United States v. Viloski
2016 U.S. App. LEXIS 2695
| 2d Cir. | 2016Background
- Benjamin Viloski, a lawyer/broker, participated in a multi-year kickback and money‑laundering scheme tied to Dick’s Sporting Goods projects; jury convicted him of fraud, money‑laundering, and related counts.
- District Court sentenced Viloski to prison, ordered $75,000 restitution, and criminal forfeiture of $1,273,285.50 (amount laundered and passed to a DSG executive).
- This Court affirmed conviction and remanded for an Eighth Amendment (Excessive Fines Clause) review of the forfeiture under United States v. Bajakajian.
- On remand the District Court applied four "Bajakajian factors," rejected Viloski’s request to consider his age, health, and present finances, and ruled the forfeiture constitutional.
- On appeal Viloski argued the court should have considered his personal circumstances and that the forfeiture was grossly disproportional under Bajakajian.
- The Second Circuit held that courts may consider whether forfeiture would deprive a defendant of his future ability to earn a living (livelihood) but may not treat present personal circumstances (age, health, current finances) as a separate factor; applied the test and affirmed the forfeiture.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a district court may consider defendant's personal circumstances (age, health, present finances) when reviewing criminal forfeiture under the Excessive Fines Clause | Gov't: implicit — courts should apply Bajakajian factors; personal circumstances irrelevant | Viloski: District Court should consider his age, poor health, and dire finances in proportionality analysis | Court: Personal circumstances cannot be a distinct factor; they are only relevant to the extent they demonstrate the forfeiture would deprive the defendant of his future ability to earn a living |
| Whether the $1,273,285.50 forfeiture is "grossly disproportional" under Bajakajian (proportionality factors) | Gov't: Forfeiture equals proceeds tied to crimes; Bajakajian factors support constitutionality | Viloski: Forfeiture excessive given his relative role, lack of profit, and personal circumstances | Court: Forfeiture not grossly disproportional; Bajakajian factors (essence of crime, class of persons, Guidelines and statutory maxima, harm caused) and lack of evidence that forfeiture would destroy Viloski's livelihood support affirmance |
Key Cases Cited
- Bajakajian v. United States, 524 U.S. 321 (1998) (established two‑step Excessive Fines analysis and gross‑disproportionality inquiry)
- United States v. George, 779 F.3d 113 (2d Cir. 2015) (describing four Bajakajian‑derived proportionality factors)
- United States v. Castello, 611 F.3d 116 (2d Cir. 2010) (burden on defendant to show forfeiture unconstitutional; use of Bajakajian factors)
- United States v. Levesque, 546 F.3d 78 (1st Cir. 2008) (recognized livelihood consideration but treated personal circumstances differently)
- Browning‑Ferris Indus. v. Kelco Disposal, 492 U.S. 257 (1989) (historical discussion of fines and Magna Carta principle that fines should not deprive livelihood)