Attorney Kim Corral Challenges Restitution Order in Tony Viola's Federal Criminal Case

 

  • Co-Defendants Uri Gofman, Nick Myles make identical claims
  • Motion alleges US Attorney, Mortgage Fraud Task Force illegally added victims, increased loss amounts 19 months after the conclusion of the case
  • Previously obtained restitution ledger details misappropriation of over $15 million in crime victim funds
  • According to prosecutors, banks are both innocent victims and perpetrators of the offense of conviction, because the same transactions are included in a myriad of different proceedings
  • Cuyahoga County Land Bank gains ownership of properties at no cost, without compensation to former owners and without forfeiture orders

 

Attorney Kim Corral filed a motion to vacate a restitution order USA v. Viola, 1:08-cr-00506-DCN Doc #: 570, arguing that changes to the restitution order 19 months after a judgment in a criminal case (adding a new victim and increasing the restitution obligation by $1.4 million) was illegal.  Kim’s motion argued that “this honorable Court lacked jurisdiction to enter its July 11, 2013 Restitution Order, increasing Defendant Anthony Viola’s restitution by $1,393,336.51. Accordingly, this Court must vacate its July 11, 2013 Restitution Order as this Court lacked jurisdiction to enter any order amending a final conviction and sentencing judgment.”

Kim’s motion cited Sixth Circuit precedent stating:

When a court imposes a sentence, "it does not have the authority to change or modify that sentence unless such authority is expressly granted by statute." United States v. Hammond, 712 F.3d 333, 335 (6th Cir. 2013) (per curiam); see also United States v. Curry, 606 F.3d 323, 326 (6th Cir. 2010); see generally 18 U.S.C. § 3582. And a restitution order "is a part of one's sentence." United States v. Winans, 748 F.3d 268, 271 (6th Cir. 2014); United States v. Harvey, 20 F.4th 71, 75 (1st Cir. 2021).

To read the full filing in its entirety, kindly visit the FreeTonyViola Evidence Locker, or access the case docket on the federal court’s PACER system.

Background

The Ohio Attorney General’s Office formed a multi-jurisdictional Task Force to prosecute mortgage fraud cases and secured federal grants to fund a multi-jurisdictional Mortgage Fraud Task Force, Bureau of Justice Assistance Grant # 2009-SC - B9-0080.  The task force charged over 1,000 real estate agents, buyers and sellers of property with duping banks including JP Morgan Chase and Citigroup into making ‘no money down’ mortgage loans that did not meet the lender’s guidelines. 

The Prosecutors Play a Double game with banks – Lenders are both innocent victims, entitled to restitution – and criminals, forced to pay anyone who lost money – on the same transactions

The Justice Department pursued mutually exclusive theories of criminality -- simultaneously claiming that banks were "innocent victims" of mortgage fraud schemes, entitled to restitution.  However, these same banks have admitted wrongdoing and paid money to settle claims concerning the very same properties at issue in mortgage fraud trials cases.  Kindly consider the property located at 3233 Dellwood Road in Cleveland Heights, Ohio – owned by Government witness Kathryn Clover and Count 33 in USA v. Anthony Viola, CR-08-506, N.D. Ohio.  Prosecutors told jurors at my trial that all loans "would have to satisfy the lender's guidelines before any money was disbursed," Page 15, Case 12-3112, 5/1/13 Government Statement of Facts.  But this same Dellwood property was also Count 83 in a case where banks committed fraud and lender executives were indicted for knowingly closing no money down loans that didn't meet the bank's lending guidelines.  In that case, Ohio v. Harris, et. al., CR-10-551555, the indictment says that "high ranking officials" at banks "approved loans for funding knowing that the stipulations for such loan approval had not been met by falsely stating in mortgage documents that said stipulations had been satisfied ... The loans should never have been approved," pages 6 and 11, indictment.  The 3233 Dellwood property was also at issue in state criminal cases, where Tony was exonerated and where other defendants were ordered to pay “restitution” on that property as well, Case number 10-CR-536877.

The FreeTonyViola.com investigative team previously obtained records that the Cuyahoga County Prosecutor’s Office collected over $15 million in restitution, but never remitted any of funds to crime victims listed on court orders.  Instead, a disbursement ledger confirms the Prosecutor’s Office utilized funds collected in mortgage fraud cases to pay for airline tickets, hotel rooms, laptop computers for prosecutors and made payments to current Senior Assistant Ohio Attorney General Daniel Kasaris, listed as “KasDan” on the ledger.  At the same time restitution was being diverted from crime victims, the Cuyahoga County Land Bank obtained millions of dollars in real estate, often without any court orders or written agreements from former property owners following demands by the County Prosecutor that individuals surrender real estate to the Land Bank in order to have criminal cases dismissed, Viola v. Cuyahoga County Land Bank, et. al., Case Number 1:21-cv-1196, N.D. Ohio, Court of Appeals Number 21-4139.

In late January, Judge Donald Nugent promptly denied Kim’s motion, without addressing the merits of the claim, setting up an appeal to the United States Court of Appeals for the Sixth Circuit, and additional proceedings to correct this obvious injustice.

“I proved my innocence at a second trial but have never had a chance to present proof of my innocence in federal court,” said Tony Viola.  “Also, nineteen months after the conclusion of the federal criminal case, the government added a victim and increased the supposed loss amount in an illegal restitution order, which Judge Nugent signed off without notice to defendants.  I am grateful that Attorney Kim Corral is working so hard to correct this obvious injustice and hope that the Public Defender’s Office and Innocence Projects will join us in stopping prosecutors from changing sentences and adding new victims after the conclusion of a criminal prosecution.”

ABOUT FREETONYVIOLA.COM:  FreeTonyViola.com’s mission is 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.  Tony Viola was investigated by the Cuyahoga County Mortgage Fraud Task Force, a multi-jurisdictional task force comprised of state, local and federal agencies, and prosecuted in parallel federal and state cases. He lost the federal case but won the subsequent state trial.  The website, originally created to solicit leads for Tony’s investigative team, has evolved into a tool to keep the public informed about critical developments in his case, and to share information that could potentially assist others who have been wrongfully ensnared by our criminal justice system.  For additional information, visit http://www.FreeTonyViola.com; friend us on Facebook at https://www.facebook.com/tony.viola.9212; or follow us on Twitter @TonyViola.

ABOUT ATTORNEY KIMBERLY KENDALL CORRAL:  Additional information about Attorney Kimberly Corral’s law practice and recent accomplishments can be found on her website, www.kimlawcrimlaw.com.

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