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Viola v. United States Department of Justice

United States District Court, District of Columbia

March 31, 2018

ANTHONY L. VIOLA, Plaintiffs,



         In this Freedom of Information Act (“FOIA”) lawsuit, pro se Plaintiff Anthony L. Viola seeks records relating to third parties from the Executive Office of the United States Attorney (EOUSA) and the FBI.[1] Defendant Department of Justice has withheld the records sought and now seeks summary judgment on Viola's claims. ECF No. 23. For the reasons set forth below, the court will GRANT the motion in part, and DENY the motion in part.

         I. BACKGROUND[2]

         In 2011, an Ohio federal jury found Plaintiff guilty of conspiracy to commit mortgage fraud. United States of America v. Lesniak, et al., 8-cr-506 (N.D. Ohio), ECF Nos. 54, 245. Although he continues to assert his innocence and apparently was acquitted of what he describes as “identical charges” in state court, Compl. ¶¶ 10-11, Plaintiff remains incarcerated despite numerous unsuccessful challenges to his conviction. See e.g., Lesniak, 8-cr-506 (N.D. Ohio), ECF No. 541. Several of those challenges involved claims that his criminal proceedings were tainted by prosecutorial misconduct and ineffective assistance of counsel. After sentencing, Plaintiff filed numerous motions and appeals (including voluminous exhibits) raising these claims. United States District Court Judge Donald Nugent-who presided over Plaintiff's federal criminal trial and sentenced him-held at least two day-long evidentiary hearings on the motions and issued numerous decisions denying post-conviction relief. See id.[3]

         Plaintiff now theorizes that Judge Nugent turned a blind eye to the alleged misconduct and ineffective assistance of counsel in Plaintiff's case in order to protect himself from potential embarrassment and/or prosecution. Compl. ¶¶ 27-28. Viola supports this theory by pointing to proceedings in another Ohio federal criminal matter: United States v. Calabrese, in which the defendant was charged and convicted of conspiracy, bribery, extortion, and mail fraud after a three-year investigation into public corruption in Cuyahoga County, Ohio. 11-cr-437 (N.D. Ohio), ECF No. 104 pp. 1-2; ECF No. 119. Calabrese's case was randomly assigned to Judge Nugent, but the government successfully sought reassignment to Judge Sarah Lioi, who was handling other cases arising out of the same investigation. Id., ECF No. 104. Calabrese twice sought to have the case reassigned, but argued that reassignment back to Judge Nugent was inappropriate because of his alleged connection to some of the individuals targeted during the investigation. Id.

         Although she denied the motion to reassign, Judge Lioi found that there was no basis to disqualify Judge Nugent:

The predicate for defendant Calabrese's motion is the apparent fact that brief telephone calls involving Judge Nugent [and some of the individuals targeted and/or charged in the Cuyahoga County investigation] were a part of the materials turned over by the government in discovery. The calls do not reveal any wrong doing or criminal activity on the part of Judge Nugent, and there is an absence of any indication that Judge Nugent knew of or was a part of the charged conspiracy.

Id., ECF No. 58 p. 3. Subsequently, Calabrese's attorney received, from an “unknown source . . . a portion of an FBI Form 302[4] summarizing a[n]. . .interview between Judge Nugent and FBI agents” during which the “agents advised Nugent of the existence of the public corruption investigation.” Id., ECF No. 104 pp. 4-5. Calabrese argued that Judge Nugent was disqualified because of the telephone calls and because the interview took place before his case was originally assigned to Nugent. Id. After reviewing Calebrese's supporting documents-many of which are sealed-Judge Lioi noted that “[t]he production of the FBI interview summary demonstrates that Judge Nugent was aware at the time of the [case] transfer of both the interception of the calls, and of the fact that he had been interviewed in connection with the FBI's investigation.” See id.; see also ECF Nos. 55, 58, 102 at p. 6.

         Plaintiff theorizes that the records and evidence from Calabrese's case could show that Judge Nugent had ulterior reasons for denying Plaintiff's post-trial motions. Compl. ¶¶ 27-28; Pls. Ex. H, Viola Aff. ¶ 8. This theory does not explain why the Sixth Circuit and the U.S. Supreme Court also denied Plaintiff's appeals, but Plaintiff nonetheless seeks, through FOIA, recordings and documents relating to Judge Nugent and the investigation.

         Plaintiff also seeks records regarding Paul Tomko, an FBI “expert” and “informant, ” whom Plaintiff alleges reviewed key documents in Plaintiff's criminal case, Compl. ¶ 42, and who was later imprisoned for mortgage fraud. Compl. ¶ 43; id. at Ex. N.


         Summary judgment is appropriate where the record shows there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In determining whether a genuine issue of material fact exists, the court must view all facts in the light most favorable to the non-moving party. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). “A fact is ‘material' if a dispute over it might affect the outcome of a suit under governing law; factual disputes that are ‘irrelevant or unnecessary' do not affect the summary judgment determination.” Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)). “An issue is ‘genuine' if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'” Id.

         FOIA cases are “typically and appropriately . . . decided on motions for summary judgment. Gold Anti-Trust Action Comm., Inc. v. Bd. of Governors of the Fed. Reserve Sys., 762 F.Supp.2d 123, 130 (D.D.C.2011) (citations omitted). Upon an agency's request for summary judgment in its favor on the grounds that it has fully discharged its FOIA obligations, all underlying facts and inferences are analyzed in the light most favorable to the FOIA requester; only after an agency proves that it has fully discharged its FOIA obligations is summary judgment appropriate. Moore v. Aspin, 916 F.Supp. 32, 35 (D.D.C. 1996) (citations omitted); Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983).

         In cases concerning the adequacy of an agency's search, “[t]he burden is on the agency to demonstrate that it made a good faith effort to conduct a search using methods which can be reasonably expected to produce the information requested.” DiBacco v. U.S. Army, 795 F.3d 178, 188 (D.C. Cir. 2015) (citations, quotations and alterations omitted). An agency may prove the reasonableness of its search through a declaration of a responsible agency official, so long as the declaration reasonably details the documents and justifications for nondisclosure, and is not controverted by contrary evidence or evidence of bad faith. Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Although the agency is not required to search every record system, it must make a good faith effort to reasonably search systems that are likely to contain records where the requested information is likely to be found. Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). The agency declaration can demonstrate reasonableness by “setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched.” Sanders v. Obama, 729 F.Supp.2d 148, 155 (D.D.C. 2010), aff'd sub nom., Sanders v. U.S. Dep't of Justice, 10-5273, 2011 WL 1769099 (D.C. Cir. Apr. 21, 2011) (citation omitted). Once an agency has provided adequate declarations, the burden shifts to the plaintiff to demonstrate that the agency failed to search in good faith, id., but the presumption of good faith “cannot be rebutted by purely speculative claims about the existence and discoverability of other documents.” SafeCard Servs. v. S.E.C., 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks and citation omitted).

         III. ANALYSIS

         A. EOUSA

         Plaintiff sent the following request for records to the EOUSA:

a) In 2012, the public became aware that U.S. District Judge Donald Nugent was recorded on wiretapped conversations with jailed political leaders James Dimora and Frank Russo.[5] This request is for those conversations, both oral recordings and transcripts available.
b) Any documents that reference Judge Donald Nugent is [sic] being requested, including emails or notes from interviews with the Judge.
c) All documents concerning FBI informant Paul Tomko and all reports or documents provided by Mr. Tomko while he worked for the FBI and U.S. Attorney's Office in Cleveland.\

ECF No. 23-2, Defs. Mot., Luczynski Decl. ¶ 4; id. at Ex. A.

         1. EOUSA's Search and Final Determination Letter

         The EOUSA advised Plaintiff in writing that it would not release records regarding third parties Dimora and Russo.[6] Luczynski Decl. at Ex. C. The EOUSA explained that it withheld the records pursuant to the Privacy Act, 5 U.S.C. § 552a, because Viola had not submitted: (1) consent from the third parties; (2) proof that they were deceased; or (3) evidence that the public interest in disclosure outweighed the third parties' privacy interests. Id. The EOUSA also explained it withheld the records because they were “generally exempt from disclosure” pursuant to two FOIA exemptions:

. (b)(6): “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy”;
. (b)(7)(C): “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . could reasonably be expected to constitute an unwarranted invasion of personal privacy.”

See id; 5 U.S.C. §§ 552(b)(6); 552(b)(7)C). The EOUSA stated that because Plaintiff failed to meet the requirements for “receiv[ing] information concerning individuals other than himself, ” EOUSA searched public records using the name “Anthony L. Viola and search terms provided by the requester in his FOIA request.” Luczynski Decl. ¶ 7.

         EOUSA Attorney Advisor David Luczynski is the agency representative responsible for responding to FOIA requests. Luczynski Decl. ¶ 1. Luczynski declares that each U.S. Attorney's Office “maintains the case files for criminal matters prosecuted by that office.” Id. ¶ 7. Since Plaintiff's request related to the Northern District of Ohio, the EOUSA forwarded his request to that office, because “[t]here are no other records or systems or locations within the EOUSA in which . . . files pertaining to plaintiff's request were maintained.” Id. ¶¶ 7, 9. The Northern District of Ohio office conducted “a systematic search” of the LIONS computer tracking system, which can retrieve “information based on an individual's name, ” the agency's internal administrative number, and the case number for any district court cases. Id. ¶ 7. Luczynski maintains that “[a]ll documents responsive to plaintiff's FOIA request [were] located” in the Ohio office Criminal Case File System (Justice/USA-007) and “all of the public records he requested [were] being released to him. Id. ¶¶ 6, 8; Luczynski Decl. at Ex. C.

         2. Plaintiff's Challenge to the Search

         Plaintiff disputes Luczynski's declaration that responsive files were confined to the Ohio U.S. Attorney's Office. He contends that the “government's” search[7] was inadequate because responsive files “may be located at the task force location” and therefore the “government” had a responsibility to “search the joint federal-state task force.” Pls. Resp. pp. 1-2. Plaintiff claims there is uncontroverted evidence that the FBI and other federal agencies investigated and prosecuted his suspected mortgage fraud in conjunction with Ohio state law enforcement officials as part of the “Mortgage Fraud Task Force” (“MFTF”). Pls. Response p. 1 (citing 8-cr-506 (N.D. Ohio), ECF No. 400, March 22, 2011 Trial Tr. pp. 3493-95, 3498-99). He notes that during his criminal trial, when questioned about what law enforcement officials discovered while executing a search warrant, an FBI agent testified that after the search

the evidence that's obtained, that was brought back to the Task Force location. And when the inventory of the search, that basically detailed that there was [sic] various records, documentation taken for properties, and computers were seized from the various businesses, and I believe from the ...

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