United States District Court, N.D. New York
APPEARANCES: GWENDOLYN E. CARROLL, ESQ., Ass't United States Attorney, OF COUNSEL, HON. RICHARD S. HARTUNIAN, United States Attorney for the Northern District of New York, Syracuse, NY.
For Defendant: MARK J. MAHONEY, ESQ., OF COUNSEL, HARRINGTON & MAHONEY, Buffalo, NY.
MEMORANDUM-DECISION and ORDER
DAVID N. HURD, United States District Judge.
Benjamin Viloski (" Viloski" or " defendant" ) was convicted in connection with a kickback and money laundering scheme which impacted Dick's Sporting Goods, Inc. (" DSG" ), its shareholders, and various landlords, real estate developers, investors, property owners, and others involved in the development of new DSG stores. After a three-week trial in July 2011, a jury found Viloski guilty of: one count of conspiracy to commit mail and wire fraud (Count 1); two counts of mail fraud (Counts 2 and 5); one count of conspiracy to commit concealment money laundering and transactions in criminally derived property (Count 12); three counts of aiding and abetting concealment money laundering (Counts 13, 14, and 15); one count of aiding and abetting transactions in criminally derived property (Count 16); and one count of making false statements (Count 31). Viloski was acquitted of the remaining eleven counts in the Amended First Superseding Indictment: Counts 3, 4, 6, 7, 8, 9, 10, 11, 17, 18, and 19. Defendant's post-trial motions pursuant to Federal Rules of Criminal Procedure 29 and 33 were denied.
The indictment also contained a criminal forfeiture allegation seeking a money judgment in an amount " equal to the total amount of money involved in each offense of conviction, or conspiracy to commit such offense, for which the defendant(s) is convicted. In the absence of the forfeitable property, the United States will seek a money judgment." Consistent with that allegation, following his conviction, the United States of Government (" the Government" ) sought a Preliminary Order of Forfeiture as to Viloski. Defendant opposed and the Government replied. A Preliminary Order of Forfeiture in the amount of $1,273,285.50 was entered against Viloski on November 28, 2011. It was preliminarily ordered that Viloski would be jointly and severally liable with convicted co-defendant Queri regarding Counts 1 and 12, and jointly and severally liable with convicted co-defendant Gosson regarding Count 1.
On January 13, 2012, Viloski was sentenced to a term of sixty months on each
of counts 1, 2, 5, 12, 13, 14, 15, 16 and 31 of the Amended First Superseding Indictment to be served concurrently and three years of supervised release on each count to be served concurrently. A $900 special assessment was imposed and restitution was ordered in the amount of $25,000 to Classic Real Estate jointly and severally with Viloski's co-defendant Queri and $50,000 to COR Development jointly and severally with co-defendants Queri and Gosson. Restitution was denied as to DSG. Pursuant to Federal Rule of Criminal Procedure 32.2(b)(3), the Preliminary Order of Forfeiture became final as to Viloski and he was ordered to forfeit to the United States all rights, title and interest in the items listed in the Preliminary Order of Forfeiture, namely $1,273,285.50. On the same day he was sentenced, defendant filed a notice of appeal as to his sentence and the forfeiture order. Judgment was entered against Viloski on January 18, 2012.
On February 4, 2014, the United States Court of Appeals for the Second Circuit issued a decision affirming defendant's conviction, sentence, and restitution but remanding for reconsideration of the forfeiture order. United States v. Viloski, 557 F.App'x 28 (2d Cir. Feb. 4, 2014) (summary order). A Mandate was issued on May 30, 2014, and filed in the Northern District of New York on June 2, 2014. The Second Circuit rejected defendant's argument that the nearly $1.3 million imposed in forfeiture was not found " traceable" to the fraud counts and/or " involved in" the money laundering counts. Id. at 36. The Court found that " [t]he funds Viloski challenges were undoubtedly under his control at some point--indeed, they were necessarily under his control for him to 'launder' them, which the jury had already found beyond a reasonable doubt." Id. However, the Court remanded the forfeiture matter to consider the factors in United States v. Bajakajian, 524 U.S. 321, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998), " to determine whether the forfeiture order violates the 'excessive fines' clause of the Eighth Amendment." Viloski, 557 F.App'x at 36.
Following the filing of the Mandate, the parties briefed the issues relating to forfeiture as identified in the Second Circuit order.
It is assumed the parties are intimately familiar with the facts of this 2009 case as it has proceeded through voluminous motions, plea agreements, plea hearings, and several trials. Accordingly, a ...