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United States v. Viloski

United States Court of Appeals, Second Circuit

February 17, 2016

UNITED STATES OF AMERICA, Appellee,
v.
BENJAMIN VILOSKI, Defendant-Appellant. [*]

Argued October 22, 2015.

Page 105

[Copyrighted Material Omitted]

Page 106

On Appeal from the United States District Court for the Northern District of New York. The question presented is whether the criminal forfeiture imposed on defendant-appellant Benjamin Viloski (" Viloski" ) violates the Excessive Fines Clause of the Eighth Amendment. Viloski argues that the United States District Court for the Northern District of New York (David N. Hurd, Judge) erred when it declined to consider Viloski age, health, and financial condition in determining whether its previously issued forfeiture order of $1,273,285.50 was unconstitutionally excessive. Viloski also argues that even if the District Court properly ignored his personal circumstances, the forfeiture is nonetheless unconstitutional in light of the four factors described in United States v. Bajakajian, 524 U.S. 321, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998). We hold that a court reviewing a criminal forfeiture under the Excessive Fines Clause may consider--as part of the proportionality determination required by Bajakajian--whether the forfeiture would deprive the defendant of his future ability to earn a living. We further hold, however, that courts should not consider a defendant personal circumstances as a distinct factor. Applying these conclusions to the present case, we conclude that the challenged forfeiture is constitutional because it is not " grossly disproportional" to the gravity of Viloski offenses. We therefore AFFIRM the October 16, 2014 Order of the District Court.

PETER GOLDBERGER (Pamela A. Wilk, on the brief), Ardmore, PA, for Defendant-Appellant.

GWENDOLYN E. CARROLL (Steven D. Clymer, on the brief), Assistant United States Attorneys, for Richard S. Hartunian, United States Attorney for the Northern District of New York, Syracuse, NY, for Appellee.

Before: KEARSE, WALKER, AND CABRANES, Circuit Judges.

OPINION

Page 107

José A. Cabranes, Circuit Judge :

The question presented is whether the criminal forfeiture imposed on defendant-appellant Benjamin Viloski (" Viloski" ) violates the Excessive Fines Clause of the Eighth Amendment. Viloski argues that the United States District Court for the Northern District of New York (David N. Hurd, Judge ) erred when it declined to consider Viloski's age, health, and financial condition in determining whether its previously issued forfeiture order of $1,273,285.50 was unconstitutionally excessive. Viloski also argues that even if the District Court properly ignored his personal circumstances, the forfeiture is nonetheless unconstitutional in light of the four factors described in United States v. Bajakajian, 524 U.S. 321, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998).

We hold that a court reviewing a criminal forfeiture under the Excessive Fines Clause may consider--as part of the proportionality determination required by Bajakajian --whether the forfeiture would deprive the defendant of his future ability to earn a living. We further hold, however, that courts should not consider a defendant's personal circumstances as a distinct factor. Applying these conclusions to the present case, we determine that the challenged forfeiture is constitutional because it is not " grossly disproportional" to the gravity of Viloski's offenses. We therefore AFFIRM the October 16, 2014 Order of the District Court.

I. BACKGROUND

Viloski was a lawyer and real-estate broker who worked with Dick's Sporting Goods (" DSG" ) on a number of development projects.[1] From 1998 through 2005, he participated in a kickback scheme involving the construction of new DSG stores, in which developers or landlords paid " consulting" fees--sometimes in exchange for work never performed--to Viloski in his capacity as DSG's broker. Viloski passed all or part of each payment to codefendant Joseph Queri, Jr. (" Queri" ), a senior DSG executive, who took the payments without DSG's knowledge. ...


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