Wednesday, November 8th, 2017

Inability to Pay Criminal Forfeiture

Today the Second Circuit vacated a criminal forfeiture order so that the district court could evaluate the defendant’s ability to pay in setting the amount. The summary order in United States v. Muzaffar, 16-579 (appeal from EDNY, Cogan, J.) is available here.

The Supreme Court, in United States v. Bajakaijan, 524 U.S. 321 (1998), identified four factors that a court must  consider to determine whether a punitive forfeiture is unconstitionally excessive: “(1) the essence of the crime and its relation to other criminal activity; (2) whether the defendant fits into the class of persons for whom the statute was principally designed; (3) the maximum sentence and fine that could have been imposed; and (4) the nature of the harm caused by the defendant’s conduct.” United States v. Viloski, 814 F.3d 104, 108 (2d Cir. 2016) (internal quotation marks omitted). In Viloski, the Second Circuit held that these Bajakaijian factors are non-exhaustive, and that courts may also consider “whether the forfeiture would deprive the defendant of his future ability to earn a living.” Id. at 104.

In Muzaffar, the panel remanded to provide the district court the opportunity to reconsider its forfeiture order in light of Viloski:

The District Court did not have the benefit of considering Viloski before imposing this forfeiture. Since [the defendant] presents evidence that the forfeiture would deprive him of his future ability to earn a living—including the fact that he has a ninth-grade education, no meaningful employment history, and will enter the job market after release from prison as a convicted felon—we vacate and remand to the District Court so that it may consider Irfan’s forfeiture in light of Viloski.

Muzaffar, slip op. at 6.

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