United States District Court, District of Columbia
ANTHONY L. VIOLA, Plaintiffs,
UNITED STATES DEPARTMENT OF JUSTICE et al., Defendants.
S. CHUTKAN, UNITED STATES DISTRICT JUDGE
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. 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.
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.
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.
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
Id., ECF No. 58 p. 3. Subsequently, Calabrese's
attorney received, from an “unknown source . . . a
portion of an FBI Form 302 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.
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.
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.
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.
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).
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).
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. 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.
EOUSA's Search and Final Determination Letter
EOUSA advised Plaintiff in writing that it would not release
records regarding third parties Dimora and
Russo. 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.
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.
Plaintiff's Challenge to the Search
disputes Luczynski's declaration that responsive files
were confined to the Ohio U.S. Attorney's Office. He
contends that the “government's”
search 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