As A Baltimore Maryland Criminal Attorney/Lawyer I represent many people charged with either handgun offenses or violations of the State’s narcotics aka controlled dangerous substance laws. More often than not, so long as the defendant does not have an extensive criminal history, these matters can be resolved without the defendant having to serve much or any time in prison, even assuming that the State can prove the case. However, when a person gets charged with possession of firearms and felony narcotics offenses at the same time, things get a lot trickier.
This is because under Maryland Law and Federal Law there are minimum mandatory sentences that must be served without the possibility of parole associated with trafficking narcotics with a firearm – even for first offenders. Perhaps more surprisingly, these laws apply to the possession of any firearm and not simply handguns or regulated firearms such as assault weapons. So while a convicted felon may be in possession of a shotgun without violating Maryland Law (shotgun possession by a convicted felon is a violation of Federal Law) a person with no record who is caught trafficking narcotics with a shotgun would be in violation of these laws and face the mandatory penalties just the same as if he were caught with a handgun or an assault weapon; and the penalty is a stiff one indeed. Any person in Maryland who is convicted of trafficking narcotics with a firearm faces a maximum penalty of twenty years in prison but the real meat in the statute is that the convicted defendant faces a mandatory minimum sentence of five years in prison without the possibility of parole. I currently represent a person who finds himself in this exact predicament. I will explain the facts and then get into what exactly the State must prove to convict my client or any other similarly situated defendant of this charge.
My client came under surveillance by the police as a result of a tip provided by a confidential informant. The police watched him engage in what they believed to be behavior indicative of street level distribution of narcotics over a period of several days. During this time they also watched him go in at night and out in the morning a certain address in West Baltimore. Importantly, the police never witnessed any suspicious activity on or around this address. In spite of this fact, the detectives applied for and received a search and seizure warrant for that address.
The Detectives executed the warrant and recovered more than an ounce of crack cocaine packaged in a manner consistent with the street level distribution of narcotics. These narcotics were recovered from inside the drop ceiling of the bedroom that he shared with his girlfriend. In the closet of that same bedroom was recovered a loaded twelve gauge shotgun. The police charged both my client and his girlfriend with possession with the intent to distribute narcotics and trafficking narcotics while in possession of a firearm. This is a common tactic by the police. They will very often threaten the target of the investigation that if he doesn’t admit that the drugs are his then they will charge his girlfriend/wife/mother or any other unrelated person who happens to be present at the time. The Assistant State’s Attorney will then often use the unrelated person as a bargaining chip, making dismissal of the charges against that person contingent upon the defendant accepting a harsher than normal plea bargain. True to form the police officers told him that if he did not admit that the guns and drugs were his that they would also arrest his girlfriend. He refused and they were both arrested.
The State has offered my client a plea to the trafficking narcotics with a firearm count and a five year sentence to be served without parole. In exchange the ASA has agreed to drop charges against his girlfriend. My client has rejected the plea and it is scheduled for trial early next year. So what exactly must the State prove in order to gain a guilty verdict against my client on this count that will require him to serve five years without the possibility of parole?
According to the Maryland Pattern Jury Instructions the State has to prove a little bit more than a mere proximity between the guns and drugs. That State first must secure a conviction on a felony drug offense such as distribution of narcotics or possession with the intent to distribute. The jury will be instructed to only consider the trafficking with a firearm count if they find the defendant guilty of the underlying felony drug offense. The State then must prove that the defendant possessed a firearm during, and in relation to, the crime AND that there was a connection between the defendant’s possession of the firearm and the crime.
In order to reach that determination, the judge will instruct the jury that they may consider factors such as the proximity of the firearm to the drugs or the defendant, whether the firearm increased the likelihood of success of the crime, and whether the firearm was within easy reach and available to the defendant, during the commission of the crime. My client will have no choice but to admit that the drugs were his in order to spare his girlfriend (who is also the mother of his 2 year old son) the possibility of prison – but the guidelines on possession with intent are only 6 months to 18 months with parole and straight probation would be a definite possibility. The dispute in the case will come down to whether or not he used the shotgun to further his illegal drug activities.
My argument will be that if the jury fairly considers these factors, they will come to conclusion that my client did not possess the weapon during the commission of the crime. As evidence, I will point to the fact that according the police themselves, they saw no activity consistent with street level drug distribution on or around the property where the weapon found. Indeed, they surveilled him for days and saw him engage in this type of activity only after leaving the house and in fact the neighborhood. Moreover, there is no evidence that he ever took the weapon with him when he left the home to ply his trade so to speak and it would have been virtually impossible for him to have done so while under the surveillance of the police. Finally, I will argue that my client lives in a crime ridden neighborhood and he, like many other folks, bought the shotgun purely for home protection and self defense.
I believe that we have a very good chance of prevailing with this argument and will update this blog after the trial. Total victory is really not a possibility in this case but both my client and I will consider avoiding the five year no parole sentence a big victory, even if it means serving a few months on the drug conviction.