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Changes in the Maryland Sex Offender Registration laws are, as a Maryland Criminal Defense Attorney something I have to be aware of. I have represented many defendants over the years who have been charged with sex offenses. In these cases the defendant faces not only the prospect of criminal punishment of his conduct but also the possibility of being required to register as a sex offender. On October 1, 2010 the Maryland Sex Offender Registration Statute, (Criminal Procedure Code Ann, Section 11-704) which was rewritten to bring in line with the comparable Federal Statute, went into effect. The new rules now require those convicted of fourth degree sex offenses to register. The issue and the reason for this blog is that the new statute was specifically designed to apply retroactively.

This retroactive application is legally problematic and possibly Unconstitutional in my view in certain instances. The Court of Appeals has already approved retroactive increases in the term of registration in the case of Young v. State. The Court ruled that sexual offender registration did not expose the defendant to to a greater penalty but was instead a remedial requirement for the protection of the public.

The real questionable application of the new law, that in my view can be differentiated from a mere increase in the term of registration, is the imposition of a retroactive requirement to register on people who were convicted of fourth degree sex offense and were not originally ordered to register as a result of their conviction. ( Prior to the change in the law it was left to the discretion of the trial court as to whether to require registration for fourth degree sex offenses and it was rarely ordered).

In particular I think this application becomes even more problematic when retroactive registration is applied to a defendant who pled guilty to a fourth degree sex offense when a specific component of the guilty plea was that he or she would not be required to register. This application I believe deprives the defendant of the benefit of the bargain that he or she reached with the State and therefore renders the guilty plea retroactively involuntary. I have a client who is in this situation right now based on a plea she entered last year. Here are the facts:
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As a Baltimore Maryland Criminal Attorney I have always found that among the most difficult types of cases to defend is the client who is wrongfully accused of a https://www.silvermanthompson.com/lawyer-attorney-1300820.html. I have blogged about this issue in the past but I am currently representing someone whose situation is a little different that most of my past cases. In most of the cases like this that I have handled, the issue was consent. There was never any question in these cases that sexual contact had occurred between the parties. The issue was did the woman consent or was she forced in some way or simply too intoxicated to validly consent?

The case that I am currently handling is even more difficult because the charges are an outright fabrication. As we all know, it is extremely difficult to prove a negative, that is, prove that something did not happen. This is precisely what we are faced with in this case because the alleged incident simply never occurred. Here are the facts:
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A new list ranking U.S. cities with the the most drunk driving offenders only confirms what most experienced Baltimore criminal defense attorneys already new-Baltimore has made the list. Charm City came in at #18 on the list appearing on Insurance.com.

The list ranks the number of drivers with alcohol related convictions among the top most populous cities in the U. S. San Diego ranked No. 1, followed by San Jose, Charlotte, Phoenix and Columbus, Ohio.

The only surprising thing to me about the list is Baltimore did not rank higher. I suspect that is because either PBJs are not reported or many offenders find a way to beat the charges.
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When persons under the age of 18 are criminally charged as adults in Maryland, the defendant has the right to ask the adult court to “waive” the defendant back to juvenile court. A successful waiver hearing could be life changing to a minor defendant.

Take, for example, the recent case of white supremacist Calvin Lockner. Lockner and two minors were recently arrested in a high-profile attack of a 77 year old black fisherman named James Privott. All three men were charged as adults. My client, Emmanuel Miller 16 and the other minor defendant Zachary Watson asked a Circuit Court Judge to transfer each of their cases from adult court to juvenile court. The court was persuaded by my argument and sent Miller’s case to juvenile court. Watson, who was represented by a different attorney, did not fair so well and is being prosecuted as an adult.

The effect on each of their lives is profound. Privott, for example, has agreed to a plea bargain of 31 years. My client Miller, on the other hand, will be provided social services, vocational training and educational services up to his 21st birthday. How his life turns out beyond that is any one’s guess, but there is hope. Because of a successful juvenile waiver hearing, this young man will not be warehoused for the next 30 years of his life.
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As an experienced Maryland criminal defense attorney, friends are always asking me “how do I beat a DUI?” Ironically, this question most comes up during, you guessed it, cocktail parties. My first response is automatically “don’t drink an drive.” Of course, no one wants to hear that response and the inevitably follow-up question is “seriously, what do I do if I am pulled over?”

This is a complex question, because the question of “what do I do?” begs the question of “how much did you have to drink?”.

Assuming the answer is “allot” or “too much”, the law allows for just about any Maryland driver to beat an otherwise certain DUI, albeit at a price (which we will get into later).
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I have represented both businesses and individuals before the Maryland Securities Commissioner on both civil and criminal charges stemming from selling unregistered securities. Most are under the impression that these enforcement actions by the Commissioner are civil in nature. Although this is most often the case, a criminal prosecution could result as well.

Selling unregistered securities or acting as an unregistered sales agent in Maryland is potentially punishable both with fines and imprisonment. Such penalties are contained in Title 11, the Maryland Securities Act, in the Corporations and Associations Article of the Maryland Code rather than the Criminal Law Article. Criminal penalties, however, are only likely to be imposed when a person willfully violates a provision of the Maryland Securities Act or an order of the Attorney General Securities Commission. MD. CODE., CORPS. & ASS’NS § 11-705. The statute specifically points out that “a person may not be imprisoned for the violation of any rule or order if the person proves that the person had no knowledge of the rule or order.” MD. CODE., CORPS. & ASS’NS § 11-705(a)(3).

While selling unregistered securities or acting as an unregistered sales agent are acts that could possibly be committed in conjunction with codified crimes such as embezzlement or larceny, there is not a specific statute in the Maryland Criminal Law Article that criminalizes selling unregistered securities or acting as an unregistered sales agent. Nevertheless, the Maryland legislature has enacted the Maryland Securities Act in Title 11 of the Corporations and Associations Article of the Maryland Code. The Division of Securities in the Office of the Attorney General is in charge of administering the Maryland Securities Act and can bring court action against violators of the Act. MD. CODE., CORPS. & ASS’NS § 11-201(a).

The Act states that a person violates the Maryland Securities Act if the person acts as a broker-dealer or agent and transacts business in the State of Maryland without being registered. MD. CODE., CORPS. & ASS’NS § 11-401. After giving notice and conducting a hearing, the Commissioner of the Division of Securities may fine any broker-dealer or agent up to a maximum amount of $5,000 for any single violation of the Maryland Securities Act. MD. CODE., CORPS. & ASS’NS § 11-417.
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As a Baltimore Maryland Criminal Attorney I have written frequently about the critical importance choosing the right lawyer if you find yourself charged with a serious felony. As I have noted in the past there are many lawyers out there who are primarily domestic or accident lawyers or have other specialties who occasionally take on a criminal case very often with tragic results for the client. These bad results for the client are usually the result of inexperience and lack of expertise by lawyers who don’t regularly operate in the criminal realm. These lawyers should not take these cases but the simple fact is that they do.

I don’t mean to impugn the integrity of these lawyers as I’m sure that they have convinced themselves that they are in fact qualified to handle criminal cases and may even have successfully resolved the majority of the few criminal cases they have handled. But it only takes one mistake to have devastating consequences on your life if that mistake is made on your case. I handled a domestic violence assault and handgun case in Baltimore County Circuit Court recently that illustrates this reality in rather stark terms. Here are the facts:
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https://www.silvermanthompson.com/lawyer-attorney-1300820.htmlAggressive Maryland Criminal Attorneys handle a wide variety of criminal cases. Among the most common types of cases we see are domestic violence or family violence assaults. Prosecutors and Police categorize a case as domestic violence if it involves people who are involved in a romantic relationship whether or not they are married or children.

As noted, these cases are increasingly common in the District and Circuit courts primarily because the police and prosecutors have become increasingly aggressive over the past few years in investigating, charging and prosecuting these matters. In many cases by the time these matters make it to court the parties have reconciled and the alleged victim will not cooperate with the authorities in the prosecution of the case. In other cases the alleged victim exaggerates or even fabricates the incident entirely because of some other motivation such as child custody or simple revenge. I tried a case falling into this latter category this week in the District Court for Baltimore County. Here are the facts:
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Maryland criminal defense attorneys are seeing more prosecutions involving the exploitation of vulnerable adults. Section 8-801 of the Maryland Code Annotated, Criminal Law provides for a criminal action against a person who exploits a vulnerable adult. The elements are:

1. The victim is a vulnerable adult
a. A vulnerable adult, as defined in § 3-604 of the Criminal Law Article is an adult who lacks the physical or mental capacity to provide for the adult’s daily needs.
b. § 8-801(b)(2) prohibits exploitation of an individual who is “at least 68 years old” and does not appear to require the victim in this case to be classified as a “vulnerable adult”
2. The defendant knew or should have known that the victim was a vulnerable adult 3. The defendant knowingly and willfully obtained possession to the victim’s property by deception, intimidation, or undue influence, and a. Undue influence does not include the normal influence that one member of a family has over another member of the family, but means domination and influence amounting to force and coercion such that the vulnerable adult of individual over 68 years old was prevented from exercising free judgment and choice.
b. Deception is defined in § 7-101 and states that deception occurs when “a person knowingly either creates or confirms in another a false impression that the offender does not believe to be true or fails to correct a false impression that the offender previously has created or confirmed.
4. The defendant intended to deprive the victim of her property.

A person is guilty of conspiracy to exploit a vulnerable adult under Section 8-801 where the State can prove that:

a. An unlawful agreement was entered into by two or more persons,
b. To deprive a vulnerable adult of the vulnerable adult’s property by deception, intimidation, or undue influence.
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https://www.silvermanthompson.com/lawyer-attorney-1300820.htmlExperienced Maryland Criminal Attorney’s probably handle more simple drug possession cases than just about any other kind of case in the system. On any given District Court Docket in any jurisdiction in Maryland, a large percentage of the cases will be simple possession cases. Although the majority of these cases so not result in incarceration of the defendant they nonetheless need to be taken seriously as a conviction for possession can result in a permanent criminal record even for first time offenders. Second or subsequent offenders are all but certain to end up with a permanent criminal record and possible jail time, as Maryland Law only allows a person to receive probation before judgment one time for a drug conviction whether it be possession of CDS or possession of CDS with the intent to distribute.

I successfully defended a case in Baltimore County District Court this week in which my client was in this exact position. He was charged with simple possession of marijuana having been caught by the police with just a few grams of the banned substance. Unfortunately for him, he had received probation before judgment for a possession charge a few years ago and was therefore barred by law from receiving this disposition a second time. Here are the facts:
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As a Baltimore Maryalnd Criminal Attorney I am often hired to try to secure a defendants’ release on bail. Generally speaking, when a person is arrested by the police and charged with a criminal offense in Maryland, the law requires that the person be brought before a court commissioner within 24 hours. The commissioner will conduct a hearing in which he or she will explain to the person what they are charged with, what the maximum penalties are and their right to an attorney. The commissioner will then set the conditions of the person’s pre-trial release to include bail.

Many people make the mistake of not hiring counsel at this point to advise them as to how the bail can be posted at this point or whether the person should wait to see a Judge at a bail review hearing. These hearings are required to take place on the the next day in which the courts are open so very often it is only a matter of hours until this hearing. The reason I say it is a mistake not have the advice of an experienced criminal attorney at this point is that the commissioners, who are not attorneys much less judges and generally speaking have little or no legal training, very often set bails that are much higher or much lower than the amount at which a judge is likely to set in the case. Many people are unaware that in Maryland a judge may not only lower the defendant’s bail at the bail review hearing but can also raise it. An experienced and aggressive attorney may even be able to determine which judge will be handling the bail review and know what that judge’s tendencies are. Sometimes the advice may be to bail the person out before the hearing. In other circumstances it may be to wait for the hearing if the attorney knows who the judge is and is confident that the bail will be lowered if the person is properly represented at the hearing.
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This criminal defense issue arises in situations where an unknown person makes a 911 call and the prosecutor tries to use the tape against a criminal defendant at trial. In State v. Parker, 365 Md. 299 (2001), the Maryland Court of Appeals confronted the issue of whether the statements of two unidentified declarants to a police officer following a shooting were admissible. In determining whether the statements of the unidentified declarants were properly admitted by the trial court under the excited utterance hearsay exception, the appellate court observed that:

Where the identity of the hearsay declarant is unknown, the courts hold that the party seeking to introduce the excited utterance carries a heavy burden to prove the requisite indicia of reliability. It is held that the burden of the proponent is heightened, primarily because it is more difficult to establish personal observation and spontaneity where the declarant is unknown. Id. at 314.

The court analogized the facts of that case to a Third Circuit case involving unknown declarants at the scene of a car accident. In the Third Circuit case, the court found that the proponent of the hearsay statement had not satisfied the heavy burden of admissibility because “the record…was void of any circumstances from which it could be inferred that the declarant personally observed the accident and that the declarant was excited when he spoke.” Id.

Furthermore, under Crawford v. Washington, some of the statements made by the 911 caller were testimonial. These statements “were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Crawford, 541 U.S. 36, 52 (2004). In further defining the nature of testimonial statements, the Supreme Court in Davis v. Washington concluded that statements made to a 911 operator that are not related to assisting in an ongoing emergency are testimonial. 547 U.S. 813, 827-28 (2006).
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Federal criminal defense lawyers are often faced with the issue of “double counting” when dealing with white-collar crimes sentencing. Double counting occurs when “one part of the [Sentencing] Guidelines is applied to increase a defendant’s punishment on account of a kind of harm that has already been fully accounted for by application of another part of the [Sentencing] Guidelines.” U.S. v. Pena, 339 F.3d 715, 719 (8th Cir. 2003) (quoting U.S. v. Hipenbecker, 115 F.3d 581, 583 (8th Cir. 1997)). However, a trial court does not double count for purposes of the Sentencing Guidelines by enhancing an offense level for two or more reasons when those reasons “address conceptually separate sentencing notions.” U.S. v. Phillips, 506 F.3d 685, 688 (8th Cir. 2007).

Loss is broadly defined as the greater of actual loss or intended loss. U.S.S.G. § 2B1.1 commentary 3(A). Actual loss is “the reasonably foreseeable pecuniary harm that resulted from the offense.” Id. Intended loss is (1) “the pecuniary harm that was intended to result from the offense” and (2) “includes intended pecuniary harm that would have been impossible or unlikely to occur.” Id.

The commentary to U.S.S.G. § 2B1.1 defines “gross receipts from the offense” to include all property, real or personal, tangible or intangible, which is obtained directly or indirectly as a result of such offense. See 18 U.S.C. § 982(a)(4) which defines “gross receipts from the offense” in the context of criminal forfeiture. The commentary also explains that “for purposes of subsection (b)(14)(A), the defendant shall be considered to have derived more than $1,000,000 in gross receipts if the gross receipts to the defendant individually, rather than to all participants, exceeded $1,000,000.” Specifically, the defendant is only liable for gross receipts that the defendant, himself, received as a result of the criminal activity.
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Many defendants charged with DUI in Maryland are dismayed to find out that not only do they have to go to court and face criminal charges, but they must also fight the MVA in a separate proceeding. Even if the criminal defendant is found “not guilty” of all charges in criminal court, the MVA may still suspend the defendant’s driver’s license on separate grounds.

The Maryland Court of Special Appeals ruled in Johnson v. State (1991) that this DOES NOT amount to double jeopardy. The bases of the MVA administrative hearing is to determine if the driver “broke his agreement” with the state when he was issued his license and agreed not to “drink and drive.”
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