Viola v. Ohio Attorney Gen.

• Decision Date: 11 February 2021
• Docket Number: Case No. 1:20cv765
• Parties: Anthony L. Viola, Plaintiff, v. Ohio Attorney General, et al. Defendants.
• Court: U.S. District Court — Northern District of Ohio

Anthony L. Viola, Plaintiff, v. Ohio Attorney General, et al. Defendants.

Case No. 1:20cv765

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

February 11, 2021

JUDGE PAMELA A. BARKER

MEMORANDUM OPINION AND ORDER

Currently pending are the following motions filed by pro se Plaintiff Anthony L. Viola ("Viola"): (1) Motion for Appointment of Counsel (Doc. No. 23); (2) Motion to Take Judicial Notice of Recent News Articles (Doc. No. 32); and (3) Motion to Refer Mark Bennett and Dan Kasaris for Criminal Prosecution (Doc. No. 40). Also pending are the following motions filed by the various Defendants in this action: (1) Motion of Defendants Justin Herdman, Mark Bennett, Steven Dettelbach, John Siegel, Laura Irwin, and John Moustakas ("Federal Defendants") to Dismiss and to Declare Vexatious (Doc. No. 30); (2) Motion of Defendants Dave Yost, Heather Buchanan, Micah Ault, and Daniel Kasaris ("State Defendants") to Dismiss (Doc. No. 34); (3) Defendant Michael O'Malley's Motion to Dismiss (Doc. No. 31); (4) Defendant Marcus Sidoti's Motion to Dismiss (Doc. No. 52); (5) Defendant Jaye Schlachet's Motion to Dismiss (Doc. No. 22); and (6) Defendant Daniel Kasaris's Motion to Impose Pre-Filing Restrictions upon Plaintiff (Doc. No. 45).

For the following reasons, Plaintiff's Motions for Appointment of Counsel (Doc. No. 23), to take Judicial Notice (Doc. No. 32), and to Refer for Criminal Prosecution (Doc. No. 40) are DENIED. The Federal Defendants' Motion to Dismiss and to Declare Vexatious (Doc. No. 30) is GRANTED IN PART and DENIED IN PART, as set forth herein. The State Defendants' Motion to Dismiss (Doc. No. 34) is GRANTED. The Motions to Dismiss filed respectively by Defendants O'Malley, Sidoti, and Schlachet (Doc. Nos. 31, 52, 22) are GRANTED. And, finally, Defendant Kasaris's Motion to Impose Pre-Filing Restrictions (Doc. No. 45) is DENIED.

I. Background

In April 2011, Anthony Viola was tried and convicted in the United States District Court for the Northern District of Ohio on thirty-three (33) counts of wire fraud and two (2) counts of conspiracy arising from a mortgage fraud scheme. See United States v. Viola, Case No. 1:08cr506 (N.D. Ohio) (Nugent, J.) Viola was subsequently sentenced to 150 months for each of the wire fraud counts and 60 months for each of the conspiracy counts, with all terms of imprisonment to run concurrently. Id. Viola alleges (and the federal docket indicates) that Defendants Mark Bennett, John Siegel, and Michael Ault¹ were the Assistant United States Attorneys that prosecuted Viola's federal case. Viola's federal conviction and sentence were upheld on direct appeal to the Sixth Circuit Court of Appeals. See United States v. Viola, 2013 U.S. App. Lexis 26454 at * 2 (6th Cir. Nov. 6, 2013).²

Meanwhile, in 2012, Viola was tried and acquitted of similar charges under state law in the Cuyahoga County Court of Common Pleas. See State v. Viola, Case Nos. CR-10-536877 and CR-10-543886 (Cuy. Cty. Ct. Cmn. Pl.) Defendant Daniel Kasaris (who was then a Cuyahoga County Prosecutor) prosecuted Viola's state case.

On March 30, 2020, Viola, proceeding pro se, filed a Complaint in the United States District Court for the Southern District of Ohio against numerous defendants, in which he asserted that various instances of governmental misconduct occurred during both his state and federal trials. (Doc. No. 1.) On April 8, 2020, the Southern District of Ohio transferred the instant action to this Court. (Doc. No. 3.)

On July 29, 2020, Viola filed a First Amended Complaint, naming the following fourteen (14) Defendants: (1) United States Attorney for the Northern District of Ohio Justin Herdman; Assistant United States Attorneys ("AUSAs") Mark Bennett, John Moustakas and Laura Irwin; former United States Attorney Steven Dettelbach; and former AUSA John Siegel (the "Federal Defendants"); (2) Ohio Attorney General Dave Yost; Assistant Attorney Generals Heather Buchanan, Micah Ault, and Daniel Kasaris; and former Assistant Attorney General Tiffany Carwile (the "State Defendants"); (3) Cuyahoga County Prosecutor Michael C. O'Malley; and (4) attorneys Marcus Sidoti and Jaye Schlachet.³ (Doc. No. 25.)

In the Amended Complaint, Viola alleges that he was "simultaneously prosecuted in both federal and state court, on identical charges, by the same prosecution team, through a multi-jurisdictional Mortgage Fraud Task Force." (Doc. No. 25 at p. 1.) He asserts that, when evidence that was improperly withheld during the federal trial was later introduced at his state trial, "actual innocence was established . . . on the exact same charges." (Id. at p. 2.) Relying on numerous exhibits attached to the Amended Complaint, Viola asserts six categories of alleged government misconduct relating to his federal and state trials. (Id. at pp. 2-6.)

First, Viola alleges that Defendants Bennett and Kasaris "possessed proof of [Viola's] innocence yet failed to produce that evidence before either criminal trial." (Id. at p. 2.) Specifically, Viola alleges that Bennett and Kasaris (1) "shifted" exculpatory evidence (including FBI interview summaries and bank documents) to the Mortgage Fraud Task Force location and then "plead ignorance" as to this evidence; and (2) falsely claimed that the Task Force lost certain computers. (Id.)

Second, Viola alleges that Defendants Bennett and Kasaris directed Mortgage Fraud Task Force Office Manager Dawn Pasela to pose as a graduate student studying criminal defense, offer to assist Viola's defense team, and then secretly record conversations with Viola so that "prosecutors could obtain confidential defense trial strategy information." (Id. at p. 3.) Viola claims that Ms. Pasela became concerned that Bennett and Kasaris were not producing exculpatory evidence to the defense. (Id.) She then provided Viola "with key evidence, assisted [Viola] with preparation for the [state] trial, prepared defense exhibits, and offered to testify as a witness about misconduct inside the Task Force." (Id.) Viola alleges that federal agents and Defendant Kasaris threatened Ms. Pasela with prosecution if she testified for Viola. (Id.) He states that Ms. Pasela "never appeared in court and was found dead in her apartment by her Father shortly after her scheduled testimony." (Id.)

Third, Viola alleges that Defendants Kasaris, Bennett, Siegel, and Ault all knowingly used the perjured testimony of government witness Kathryn Clover. (Id. at p. 4.) Viola further alleges that Defendant Schlachet represented Ms. Clover, was aware that she had perjured herself, and asked Defendant Bennett to recall Clover to the stand to correct her false testimony. (Id.) Viola alleges that Bennett refused to do so and that Schlachet "accepted Bennett's decision and failed to report theknowing use of perjured testimony to obtain a conviction to the Ohio Supreme Court Disciplinary Counsel." (Id.)

Fourth, Viola alleges that Defendant Kasaris was involved in an inappropriate romantic relationship with Ms. Clover and that numerous individuals (including Defendant Sidoti) were aware of this relationship but failed to report it. (Id. at pp. 4-5.) Viola asserts that the evidence he has amassed regarding this alleged relationship "underscore[s] the need for an immediate investigation by the proper authorities into these serious allegations, which may result in the dismissal of dozens of criminal cases in which Clover testified and/or the initiation of criminal charges against Bennett and Kasaris." (Id. at p. 5.)

Fifth, Viola alleges that, prior to his federal trial, "timely objections to conflicts of interest resulting from joint defense between all defendants who proceeded to trial and the simultaneous representation by those same attorneys of government witness Kathryn Clover and lender employees were filed." (Id.) Viola asserts that Defendant Bennett was aware that an actual conflict existed but repeatedly lied in multiple court filings by falsely claiming that conflicts of interest were waived. (Id.)

Sixth, and finally, Viola alleges that Defendant Kasaris "acted under color of law and abused an unconstitutional state statute to threaten to prosecute individuals posting comments on blogs related to [Viola's] case." (Id. at p. 6.) Specifically, Viola alleges that, when he continued to be incarcerated on federal charges despite his acquittal in state court, his friends and supporters set up a website called www.FreeTonyViola.com. (Id.) The mission of this website was to "shine a bright spotlight on the 'win at all costs' tactics, prosecutorial overreach, and misconduct the United States Department of Justice employs when prosecuting American citizens." (Id.) Among other things, thewebsite included allegations regarding Defendant Kasaris's alleged romantic relationship with Ms. Clover. (Id.) Viola alleges that Kasaris threatened to prosecute the www.FreeTonyViola.com webmaster, Robert Ryan, which resulted in Mr. Ryan quitting. (Id.) He further alleges that Kasaris "sent threatening letters to the Plaintiff as well as other citizens . . . who posted comments on our blog, threatening to prosecute these individuals pursuant to Ohio Revised Code § 2921.03(a)." (Id. at pp. 6-7.) In support of this allegation, Viola attaches to the Amended Complaint a letter from Kasaris to Viola dated September 2016. (Doc. No. 25-29.) This letter states as follows:

I am writing you to inform you that Ohio Law provides that, "No person, knowingly using a materially false or fraudulent writing with malicious purpose, in bad faith, or in a wanton or reckless manner, shall attempt to influence, intimidate, or hinder a public servant in the discharge of the person's duty." Please see Ohio Revised Code 2921.03(a). For approximately a year[,] you or others on your behalf have carried on a campaign publishing false or materially false writings in a reckless manner attempting to intimidate me in the performance of my duties as a prosecutor and as a city councilman in the

...