Maryland Criminal Attorney Blog

Maryland Criminal Attorney - Baltimore Criminal Attorney I represented a client today on a possession with intent to distribute a controlled dangerous substance case today in the Circuit Court for Baltimore County. In this case the particular substance was amphetamines and the case presents a good example of how many narcotics detectives overcharge certain cases - presumably to inflate their own felony arrest statistics.

In this case the client was pulled over for a routine traffic offense. The officer claimed, as they frequently do, that he smelled the odor of burning marijuana coming from the car. (The Court of Appeals ruled approximately 15 years ago that the smell of marijuana alone constitutes probable cause. As one might imagine after that ruling was handing down, police officers across Maryland began to smell marijuana on car stops with increasing frequency). The officer ordered my client out of the car and commenced a search of the vehicle. Inside the vehicle the officer found a small amount of cocaine and two percocets, which for anyone who doesn't know, is a prescription narcotic. He arrested my client and charged him with possession of a controlled dangerous substance.

Continue reading " Overcharging in Baltimore County Narcotics Case - A Common Practice " »

Our firm has represented both doctors and and Web sites who are under investigation or have been charged with prescribing controlled substances via the Web.

The growing number of Web sites that offer consumers the opportunity to obtain prescription medications pursuant to an online medical consultation have been attracting considerable regulatory scrutiny from state and federal health officials.

For example, in Illinois, the Department of Professional Regulation suspended the license of Dr. Robert Filice for prescribing Viagra via an Internet pharmacy for patients he had never seen. Dr. Filice was working as a consultant for The Pill Box, a San Antonio, Texas-based pharmacy chain that sells online. The state suspended Dr. Filice's license immediately because it determined his actions put people in danger. The agency later reinstated his license when he admitted that his conduct was "unprofessional." The physician was fined $1,000, put on a two-year probation, and ordered to not prescribe medication to patients without personally interviewing and examining them.

Patients who wanted a prescription drug like Viagra logged onto The Pill Box's site and filled out a health questionnaire. The completed form went to the company's medical consultants, including Dr. Filice, who would reviewed the forms, and, if he found no health conditions that would preclude him from prescribing the drug, he would write a prescription for the drug, which the Pill Box would fill.

Many state legislators have passed or are considering bills to regulate online and mail-order pharmacies that sell products in the state. The laws would require Internet pharmacies to register with the state annually.

Recent enforcement actions in several other states highlighted below are indicative of this increased scrutiny at the state level:

• In Washington, the Board of Health fined an orthopedic surgeon $500 for engaging in "unprofessional conduct" by writing Viagra prescriptions for patients without performing a physical examination.

• In California, state regulators recently shut down two web sites—www.drpropecia.com and www.deyarmanmedical.com.com—run by a San Diego osteopath who was using the Web to prescribe baldness treatments without performing a traditional medical examination. The state is likely to fine the doctor, who has been practicing medicine for nearly a quarter-century, and could take away his license.

• In Kansas, the Attorney General on June 9 filed civil petitions alleging violations of consumer protection laws against seven companies that were selling prescription-only medications, including Viagra and weight-loss drugs, over the Internet. The Attorney General alleged that the companies violated a variety of state laws. Primarily, the alleged misdeeds stem from the distribution of prescription drugs by a doctor or pharmacist who was not licensed in the state. The state went after not only the sites that prescribe the medications, but also three pharmacies that filled the prescriptions. One of the suits alleges that Viagra was illegally dispensed to a 16-year old boy using his mother's credit card. If found liable, the companies could face penalties of $5,000 to $10,000 per violation.

Continue reading " Online Prescribing of Controlled Substances " »

When the federal Sentencing Guidelines were first implemented in the late 1980’s, federal judges quickly became frustrated with a new system that virtually tied their hands in terms of deciding an appropriate criminal sentence. Prior to the Guidelines, federal judges had wide discretion in imposing sentences on those who pled guilty or were convicted in federal court. The judges could take into consideration the full picture of the defendant – not only the crime he or she was charged with but also his or her family, background, education, and expression of remorse. The Guidelines dramatically changed that system, and set forth rather rigid – and mandatory -- Guidelines. Whether the defendant had been accused of an intricate white collar financial fraud scheme, racketeering, drug distribution, or conspiracy to sell illegal weapons, the Guidelines left very few mechanisms for the judges to allow for any leniency or exceptions.

I remember when the Guidelines went into effect, my uncle, the late Norman P. Ramsey, Judge, U.S. District Court for the District of Maryland, never missed an opportunity to express his frustration – whether on the bench or at a family gathering. Were my uncle still alive, he would now be thanking the Supreme Court, which three years ago swung the pendulum back toward the pre-Guideline days.

In Booker v. United States, 125 S.Ct. 738 (2005), the Supreme Court ruled that the Federal Sentencing Guidelines are advisory provisions that recommend a particular sentencing range, rather than require it. Rather than simply impose a sentence within the recommended Guideline Range, a sentencing Judge must “consider the guideline range” but tailor the sentence in light of other statutory concerns as well,” particularly those set forth in 18 U.S.C. §3553(a). See Booker, 125 S.Ct. at 757. In the wake of Booker, the Fourth Circuit found plain error in a sentencing and remanded the case to the district court for re-sentencing, with the following instructions to the sentencing court:

Consistent with the remedial scheme set forth in Booker, a district court shall first calculate (after making the appropriate findings of fact) the range prescribed by the guidelines. Then, the court shall consider that range as well as other relevant factors set forth in the guidelines and those factors set forth in § 3553(a) before imposing the sentence. . . . If the court imposes a sentence outside the guideline range, it should explain its reasons for doing so.

United States v. Hughes, 2005 WL 147059, *3 (4th Cir. Jan. 24, 2005)(citations and footnote omitted). The Fourth Circuit noted that in light of the excision of § 3742(e) by the Supreme Court, it would affirm a sentence “as long as it is within the statutorily prescribed range . . . and is reasonable.” Id. (citations omitted).

Continue reading " JUDGES’ HANDS NO LONGER TIED IN FEDERAL SENTENCING " »

In establishing a process by which a sentencing judge may depart outside the guideline range, the Federal Sentencing Commission recognized that “it is difficult to prescribe a single set of guidelines that encompasses the vast range of human conduct potentially relevant to a sentencing decision.” U.S.S.G. ch. 1, pt. A, intro. comment 4(b).

Cognizant of the fact that unusual or atypical cases would arise, the Sentencing Commission explicitly reserved a certain degree of flexibility to the sentencing court: “The Commission intends the sentencing courts to treat each guideline as carving out a ‘heartland,’ a set of typical cases embodying the conduct that each guideline describes.” Id. However, a departure may be warranted where “a particular guideline linguistically applies but where conduct significantly differs from the norm.” Id. Unless specifically forbidden, the Commission, in creating the Sentencing Guidelines, did “not intend to limit the kinds of factors, whether or not mentioned anywhere else in the guidelines, that could constitute grounds for departure in an unusual case.” Id. See also Koon v. United States, 518 U.S. 81, 98 (19__)(recognizing departure decisions as “embod[ying] the traditional exercise of discretion by a sentencing court”).

Although the Federal Sentencing Guidelines are now advisory, most federal judges rely on the guidelines as a baseline for sentencing. It is critical that a federal crimes attorney be familiar with the vast universe of available downward departures available for his client.

For further information regarding downward departures in Federal criminal cases, please consult former Assistant United states AttorneyAndrew C. White for a complimentary consultation.

In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Supreme Court held that in certain defined circumstances a defendant can attack a facially sufficient affidavit. The Franks Court recognized a "presumption of validity with respect to the affidavit supporting the search warrant," 438 U.S. at 171, 98 S.Ct. at 2684, and thus created a rule of "limited scope," id. at 167, 98 S.Ct. at 2682. The rule created by the Franks decision requires that a dual showing be made before a court will hold an evidentiary hearing on the affidavit's integrity. This showing incorporates both a subjective and an objective threshold component. In order to obtain an evidentiary hearing on the affidavit's integrity, a defendant must first make "a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit." Id. at 155-56, 98 S.Ct. at 2676-77. This showing "must be more than conclusory" and must be accompanied by a detailed offer of proof. Id. at 171, 98 S.Ct. at 2684.

In addition to showing that the affidavit contains false information, a defendant must show that the false information is essential to the probable cause determination. That is, if a court finds that “when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required." Id. at 171-72, 98 S.Ct. at 2684-85.

The Franks test not only applies to cases where false information is included in an affidavit, but also applies when affiants omit material facts "with the intent to make, or in reckless disregard of whether they thereby made, the affidavit misleading." United States v. Reivich, 793 F.2d 957, 961 (8th Cir.1986) and United States v. Colkley, 899 F.2d 297, 300 (4th. Cir.1990).

Continue reading " Overview of Franks Hearings in Federal Criminal Cases " »

Government wire interceptions must be conducted in a manner to minimize interceptions of communications not subject to interception. 18 U.S.C. Section 2518(5). Minimization embodies the constitutional requirement of avoiding, to the greatest extent possible, seizure of conversations which have no relation to the crimes being investigated or the purpose for which electronic surveillance has been authorized. United States v. Clearkley, supra, 556 F.2d at 715 & n.3 (and cases and authorities cited therein). Law enforcement personnel must exhibit a high regard for the right to privacy and do all they reasonably can to minimize interceptions of non-pertinent conversations. Id. at 716; United States v. Tortorello, 480 F.2d 764, 784 (2nd Cir.), cert. denied, 414 U.S. 866 (1973).

The minimization concept is tested on a case by case basis under a standard of reasonableness. United States v. Clearklev, supra, Id.; United States v. Webster, 473 F.Supp 586, 597, (D.Md. 1979), aff’d in part, 639 F.2d 174 (4th Cir. 1981), cert. denied, sub-named 454 U.S. 857 (1982). The Order directs that electronic surveillance "shall be conducted in such a way as to minimize,, non-pertinent calls.

Title 18, U.S.C. Section 2515 expressly prohibits disclosure of information obtained from intercepted communications if disclosure would be in violation of Title III. This exclusionary measure is triggered where a communication was unlawfully intercepted, where the order authorizing the interception is facially insufficient, or where the interception was not made in conformity with the order. 18 U.S.C. Section 2518(10)(a). The Supreme Court has held that suppression is mandated wherever an interception fails "to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept-procedures to those situations clearly calling for the employment of this extraordinary device." United States v. Giordana, 416 U.S. 505, 527 (1974) (quoted in United States v. Donovan, 429 U.S. 413, 433-34 (1977). See also United States v. Chaves, 416 U.S. 562, 575 (1974). This Court, writing for the U.S. Court of Appeals for the Fourth Circuit, has observed that Donovan, Chaves and Giordana require suppression of those instances where law enforcement agents violate Title III in bad faith. United States v. Couser, 732 F.2d 1207, 1209 (4th Cir. 1984).

For further information regarding wiretap law in Federal cases, please contact us for a complimentary consultation.

The purpose of the insanity defense in Maryland is to ensure that the criminal sanction is imposed only on those who had the cognitive and volitional capacity to comply with the law. Robey v. State, 54 Md.App. 60, 73, 456 A.2d 953, 960 (Md.App. 1983).

The test to determine whether a defendant is not criminally responsible for certain conduct is twofold. The Code of Maryland dictates that, “a defendant is not criminally responsible for criminal conduct of, at the time of that conduct, the defendant, because of a mental disorder or mental retardation, lacks substantial capacity to: (1) appreciate the criminality of the conduct; or (2) conform that conduct to the requirements of the law.” Md. Code Ann., Crim. Proc. §3-109(a). “The burden is on the defendant to establish to the defense of not criminally responsible by a preponderance of the evidence.” Md. Code Ann., Crim. Proc. §3-110(b). Once the defendant has provided sufficient evidence of mental disorder to rebut the presumption of sanity, the burden then shifts to the State to prove sanity beyond a reasonable. Robey, 54 Md. at 75.

The first prong of this test requires that a defendant was suffering from a mental disorder at the time that the crime was committed. Mental disorder is defined in the Code as “a behavioral or emotional illness that results from a behavioral or emotional illness that results from a psychiatric or neurological disorder.” Md. Code Ann., Crim. Proc. §3-101(g)(1). “Mental disorder includes a mental illness that so substantially impairs the mental or emotional functioning of a person as to make care or treatment necessary or advisable for the welfare of the person or for the safety of the person or property of another.” Md. Code Ann., Crim. Proc. §3-101(g)(2). For example, in Evans v. State, the Maryland Court of Appeals found that an amnesic episode was not shown to be a mental disorder because it was not shown to be a mental, emotional, or behavioral illness. Evans v. State, 322 Md. 24, 31 (Md. 1991). It is important to note, however, that the court also based its holding on the reasoning that the defendant had not produced sufficient evidence to support its expert’s finding of an amnesic episode. Id. In addition, “for purposes of this section, ‘mental disorder’ does not include an abnormality that is manifested only by repeated criminal or otherwise antisocial conduct.” Md. Code Ann., Crim Proc. §3-109(b).

The second prong of the test requires that the defendant could not conform her actions to the law or appreciate the criminality of her conduct because of her mental disorder.

It is the responsibility of the defendant to raise the issue of criminal responsibility. “If a defendant intends to rely on a plea of not criminally responsible, the defendant or defense counsel shall file a written plea alleging, in substance, that when the alleged crime was committed, the defendant was not criminally responsible by reason of insanity under the test for criminal responsibility,” as it is defined in the Maryland Code. Md. Code Ann., Crim. Proc. §3-110(a)(1). The written plea should be filed at the time of the defendant’s initial hearing, although the court can allow the plea to be filed later for good cause shown. Md. Code Ann., Crim. Proc. §3-110(a)(2). Without this written plea, however, a court may not enter a verdict of not criminally responsible. Md. Code, Crim. Proc. §3-110(d).

For more information regarding the insanity defense in Maryland criminal cases, please contact Steve Silverman.

A Maryland Lawyer Referral Service refers many cases to mdattorney.com. As a Maryland Criminal Attorney or Maryland Criminal Lawyer I regularly handle cases involving allegations of both sexual child abuse and physical child abuse. In most physical child abuse cases, the issue of the parental discipline privilege is central to the defense. I had a case last week in Baltimore County in which my client was charged with child abuse as well as misdemeanor assault but before I get to that particular case I think an overview of the law on child abuse as well as the parent discipline privilege will be helpful.

The Child Abuse Section of Maryland Criminal Code was last Amended in 2002. In this Amendment the Legislature separated child abuse into two degrees, first and second degree. First degree child abuse states that a parent or any other person with permanent or temporary custody of a child may not cause the death or "severe physical injury" of a child. Severe physical injury is defined by the Code to mean brain injury or bleeding within the skull, starvation, or physical injury that creates a substantial risk of death or causes permanent or protracted serious disfigurement or impairment of the function of any bodily member or organ. First degree child abuse is a felony and any person convicted under this section is subject to imprisonment of up to 25 years.

Continue reading " Child Abuse and the Parental Discipline Privilege - Baltimore County Maryland Attorney Discusses Recent Case " »