United States v. Bodouva
853 F.3d 76
2d Cir.2017Background
- Christine Bodouva, WNBA COO/SVP, embezzled funds from her employer’s 401(k) by withholding employee contributions and not remitting them (2012–2013).
- Indicted for embezzlement under 18 U.S.C. § 664; indictment included criminal forfeiture notice under 18 U.S.C. § 981(a)(1)(C) and 28 U.S.C. § 2461(c).
- Before trial, Bodouva paid $126,979.63 into the 401(k) plan; after conviction, the government sought forfeiture of $127,854.22.
- At sentencing Bodouva asked the district court to offset the mandatory criminal forfeiture by the restitution/payment she already made to the 401(k) plan.
- District court declined, concluding it lacked authority to reduce mandatory forfeiture by restitution; the Second Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a mandatory criminal forfeiture order may be reduced (offset) by prior or future restitution payments | Government: forfeiture and restitution are separate mandatory remedies; no offset absent statutory authorization | Bodouva: restitution to victims should offset forfeiture because payments remediate loss and reduce proceeds traceable to the offense | Court held no; mandatory criminal forfeiture may not be reduced by restitution absent explicit statutory authorization |
| Whether 18 U.S.C. § 981(a)(2)(B) (net-proceeds definition) authorizes an offset here | Government: § 981(a)(2)(B) inapplicable; embezzlement is unlawful activity covered by § 981(a)(2)(A) | Bodouva: 401(k) plan provided lawful services so net-proceeds rule (§ 981(a)(2)(B)) should apply, allowing subtraction of direct costs (her repayment) | Court held § 981(a)(2)(B) does not apply to embezzlement; § 981(a)(2)(A) governs and provides no offset |
Key Cases Cited
- United States v. Torres, 703 F.3d 194 (2d Cir. 2012) (distinguishes restitution and forfeiture purposes)
- United States v. Contorinis, 692 F.3d 136 (2d Cir. 2012) (applies § 981(a)(2)(B) to insider trading as a lawful-good sold illegally)
- United States v. Peters, 732 F.3d 93 (2d Cir. 2013) (forfeiture as punitive and distinct from restitution)
- United States v. McGinty, 610 F.3d 1242 (10th Cir. 2010) (no offset of forfeiture by restitution absent statute)
- United States v. Newman, 659 F.3d 1235 (9th Cir. 2011) (same: restitution does not reduce forfeiture without statutory authorization)
- United States v. Bengis, 631 F.3d 33 (2d Cir. 2011) (remanded restitution issues but expressed no view on offsets)
- United States v. Kalish, 626 F.3d 165 (2d Cir. 2010) (noted possible offset in dicta but did not decide the question)