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United States v. Arciero

United States District Court, D. Hawaii

January 28, 2019

MALIA ARCIERO (01), Defendant.


          Susan Oki Mollway, Chief United States District Judge


         This motion brought under 28 U.S.C. § 2255 springs from the unfortunate pairing of (1) a defendant who decided to manufacture allegations that a federal agent had sexually assaulted her with (2) a defense attorney predisposed to believe her assertions of government misconduct. Defendant Malia Arciero now says that her trial attorney, Gary Dubin, provided ineffective assistance of counsel. Whatever deficiencies might be identified in Dubin's performance, they had their underpinnings in his acceptance of his client's lies. While couching her argument in the language of ineffective assistance, Arciero is essentially faulting her attorney for having believed her lies. That is not a sound basis for an ineffective assistance claim. Arciero moreover fails to show that she was prejudiced by Dubin's performance. Her motion is therefore denied. The court also declines to issue her a certificate of appealability.


         On January 8, 2015, after a six-day jury trial during which Arciero was represented by Dubin, Arciero was convicted of four drug-related crimes. See Verdict, ECF No. 249. Arciero discharged Dubin and retained new counsel. In September 2015, the court sentenced Arciero to 172 months of imprisonment and 5 years of supervised release for each crime, with the terms running concurrently, and a $400 special assessment. See Judgment, ECF No. 281.

         Arciero appealed. See Notice of Appeal, ECF No. 284. On March 3, 2017, the Ninth Circuit affirmed in a memorandum decision. See ECF No. 307.

         On March 12, 2018, Arciero timely filed the present motion under § 2255. See ECF No. 309.

         Arciero claims that her trial counsel, Dubin, was ineffective in a number of ways. First, Arciero asserts that Dubin was ineffective in failing to advise her not to testify at a pretrial bail revocation hearing. She argues that competent counsel would have emphasized the obstruction of justice sentencing consequences of doing so in the event the court found her testimony lacked credibility, which it did.

         Second, Arciero asserts that Dubin was ineffective in filing motions supported by Arciero's declarations. She says that Dubin failed to advise her about the merits of the motions, the low likelihood of success, and the potential sentencing consequences.

         Third, Arciero asserts that Dubin was ineffective in providing deficient advice with respect to going to trial and asserting an entrapment defense.

         Finally, Arciero asserts that Dubin was ineffective in failing to correctly advise her about the benefits of cooperation. She says that competent counsel would have had her cooperate with the Government and plead guilty.

         This court held an evidentiary hearing over two days. On the first day, Dubin testified. See Transcript of Proceeding, ECF No. 338 (“Dubin Test. Day 1”). At a continued evidentiary hearing, both Arciero and Dubin testified. See ECF No. 349. This court does not have a transcript of the continued hearing, but refers to testimony on that day based on its notes and memory, citing to Dubin's testimony at the continued hearing as “Dubin Test. Day 2.” Government Exhibits 1 through 10 and Arciero Exhibits 1 through 4 were received in evidence for purposes of this motion. While the documents were admitted as exhibits, this court also refers to their electronic filing identifiers for ease of reference.


         At trial, Joleen Wood testified that Arciero was supplying her with drugs. Specifically, Wood testified that, on April 30, 2013, Arciero sent Wood a message that stated, “Hey girl. . . Gotta talk, 2 u ASAP ok. . . Remember that thing we talked about. . . . Can 4 19.” See Ex. 405; Jolene Wood Test. at 2-52 (Dec. 12, 2014), ECF No. 297, PageID # 2877. Wood said that this was Arciero's response to Wood's inquiry about a multi-pound methamphetamine sale; the message meant that Arciero could supply Wood with 4 pounds of methamphetamine at a price of $19, 000 per pound. See Wood Test. at 2-53 and 2-67, PageID #s 2878 and 2892. Wood responded that she wanted only a pound of methamphetamine at that time. See Jolene Wood Test. at 3-38 (Dec. 16, 2014), ECF No. 298, PageID # 2997.

         Wood was ultimately arrested and agreed to cooperate with law enforcement. An agent posing as Wood (or Wood at the direction of the agent) sent Arciero a message asking about the deal, “So what's up? How long more? Da guy not going wait dat long. He going split.” Wood Test. at 3-97, PageID # 3056. Arciero agreed to deliver the methamphetamine to Wood's apartment. Id. at 3-39.

         Arciero eventually sent Wood a message asking who was at Wood's apartment. The response was that only Wood was there. Arciero then sent a message stating, “I going come up alone but KK going stay down the road with the dog.” Ryan Faulkner Test. at 4-37 (Dec. 17, 2014), ECF No. 299, PageID # 3167. Arciero and her sister Keala, aka KK, were arrested when they drove into the parking lot of Wood's apartment. Methamphetamine was found in the car. Amy Garon Test. at 4-113 to -14 (Dec. 17, 2014, ECF No. 299, PageID #s 3243-44.

         After her arrest, Arciero initially cooperated with law enforcement. See Decl. of Malia Arciero, ECF No. 320-2, PageID # 4310. Believing that the Government had substantial evidence against her, she hoped that by cooperating she would get a lenient sentence. See Malia Arciero Test. (Dec. 4, 2018). As part of her cooperation, she took Government agents to where she had gotten the drugs at issue and told them about all her drug trafficking activity. Id.

         In July 2013, Arciero hired Michael J. Green to represent her. See Decl. of Malia Arciero, ECF No. 320-2, PageID # 4309. Arciero says that Green did not explain anything to her; she reports having been confused with respect to his recommendation that she plead guilty. Id., PageID # 4311. Arciero says Green advised her to continue cooperating with the Government. See Arciero Test.

         While represented by Green, Arciero was offered a plea deal by the Government under which she could have avoided a potential 10-year mandatory minimum sentence. See Arciero Test. While Arciero thought the deal was for two years of imprisonment, there is no evidence other than Arciero's testimony that a two-year prison term was offered by the Government. See Dubin Test. Day 1 at 11, ECF No. 338, PageID # 4361. Arciero refused the plea deal and discharged Green because he was encouraging her to plead guilty. Dubin understood that Arciero wanted an attorney who would go to trial. See Id. at 13, 66, ECF No. 338, PageID #s 4363, 4416.

         A childhood friend of Arciero's gave Dubin's contact information to Arciero. See Decl. of Malia Arciero, ECF No. 320-2, PageID # 4309; Dubin Test. Day 1 at 65, ECF No. 338, PageID # 4415. On November 25, 2013, Green withdrew as Arciero's attorney and Dubin substituted in as her counsel. See Stipulation and Order Re: Withdrawal and Substitution of Counsel for Defendant Malia Arciero, ECF No. 28.

         Arciero told Dubin that she was innocent, that she was dissatisfied with Green, and that she wanted to go to trial. See Dubin Test. Day 2. She told Dubin she was actually the victim of a sexual assault by the case agent. See Dubin Test. Day 1 at 54, 65-66, ECF No. 338, PageID #s 4404, 4415-16. Arciero described the agent's penis in considerable detail. Dubin believed the allegations, which Arciero repeated numerous times during the course of Dubin's representation of her. Id. at 54, 68, PageID #s 4404, 4418.

         In Dubin, Arciero had an attorney who had a low opinion of many aspects of the criminal justice system. Dubin's views may have sprung from his observations of how his clients were treated, but possibly, Dubin's views were influenced by what he says was his wrongful conviction of tax crimes that he describes the IRS as belatedly recognizing that he should not have been charged with. See Dubin Test. Day 1 at 46-47, ECF No. 338, PageID # 4396-97.

         Arciero says that while Green had wanted her to plead guilty, Dubin was confident that he could get the charges dropped. See Decl. of Malia Arciero, ECF No. 320-2, PageID # 4311; Declaration of Gary Victor Dubin, ECF No. 319-4, PageID # 4124. For his part, Dubin says that he fully explained to Arciero the risks of not pleading guilty and of going to trial. Dubin says Arciero was adamant about not pleading guilty. See Dubin Decl., ECF No. 319-4, PageID # 4124; Dubin Test. Day 1 at 11, ECF No. 338, PageID #s 4358-61. Dubin's declaration is consistent with an email Dubin sent to William Shipley, the attorney for Arciero's sister. Dubin emailed:

I talked with Malia this evening, explaining to her everything that Mike [Green] and you told me today, and especially the many risks involved in each of her present alternative choices.
. . . .
Malia refuses to agree to the Information and to enter a guilty plea. Her decision she says is final.
She intends to fight the charges all the way and my law firm intends to do the same for her.

Govt. Ex. 3, ECF No. 319-4, PageID # 4134.

         On October 30, 2013, Arciero was released from custody on an unsecured bond of $25, 000. See ECF No. 12. One of the conditions of her pretrial release was that she refrain from using illicit drugs and that she submit to random drug tests. Id., see also Order Setting Conditions of Release, ECF No. 15.

         On February 20, 2014, Alison G.K. Thom, Senior U.S. Pretrial Services Officer, informed the court that Arciero had violated the terms and conditions of her pretrial release by submitting a urine specimen on January 27, 2014, that tested positive for methamphetamine. See ECF No. 49. Thom asked that the court issue an order to show cause why Arciero's pretrial release should not be revoked. Id.; Arciero Decl., PageID # 4312 (indicating that Arciero had failed a drug test in January 2014).

         On March 28 and 31, 2014, and April 1, 2014, the magistrate judge held hearings with respect to the order to show cause why Arciero's pretrial release should not be revoked. See ECF Nos. 61-63. On March 31, 2014, Arciero, represented by Dubin, testified about the allegation that she had had a urine test on January 27, 2014, that tested positive for methamphetamine. Arciero now says that Dubin neglected to tell her why she was being called to testify. See Arciero Decl., PageID # 4312. She denied having used methamphetamine in January 2014. See ECF No. 83, PageID # 132. She claimed to have tested positive for methamphetamine only because she and her sister had been cleaning her mother's house when she cut her hand on a methamphetamine pipe with drug residue in it. Id., PageID #s 150-152. Arciero had told this to Dubin in advance of the hearing. See Govt. Ex. 10.

         On April 1, 2014, the magistrate judge determined that Arciero had used methamphetamine prior to the drug test on January 27, 2014, finding that Arciero's “explanation of how she was exposed to methamphetamine while house cleaning is not believable.” ECF No. 84, PageID # 169. The magistrate judge nevertheless held the bail violation in abeyance.

         Arciero also testified before the magistrate judge that she was concerned about being “set up” with a false drug test. She described having been forced to perform oral sex on the case agent. See Arciero test., ECF No. 83, PageID # 141 (describing giving him fellatio in the storage closet at the ICE headquarters). She said she viewed the agent as controlling her release status. Id., PageID #s 144-45.

         However, on May 23, 2014, the magistrate judge revoked Arciero's pretrial release after finding an additional violation of her release conditions. See ECF No. 87.

         On August 18, 2014, Dubin filed three motions on behalf of Arciero. See Motion to Dismiss Based on Outrageous Government Conduct and/or Entrapment, ECF No. 105; Motion to Suppress Items Seized, ECF No. 106; and Motion to Suppress Coerced Involuntary Typed Confession, ECF No. 107. Each motion was supported by the same Declaration of Malia Arciero accusing the case agent of having sexually assaulted her. The declaration stated that the agent had become obsessed with Arciero when she was a stripper at a local club in 1998. ECF No. 105-1, PageID # 274. The declaration accused the agent of being in a drug-dealing partnership with someone and of arresting rival drug dealers. Id., PageID # 274-75. Arciero says that she started an online escort service in 2001, and that the agent repeatedly called the escort service in 2005. Id., PageID # 275.

         According to Arciero, the agent routinely set people up. For example, Arciero said that Jessie Samuels had a drug dealer debt, and the case agent got Samuels busted. The agent's supposed drug partner allegedly told Arciero that the agent could get Samuels out if Arciero brought the drug partner two hand grenades, which Arciero said she did. Id., PageID # 276.

         Arciero says that, after she was arrested for the drugs in this case, the case agent told her that he had entrapped her because he knew she was an escort who would be able to give him lots of information. Id., PageID # 279. According to Arciero, the agent told her that she would not have to go to the Federal Detention Center if she did what he wanted. Id., PageID # 280. She said that the agent then typed up ...

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