Criminal Defense Lawyer Blog

Published on: November 4, 2018

Baltimore Men Convicted Of Assaulting Undercover Agents

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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Published on: October 11, 2018

What Happens When You Get A Warrant, And How You Can Fix It

By Benjamin Herbst

Finding out there is a warrant for your arrest is a terrible feeling, but there are a number of things you can do to minimize your time in custody or better yet avoid being arrested at all. There are two types of warrants for criminal cases in Maryland state courts, and the first step is to figure out what type of warrant you have. The most common type of warrant in Maryland is a bench warrant, which just like its namesake is issued by a district or circuit court judge of the from the bench. A large percentage of bench warrants are issued in open court after a defendant fails to appear at a mandatory court appearance. Failure to appear at any mandatory court date will likely result in a warrant regardless of the seriousness of the case. Even non-jailable offenses like civil alcohol citations for underage drinking and driving on a suspended license (section h) require the appearance of the defendant and authorize judges to issue warrants for failures to appear.

Not all failures to appear are created equal. A defendant who fails to appear for his or her trial date on a felony criminal offense will likely receive a no bail bench warrant, and any prior bail or pre-trial release will be forfeited. A defendant who fails to appear at sentencing could be in an even worse position, as the judge or the state may rescind any prior plea offer. Upon arrest these defendants may be forced to wait in custody until their case is over or at the very least until the issuing judge modifies the no bail hold. A defendant who fails to appear at a misdemeanor criminal case or traffic case by receive a bench warrant with a preset bail or with instructions for the commissioner to set bail. These defendants can go straight to the district court commissioner’s office if they want to have the warrant lifted, but there is always the risk the commissioner will deny bail. If the commissioner denies bail the defendant will have to wait until the next business day to see a judge. Violation of probation warrants are also considered bench warrants, but many times these warrants have either preset bails or no bails. Either way, the best way to deal with bench warrant is to contact an attorney and have him or her file a motion to recall the warrant. Judges are not robots, and if you have a legitimate reason why you missed court, or if you simply forgot the judge may have enough sympathy to quash the warrant and then direct the clerk to issue a summons. While you can try to accomplish this by filing your own pro se motion it is always better to hire an attorney, as the judge will see you have made an investment in the case and are not likely to miss court again. This is also true for violation of probation warrants, as judges just want to make sure you show up for your VOP hearing before considering to recall your warrant.

The second type of warrant is an arrest warrant, and there are far too many issued in Maryland when the more practical thing to do would be to issue a summons. A true arrest warrant should only be used in cases where the commissioner or judge believes the defendant is a danger or a flight risk, but unfortunately it doesn’t work this way. On recommendation from a police officer or from the state or based on a civilian statement of charges a judge or commissioner may bypass setting a court date and issuing a summons for an arrest warrant. These warrants are more difficult to work around because they are typically sealed for 90 days and as a result you can’t just file a motion to have them recalled. Also, a person with an arrest warrant cannot simply go to the commissioner’s office to take care of it, as he or she must be booked at the police station before going to the commissioner. If the state either indicts the defendant or files an information in the circuit court, the defendant will not go to the commissioner at all. After being booked at the police station he or she will be taken directly to the county or city jail to await being bailed out or seeing a circuit court judge. In cases involving arrest warrants it is entirely possible to take care of the whole process in just a couple of hours, but knowing where to go and what time to go is key. The most basic advice if you know or think you have a warrant is not to wait too long to address it. The sooner you act the better it will look to the judge, and it’s always better to turn yourself in on your own terms then to be arrested out of the blue. If you or a loved one has a warrant feel free to contact Benjamin Herbst at 410-207-2598. Benjamin is an experienced Maryland criminal defense lawyer that specializes in handling bench warrants and arrest warrants.

Published on: October 5, 2018

Maryland Jails Under Investigation

By Benjamin Herbst

Two county jails in Maryland are now under investigation for alleged mistreatment of juvenile inmates. In response to complaints lodged by the Public Defender’s Office, the State Department of Education is investigating whether juvenile inmates were properly separated from the adult jail population while being housed at adult facilities. State and federal law requires juvenile inmates to be totally separated by sight and sound from the rest of the population, which is often accomplished by housing them in separate wings or units of the jail. But the Baltimore County and Frederick County Detention Centers now stand accused of violating these laws and have yet to issue any statements denying the accusations.

A 2015 Maryland law requires that juvenile defendants charged with adult crimes must be housed in juvenile facilities until their request to transfer the case back to juvenile court has been denied. Legally speaking the transfer request is called a reverse waiver hearing. This is an essential stage of the case, and all child defendants must be afforded the opportunity to have their lawyer argue for the case to be heard in juvenile court. Adult criminal court simply does not offer the same type of services and support as juvenile court and is focused on punishment rather than the education and treatment.

Defendants under the age of 18 who commit a felony such as first degree assault or robbery with a firearm must petition a circuit court judge for a reverse waiver in order to be tried in juvenile court. Juvenile courts do not have original jurisdiction for serious offenses of this nature. The process of waiving a case down does not happen automatically and if a motion is not filed the defendant may lose this opportunity. At the reverse waiver hearing the judge will consider numerous factors such as the age of the child, the risk to public safety and the mental and physical condition of the child. If the judge denies the reverse waiver the child must then be transferred to an adult jail facility pending the results of the trial. Defendants that are in school at juvenile facilities will be taken out and sent to jails that offer minimal educational opportunities, and according to these reports struggle to keep their most vulnerable defendants safe.

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Published on: September 24, 2018

Final Defendant Sentenced In Gun Shop Robbery

By Benjamin Herbst

This past week a 23-year old man from Baltimore was sentenced to 13 years in prison for his role in a brazen gun store robbery that left one victim locked in a vault and others fearing for their lives. Four other co-defendants had already been sentenced at the U.S. District court in Baltimore, including the principal planner who received 20 years for armed commercial robbery. The fifth and final sentencing hearing closes a case that federal law enforcement officers and prosecutors had been working on since August of 2016.

According to the plea agreement the five co-defendants targeted an independently owned firearms and bait and tackle store in the Dundalk area of Baltimore County. The principal planner drove his four cohorts to the store in a stolen pickup truck. The defendant and another co-defendant then entered the store brandishing their own firearms and bound one of the employees with zip-ties while making the other employee empty the cash register at gunpoint. Two other co-defendants then entered the store while the planner backed the stolen pickup to the front door of the shop. The four men then proceeded to load 37 firearms into duffel bags and then ran to the truck, but not before shoving one employee into a vault and locking her inside. Three assault rifles were included in the 37, along with a silencer and cash.

After fleeing to Baltimore the five co-defendants divided up the cash and guns and went their separate ways. The FBI, ATF and Baltimore County Police Department all went to work immediately on the case, and their investigation resulted in numerous search warrants that yielded evidence of the robbery. Video surveillance showed that the 23-year old defendant left earbuds inside the store, and also handled a shotgun that he did not ultimately steal. Law enforcement was able to recover a fingerprint from the shotgun that led to a database match, which in turn provided probable cause for a search warrant. Law enforcement also could have recovered DNA from the earbuds used in the robbery in their investigation. A search of this defendant’s home produced numerous firearms from the store with the tags still attached, and also the loaded pistol that the defendant used in the robbery. Additionally, law enforcement recovered evidence that the defendant committed other robberies just weeks before hitting the Dundalk shop. The defendant likely avoided prosecution in these cases by striking a plea deal with the government.

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Published on: September 15, 2018

What Happens After A DUI Charge?

By Benjamin Herbst

The DUI laws in Maryland change almost every year, which makes it difficult for the average person to know what to expect in the days and weeks following an arrest. This is especially true for out of state drivers from states such as Pennsylvania, Virginia, Delaware and others. Two of the biggest questions after being arrested for DUI are going to jail and losing your license, so for this post we’ll focus on those two issues.

Will I go to jail if I’m arrested for DUI in Maryland? First of all, the following paragraphs apply only to those defendants that intend to plead guilty. If you believe you were wrongfully arrested you should certainly consider taking your case to trial (we always recommend a jury trial for DUI). While no lawyer will ever be able to guarantee or predict a specific outcome it is extremely rare for a first offender to serve jail time for a first DWI or DUI. This is true in all jurisdictions, including the federal courts that handle citations issued on certain federally maintained roads like the BW Parkway (295) and the Clara Barton Parkway, or on military bases like Fort Meade and Andrews. Unfortunately there are exceptions to this no jail for a first offense rule for cases involving injury accidents, extremely high BAC levels or not cooperating with police.

As for repeat offenders, the prospect of jail time increases depending on the number of priors and the time that has elapsed since the priors. A defendant with one prior DUI that happened more than 5 years ago could certainly make a good case for a probation sentence, while a third time offender will have a more difficult time accomplishing this goal. Maryland law imposes a mandatory 5-day sentence for a second DUI conviction within 5 years and a mandatory 10-day sentence for third conviction within 5 years of the last. The best way to avoid jail time regardless of if you are a repeat offender is to be proactive, and show the judge this will never happen again. We advise each of our clients to immediately seek out an alcohol education program, set up an evaluation and comply with any treatment recommendations. You may not need counseling, but it will absolutely help in court and the judge will probably order it anyway. After finishing the program be sure to obtain a certificate that you can present in court, and be ready to speak about your experience and answer any questions about what you learned. An attorney can and should assist you in finding the right program.

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Published on: September 9, 2018

Former State Lawmaker Sentenced To Federal Prison

By Benjamin Herbst

A former Prince George’s County delegate has been sentenced to four years in federal prison followed by three years of probation for engaging in bribery and conspiracy while in office. The sentence was announced by federal prosecutors after a hearing at the U.S. District Court in Greenbelt more than six months after the former state lawmaker’s trial. Back in March a federal jury found the ex-delegate guilty of four counts of bribery and one count of conspiracy for accepting thousands of dollars from various business owners in exchange for favorable treatment. At sentencing the presiding judge was informed that the shamed delegate also stole over $100,000 in campaign funds during his 14-year tenure as an elected official.

According to evidence presented by the government the former delegate conspired with members of the county liquor board and liquor store owners to vote favorably on issues that would increase the profitability of the store owners. This included votes on proposals to establish additional permits to sell alcohol on Sundays, and for these favorable votes the former lawmaker received at least $19,000 in cash payments. In reaching a sentencing decision the judge not only considered evidence presented during the two-week trial, but also evidence of wrongdoing that the government presented at the sentencing hearing. The former lawmaker was not brought to trial on charges of theft or misconduct in office for stealing campaign funds, but it undoubtedly factored into the judges decision to sentence the delegate to four years in jail. The former delegate and his legal team did not attempt to deny the government’s claim that he stole the funds, which likely means there was some sort of agreement between the parties beforehand. The government probably felt it would not be necessary to bring the former lawmaker to trial twice, as long at the sentencing judge was aware and considered the additional misconduct.

While it may seem unfair to a layperson, prosecutors are permitted to introduce evidence of wrongdoing at sentencing that was not presented at trial. The traditional rules of evidence do not apply during sentencing hearings, which means nearly everything about the defendant is fair game. The prosecution is still bound by ethical rules preventing them from informing the court about rumors and unfounded accusations, but the defendant’s character is always tested at a sentencing hearing. The flip side of the coin is that the defense is rarely limited as to what it can bring to the court’s attention during this phase of the proceeding. Defendants may call numerous witnesses to testify on their behalf, and these witnesses are not subjected to traditional cross-examination. While every judge operates differently, it is usually beneficial to have family, friends and other members of the community to testify for a defendant at sentencing. Prosecutors spend the entire trial attacking the defendant, who most of the time is advised to exercise his or her 5th Amendment right to remain silent. Sentencing is generally the only time where the judge can learn more about the defendant as a person, rather than a criminal suspect.

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Published on: September 2, 2018

Medical Marijuana Rolling Along

By Benjamin Herbst

Medical marijuana first became available in Maryland just 8 months ago, and after a few hiccups in the opening weeks the program is now becoming a well-oiled machine. There are 65 dispensaries currently throughout the state, and almost all are enjoying a steady stream of business. These dispensaries reported gross sales of $1.8 million in December and now that number is approaching $10 million. In addition, there are now seven times more medical marijuana purchases per month than when the program first began. Since the beginning of summer at the end of May until now the number of patients has risen 30 percent to roughly 36,000. This number could increase another 3 to 4 times still, as experts have estimated 2 percent of the state’s total population will eventually obtain certification. And finally, while we’re talking numbers, there are now 985 medical providers who can recommend cannabis, which is up from 709 at the end of May. New patients are coming forward each day, and medical doctors, nurse practitioners and psychologists are jumping on board as well.

Considering it took almost 5 years from when medical marijuana first became law until it became operational, the current progress has to be considered a success. But that doesn’t mean the system in Maryland is without flaws. For starters medical cannabis is not covered by any health insurance plans in the state as it’s still not approved by the FDA as medical necessity. Patients can spend anywhere from $100 to $1,500 a month for their supply of cannabis, and while state dispensaries offer high quality safe products, they don’t come cheap. Tight regulations, limits on the number of growers and distributors and long expensive delays are just some of the reasons for high cannabis prices in Maryland, and for some it can be cost prohibitive.

Not everyone can afford to spend hundreds of dollars per month cash to obtain the medicine they need to simply feel normal. The sad truth remains that it is still cheaper to medicate with prescription narcotics that are both chemically habit forming and potentially deadly. Some resort to growing marijuana plants in their homes or on their property to cut costs, but this is a risky strategy as personal marijuana cultivation is still a felony in Maryland. Lawmakers recently tried to pass a bill legalizing the possession of up to an ounce of pot and allowing residents to grow up in six plants in their homes, but this bill failed to make it to the governor’s desk. Growing even one marijuana plant is a felony the CDS manufacturing law and is punishable by up to 5 years in prison. Law enforcement still actively investigates any tip involving marijuana manufacturing and spends taxpayer dollars performing expensive aerial surveillance missions in search of outdoor home growers. Tips and surveillance can lead to search warrant, which then can lead to seizures and arrest. Things only get more serious if an otherwise lawful firearm is found on the searched premises, as this can lead to a charge for possession of a firearm in drug trafficking crime, which carries a minimum mandatory prison sentence upon conviction.

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Published on: August 25, 2018

Baltimore Woman Arrested Twice For DUI On Same Day

By Benjamin Herbst

A Maryland State Police trooper arresting a driver for DUI on a Friday night in Baltimore County is hardly a newsworthy occurrence. But when the same trooper arrests the same driver for the same offense just two hours after the first traffic stop it has to make your head turn. The first arrest happened just after midnight on Route 40 in Rosedale, an area northeast of Baltimore City. This stretch of highway is a hot area for late night police patrols, and officers are especially keen to impaired driving. On this particular night a trooper observed a woman driving 67 in a posted 50 mph zone on Route 40 and allegedly passing another car on the shoulder. A traffic stop ensued and the officer arrested the 33-year old female driver for suspicion of DUI. The Baltimore woman was also issued a host of other citations including negligent driving, reckless driving, open container and driving off the roadway while passing another vehicle. As is typical for most DUI cases the woman was processed at the police station and released a couple hours after the initial stop. What is not typical is that the woman decided to return to her car and drive home that same night.

The state trooper working that evening likely had an idea that the woman he arrested was not finished driving for the night. According to reports he observed her get back in her vehicle that was parked on a side street off 40. Police could have had the vehicle towed but they did her a favor and left it parked, which in hindsight was not favor at all. The trooper followed the woman for a short distance and then initiated another traffic stop at 1:58 a.m., less than 2 hours after and 2 miles away from the first stop. The same signs of impairment were observed and the woman was again arrested and taken to the police station. This time she received additional citations for driving within 12 hours after an arrest for DUI or DWI and willfully disobeying a lawful order of a police officer. Driving within 12 hours of a drunk driving arrest is a jailable offense that carries a maximum penalty of 60 days, and while it’s not that common, it is definitely an offense that a judge will not take lightly.

The woman will be summoned to appear for trial sometime in the next couple months at the district court in Essex. She may chose to resolve her cases in district court or request a jury trial and have the case transferred to Towson. In this type of situation the defendant and her attorney will likely be better served by trying to have the cases consolidated to the same trial date, which the clerk’s office will likely do considering the arresting officer is the same. Assuming the cases are set for trial on the same day a good defense strategy would be to try to enter into a plea agreement on one of the cases in exchange for the State dismissing the other. If the State agrees to drop one of the cases it may turn out to be the first case, as it would be reasonable to expect the prosecution to be firm on the charge of driving within 12 hours after a DUI arrest.

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