White Collar Roundup - March 2016

What Makes Forfeiture Excessive?

When sentencing defendant Benjamin Viloski for his involvement in a kickback scheme, District Judge David N. Hurd "declined to consider Viloski's age, health, and financial condition in determining whether [his] previously issued forfeiture order of $1,272,285.50 was unconstitutionally excessive." On appeal to the U.S. Court of Appeals for the Second Circuit in United States v. Viloski, the court addressed whether that declination was an error. The court held that "a [district] court reviewing a criminal forfeiture under the Excessive Fines Clause may consider . . . whether the forfeiture would deprive the defendant of his future ability to earn a living." In so holding, the court folded this factor into the other four proportionality factors to be considered when analyzing a penalty under the Excessive Fines Clause: (1) "the essence of the crime" and "its relation to other criminal activity," (2) "whether the defendant fits into the