Some time last year I was in federal court watching a sentencing hearing in a multi-defendant conspiracy to possess with intent to distribute more than a kilogram of heroin case. By multi-defendant I mean a case with thirty seven defendants.

My client’s case was one of the many, but he had already plead in front of the magistrate to a misdemeanor probation. I was only there partly out of curiosity – what would the other guys get? – and partly because I primarily practice in state court. Most criminal cases are state cases, so my experience in federal court pales in comparison. But it never hurts to sit around, watch other lawyers, and soak in the proceedings. Who knows when you might learn something? Heck, for that matter, I stick around in state district court whenever something interesting is going on, if I don’t have to be anywhere else.

By the way… how do you end up with a misdemeanor plea bargain agreement in a ten year mandatory minimum federal drug conspiracy? In this particular case, it was because the DEA agents misunderstood the code words my client (#34 in the indictment) and the big bad drug dealer (#2) used when setting up times for him to buy a small amount of dope for personal use.

Basically, when #2 said something like “One of those things” to his suppliers, he meant one ounce of heroin. When my guy asked for “One of those things” from #2 he was trying to buy a one fifth gram baggie of heroin. There are 28-ish grams in an ounce, and when you’re a DEA agent sorting through fourteen thousand wiretapped phone calls, and you accidently start believing that the drug transaction is for somewhere between 28 and 140 times (remember the one fifth of one gram baggies? So you have to multiply 28 by 5) the amount of heroin than is actually exchanging hands… tada! You think my guy is involved in the conspiracy to distribute as well.

And, if he actually had been asking to buy well over a hundred times more heroin than a regular user could reasonably consume, even I would have been tempted to concede there was some evidence of possession with intent to distribute.

I could brag here, and say that it was outstanding lawyering that convinced the prosecutor of these facts, but it’s much closer to the truth to say that a great deal of evidentiary good fortune combined with a slight amount of perseverance on my part lead to the eventual and inevitable conclusion that my client was an end user, and not part of some big drug dealing conspiracy.

So here I am, watching other defense lawyers cross the DEA agents and Austin Police officers involved in this case. Clearly objections have been filed to the presentence reports regarding relevant conduct, and there’s a case by case need to figure out exactly how much dope each defendant is on the hook for. Probation has had their say already – which usually means adopting the government’s version of the facts – but now it has to be “proven”.

The individual cases are called, and the government’s lawyer starts with their witness. “How much did [some snitch] tell you this guy bought and sold over what period of time?” Et cetera, et cetera. Then the defense lawyer gets his crack at it. “You didn’t witness any of these other transactions, did you?” “Some guy trying to beat a rap of his own told you this? He certainly has a motive to lie?”

At some point, Defendant #X’s case is officially called. The government calls a DEA agent back to the stand to start their testimony. When suddenly, amidst the shackled and striped men sitting in the jury box, Defendant #X stands up and yells:

“I object to these proceedings in their entirety!”

What’s the correct phrase to describe a situation that’s just one notch down from “Chaos ensues”?

Let’s just say after simultaneously being “told” in no uncertain terms by the judge, the probation officers, the bailiffs jumping over the bar, and virtually everyone else in his vicinity to sit down and STFU, the courtroom gradually returns to that warm peaceful state of decorum that is appropriate for these types of proceedings.

The judge calls out for Defendant #X’s lawyer, no doubt to make sure that he too is going to monitor his client’s behavior. We’ll call the lawyer “Mr. Smith”.

Judge: Mr Smith? Mr Smith?


Judge: Mr. Smith? Mr. Smith?


OK, you’re guessing the punch line by now: “Mr. Smith” wasn’t there. Not in the courtroom, not in the courthouse.

That’s right. The defendant had filed a factual basis and a plea agreement to some felony offense, most likely carrying a possibility of twenty years or more, almost definitely subjecting himself to a mandatory minimum sentence of ten years, unless somehow he managed to squeeze himself into a safety valve exception, and the government was about to “prove” to the judge that the ridiculously high sentence they wanted imposed for a drug offense was mandated by law. Or at least justified the PSR’s estimation of the guideline range.

And he had the audacity to point out, albeit in layperson’s terms, that the Sixth Amendment guarantees the right to counsel.

So the judge put that case on recall. I’m sure the sentencing hearing for all defendants went on all day, perhaps for two days. I couldn’t stick around for the whole thing. I don’t know how it turned out. But I’m glad they waited for his lawyer to be present.