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United States v. Cabello

United States District Court, D. Oregon, Portland Division

February 21, 2017

ARCHIE CABELLO, Defendant-Petitioner


          JONES, District Judge

         Petitioner Archie Cabello ("Cabello") moves the court to vacate, set aside, or correct his sentence under 28 U.S.C. §2255. (#287) Cabello asserts six separate grounds for relief concerning his convictions and sentence. For the reasons set forth below, I DENY Cabello's motions.


         On December 3, 2010, a federal grand jury returned a 51-count Indictment (#1) which charged Cabello with conspiracy to defraud the United States, possession of stolen bank funds, making false statements on credit applications, making and subscribing a false income tax return, and conspiracy to launder money stemming from his role in a series of armed car and financial institution robberies, On September 17, 2012, Cabello, appearing pro se with standby counsel, pleaded guilty to eight of the counts (#150). There was no plea agreement in the case.

         Cabello appealed the convictions contending his waiver of counsel was not valid, that his guilty plea was not knowing and voluntary and that the district court failed to establish an adequate factional basis for his guilty plea. The Ninth Circuit reached each of these grounds, ruling that Cabello's waiver of his right to counsel was knowing and intelligent, that his plea was knowingly, intelligently and voluntarily made and had an adequate factual basis. United States v. Cabello, 599 Fed.Appx. 761 (9th Cir. 2015). (#281-1). In May 2015, the Court of Appeals denied Cabello's petition for rehearing en banc (#280). The United States Supreme Court denied his petition for writ of certiorari in October 2015 (#284). Cabello v. United States, 136 S.Ct. 280 (2015).

         Having exhausted his appellate remedies, Cabello filed this §2255 petition asking the court to vacate his sentence and dismiss all charges with prejudice or, in the alternative, to vacate his sentence and remand for further proceedings.


         1. Denial of Counsel of Choice

         Cabello's first ground for relief is that the District Court denied him his choice of legal counsel, Gerald Boyle, Cabello's long time attorney.

         Legal Standard

         The Sixth Amendment to the Constitution guarantees that "in all criminal prosecutions, the accused shall enjoy the right. ., to have the Assistance of Counsel for his defence." The purpose of providing assistance of counsel "is simply to ensure that criminal defendants receive a fair trial, " Strickland v. Washington, 466 U.S. 668, 689 (1984). While the right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers. See Morris v. Sloppy, 461 U.S. 1, 13-14(1983); Jones v. Barnes, 463 U.S. 745 (1983). "The Sixth Amendment right to choose one's own counsel is circumscribed in several important respects. Regardless of his persuasive powers, an advocate who is not a member of the bar may not represent clients (other than himself) in court. Similarly, a defendant may not insist on representation by an attorney, ..who ... declines to represent the defendant." Wheat v. United States, 486 U.S. 153, 159(1988).


         During Cabello's sentencing hearing, his son Vincent testified that in 1998, Cabello took Vincent to attorney Gerald Boyle's home in Milwaukee, Wisconsin where Cabello hired Boyle to represent Vincent. At the time, Vincent was under investigation for stealing $700, 000 in $20 bills from the vault of the American Security Corp. in downtown Milwaukee in My 2013. See #301 Ex. 1, Transcript of March 13, 2013, hearing at 3-5 (pp.42-44 of original), Cabello and Vincent paid Boyle $10, 000 in $20 bills for him to represent Vincent "so [Vincent] wouldn't have to talk to the police anymore." Id. at 4 (p.43 of original).

         On May 13, 2010, Boyle, Boyle & Boyle, Gerald Boyle's law firm, filed a form 8300 with the Internal Revenue Service indicating that it had received cash payments from Cabello totaling $14, 800 in 2010 in denominations of $100 bills or higher. (#301 Ex. 2, 8300 Form filed by Bridget Boyle). Those payments were made while Cabello was under investigation for the theft in 2005 of $3, 000, 000, all in $100 bills, from Oregon Armored Car. Count 50 of the indictment in this case alleged a money laundering count against Cabello involving a cash payment of $7400 in stolen funds to Boyle, Boyle & Boyle (#1).

         At Cabello's sentencing hearing, Cabello's wife, Marian, testified that Cabello paid attorney Gerald Boyle in stolen cash in May 2010 before the three family members were indicted. She testified that the family did not have any other source of cash other than the stolen money (#301 Ex. 3, Transcript of Sentencing Hearing of March 20, 2013, at 3-7 (pp.68-72 of original)).

         On December 17, 2010, two weeks after Cabello's indictment, Gerald Boyle sent a letter to AUSA Claire Fay concerning this case. In that letter, Boyle acknowledged having represented Vincent "in 1997(sic)s" and Cabello in 1995 and again in 2005. Boyle's stated purpose of the letter was, at least in part, to determine whether the government believed he had a conflict of interest. Boyle acknowledged receiving cash from Cabello and reporting the cash payments to the IRS. Boyle asserted that he believed he could continue to represent Archie Cabello despite those facts. Boyle said:

I am asking that you respond to this letter in kind and let me know what your position is. Hopefully if I can be hired, I will be able to find a way of being admitted pro hoc (sic) vice so that I can start full time representation of Archie Cabello or one of the other two members of the family as I have not broached that subject matter yet. If I come to believe I am prohibited by law in representing Archie, I will not represent him. If however I am convinced that he is being treated differently than other accused individuals I will then make the appropriate motion to the court to get a judicial determination.

#301 Ex. 4, Letter by Gerald P. Boyle to C. Fay, December 17, 2010, atp.3.

         AUSA Fay replied by letter on December 17, 2010. AUSA Fay identified several reasons why the government believed Gerald Boyle had a conflict of interest that prevented him from representing Cabello: (1) he had represented co-defendants Vincent and Marian Cabello in past matters that were part of the charged indictment and had learned certain information or confidences that would hinder effective representation of Cabello; (2) Boyle and his firm had received cash from Cabello that was a proceed of a criminal activity, which was a basis of count 51 (money laundering conspiracy) and an overt act charged in count 50 of the indictment, and that the government intended to call Gerald and his daughter and law partner Bridget Boyle as witnesses against petitioner; and (3) the government believed that, because petitioner had no significant ...

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