Maryland Criminal Attorney Blog

What are the elements of theft in Maryland

January 6, 2009 | Brian G. Thompson

Theft is one of the most common crimes, if not the most common, charged in Maryland and tried by Maryland Criminal Attorneys. Excluding complicated fraud and white collar thefts, most of these cases are run of the mill in terms of the facts, the law and the outcome and rarely pose much of an intellectual challenge for the attorneys handling the case. I had a theft case this morning, however, in Baltimore City Circuit Court that had a rather unique issue that posed a bit of a challenge and made the case much more interesting that the average theft case. First the law.

There are only two elements to the crime of theft and they are both simple and logical. The elements are that property must be taken from another and that it must be taken with the intent to permanently deprive the owner of that property. The issue in the case went to element number two, whether or not my client intended to permanently deprive the owner of the property in question. The specific issue involved, and was ultimately resolved upon, a somewhat arcane legal concept known as asportation. Essentially what it means is that there must be an attempt by a would be thief to carry the property away from the area where the property was originally taken in order to complete the crime of theft. In other words it is not sufficient for the State to prove that the alleged thief merely took possession of the property that did not belong to him without the permission of the owner; there is the additional requirement that the State prove that the alleged thief moved the property from its original location or at least made an attempt to do so. More on the law in a moment but first, here are the facts of the case:
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Do I need to Register When Moving to Maryland?

December 9, 2008 | Steven D. Silverman

Many people with certain “old” convictions in other states often ask if he/she has a legal requirement to register in Maryland under the current sexual offender registration laws. As former prosecutors and current defense attorneys, we are very familiar with the issue. Often times persons who were required to register in other states are not required to register in Maryland.

Criminal Procedure Subtitle 7 Registration of Certain Offenders provides that citizens of Maryland do not have to register for offenses committed before July 1, 1997. This is also confirmed by case law. The statute specifically holds that out of state offenders who committed their offense before July 1, 1997 must still register. This provision treats out of state offenders differently then in state offenders violating Article IV, Section 2 of the Constitution. The Interstate Privilege and Immunities Clause.

If he had committed this act in the State of Maryland he would not have to register. This is discussed in the editors note to Criminal Procedure § 11-704.

“Section 4, ch. 754, Acts 1997, as amended by § 1, ch 21 Acts 1998, and as amended by ch. 317, Acts 1999, provides that “except as provided in §§ 5 and 6 of this Act, this Act shall be construed only prospectively to apply to offenses that are committed on or after July 1, 1997, and may not be applied or interpreted to have any effect on or application to any individual who commits an offense before July 1, 1997.”

This position was also affirmed by the Court of Special Appeals. “A court cannot require a defendant to register in accord with former Art. 27 § 792 where all the acts in question took place before the effective date of the law. Maslin v. State, 124 Md. App. 535, 723 A.2d 490 (1999)

§ 11-704 Section 5 specifically excludes out of state convictions.

“Section 5, ch 754, Acts 1997, as amended by ch. 317, Acts 1999, provides that “a child sexual offender who is subject to the requirements of chapter 142 of the Acts of the General Assembly of 1995 and who committed the sexual
offense before October 1, 1997, is subject to the requirements of this act.”

This creates the position that if you committed your act in Maryland before July 1, 1997 you don’t have to register, but if you committed your offense outside of Maryland you have to register.
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Is Trademark Counterfeiting a Felony Under Maryland Law

December 5, 2008 | Brian G. Thompson

Trademark Counterfeiting is usually seen by Maryland Criminal Attorneys in Baltimore and throughout the State in the form of counterfeited movies and compact discs. Many people are surprised to hear that it is not only a serious criminal offense but can even be a felony depending upon the total retail value of the counterfeited merchandise possessed by the defendant.

I have a new client who was recently charged with possession of counterfeited movies in Baltimore County Maryland. He is a resident of Connecticut and was merely passing through Maryland when he was profiled by a Maryland Transportation Authority Police Officer just prior to entering the Harbor Tunnel. The client, who is a young African American man, acknowledges that he was speeding as alleged by the police officer but everyone knows that he wasn’t really pulled over for travelling 62 in a 55.
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What is “constructive possession” of a handgun or a controlled dangerous substance?

December 4, 2008 | Brian G. Thompson

Maryland Criminal Attorney What exactly does it mean to be in “constructive possession” of contraband such as drugs or illegal weapons in Maryland? I was faced with this fairly common legal issue in a case in the District Court for Baltimore County in Catonsville this week. The facts of the case were as follows:

My client was operating a motor vehicle in the Catonsville area of Baltimore County one day this past summer. The police noted in their report that the car caught their attention because the operator was not wearing his seat belt. (I’m sure that the fact that he was a young black male had nothing to do with it). The officer’s turned around and followed the vehicle and made several other observations such as speeding and frequent lane changes. They pulled the vehicle over and identified my client as the driver and sole occupant of the vehicle. My client produced a valid driver’s license as well as the registration which confirmed that the car was registered to his father.
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Can a police officer pull a vehicle over for having an inoperative center brake light in Maryland?

December 2, 2008 | Brian G. Thompson

Maryland Criminal Attorney I had this issue in a case in the District Court in Baltimore City today. (The case was ultimately postponed so I will have to update the blog regarding the disposition of case). The facts of the case are that a police officer was travelling behind my client in her marked patrol unit. As my client approached a red light the officer noticed that the center brake light did not illuminate when the other two did. She activated her emergency equipment and pulled my client over for the purpose, according to her report, of issuing a repair order. She also ran my client’s license through the MVA computer and determined that his license was suspended at which time she placed him under arrest. Was this a legal stop?

The problem with the stop as I see it, is that under Maryland law, all motor vehicles are required to have TWO operating brake lights, not three. So the question is, does an officer have probable cause to pull someone over because the vehicle that that person is operating has an non-functioning but clearly optional equipment. In my view the answer is no. Unfortunately, the Court of Appeals has not ruled yet on this precise issue but we can learn something about how they may rule by their rulings on some similar cases.
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Be Aggressive in Booker Re-sentencings!!!

November 25, 2008 | Andrew C. White

I recently won a significant victory for a federal criminal client in United States District Court for the District of Maryland in a re-sentencing under Booker. https://www.silvermanthompson.com/lawyer-attorney-1301200.html In the Booker case, the Supreme Court of the United States ruled that the federal sentencing guidelines that apply to all criminal cases prosecuted in federal courts were no longer mandatory. The Court in Booker held that federal judges should consider the sentencing guidelines in fashioning a sentence, but that the guidelines were just one of many factors to be weighed in sentencing. These factors are laid out in federal law at 18 U.S.C.§3553(a) & (b). They include the nature and circumstances of the person, the need to protect the public from further crimes by the defendant, as well as the nature and circumstances of the offense.

STSW Client Instructions for DUI/DWI Cases

November 10, 2008 | Steven D. Silverman

As a service to our clients, we are posting the following standard instructions for Maryland DUI/ DWI cases.

Maryland Drunk Driving Offenses: The Difference Between DUI and DWI

November 10, 2008 | Steven D. Silverman

Maryland drunk driving offenses are charged as either DUI, DWI or both.

Can the police stop a person based on an anonymous tip in Maryland?

November 4, 2008 | Brian G. Thompson

The answer to the question is no. In fact the answer is that the police may not stop a person based on an anonymous tip in any state in the country because the law on this issue comes from a Supreme Court of the United States decision, as opposed to a state appellate court decision, and thus applies to all of the states. I used this issue to win a post conviction motion that I filed on behalf of a client in the Baltimore County Circuit Court. As some are aware, post convictions are rarely granted in Maryland, but this one was because, among other issues, the attorney who represented my client at trial had failed to raise this well settled issue in a case where it clearly applied.

The case that controls this issue is Florida v. J.L. In that case the police received an anonymous telephone tip that a young black male dressed a certain way and standing at a specific corner, was armed with a handgun. The police responded to the area and observed a young black male matching the description given by the anonymous tipster. The police stopped the young man (actually he was a juvenile, hence the use of his initials in the case in place of his name). In an extremely rare unanimous decision the Court ruled that the police had violated JL’s Fourth Amendment rights and laid down the rule that an anonymous tip alone was insufficient to give the police probable cause to stop and search a person.

In the case I recently prevailed on post conviction, the facts were quite similar. As I said, the judge ruled that my client had received ineffective assistance of counsel because, among other reasons, he had failed to raise this obvious issue. Here is the brief that I filed. (I have redacted the names of my client and the attorneys to protect their privacy).
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In Maryland, can a 16 or 17 year old be charged as an adult for the crime of robbery

October 31, 2008 | Brian G. Thompson

The answer to the question is yes, in Maryland a 16 or 17 year old can be charged as an adult. In fact if the if it is alleged that the juvenile committed the robbery with a dangerous and deadly weapon, original jurisdiction lies with the adult system in the Circuit Court. If there is no allegation that a weapon was used, the juvenile could only be charged as an adult upon the granting of a motion filed by the State to do so.

I had a case that illustrated this jurisdictional issue this week in the Circuit Court for Baltimore County. My client, who was just 16 years, 8 days old at the time of the alleged offense is charged with robbery with a dangerous and deadly weapon, robbery, assault and wear carry or transport a deadly weapon. He and three co-defendants were all charged with the alleged knife robbery of a man in his mid forties. I will explain the facts in a moment, but a brief overview of the juvenile versus adult jurisdiction, a topic about which I have blogged in the past, should be helpful.
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Probation Before Judgement – a Positive Updating of the Statute

October 21, 2008 | Brian G. Thompson

The Probation Before Judgement Statute, Criminal Procedure 6-220, was updated several years ago to allow a person to be sentenced to a period of incarceration as a condition of the Probation Before Judgement. Why you ask, would a Maryland Criminal Defense Attorney think that amending a statute to allow for someone to be incarcerated when the previous iteration of the statute did not allow for incarceration, is a good thing?

To understand the answer it is important to first understand what Probation Before Judgement is. The best way to explain what Probation Before Judgement is, is to explain what it is not. Probation Before Judgement is NOT a conviction under Maryland Law. Under the statute a judge has the authority to strike out the guilty finding in most any criminal case. (There are a few crimes for which probation before judgement is not available including first, second and third degree sex offenses, first degree murder as well as second or subsequent convictions for DUI or CDS cases if the first conviction resulted in Probation Before Judgement).
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Maryland DUI Defendants Should Seek Treatment Prior to Court

October 20, 2008 | Steven D. Silverman

Lawyers wear many hats including advocate, counselor and legal strategist. Often times, the many roles of a lawyer conflict with one another. Not so when it comes to advising DUI defendants to seek an alcohol evaluation and/or treatment. Not only does such a referral help the client on a personal level, but it assists the lawyer before both the criminal judge and the administrative judge (MVA hearing).

BEWARE THE FEDERAL SAFETY VALVE

October 19, 2008 | Andrew C. White

Many federal criminal defense attorneys are not aware of the pitfalls of the federal safety valve provisions. Persons charged with federal drug crimes need to retain an experienced criminal attorney familiar with all aspects of federal criminal law. An inexperienced or unknowing lawyer can expose a client to catastrophic risks. Here is why.

As we are all keenly aware, the federal government’s “war on drugs” is ensnaring hundreds of people with little or no criminal records who are caught up, for a myriad of reasons, with the distribution of drugs. This can range from a person carrying cash for a friend to pay for an airline ticket, to delivering a package to another person in exchange for cash to pay the rent or feed a child. Because of very harsh federal sentencing laws, the smallest players in a drug ring often end up being the most harshly treated. Most of time this is because the leaders of drug operations very often end up cooperating against others – including those below them whose “loyalty” they often gained through fear and threats of harm. Oftentimes, those persons caught on the lowest rungs of a drug conspiracy find themselves with few alternatives because they do not have significant information to provide to federal prosecutors, who retain exclusive control over who gets cooperation departures under the federal sentencing guidelines. As a result, defendants with minor or minimal culpability in a drug operation frequently end up on the receiving end of prosecutions involving tremendously high sentencing guidelines and, more critically, large minimum mandatory sentences.

In many situations, the only relief from mandatory sentences for those with little or no criminal history is the so-called “safety valve.” Many lawyers talk about the safety valve, but very few understand what it is and what it truly entails. It is perhaps the most misunderstood and most difficult opportunity for relief from mandatory minimum sentences and the sentencing guidelines. Federal crimes lawyers who do not specialize in federal criminal defense work run the risk of harming their clients through misguided efforts to gain relief under the safety valve provision.

It is critical to remember that there are only two ways to avoid minimum mandatory sentences upon conviction for a drug trafficking or drug conspiracy offense in federal court. One way is to cooperate with law enforcement and provide “substantial assistance” in the prosecution of others under section 5K1.1 of the guidelines. The other is to seek relief under the safety valve — Section 5C1.2 of the federal sentencing guidelines. (18 U.S.C. § 3553(f)) This section allows a judge to reduce federal sentencing guidelines and ignore mandatory minimum sentences in determining punishment for eligible defendants.

But while understanding the possible benefits of relief under the safety valve is easy, becoming eligible for the relief is more difficult and fraught with peril for the unwary defendant. In fact, a failed attempt to gain “safety valve” relief can have a tremendously negative impact on a federal criminal defendant.
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History of Maryland Sex Offender Registry Laws

October 17, 2008 | Steven D. Silverman

In 1994 New Jersey became one of the first states to implement sex offender registry and notification laws. New Jersey enacted what became known as “Megan’s Law,” or the Sex Offender Registration Act, in response to a brutal sexual assault and murder of seven-year-old Megan Kanka by a convicted sex offender who lived across the street from her. Congress responded that same year by implementing their version of Megan’s Law, called the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Program (“Wetterling Act”). Pub.L.No. 103-322, 108 Stat. 1796 (1994), codified at 42 U.S.C. § 14071 (2000). The Wetterling Act, drafted to protect the public from violent sex offenses committed by repeat offenders, developed guidelines for registration, and more recently, community notification, and classified its registrants as “sexually violent offenders” or “sexually violent predators,” the latter of which was forced to comply with heightened registration requirements. Id. at § 14071. See generally, 61 Md. Law Rev. 739, 722-45 (2002). The Wetterling Act also mandates that each State may decide to what extent that information will be made available to the public. See H.R. Rep. No. 104-55 (1986).

The Maryland General Assembly soon followed, motivated both by appalling incidents within its own borders, as well as the federal funding incentive for compliance with the Wetterling Act, and enacted its first sexual offender registration in 1995. These laws were aimed at responding to the high recidivism and danger that sex offenders posed on its citizens. see Md. Fisc. Note, 2005 Sess. H.B. 770; see generally, 61 Md. Law Rev. at 742. Maryland has since amended its laws to maintain compliance with the Federal Act. Sexual offenders are required to register with the Crimes Against Children and Sexual Offender Registry for either a minimum term of ten years, or life, depending on the offense. § 14071. Maryland’s registry is operated by the Sexual Offender Registry unit of Department of Public Safety and Correctional Services (“DPSCS”).

Maryland has four categories of persons convicted of sexual offenses: 1) a child sexual offender; 2) an offender; 3) a sexually violent offender; and 4) a sexually violent predator. The first two, child sexual offender, and offender, pertain to a conviction of sexual offense in the fourth degree. The Maryland legislature left the judge with discretion to determine whether persons convicted of this offense should be required to register as a sex offender. §§11-701. Fourth-degree sexual offense is a multipurpose offense, meaning that it is an offense having alternative elements and may be committed in more than one way, any one of which is sufficient for conviction. See § 3-308; Cortex v. State, 656 A.2d 360, 104 (MD 1995). This implies that while some defendants who have been convicted of the sexual offense in the fourth degree have committed a crime in such a way as to warrant registry, this Court can exercise its discretion to determine others convicted need not register.
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Obtaining Social Service Records in Child Abuse Cases

October 17, 2008 | Steven D. Silverman

Many Marylanders are often wrongly accused of child abuse. Police and prosecutors are often too quick to rush to judgment and fail to do a complete investigation. In several cases, I have been able to exonerate innocent defendants by obtaining the Social Service records of the alleged child-victim. These sealed records, although sometimes difficult to obtain, often point to the real abuser.