United States v. Viloski
53 F. Supp. 3d 526
N.D.N.Y.2014Background
- Viloski was convicted after a three-week trial on counts including conspiracy to commit mail and wire fraud, two counts of mail fraud, conspiracy to commit concealment money laundering and transactions in criminally derived property, three counts of aiding and abetting concealment money laundering, aiding and abetting transactions in criminally derived property, and making false statements.
- A Preliminary Order of Forfeiture of $1,273,285.50 was entered, with joint and several liability with co-defendants for certain counts.
- On January 13, 2012, Viloski was sentenced to 60 months on multiple counts, concurrent with three years of supervised release, and restitution was ordered to several parties; DSG restitution was denied.
- The Second Circuit affirmed the conviction but remanded for reconsideration of forfeiture under the Excessive Fines Clause after Bajakajian, prompting a mandate in 2014.
- Following briefing, the court evaluated forfeiture under Bajakajian’s four-factor test and related Second Circuit and Supreme Court authorities.
- The court upheld the $1,273,285.50 forfeiture as not grossly disproportional to the offenses and related harms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the forfeiture is grossly disproportional under the Excessive Fines Clause | Viloski argues the amount is excessive | Viloski contends forfeiture should be zero or narrowly tailored | Not grossly disproportional; approved per Bajakajian factors |
| Application of Bajakajian factors to this case | Factors support proportionality | Factors require lesser forfeiture | Factors applied; forfeiture deemed proportional |
| Whether forfeiture should be apportioned to identifiable ill-gotten gains | Proceeds to be disgorged as ill-gotten gains | Gosson/Queri profits differ; Viloski retained lawful funds | No apportionment; forfeiture approved as a whole |
| Whether extrinsic considerations (health, assets) can defeat the Excessive Fines analysis | Defendant has health/financial hardship | Limited ability to pay; may reduce impact | Not permissible under Bajakajian; four factors govern |
| Relation of forfeiture to the ruling for co-defendants (Queri, Gosson) | Court should align with co-defendants' amounts | Queri/Gosson warrants different treatment | Court relied on Bajakajian factors; not dictated by co-defendants' amounts |
Key Cases Cited
- Bajakajian v. United States, 524 U.S. 321 (1998) (test for excessive forfeiture under the Eighth Amendment; four factors)
- United States v. Castello, 611 F.3d 116 (2d Cir. 2010) (proportionality analysis; top of Guidelines relevant)
- United States v. Varrone, 554 F.3d 327 (2d Cir. 2009) (four-factor framework; proportionality guideposts)
- United States v. Elfgeeh, 515 F.3d 100 (2d Cir. 2008) (relevance of harm and proportionality in forfeiture)
- United States v. Jose, 499 F.3d 105 (1st Cir. 2007) (guidance on proportionality considerations)