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2nd Circuit Removes Judge From Case for Repeated Refusal to Document Sentence Grid Departure
New York Law Journal
September 28, 2007
A federal appeals court has sharply criticized a judge for repeatedly ignoring the requirements of the sentencing guidelines and once again has removed him from a case.
Western District Judge John T. Elfvin showed a "pattern of behavior" that was "disturbing evidence of willfullness" by failing to state his reasons for departing from the guidelines and failing to give notice of his intention to depart, the 2nd U.S. Circuit Court of Appeals said Thursday. It was the third case in two years in which the circuit ordered reassignment from Elfvin, all three involving sentencing decisions.
Judges Ralph Winter, John Walker and Robert Sack said in United States v. Benjamin, 05-3677-cr, that "the need to remove Judge Elfvin from this case" was "self-evident." Winter wrote for the panel.
The case centers on Donald "Ducky" Benjamin and his brother Neal, who were found guilty of running a marijuana, crack and cocaine drug distribution ring out of Olean, N.Y., from 1994 to 1997.
Following U.S. Sentencing Guidelines Section 5G1.2(d), which states that sentences should be served consecutively up to the sentence set by the guidelines, the Probation Department's presentence reports called for stacking Donald Benjamin's prison terms so that he would receive 240 years and stacking Neil Benjamin's prison terms so he would serve 40 years.
While Elfvin accepted the calculations of the reports, he downwardly departed under the guidelines and gave Donald Benjamin 30 years and Neal Benjamin 20 years.
Winter said in Thursday's opinion that the judge "provided no coherent explanations for these departures."
Those sentences were vacated by the circuit in an earlier appeal because of the judge's failure to give notice or an explanation of the departures. United States v. Evans, 352 F.3d 65, 2d Cir. 2003.
But on remand, Winter said, "the district court again provided no notice of any intention to depart or otherwise deviate from the advisory guidelines ranges prior to the resentencing hearings."
At Donald Benjamin's resentencing, where the judge gave the same sentence, the prosecutor asked why Elfvin was adhering to his original sentence and was told, "I'll write you a letter."
At Neal Benjamin's resentencing, where the judge again gave the same sentence, the defense attorney asked about the letter promised at Donald Benjamin's sentencing and, although the judge asked his courtroom deputy to give a note to remind him about the letter, the government said no letter was ever produced.
"Evidently anticipating the judge's enigmatic behavior and fearing another overturning of the sentence, Neal's attorney came to the hearing with a proposed 'notice' for the judge to read into the record," Winter said.
That notice contained several of the factors a judge must consider under §3553, including whether the sentence reflects the seriousness of the offense, whether the sentence was enough to protect the public from further crimes by the defendant and whether the sentence would afford adequate deterrence.
The prosecutor asked for an explanation of the sentence and Elfvin said he had considered the case of both brothers for quite a long time, adding, "I think everything is adequately on the record." The judge read the notice into the record.
On the second appeal that ended with Thursday's decision, Winter said that "Neal's sentencing was as perfunctory as Donald's."
"It was not preceded by a notice of a possible deviation or accompanied by a statement of reasons, save for the reading, without evident embarrassment, of the defense-prepared 'notice,' which was provided at the hearing and was simply a statement of several of the factors in §3553(a)."
But it was not the judge who read the notice.
It was Neal Benjamin's attorney, John Lavin of Buffalo, N.Y., who, trying to stave off another reversal, did the job of the judge by reading the notice into the record.
The notice meant little to Winter, who said the case had to be reassigned.
CASES REASSIGNED
"Reassignments because of the failure of the district judge to impose a proper sentence are uncommon, but it is not unprecedented for a case to be remanded to a different judge after a district court has twice used an improper sentencing procedure," he said. "We note, moreover, that reassignments are not uncommon in the case of Judge Elfvin."
The circuit remanded the case of United States v. Toohey twice and then finally reassigned it from Elfvin to another judge.
It also took two remands and another appeal before the circuit reassigned, by unpublished order, Elfvin's case of United States v. Sicurella on May 23, 2006 (2006 U.S. App. LEXIS 13546).
While it is rare for the circuit to direct a case be moved from one judge to another, the circuit has been doing more reassignments lately.
Earlier this year, for the third time in one year, the circuit pulled Southern District Richard Owen off a case.
The circuit also has been aggressive with immigration judges, just recently taking Judge Noel Ferris off a case for doubting a weeping asylum-seeker's sincerity and, earlier this year, for the third time, reassigning a case handled by Judge Jeffrey Chase for issues of demeanor.
Assistant U.S. Attorney James Kennedy and U.S. Attorney Terrance Flynn represented the government. A spokeswoman said Thursday the government was declining comment.
Vincent Doyle of Connors & Vilardo in Buffalo represented Donald Benjamin.
Doyle did not return a call for comment.
Lavin, who has been working on the case for 10 years, said Thursday he was disappointed by the ruling but not surprised.
"Judge Elfvin has on a couple of occasions been his own boss and I believe the 2nd Circuit doesn't want him to be that," Lavin said. "He's a maverick judge and I mean that with the best intentions."
Lavin said that had Elfvin resentenced the brothers after the U.S. Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005), the judge would have had a freer hand to give a lower sentence. Nonetheless, even though Booker rendered the guidelines advisory, the judge is still required to outline his reasons for giving the sentence.
Elfvin could not be reached for comment and his chambers referred calls to Western District Chief Judge Richard Arcara. Judge Arcara, who may end up handling the resentencing, did not return a call for comment.
