United States v. Malewicka
2011 U.S. App. LEXIS 25946
7th Cir.2011Background
- Malewicka emigrated from Poland in 1986 and ran Skokie Maid Service with a separate business checking account and a personal account.
- Her customers paid by checks to Skokie Maid; she deposited, kept a fee, and withdrew the rest to pay cleaners.
- Bank teller Ventura testified Malewicka was told of CTR reporting for withdrawals over $10,000, a claim Malewicka denied.
- From 2002–2008 she repeatedly withdrew about $9,900 and occasionally did multi-day withdrawals totaling over $10,000, totaling over $2.4 million in such withdrawals.
- She was indicted on 23 counts of structuring to avoid bank reporting requirements under 31 U.S.C. § 5324(a)(3); the district court later ordered $279,500 forfeiture.
- At trial the district court instructed with an ostrich instruction; Malewicka was convicted on all counts and sentenced to probation with forfeiture of $279,500.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the forfeiture amount is constitutionally excessive | Malewicka argues the amount is grossly disproportional under Bajakajian. | Malewicka contends the forfeiture exceeds the gravity of her offense. | No constitutional violation; full forfeiture affirmed. |
| Whether the ostrich instruction was properly given | Government maintains evidence supported both actual knowledge and deliberate avoidance. | Malewicka argues the instruction was unnecessary since only actual knowledge was proven. | Instruction was proper and harmless. |
Key Cases Cited
- Bajakajian, 524 U.S. 321 (1998) (forfeiture must comport with proportionality; entire amount can be unconstitutional)
- Castello, 611 F.3d 116 (2d Cir. 2010) (CTR statute purpose; intermediaries implicated; class of persons)
- Ahmad, 213 F.3d 805 (4th Cir. 2000) (structuring harms reporting duties and implicates intermediaries)
- St. Michael's Credit Union, 880 F.2d 579 (1st Cir. 1989) (CTR reporting framework context)
- California Bankers Ass'n v. Shultz, 416 U.S. 2 (1974) (records access and reporting importance)
- Caliendo, 910 F.2d 429 (7th Cir. 1990) (ostrich instruction proper use when warranted)
- Ramirez, 421 F. App'x 950 (11th Cir. 2011) (multi-count structuring; caution against arbitrary forfeiture)
- Varrone, 554 F.3d 327 (2d Cir. 2009) (factors for proportionality review in forfeiture)
- Segal, 495 F.3d 826 (7th Cir. 2007) (de novo review standard for forfeiture amount)
- L.E. Myers Co., 562 F.3d 845 (7th Cir. 2009) (ostrich instruction admissibility framework)