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).
]]> Comes now the Petitioner, Arthur W., inmate # 337993. Who is presently incarcerated in the Division of Corrections Roxbury Correctional Institute 18701 Roxbury Rd Hagerstown, Maryland 21746, by and through his attorney, Brian G. Thompson, and respectfully moves this Honorable Court for relief, pursuant to Article 27, § 645 (a) of the Annotated Code of Maryland and Rule 4-401 through 4-407 of the Maryland Rules of Procedure, as well as Maryland Rules of Procedure 4-345 (a) and in support thereof states as follows: Any person convicted of a crime and either incarcerated under a sentence
of death or imprisonment or on parole or probation may institute a
proceeding under this subtitle in the circuit court for the county to set
aside or correct the sentence, provided the alleged error has not been
previously and finally litigated or waived.
CP 7-102 describes the circumstances under which allegations are deemed to be finally litigated:
(1) For the purpose of this subtitle, an allegation of error shall be deemed
to be finally litigated when the appellate court of the State has rendered a decision on the merits thereof, either upon direct appeal or upon consideration of an application for leave to appeal filed pursuant to CP 7-102 of this subtitle, or when a court of original jurisdiction, after a full and fair hearing, has rendered a decision on the merits thereof upon a petition for a writ of habeas corpus or a writ of coram nobis, unless said decision upon the merits of such petition is clearly erroneous.
IV. INTRODUCTION
Petitioner’s convictions and sentences are unlawful and unconstitutional and
should be vacated for the reasons set forth below. Petitioner’s trial attorney did not raise many of the claims raised herein. However, Petitioner did not intelligently or knowingly fail to allege these grounds previously because he was never advised of his right to do so, either by his trial attorney, appellate attorney, or by the trial court.
These claims asserted herein are fundamental rights that are cognizable in a post-conviction proceeding. This Court should not impose a procedural bar to Petitioner’s claims set forth in this Petition for Post Conviction Relief. Such a procedural bar would be inconsistent with the waiver standard codified in CP 7-102 and would be unduly prejudicial to Petitioner.
V. INEFFECTIVE ASSISTANCE OF COUNSEL STANDARD
The legal standard to be applied to determine whether there has been ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668 (1984). Strickland defined a two part test, summarized in State v. Tichnell, 306 Md. 428 (1986), cert. Denied, 107 S.Ct. (1986), reh’g denied, 107 S.Ct. 942 (1985):
In Strickland the Supreme Court considered the proper standard for
judging a criminal defendant’s contention that counsel’s assistance was so
defective as to require the reversal of a conviction or death sentence. In it
analysis, the Court said: “The benchmark for judging any claim of
ineffective assistance must be whether counsel’s conduct so undermined
the proper functioning of the adversarial process that the trial cannot be
relied on as having produced a just result.” A two-part test was articulated
in Strickland, i.e., that to establish a claim of ineffective assistance of
counsel the defendant must show both that (1) counsel’s performance was
deficient and (2) that the deficient performance prejudiced the defense.
For a deficiency, Strickland requires the defendant to prove counsel’s acts or omissions resulted from unreasonable professional judgement and that counsel’s performance failed to meet an objective standard of reasonableness. “Moreover, the defendant must overcome a presumption that the alleged acts or omissions might be the result of a sound trial strategy.” Id., at 441. For prejudice the defendant must show that counsel’s errors were so serious that they deprived the defendant of a fair trial, a trial whose result is reasonable. Id., at 440-41
Continuing comment on the prejudiced aspect, the Tichnell court said:
“It is not enough for the defendant merely to show that the error has some
conceivable effect on the outcome of the proceedings, or that the errors
impaired the presentation of the defense. The burden is on the defendant
to establish that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Furthermore, a
reasonable probability is a probability sufficient to undermine confidence
in the outcome.” Id. 306 Md. at 441-42.
In Bowers v. State, 320 Md. 416 (1990) the Court of Appeals interpreted Strickland and modified the reasonable probability test. The “reasonable probability” that but for counsel’s conduct the result would have been different was in Bowers transformed to a “substantial probability” standard with the Court stating:
“The evidence may well have produced a different result, that is, there was
a substantial or significant possibility that the verdict of the trier of fact
would have been affected.” Id. 426-427.
It is thus the “substantial possibility” standard, which binds Maryland Courts today.
In addition the Bowers, Court concluded that it was possible for numerous small errors to culminate in a finding of ineffective assistance of counsel.
“Nevertheless we shall do so because an alternative ground for our holding is that
the cumulative effect of numerous errors on the part of Reddick also deprived
Bowers of the effective assistance of counsel. Id. 429
VII. CLAIMS
Applying the “substantial probability” test to Petitioner’s case, it is clear that one
error alone, failing to apply Florida v. J.L. to the facts of his case, is sufficient to established trial counsel’s ineffectiveness.
Petitioner, Arthur, hired Mr. ______, Esquire to represent him in
Baltimore County Circuit Court Case 04CR1806. The Petitioner was charged with Possession with Intent to Distribute. On the date of trial Mr. _______sent a substitute counsel in his place. In a subsequent motion for new trial Mr. admitted to Judge Turnbull that he instructed Mr. _________ to attempt to work the case out but if it couldn’t be worked out Mr. Mentzer would come out and try the case. Disposition and Motion November 17, 2004 Page 2 Line 12-17.
Instead of following Mr._______, instructions Mr. ________ engaged in an unsuccessful motion to suppress, followed by a NGSF, culminating in a three year with all but six month suspended sentence for Petitioner. In his motion to suppress Mr. Atkinson failed to raise and apply black letter law, which would have led to suppression of the evidence against Petitioner and an acquittal.
Mr.______ failed to raise in his motion to suppress the Supreme
Court case of Florida v. J.L. 529 U.S. 266 (2000). Florida v. J.L., in which a unanimous Supreme Court holds that an anonymous tip that a person is carrying a gun, without more, is insufficient to justify a stop and frisk of an individual. In Florida v. J.L., an anonymous tipster stated a young black male, in a plaid shirt, possessed a gun at a particular bus stop. The police located the individual searched him and recovered a gun.
In this case the Officer Tufts admitted that an anonymous subject, the officer met at a location on the street, said a black male in a black hat had threatened him with a gun. After a canvas of the area the Petitioner, a black male wearing a black hat, was located and the officer asked him to put his hands up and approach the officer. As the Petitioner approached the officer the officer drew his service revolver seizing the Petitioner. Based on Florida v. J.L. this seizure was unlawful and if raised by defense counsel would have led to the suppression of the evidence and the defendant’s acquittal. Therefore, defense counsel was ineffective.
One of the last statements made by Mr. _______ is a startling admission as to the level of ineffectiveness Petitioner received through his lawyers. Mr _________, said, “I’ve indicated to Mr. ___________, if you would give him a new trail I will refund his fee and he can get other counsel.” Disposition and Motion November 17, 2004 Page 4 Line 13-15.
Further, there were specific arguments Mr. _________, could have made to challenge the arrest as unconstitutional. This includes that the arrest, for disorderly conduct was illegal. On the stand Officer Tufts testified that after chasing Petitioner he placed him under arrest for Disorderly Conduct. Mr. _________, failed to argue that the mere act of running from the police does not constitute Disorderly Conduct.
In fact, if Officer Tufts were chasing the defendant because he believed he was the person that pointed the gun at the unknown victim, his reasonable articulable suspicion would have been dispelled when he patted down the Petitioner and failed to find a weapon. Instead he placed the defendant under arrest for disorderly conduct, a crime for which the Petitioner’s actions did not fit. It wasn’t until this arrest and subsequent search of the defendant’s pockets that Officer Tufts found the crack cocaine. Even if Officer Tufts has reasonable articulable suspicion to chase and tackle the Petitioner, which Florida v. J.L. refutes, he had no authority to arrest the Petitioner once his pat down turned up no evidence to corroborate the unanimous tip. His arrest for disorderly conduct was a sham to search a man who should not of been stopped in the first place.
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.
]]> In Maryland, a juvenile can be, actually must be, charged as an adult in the first instance (that is original jurisdiction vests with the Circuit Court) if the child is charged with any of the following crimes:The Circuit Court (adult system) also has original jurisdiction over a child who is 14 or 15 years old if he or she is charged with an offense which carries either life imprisonment or the death penalty if committed by an adult (pursuant to both Maryland law as well as a recent Supreme Court decision, a person may not be executed for any crime committed while the person was under the age of 18) which includes first degree murder, first degree rape or sexual offense or any attempts of these offenses. Unfortunately, we had a tragic example in Baltimore County recently of a 15 year old being charged as an adult in the Nicholas Browning case, a case in which a 15 year old murdered his father, mother and two younger brothers. (Browning recently entered into a guilty plea to two counts of first degree murder and faces consecutive life terms in prison when sentenced).
Also in any other case a 15 year old can be tried as an adult if the court grants the State's motion for waiver of jurisdiction. The State will sometimes file these motions for cases of possession with the intent to distribute cocaine, heroin, marijuana or other drugs or other felonies if the juvenile has a particularly bad record. Once this motion is filed the court will order the Department of Juvenile Services to conduct a study of the juvenile and will make it's determination as to whether to order the case to be transferred to the adult system based on five factors: the age of the child, the mental an physical condition of the child, the child's amenability to treatment, the nature of the offense and the child's participation in it and the public safety.
In the case I had this week my client and four friends were accused of approaching the victim with a knife and demanding money and cigarettes. The victim had no money so the boys are alleged to have taken his cigarettes as well as his cell phone. 3 of the boys were sixteen and were charged as adults. One boy was 15 and was charged as a juvenile. My client, who as I said had only just turned 16 and looks like he is 13, was genuinely shocked to realize that he could be charged as an adult for. I filed a motion to transfer jurisdiction back to the juvenile division. This week, a hearing was scheduled on this issue but for whatever reason the Department of Juvenile Services had not yet prepared their report and recommendation, which is essentially the same report they prepare when the State moves to waive a juvenile up to the adult system. The case was postponed but I did get the report the next day which recommended transfer back to juvenile which is what I am confident will happen in this case.
]]>
The unusual part of the statute, as compared to most criminal statutes, is that it creates a strict liability standard. What I mean by that is that it doesn't matter whether the child looked older than she really was, whether she told the offender that she was older than she really was or whether he reasonably believed she was older than she really was. The law states that if an adult more than 4 years older than the child under 16, engages in sexual conduct with that child, he is guilty - period. There is no knowledge or intent requirement under this statute hence the standard - strict liability.
The girl had advised my client that she was 18 from when he first met her and by her appearance, she could easily pass for that age. Later that evening my client and the girl went into one of the unoccupied rooms. My client advised her that he believed her that she was 18 but because of his friend going to prison for having sex with an underage girl, he was scared of "jail-bate". He asked her to see her driver's license which she readily produced showing that she was indeed 18. My client and the girl then engaged in consensual sexual intercourse. Unfortunately for my client, it turned out that the driver's license she had was not hers but instead was that of her sister, who was 18 and as is common with sisters, looked quite similar to this girl. It turned out that this girl was actually 15 years old - 15 years 9 months to be exact. She was roughly 41/2 years younger than my client.
Ultimately, the girl stayed out way past her curfew and, after calling several of her friends, her parents determined her location. He father went to the hotel and called the police, who knocked on the door. My client answered the door half asleep in his boxers. The girl was still in the room and was in fact in bed and naked. The police separated the two for questioning and both admitted that they had engaged in consensual intercourse. It was only then that my client found out that she was 15. Even then he believed he was protected because the girl had admitted that she lied about her age and even admitted to having shown him her sister's driver's license. It was a tough pill for him to swallow that it did not matter in the eyes of the law whether he knew she was underage or not.
Because he was essentially caught red handed and had confessed, he had no defense. The real problem for my client was not the threat of incarceration as I knew that State was unlikely to seek it in this case. It was equally unlikely that any judge would incarcerate him given his good faith attempt to ascertain her age as well as the fact that he was only 41/2 years older than she was. The problem was having a conviction for a fourth degree sex offense and the possibility that the judge might require him register as a sex offender, which is within the court's discretion on convictions for fourth degree sex offense (sex offender registration is mandatory for all other sex offenses). Fortunately, the prosecutor who was assigned to the case was very understanding as was the girl's family. The State was still going to prosecute the case but neither the prosecutor, nor the girls' parents wanted his life ruined. Ultimately, I was able to work out a deal for probation before judgment which will allow him to have the matter expunged in 3 years. The judge also agreed not to order him to register as a sex offender.
]]>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).
]]> The benefit of Probation Before Judgement is that a person who receives Probation Before Judgement can honestly say or, for instance put on a job application, that the person was not convicted in the case and has no criminal record. A person who receives Probation Before Judgement is also entitled by law to have the matter expunged in three years or, for good cause shown, sooner. Prior to the amendment the statute only allowed for a judge to incarcerate a person who received Probation Before Judgement in a few of the counties in the State. The reason I say that it is a good thing that the judges are now allowed to incarcerate someone is that it will and has resulted in more people receiving Probation Before Judgement instead of having permanent criminal records that can never be expunged.It is obvious that having a permanent criminal record would be a significant impediment to one's career and life. Prior to the amendment if a judge believed that a period of incarceration was necessary, he/she had no choice but to let the conviction stand because it was not an option to grant Probation Before Judgement and sentence person to jail. (Sentences could be modified at a later date to Probation Before Judgement if a timely motion to modify sentence was filed in the case. But too often these motions either don't get filed, are followed through with or are denied by judges who are sometimes reluctant to change their original sentence). Since the amendment to the statute, judges routinely sentence first time offenders in drug cases or other non-violent offenses to short sentences ( a few days or months) in exchange for not have to spend the rest of their lives as a convicted criminal. The short period in jail is a very small price to pay to avoid that permanent scarlet letter.
]]>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.
]]> Section 5C1.2 allows guideline reduction and relief from mandatory minimum sentences when 1) a defendant ‘s criminal history is one point or less under the guidelines, and 2) the defendant truthfully discloses before sentencing everything the defendant knows about his own actions and those who participated in the crime with him. While a defendant is not required to testify in court or become a cooperator, the section does requires that he sit down with federal agents and prosecutors and tell them everything he knows about the charged crime. While a defendant won’t be a witness against others in his case, he still must tell on them. Government agents can affirmatively use the defendant’s information against others in the case without any limitation.For example, if the defendant tells agents that he stored drugs in his brother’s house, agents can use that information to get a search warrant and raid that house for evidence, even though the defendant would never want his brother to be harmed. Moreover, because the defendant would not be a “cooperator,” prosecutors would be free to name him in their search warrant applications and make no effort to hide the source of their information.
Talking to the government in the context of a safety valve interview can potentially expose the client to consequences worse than those faced by cooperating witnesses.
Next, the attorney has to be 100% certain that the client is telling everything he knows and is not holding back information about himself or others. This requires that attorney be sure of what the government knows in the case before allowing a client to meet for a safety valve interview. If the government thinks that the client is lying, they can make the safety valve process impossible by telling the court about their impressions. If the government can prove the client is lying, then a court is free to increase a client’s sentence for obstruction of justice. Even worse, a client may also lose guideline point reductions for accepting responsibility for the offense and become subject to harsh mandatory minimum sentences.
A defense attorney has to know what the evidence the government has before allowing his client to even think about the safety valve. Anything less can expose the client to catastrophic risk.
The bottom line is that defendants considering a “safety valve” reduction had better have counsel who is experienced in federal criminal law and the pitfalls of federal criminal statutes – even those designed to help defendants. Before becoming a defense attorney, I spent almost a decade prosecuting federal criminal cases in U.S. District Court in Maryland. If you have any questions, contact Federal defense attorney Andrew C. White at Silverman, Thompson, Slutkin & White. There is no situation with which we are not familiar.
]]>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.
]]> There is no question that registered sex offenders face the harsh effects of being labeled as one of America’s “irredeemable monsters” should he be required to register as a sex offender. See Liberty Interests in the Preventative State: Procedural Due Process and Sex Offender Community Notification Laws, 89 J. CRIM. L. & Criminology 1167, 1167 (1999).As the law is constantly changing, please contact the Maryland criminal defense attorneys at Silverman, Thompson, Slutkin & White for further information.
The problem arises when a child shows physical signs of obvious abuse. One case I had involving a teacher being charged with physically abusing a 7 year old student. The school nurse had seen marks on the child and inquired the source. Rather than point the finger at the true abuser-the child's mother- the child thought it would be simpler to wrongfully accuse a teacher. In the child's mind, it was better to accuse an innocent teacher (whom the child disliked anyway) than point the finger at the true abuser, who the child otherwise loved and relied upon.
In general, it is unlawful for anyone to divulge information concerning social service records. Maryland law states when records may be divulged. This is not a mandatory provision but a discretionary one.
The Court in Baltimore City Dep’t of Social Servs. v. Stein, 328 Md. 1, 612 A.2d 880 (1992) proposes criteria for determining whether social services records are discoverable. They refer to a “need to inspect” threshold. One must cross this threshold in order to examine social service records. The Court outlines factors for crossing this threshold. They are:
- the nature of the charges brought against the defendant
- the relationship between the charges
- the information sought
- the likelihood that review of the records would result in the discovery of relevant information
The court also suggests other methods of determining the relevancy of the information without the records being directly examined by the defendant. They suggested in camera proceedings in which the court determines whether all, part or none of the record is admissible. This helps protect the information in the records, as was the intent of the legislature when enacting this statute.
Once these steps are followed, and the Social Service records are known, the true abuser may be revealed. In the case above, the records documented a pattern of abuse by the mother for over five years. The records showed the mother had beaten the child on 7 different occasions, leaving marks remarkably similar to the ones which prompted the teacher to be charged. Once this was brought to light, the mother confessed and the charges were dropped against the teacher.
For further information on defending criminal child abuse cases, please contact the Maryland criminal defense lawyers at Silverman, Thomson, Slutkin and White.
]]>FRE 608(b) states: Evidence of Character and Conduct of Witness
(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross- examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused's or the witness' privilege against self-incrimination when examined with respect to matters which relate only to credibility.
This rule is well settled by the Courts, as they do not want to risk confusing the jury with a “mini trial” on issues that do not tend to prove or disprove the guilt of the defendant. See U.S. v. Martz, 964 F.2d 787 (8th Cir. 1992) but really I could refer you to any case dealing with this issue because there seems to be no exceptions.
A risk of proceeding under 608(b) is that if the Court does not allow you to introduce extrinsic evidence to impeach a witness, you will be bound by the witness's answer. See U.S. v. Martz, 964 F.2d 787, 789 (8th Cir. 1992). Therefore the attorney must make a tactical decision, because once the question is asked, you are stuck with the response.
It has been pretty well laid out in case law that extrinsic evidence can be used to show bias even though the FRE’s do not specifically deal with the term “bias.” See U.S. v. Abel, 469 U.S. 45, 49 (1984). FRE 608 does not apply to evidence of bias or interest. Johnson v. Brewer, 521 F.2d 556, 562 (8th Cir. 1975). However it is in the judge’s discretion as whether to admit the evidence. U.S. v. Gomes, 177 F.3d 76, 81 (1st Cir. 1999). The judge may exclude the evidence it it would distract from the main issues and would add little practical value to the defense. Id. Inherent in this rule allowing is the rule that the cross-examiner is not bound by the witness’ answer when attempting to show the witness’ bias. See Johnson at 562.
The 5th Circuit went on further to explain the reasoning behind this concept. It explained that a witness’ bias, as opposed to veracity, is not a collateral issue and thus evidence of past behavior that proves or disproves bias is admissible. U.S. v. Fusco, 748 F.2d 996, 998 (5th Cir. 1984).
U.S. v. Phillips, 888 F.2d 38 (6th Cir. 1989) deals with both these issues. Here the defendant wanted to introduce testimony of the informant’s drug use at a certain party that the informant’s had denied. The Court did not allow in the testimony under 608(b) because it was too far removed from the case to have a bearing on the defendant’s guilt or innocents. However in this case the Court states, “Though the Federal Rules of Evidence do not specifically so state, prior misconduct of a witness which is probative of the bias of that witness may be proved by extrinsic evidence.” Id. at 41.
For further information, please contact the federal criminal defense attorneys at Silverman, Thompson, Slutkin & White.
I told her that her first decision was to decide whether to let her daughter attend the bail review or to bail the her out prior to the bail review. I explained, to her great surprise, that a judge at a bail review can not only lower the bail as set by the court commission, but can also raise the bail. In many instances I advise the family members or friends who contact me about a defendant who is in jail awaiting bail to go ahead and bail the defendant out prior to the bail review because it is my opinion that in that case the bail is more likely to be raised than it is to be lowered. This is exactly what I told this women this morning as by Baltimore City bail standards, $25,000 is low for an Armed Robbery charge. If all cases where a defendant decides that he wants to (or must) attend the bail review he would be foolish not to retain an experienced criminal defense lawyer to represent him at this critical stage of the process.
]]> Once a person's bail is set there are three basic options for how to post the bail. The first is to post the entire amount of the bail with the court. Few people can do this in cases where there a substantial bail is set. The second option is to hire a bail bondsman or corporate surety. My firm works very closely with a company called Big Boyz Bail Bonds. When you hire a bondsman, they require that you pay a 10% premium in order for them to write the bail and insure the court that the defendant will appear for trial. In the situation above where the bail is $25,000, the premium or fee would be $2500. In many circumstances the bondsman will offer to finance the bail premium requiring a smaller amount, say 1% or 2% ($250 or $500) down and work out a payment plan for the remainder. Big Boyz is very willing to work with people and offers flexible payment plans. Using a bondsman is also usually the quickest and most hassle free way to bail someone out and is the most frequent method used by people in this situation.The third way to bail someone out is to post property. In order to post property, all persons who are on the deed must appear in person at the clerk or commissioner's office, with the deed, the most recent tax bill and statement from the mortgage holder. Only the equity in the house may be posted as bail, not the entire value. Moreover because the equity is determined using the tax assessment, from which is subtracted the current mortgage, to determine the equity, the equity is usually far less than it would be using the market value of the home. A person can also post a combination or hybrid bail where a portion of tfe bail written by a bondsman or paid in cash and property equity is posted for the remainder.
Finally, everything that I have explained above is contingent upon the judge not putting restrictions or stipulations on the bail such as "cash only from the defendant". This restriction is typically put on bails by judges in cases where restitution is due to the victim in the case. That way the only way the defendant can post bail is to deposit enough money with the court to satisfy the claim against him by the victim. Other judges sometimes but different stipulations such as "corporate surety only". This is done in cases in which the judge wants someone to be motivated to actively search for the defendant should he failure to appear for trial. Some judges are aware that the financial obligation to the court that the bondsman owes when a defendant fails to appear, provides that motivation.
The bottom line here is that there are a lot of options when it comes to posting bail so the prudent person will contact an experienced criminal attorney for advice on how to handle the situation prior to making the decision as to whether and if so using which method, to post bail.
]]>The Annotated Code, Business Regulation Article defines both what constitutes home improvement as well as what the criminal penalties are for violations. According to Section 8-101 Home Improvement means: The addition to or alteration, conversion, improvement, modernization, remodeling, repair, or replacement of a building or part of a building that is used or designed to be used as a residence or dwelling place or a structure adjacent to that building; or an improvement to land adjacent to that building. In addition to the obvious things like building an addition or finishing a basement, home improvement includes work such as repaving a driveway and the connection, installation or replacement of a dishwasher, disposal or refrigerator. It also includes work such as landscaping or building a fence.
]]> As far as penalties are concerned, as I indicated previously, they can be quite severe. For a first offense of acting as a contractor without a license a person can be sentenced to 30 days in jail and be fined up to $1000. For a second or subsequent offense the maximum penalty is 2 years in jail and a fine of $5000. In addition to the criminal penalties a contractor can be forced by the court to refund the entire contract price to the homeowner, even for work that was satisfactorily completed. The maximum penalty for failure to perform a contract is 6 months and a fine of up to $1000.The Maryland Home Improvement Commission takes violations of these provisions very seriously as do the Maryland Courts. The Commission has a team of aggressive investigators who investigate and prepare these matters for trial. These matters can also be quite difficult to defend as there is no defense to acting as a contractor without a license and the courts are usually inclined to side with the homeowner in failure to perform actions. My client today was fortunate. Prior to coming to court he had satisfied the homeowner which is always the court's paramount concern. The investigator was also reasonable as was the Assistant State's Attorney and the judge. Unfortunately, as I said, there really is no defense to acting as a contractor without a license. However, because my client had a good background I was able to get him unsupervised probation before judgement with a small fine. This will afford him the ability to have the matter expunged in the near future so long as he remains law abiding. I am also advising him on how to get his license because things may not go so well for him next time if he doesn't.
]]>First of all, what exactly is the definition of a handgun under Maryland Law? One would think that this would be a relatively straightforward and easy question to answer. Unfortunately, that is not the case. There are two separate definitions under two of the three sections of the Maryalnd Code that criminalize handgun and firearm possession. Under Public Safety 5-101(n) a handgun is defined as a firearm with a barrel less than 16 inches. Under this section a handgun includes signal, starter and blank pistols. Under Criminal Law Section 4-201(c) a handgun is defined as a pistol revolver or other firearm capable of being concealed on the person. Under this definition a handgun includes short-barrelled rifles which is defined as a firearm having a barrel less than 16 inches or an overall length of less than 26 inches; and shotguns with a barrel less than 18 inches or an overall length of less than 26 inches. Under this definition a standard rifle, shotgun or any antique firearm is not deemed to be a handgun. Presumably this definition would also include starter pistols since they are included in the definition of a firearm under the Public Safety Article definition, but would not include signal or blank pistols as they are not included in that definition. Very confusing to say the least.
]]> The next question is who is disqualified under Maryland Law from possessing firearms and handguns. Under Maryland law there are basically two classes of citizens who are disqualified from owning or possessing handguns and subject to criminal penalties if they are convicted of being in possession of a firearm that is classified as a handgun. The first classification deals with persons who have been convicted of either of a crime of violence or a felony drug charge. The following offenses are classified as crimes of violence in Maryland: Abduction, Arson in the First Degree, Assault in the First of Second Degree, Burglary in the First, Second or Third Degree, Carjacking and Armed Carjacking, Escape in the First Degree, Kidnapping, Voluntary Manslaughter, Murder, Rape in the First or Second Degree, Robbery, Robbery with a Dangerous Weapon, Sexual Offense in the First, Second or Third Degree, Attempts to commit any of these crimes and Assault with the Intent to Commit any of these crimes.A person who is convicted of being in possession of a handgun having been previously convicted of any of these crimes or any felony drug or controlled dangerous substance offense is guilty of a felony and is subject to a mandatory penalty of five years incarceration. That sentence may not be suspended and the person is not eligible for parole. The second classification of persons who are prohibited from possessing handguns involves persons who have been convicted of a disqualifying crime which is defined as any felony or any crime carrying a statutory penalty of more than 2 years. Anyone convicted of possession of a handgun under this section is subject to a penalty of five years with the possibility of parole, a fine of $10,000 or both
Finally there is one classification of persons under Maryland Law who may not possess any firearms, handguns, assault weapons or even standard shotguns and rifles. These persons are persons who have been convicted of a felony narcotics crime such as possession with the intent to distribute narcotics or distribution of narcotics. Under the narcotics section of the Criminal Law Article 5-622 a person who has been convicted a felony drug crime or a conspiracy to commit a felony drug crime under Maryland Law or the laws of any of the other states may not possess any firearm, even long-barrelled rifles or shotguns. Any person who is convicted under this statute faces a maximum penalty of 5 years in prison or a fine of up to $1000 or both.
]]>My client moved into the dorms at Towson University just a few weeks ago. He didn't have any high school friends who were also attending the university so he signed up to be randomly assigned roommates. He soon learned that his new roommates were marijuana smokers who frequently smoked in the dorm room. This past Saturday that careless habit came back to haunt them because one of the RA's apparently smelled the smoke coming from their room and called the police.
Having said that he is, at least for now, charged with a felony. In addition to the criminal implications of a felony charge, he is now facing eviction from the dorm or even expulsion from school. I advised him that I was very confident that the felony charge would never stick and that I could probably get it dismissed at the preliminary hearing. The administrative hearing may be somewhat more problematic though because it will take minimum 30 days to get the felony dismissed assuming I am able to do so. Moreover, unless the University has changed its procedures for disciplinary hearings, I will be allowed to atttend and advise but will not be allowed to speak of his behalf. If we are unable to convince the disciplinary board that the felony charge is going to be dismissed, it will almost certainly result in his eviction from the dorm and may result in his expulsion from the school and the forfeiture of his tuition. A very steep price for being in the wrong place at the wrong time.
]]>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.
]]> Approximately 10 days later the officer went to a judge and got a search warrant signed for the search of my client's home. This in and of itself is pretty disturbing because there was absolutely no indication that my client was involved in the distribution of controlled dangerous substances as well as the fact that the officer waited almost two weeks before applying for the warrant. Typically, detectives will only seek a search warrant for a person's home if they have reason to believe that the person is a dealer, not a mere. Moreover, they usually apply for the warrant and conduct the search while the person remains in custody for the original arrest. If anything is recovered in the search then charges are simply added on to the charge for which the person was originally arrested. The delay caused my client to be arrested twice which may be good for the officer's stats but seems a bit unfair to me.Having said that, the search was conducted and again a small amount of cocaine was recovered. What was also recovered was 72 amphetamines. The officer did not specify what the amphetamine was in the charging document and the lab only confirmed that the pills were indeed amphetamines without further identifying them. Prior to my involvement in the case the prosecutor reviewed the evidence as presented by the officer and indicted my client on a felony drug charge of possession with the intent to distribute amphetamines. When I had my initial consultation with the client I asked him about the amphetamines and he explained that they were in fact his prescription Attention Deficit Disorder drugs that he has been taking for almost 20 years. Moreover, he explained, the pills were in his medicine cabinet in the prescription bottle from the pharmacy with his name on the label when the officer recovered them.
Once I explained the situation to the prosecutor and he confirmed that what I had told him was true, he was angry and immediately dismissed the felony. However, this did not entirely mitigate the damage done to my client as a result of the officer over-charging the case. First of all, he had to pay a substantially higher bail because he was charged with a felony as opposed to a misdemeanor and because he was technically out on bail for the first incident when he was arrested for the search warrant case. Second, he faced the possibility that if he did not receive probation before judgement on the possession charge, that the felony would always remain on his record, at least the fact that he was charged with a felony that is. The reason for this is that the expungement statute does not allow a person to have any individual count in an indictment expunged, even if that count is dismissed, if the person is convicted of any other count in the indictment. So if he did not receive probation before judgement anyone who looked up his record would see the felony charge and almost certainly wrongly conclude that he was caught dealing drugs but was able to plea bargain it down to a misdemeanor which was clearly not the case.
Fortunately for him the judge was also not pleased at the officer's conduct and he did in fact grant the client probation before judgement. He even waived all fines and court costs because of the fact that my client was wrongly charged with a felony. Assuming he does not violate his probation, the probation before judgement (PBJ) disposition will allow him to have the entire case expunged from his record in three years.
]]>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.
• In Ohio, a family-practice doctor was recently charged with 64 offenses in connection with prescribing drugs including Viagra on the Internet. The prosecutor said this is the first Ohio doctor to be criminally charged after prescribing drugs over the Internet without seeing patients.
• In Maryland, a Baltimore doctor who gained notice by distributing diet pills over the Internet has been indicted and convicted on 34 federal charges accusing him of illegally prescribing medicine.
• In Nevada, the Board of Medical Examiners recently barred Internet sales of prescription medications unless Nevada doctors also see the patients.
• Colorado disciplined a doctor who supervises a cosmetic surgery clinic for engaging in unprofessional conduct by prescribing over the Internet.
• Wyoming recently ordered a Web site to stop selling in its state.
• Arizona has tried to stop out-of-state and overseas Internet doctors from doing business with state residents.
In addition to these recent state enforcement activities, the American Medical Association (AMA) has taken the position that online physicians who write prescriptions without patient contact are in direct violation of AMA policy. Starting in 2002, the AMA called on state medical societies, government regulators, and licensing boards to investigate doctors who dispense pills to patients without examining them. Noting that no state laws directly address the issue of online prescribing, the AMA said that it would assist the Federation of State Medical Boards (FSMB) in developing them. But in the absence of state law, the AMA says that local medical boards should take action against doctors who are prescribing drugs for patients they don't know.
The AMA Board of Trustees report, which was adopted by the House of Delegates, directs the AMA to work with the FSMB, the National Association of Boards of Pharmacy, and the Food and Drug Administration to curtail inappropriate online prescribing. Recognizing the growing use of the Internet in health care, the AMA report considers online transmission of prescriptions, order refills, and electronic consults appropriate if the physician and patient have a preexisting relationship.
The National Association of Boards of Pharmacy (NABP), which represents state pharmaceutical licensing authorities, has also taken the position that any site that uses a questionnaire without a legitimate patient-physician relationship is illegal. NABP's Executive Director Carmen Caltizone explains that pharmacies can only fill valid prescriptions, and prescriptions written by cyberdoctors are not valid. Therefore, he reasons, it is illegal for druggists to fill them.
The NABP also advocates licensing of online pharmacies in every state. To help guide consumers, the pharmacy association recently developed a voluntary seal program—called the NABP Verified Internet Pharmacy Practice Sites (VIPPS)—which will endorse sites that meet its criteria for dispensing drugs online. The NABP plan of voluntary seals has the endorsement and cooperation of the Drug Enforcement Agency, the Food and Drug Administration, and the AMA.
The online drug industry has also not gone unnoticed by Congress. In March, House Commerce Committee Chairman Bliley (R-VA), along with three Democratic Congressmen, asked the General Accounting Office (GAO) to address how online pharmacies prevent unqualified persons from receiving prescriptions and whether they are more susceptible to fraud or deception. The GAO has also been asked to examine the online doctor consultation which is viewed by some Congressmen as highly unethical and prone to serious problems.
In summary, this increased scrutiny of the online prescription drug business seems to be primarily focused on those sites that sell and prescribe medications without requiring a physician to physically examine a patient. Although reasonable arguments can be made that a physician's face-to-face meeting with a patient may not be necessary with respect to certain drugs, the AMA, the NABP, and a number of state Attorney Generals do not agree. Accordingly, it is becoming increasingly risky to operate a site that prescribes medications without requiring a physician to conduct an in-person physical exam of a patient. With respect to those sites that only fill prescriptions sent to them by licensed physicians, officials appear to be focused on making certain that these sites are appropriately licensed in every state where they do business.
]]>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).
• The history and character of the defendant@ and
• the Nature and circumstances of the offense@ including the Seriousness of the offense.@
Further, ' 3553 mandates that the Court impose a sentence that:
• promotes respect for the law,
• provides just punishment,
• protects the public from further crimes of the defendant,
• provides to the defendant necessary educational, medical or other correctional treatment in the most effective manner,
• avoids unwarranted disparities between similarly situated defendants, and
• allows for restitution to any victims of the offense.
Id. In considering these factors, and in imposing a sentence based upon them, Congress has directed that “the court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection.” 18 U.S.C. §3553(a).
Now that federal judges can take this entire litany of factors into consideration, defense lawyers are able to serve their clients much better. We can now present a full picture of the defendant to the judge. And, the judge now has the authority to listen, and to take such factors into consideration. Thanks to Booker, I was able to convince a federal judge to reduce a guideline sentence of 15-years, in Criminal History Category VI, to five years. For more information regarding this subject matter, please contact the author, former Assistant United States Attorney, and current federal criminal defense specialist Susan Amiot.