military for casual consumption. While half the states have legalized medical cannabis, the professional world hasn’t caught up, thus it’s still not completely acceptable to use this natural product with medicinal value. Patients and social users still have much to lose by talking freely about their use.

Other reasons for the staggering revenue reports have to do with geography, as Maryland is surrounded by states to the south that have not yet fully embraced the medicinal value of cannabis, and will likely be some of the last to allow legal use. Virginia and North Carolina technically have medical marijuana programs, but access is more difficult and may be limited to CBD and low THC products. Maryland allows out of state residents to obtain a license and make purchases, and the process is not difficult or expensive. In addition to physicians, nurse practitioners, dentists and other professionals have the authority to prescribe medical cannabis and many do not require lengthy and comprehensive evaluations. The state has made it quite simple to obtain approval to purchase.

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Published on: November 30, 2018

Former Postman Sentenced In Drug Conspiracy

By Benjamin Herbst

A former letter carrier for the United States Postal Service was recently sentenced in federal court for his role in a drug conspiracy that spanned from the West Coast to Bethesda, Maryland. The 49-year old postman received a sentence of 4 years in prison followed by 3 years of supervised probation for the crimes of conspiracy to distribute and possession with intent to distribute cocaine. In total the feds linked the former USPS employee to 5 kilograms of cocaine, which according to law enforcement has a total street value of approximately $187,600.

According to the guilty plea that the court accepted a few months prior the ex-postal worker conspired with business associates on the West Coast to send multiple packages containing cocaine from California and Nevada to Maryland. The packages were shipped via U.S. mail and destined for addresses on the defendant’s Montgomery County mailing route. This investigation began back in September of 2016 though federal law enforcement seems to believe it had gone on longer. In April of 2017 a postal inspection service drug detection dog made a positive hit on five packages that were yet to be delivered, and the inspectors sought and received a search warrant. Upon opening the packages the inspectors discovered that all five contained one kilogram of cocaine packaged in the same manner. The addresses were valid Bethesda locations, but the names associated with the addresses were fake.

While the U.S. Attorney’s press release does not detail what occurred after cocaine was discovered, the packages were probably sealed back up and placed in circulation for the defendant to deliver. Only this time odds were the former postal worker had unwanted company following him along his route. Montgomery County police assisted the feds in this investigation, and they could have been involved in either a pretextual traffic stop of the defendant or a probable cause arrest. Law enforcement likely waited until the defendant took some sort of action indicating he had knowledge of the contents of each package before making an arrest. During his plea hearing the former mailman admitted that he took possession of the packages in the Bethesda post office and then notified his co-conspirators by text that he had marked the packages as delivered. After scanning the packages in he delivered them to the co-conspirators at different locations than the addresses written on the packages.

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Published on: November 20, 2018

Former Montgomery County Employee Pleads Guilty To Fraud

By Benjamin Herbst

Over the course of six years as Chief Operating Officer of the Department of Development for Montgomery County a 59-year old Germantown man embezzled close to $7 million of taxpayer money, and last week he plead guilty to some of his crimes. The recent guilty plea to wire fraud and making false statements on his tax returns took place in the Greenbelt federal courthouse. Sentencing is set for February of next year, and he faces up to 20 years in prison for the wire fraud count and 3 years in prison for lying on his tax returns. According to the U.S. Attorney’s Office the defendant must also plead guilty in the Circuit Court for Montgomery County to state criminal charges of felony theft scheme and misconduct in office. Finally, the convicted public official has a pending civil action against him that is scheduled for settlement conference the day before his federal sentencing hearing in Greenbelt.

Pursuant to the plea agreement the former employee admitted that from 2010 to 2016 he unlawfully authorized payments totaling $6.7 million from the Montgomery County government to the bank accounts of fraudulent business entities he created. The payments were in the form of checks mailed to the addresses of the scam businesses and direct deposits sent to bank accounts he controlled. One of the fake LLCs even listed his home address as the main office. On top of stealing millions of dollars the federal government also prosecuted for failing to report any of the income on his tax returns, which resulted in $2.3 million in back taxes due to the IRS. As if this wasn’t enough the plea also required an admission to lying on his county financial disclosures by failing to reveal his interest in one of the fraudulent entities that was receiving government money. Government officials with the authority to spend public money are generally required to disclose their business ventures to prevent impropriety or the appearance of it, but this defendant was way past that point.

This case brings up an interesting issue that we have touched on in the past regarding the crossover of state and federal prosecution. You’ll notice that the former county official did not plead guilty to theft in federal court because he did not steal federal property, and there is no general catchall theft statute in the federal code. The feds commonly use wire fraud and tax evasion laws to prosecute activity related to theft and embezzlement, and in many cases these convictions would be enough to satisfy the state that justice has been served. But is seems in this case Montgomery County felt it wasn’t enough just to have their former employee found guilty of federal charges, as they appear to want their pound of flesh as well. Theft scheme over $100,000 is a felony under Maryland law with a maximum penalty of 20 years in jail, and misconduct in office is a common law crime with a maximum penalty subject only to limitations imposed by the 8^th Amendment. The county could theoretically seek a consecutive state sentence for the defendant but this is unlikely. It is more likely that a state prison sentence would be suspended in order to assure that restitution payments are completed to the best of the defendant’s ability.

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Published on: November 13, 2018

Final Corrections Officer Sentenced In Corruption Case

By Benjamin Herbst

The last of 16 former Maryland correctional officers involved in a large-scale prison corruption scheme was sentenced recently in the Baltimore federal courthouse. The 28-year old female officer originally from Texas was sentenced to six years in prison followed by three years of probation for her role in a contraband smuggling scandal at the state’s largest prison facility. Eastern Correctional Institute or ECI is a medium security facility in Somerset County on the Eastern Shore that houses over 3,000 male inmates. For years inmates and numerous staff members conspired to smuggle contraband such as drugs, cell phones and tobacco into the facility using complex organized methods designed to thwart detection. The scam eventually became too large to keep secret, and was shut down in 2016 after 80 different defendants were charged. Federal prosecutors ended up securing convictions in 77 out of the 80 cases.

While most defendants entered into plea agreements with the government, this defendant elected to take her case to jury trial, and was ultimately found guilty of racketeering, money laundering and drug conspiracy after nine days in court. Evidence presented by the government revealed that the former corrections officer conspired with her sister and other associates to smuggle packages of contraband into ECI for distribution to inmates. The contraband referenced in this particular case included drugs such as Suboxone and synthetic marijuana, phones, tobacco and pornography. Contraband was packaged in various ways including hidden within feminine hygiene products. The packages were placed in strategic locations such as staff bathrooms, interior offices and dining areas to avoid suspicious hand-to-hand transactions. Using this “dead drop” method, the smuggler and the purchaser never actually had to meet in person.

According to the government smugglers were paid roughly $500 each time they successfully delivered a package to an inmate and this defendant was no different. She was apparently paid via PayPal by inmates using the very same cell phones that were once smuggled into the prison. The contraband cell phones also provided a constant means of communication with inmates to arrange future transactions. While the phones allowed the smuggling operation to flourish they also came back to bite the co-conspirators. Federal law enforcement intercepted inclulpatory text messages between this defendant, her accomplices and the inmate customers, which referenced the type of contraband, the method of packaging, the location of the drops and of course the price. Numerous law enforcement agencies were involved in this massive investigation including the FBI, U.S. Postal Inspection Service, Maryland State Police and the Baltimore Police.

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Published on: November 4, 2018

Baltimore Men Convicted Of Assaulting Undercover Agents

By Benjamin Herbst

Undercover law enforcement officers are often placed in dangerous situations with unpredictable people, but it’s hard to imagine an officer waking up expecting to be a victim of an armed robbery during work. This is exactly what happened recently in Baltimore, as two undercover ATF agents sought to make a controlled narcotics purchase and instead ended up looking down the barrel of a .44 caliber revolver. The evening began with the two agents and a confidential informant arranging to purchase $2,000 worth of heroin from a known dealer. The agents and the CI picked up the known dealer and then traveled to meet to meet the dealer’s supplier in West Baltimore. Upon arriving the dealer exited the car and told the other three occupants to say put. As soon as the dealer was out of sight two suspicious men approached the car brandishing handguns and demanding money. The undercovers told the men there was cash in the car, and during this brief exchange a secret takedown signal was relayed to a team of covert backup agents.

The supporting ATF agents stormed on scene and ordered the two robbers to drop their weapons and put their hands in the air, but instead they both took off running. After a quick pursuit both suspects were placed in custody, though one was actually shot by the ATF as he attempted to flea. Only one of the guns was recovered, but as part of the plea agreement both men admitted that there were two guns involved in the attempted robbery. The latest defendant to plea guilty was convicted of assault on a federal officer and brandishing a firearm in the course of a crime of violence. This 33-year old defendant faces between 7 and 15 years in federal prison followed by supervised release. The second defendant entered his plea the week before, and both are scheduled to be sentenced in March in the Baltimore federal courthouse.

Although both defendants admitted they had no idea their victims were federal agents, there is no element of knowledge for the crime of assault on a federal law enforcement officer in the U.S. code. The government is only required to prove beyond a reasonable doubt that the victim was in fact a federal officer acting in the course of his or her duties. This is different than some jurisdictions that require that the defendant knew or should have known the victim was a law enforcement officer. Law enforcement officers are generally afforded an additional layer of protection against assault through enhanced penalties, and the federal system is no exception. While simple assault on a federal agent is punishable by 1 year in prison, if the assault took place during the course of a felony the maximum becomes 8 years. There is no element of injury required for this offense, so in this case an attempted robbery with no actual physical contact was more than enough to satisfy the elements of the crime.

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Published on: October 25, 2018

Co-Defendants Sentenced To Federal Prison For Chicken Theft

By Benjamin Herbst

Three Eastern Shore men were recently sentenced in the Baltimore City federal courthouse for their roles in an organized scheme to steal thousands of dollars of chicken parts and transport them for sale in New York City. According to the plea agreement the three men participated in this theft scheme over the course of eight months beginning in April of 2015. Two of the men were employees at a chicken processing plant in Cordova, Maryland, while the third was a truck driver for a shipping company that was contracted by the plant to transport its products. The two employees devised a scheme to bypass the plant’s inventory system and load pallets of frozen chicken onto their co-defendant’s truck. The truckloads bound for New York carried a combination of properly scanned pallets that would be sold to legitimate customers and unscanned pallets that would be sold illegally, with the three men keeping the profits for themselves.

In December of 2015 another chicken plant employee observed the two co-defendant employees loading unscanned pallets of frozen chicken onto the co-defendant driver’s truck. After questioning the two co-defendants he then reported his observations to a supervisor who notified the trucking company. The driver apparently ignored an order from the trucking company to return to the plant, and brazenly continued on to New York. GPS locators on the truck showed that the driver made the legitimate deliveries, but also stopped at unauthorized locations to sell the unscanned chicken. On top of all this, law enforcement officers recovered social media posts of the truck driver in the cab of the truck flashing cash he had received from selling the stolen chicken, and text conversations between co-defendants about marketing their stolen product.

The youngest of the three, a 39-year old from Easton, was sentenced to 7 months in jail followed by three years of supervised probation. A few days earlier the 43-year old defendant from Easton received a year in jail followed by probation, and the 58-year old truck driver from Delaware received four months jail with probation upon his release. The three defendants were also ordered to pay almost $250,000 in criminal restitution as part of their sentence. This figure was estimated by the chicken plant’s insurance company that is now on the hook for a quarter million dollars.

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Published on: October 19, 2018

Can Medical Marijuana Patients Purchase Guns?

By Benjamin Herbst

For the last few years Maryland residents have been required to obtain a license to legally purchase a handgun. The handgun qualification license or HQL has been in effect since October of 2013 and requires purchasers to complete safety training and pass a full background check with the state police that includes fingerprinting. Those wishing to purchase rifles and shotguns are not subject to these requirements, and must only fill out a federally issued form and pass an instant background check. If you come with proper identification and pass the ATF’s check you can easily buy a semi-automatic shotgun or rifle in under an hour. But handguns are different, and despite anticipated backlash from the gun lobby the HQL requirement has largely remained out of the news since 2013.

Fast forward 5 years and the HQL law is back in the news after medical marijuana users are discovering they may have given up their right to purchase a handgun simply for registering as patients. In addition to convicted felons and those found guilty of other crimes such as second degree assault, the Maryland public safety code prohibits drug addicts and habitual drunkards from possessing any type of firearm. The language of the statute is key, as Maryland law does not broadly prohibit those who use drugs or drink alcohol from possessing or purchasing guns. Federal law on the other hand has prohibited the sale of guns to users of controlled substances since the Gun Control Act of 1968 and the Brady act of 1993, and it is this decades old legislation that is now the reason more than 20 medical marijuana patients have been denied the right to purchase a handgun. Marijuana is still defined as a controlled substance under federal law, and while the feds have yet to show signs they would enforce these acts as they relate to medical marijuana in Maryland, the state police apparently do not wish to assist citizens in breaking the dated law.

Patients who register with the Maryland Medical Cannabis Commission are protected by federal HIPAA regulations, and their identities cannot be disclosed anyone, especially to law enforcement. But within the last year the state police have added a question in their HQL application that asks the applicant whether they are a registered user of medical marijuana. The police may not have access to the database, but lying on the application is a federal offense that carries up to 10 years in prison, making it unreasonable to risk criminal prosecution simply to purchase a handgun. Therefore by simply asking the question the state police are effectively banning medical marijuana patients from lawfully purchasing a handgun, and are covering their butts from the feds in the process. The questionnaire also adds a layer of protection to state gun dealers, who risk federal prosecution for unlawfully selling handguns in violation of the Brady Act. Violating the act is not a strict liability crime, meaning the shop would have to know or have reason to believe they are selling to a prohibited person. The impression we get from the HQL is that the state is not interested in subjecting its citizens to federal prosecution, but at the same time does not want to be complicit in violating federal law.

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