United States v. Viloski
557 F. App'x 28
2d Cir.2014Background
- Benjamin Viloski, a Pittsburgh lawyer/real estate broker, was indicted on fraud, money‑laundering, and false‑statement charges arising from consulting fees he accepted and passed to a Dick’s Sporting Goods employee (Queri).
- After Skilling narrowed honest‑services fraud, the Government removed honest‑services allegations and pursued a "right to control" mail/wire fraud theory based on deprivation of economically material information.
- A jury convicted Viloski of conspiracy to commit mail/wire fraud, two substantive mail‑fraud counts, a money‑laundering conspiracy, three substantive money‑laundering counts, one transaction in criminally‑derived property count, and one false‑statement count; he was acquitted on others.
- District Court sentenced Viloski to 60 months (below Guidelines), ordered $75,000 restitution, and forfeiture of $1,273,285 (jointly with Queri).
- Viloski appealed, challenging the fraud theory/indictment, evidentiary sufficiency, merger of counts, jury instructions, refusal to compel immunity for a defense witness, and sentencing/restoration/forfeiture.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Viloski) | Held |
|---|---|---|---|
| Validity of mail/wire fraud theory ("right to control") | Indictment charged deprivation of economically material information as an intangible property interest protected by §1341; jury instructions consistent with that theory | The Government repackaged invalid honest‑services theory; information itself is not "property"; theory constructively amended the indictment | Affirmed: "right to control" theory valid; indictment and instructions sufficed; no constructive amendment |
| Materiality standard for withheld information | Information that "could impact" economic decisions can be property if economically material and could cause tangible harm | Mere possibility of impact is insufficient; Mittelstaedt prohibits convictions for insubstantial nondisclosures | Affirmed: jury instruction required economic materiality (would have caused change in conduct), satisfying precedent |
| Compulsory process / immunity for defense witness (Oscar Plotkin) | Gov’t could decline immunity because Plotkin was a potential target of investigation; refusal was reasonable | Viloski sought order compelling Government to grant immunity so Plotkin could testify exculpatorily | Affirmed: District Court did not abuse discretion; refusal proper where witness potentially under investigation and no showing of pretext |
| Forfeiture and Excessive Fines Clause | Forfeitable funds were under Viloski’s control and traceable to laundering; forfeiture permitted | Forfeiture award not shown to be traceable; District Court failed to apply Bajakajian factors for Eighth Amendment review | Conviction affirmed; remand for District Court to apply Bajakajian factors and reconsider forfeiture as to Excessive Fines Clause |
Key Cases Cited
- Skilling v. United States, 561 U.S. 358 (limits honest‑services fraud to bribery/kickbacks)
- McNally v. United States, 483 U.S. 350 (mail fraud protects property rights)
- United States v. Carlo, 507 F.3d 799 (2d Cir. recognition of right‑to‑control intangible property)
- United States v. Wallach, 935 F.2d 445 (right‑to‑control requires deprivation of valuable economic information)
- United States v. Dinome, 86 F.3d 277 (elements of mail fraud and discussion of information value)
- United States v. Rossomando, 144 F.3d 197 (withholding information that affects transaction value supports right‑to‑control theory)
- United States v. Mittelstaedt, 31 F.3d 1208 (nondisclosure must be able to result in tangible pecuniary harm to support mail‑fraud property theory)
- United States v. Ebbers, 458 F.3d 110 (test for when immunity must be compelled; standard of review)
- United States v. Contorinis, 692 F.3d 136 (property for forfeiture must have been under defendant’s control)
- United States v. Bajakajian, 524 U.S. 321 (excessive‑fines analysis for forfeiture)
- United States v. Varrone, 554 F.3d 327 (district court must consider Bajakajian factors before imposing large forfeiture)