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September 27, 2007

Second Circuit calls out district judge for sloppy sentencing work

Whenever I am struggling to figure out why some circuit courts are so critical of the sentencing work of district judges, I try to recall that at least a few district judges merit criticism for their sentencing efforts.  Today's decision by the Second Circuit in US v. Benjamin, No. 05-3677 (2d Cir. Sept. 27, 2007) (available here), highlights how a few bad apples can make the entire district court bunch look bad.  Though all of Benjamin must be read for context, here is the telling final substantive paragraph:

This is, therefore, the third case in two years in which Judge Elfvin failed in the initial sentencing proceeding to comply with the requirements of notice and explanation for the imposition of a non-Guidelines sentence and then, on remand, failed to follow a direction of this court to comply with those requirements.  This pattern of behavior is disturbing evidence of willfulness.  The need to remove Judge Elfvin from this case being self-evident, we order reassignment to a different judge.

UPDATE:  As a commentor notes, this story from New York Law Journal has more details about this Benjamin decision.  Here is one interesting tid-bit from the story:

[Neal Benjamin's attorney, John] 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."

September 27, 2007 at 12:34 PM | Permalink


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Dang, Judge Elvin is 90 years old. Maybe his behavior isn't "disturbing evidence of willfulness" but instead unfortunate evidence of aging & senility?

Posted by: Anon | Sep 27, 2007 1:40:39 PM

The rule in an appeal ought to be that any reversal for abuse of discretion ought to result in reassignment to a new judge, not just cases out outright disregard for appellate court orders.

Posted by: ohwilleke | Sep 27, 2007 2:56:42 PM

The decision is unfortunate, for the need to remove Judge Elfvin is far from self-evident, especially given that it can be hardly argued that his ultimate sentencing decisions in these cases (which involved prison terms of 20 and 30 years, as opposed to, for example, the ludicrious Guideline-proposed sentences of 40 years and 240 years reached only by stacking multiple counts, in cases involving nothing more than drug distribution) were substantively reasonable. Indeed, given that he is no longer handling any cases as of next week, and has not been handling criminal cases since June 2007 (and all pending criminal matters have been or would be reassigned (and, by the way, not because of senility, but other health difficulties)), the case would have been necessarily transferred to another district court judge automatically on remand, even without a reassignment order. That the Second Circuit panel issued its decision with such harsh language, and a clear unawareness of this fact, is quite unfortunate and could be seen as troubling. Indeed, everything it said with regarding to Judge Elfvin and reassignment is dicta, and an amended opinion should be issued deleting this language. Finally, it hardly need be said, but Judge Elfvin has honorably served the federal courts in Buffalo for over three decades and is known as a fair, honest, and hard working judge -- one who, over the past two decades, has carried a full caseload of both civil and criminal cases despite being on senior status. His absence on the Western District bench will noted and he will be missed by the Court, prosecutors, defense attorneys, and civil practitioners alike. His service should be honored, rather than mocked. The post should be amended accordingly to reflect these facts, unknown by the Second Circuit and not reflected in its opinion or the original post.

Posted by: Anonymous | Sep 27, 2007 8:04:17 PM

I am outraged by the decision of this appeals court. How could they show such contempt towards this respected 90 year old justice.

Posted by: Anon | Sep 28, 2007 2:55:45 AM

This story from law.com has more details: http://www.law.com/jsp/article.jsp?id=1190883790219

Posted by: anonymous | Sep 28, 2007 9:39:57 AM

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