Court filing
Exhibit A — USA v. Jittaphol (Dkt. 49.1)
Filed February 23, 2022 in USA v. Jittaphol; one of 82 filings from this case.
Record facts
| Court | U.S. District Court for the District of Massachusetts |
|---|---|
| Filed | 2022-02-23 |
U.S. District Court for the District of Massachusetts · No. 1:21-cr-10270-MLW · Doc. 49-1 · 2022-02-23 · Docket on CourtListener
Full text
EXHIBIT A
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 1 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
UNITED STATES OF AMERICA,
Plaintiff
-VS-
ATICHA JITTAPHOL,
Defendant
)
)
)
)
)
)
)
)
)
Criminal No. 21-10270-MLW
Pages 1 - 51
WAVER OF INDICTMENT AND PLEA TO INFORMATION
BY VIDEO
BEFORE THE HONORABLE MARK L. WOLF
UNITED STATES SENIOR DISTRICT JUDGE
A P P E A R A N C E S:
ELYSA Q. WAN, ESQ., Assistant United States Attorney,
Office of the United States Attorney, 1 Courthouse Way,
Room 9200, Boston, Massachusetts, 02210, for the Plaintiff.
ALYSSA TOCHKA, ESQ. and LUKE GOLDWORM, ESQ., Special
Assistant United States Attorneys, Office of the United States
Attorney, 1 Courthouse Way, Room 9200, Boston, Massachusetts,
02210, for the Plaintiff.
KEITH S. HALPERN, ESQ., 572 Washington Street, Suite 19,
Wellesley, Massachusetts, 02480, for the Defendant.
ALSO PRESENT: James Pace, U.S. Probation Office.
Jiraporn Huynh, Thai Interpreter.
United States District Court
1 Courthouse Way
Boston, Massachusetts 02210
January 20, 2022, 3:31 p.m.
LEE A. MARZILLI
OFFICIAL COURT REPORTER
United States District Court
1 Courthouse Way, Room 7200
Boston, MA 02210
leemarz@aol.com
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 2 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
2
A P P E A R A N C E S:
ELYSA Q. WAN, ESQ., Assistant United States Attorney,
Office of the United States Attorney, 1 Courthouse Way,
Room 9200, Boston, Massachusetts, 02210, for the Plaintiff.
ALYSSA TOCHKA, ESQ. and LUKE GOLDWORM, ESQ.,
Special Assistant United States Attorneys, Office of the United
States Attorney, 1 Courthouse Way, Room 9200, Boston,
Massachusetts, 02210, for the Plaintiff.
KEITH S. HALPERN, ESQ., 572 Washington Street, Suite 19,
Wellesley, Massachusetts, 02480, for the Defendant.
ALSO PRESENT: James Pace, U.S. Probation Office.
Jiraporn Huynh, Thai Interpreter.
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 3 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
03:31
03:32
3
P R O C E E D I N G S
THE COURT: Good afternoon. Would the Clerk please
call the case.
THE CLERK: This is Criminal Matter 21-10270, United
States v. Aticha Jittaphol.
THE COURT: And is there an interpreter to be sworn?
THE INTERPRETER: Yes, your Honor. This is the
interpreter here.
THE COURT: So the Clerk should administer the oath to
the interpreter.
(Interpreter Huynh duly sworn.)
INTERPRETER HUYNH: I do. Jiraporn Huynh, Thai
interpreter.
THE COURT: Could you spell your name, please.
INTERPRETER HUYNH: J-i-r-a-p-o-r-n, the last name is
H-u-y-n-h.
THE COURT: Okay, would counsel please identify
themselves for the Court and for the Court Reporter, starting
with the government.
MR. HALPERN: Elysa, I think you're on mute.
MS. WAN: Excuse me. Good afternoon, your Honor.
This is Elysa Wan for the government, and I'm joined by Alyssa
Tochka and Luke Goldworm.
MS. TOCHKA: Good afternoon, your Honor.
MR. GOLDWORM: Good afternoon, your Honor.
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 4 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
03:33
03:34
4
MR. HALPERN: And good afternoon, your Honor. Keith
Halpern for Ms. Jittaphol.
THE COURT: And, Ms. Jittaphol, the defendant, is on
the Zoom. I see she's been in the United States and working
ten years. Does she need the interpreter, or should the
interpreter just be available in case there's anything that
should be explained or translated?
MR. HALPERN: I think doing it the second way should
work, but her English is not great.
THE COURT: Well, Ms. Jittaphol, have you been able to
understand me so far?
THE DEFENDANT: I understand, your Honor. I have the
interpreter that's really helping me with this proceeding.
Thank you.
THE COURT: No, have you been able to -- I'd like you
to answer me in English, please. Have you been able to
understand me so far in English?
THE DEFENDANT: No. I understand different pieces of
it. It's not clear.
THE COURT: Then I'll have it translated, although I
should not be hearing both parties speak, I think, and I don't
know why I am.
INTERPRETER HUYNH: Your Honor, are you hearing Thai
and English? This is the interpreter. I am switching it to
English channel when Ms. Jittaphol is speaking in Thai to relay
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 5 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
03:34
03:35
5
what she says, but when you ask her, I am speaking in the Thai
channel to her.
THE COURT: That's fine, but you should be in the
English channel.
INTERPRETER HUYNH: No. I need to be in the Thai
channel because I have to speak Thai to her.
THE COURT: Then go out of the English channel so I
don't hear you.
INTERPRETER HUYNH: Yes. I was telling you what she
was saying in Thai to English.
THE COURT: I just did this an hour or so ago. Just
come back into the English channel when you're talking to me
but go off of it when you're talking to her, okay?
INTERPRETER HUYNH: Certainly. I was in the Thai
channel as I was speaking to her, and I was just saying what
she say in Thai in the English channel. I'm switching back and
forth.
THE COURT: Okay.
INTERPRETER HUYNH: Thank you, your Honor. I'm going
back to the Thai channel now.
THE COURT: Thank you.
Would the probation officer please identify himself
for the record.
MR. PACE: James Pace on behalf of United States
Probation, your Honor.
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 6 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
03:36
03:38
6
THE COURT: Okay, I am conducting this proceeding
pursuant to the request of the defendant to waive indictment
and plead guilty by video in conjunction with the petition of
the Probation Department to show cause, for the defendant to
show cause why her pretrial release should not be revoked,
which defendant opposes in a submission captioned "Opposition
to Probation revocation," Docket No. 24. And there are some
other pending motions of the defendant, one an ex parte motion
for funds, another a request for modification so the conditions
of her release permit domestic travel.
It's permissible to conduct these hearings by video,
as authorized by the CARES Act, the Judicial Conference of the
United States, and the Chief Judge of the First Circuit, if the
defendant has spoken to her lawyer and consents. We're still
in the midst of a resurgence of the COVID-19 pandemic that
makes it imprudent to conduct proceedings in the courtroom at
this time. There's some urgency to these matters.
The defendant does wish to waive indictment and plead
guilty to the charge, two charges against her. There is the
pending petition which involves whether her release should
continue and her request in effect that the conditions of her
release be modified. So there's some urgency to this, genuine
urgency to this.
Therefore, as I said, if the defendant has talked to
Mr. Halpern and agrees to proceed by video, we can and we will.
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 7 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
03:39
03:39
7
Mr. Halpern, have you discussed this with her?
MR. HALPERN: Yes, your Honor.
THE COURT: And is she agreeable to proceeding by
video?
MR. HALPERN: Yes.
THE COURT: All right. And, Ms. Jittaphol, did you
discuss with Mr. Halpern whether you wish to have this hearing
by video today or at some later time in the courtroom? Have
you talked to him about that?
THE DEFENDANT: Yes.
THE COURT: And do you agree to proceed by video
today?
THE DEFENDANT: I agree.
THE COURT: Okay, then we will, and this proceeding is
of course open to the public.
I'd like to review what I understand to be the
chronology in this case so you can confirm or correct my
understanding as I've reconstructed it. The defendant had her
initial appearance before Magistrate Judge Bowler on October 26,
2021. At that hearing, she was released on personal
recognizance with additional conditions of pretrial release,
which are in Docket No. 12. These conditions include, among
other things, not using or unlawfully possessing a controlled
substance unless prescribed by a medical practitioner,
submitting to testing for prohibited substances, and
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 8 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
03:41
03:42
8
participating in a program of inpatient or outpatient substance
abuse therapy and counseling, if directed by the Pretrial
Services office or the supervising officer. As I said, they
are in Docket No. 12.
On November 19, 2021, Probation filed a petition
reporting that Ms. Jittaphol had reported the daily use of
methamphetamine and tested positive for amphetamines. That's
Docket 16. Probation requested no action because the defendant
was agreeable to receiving substance abuse treatment and was
expected to enter detox at the SSTAR treatment center in
Fall River. The Court approved taking no action on the
violations of pretrial release but ordered Probation to report
promptly if the defendant did not properly participate in detox
or otherwise violated the conditions of her release.
On January 11, 2022, Probation filed another petition
reporting additional noncompliance and requesting a hearing on
the conditions of Jittaphol's pretrial release. Probation
reported that defendant did not begin treatment at the SSTAR in
Fall River because she failed twice to report to the program
during intake hours. Probation then referred the defendant to
another inpatient treatment program through Behavioral Health
Network. Jittaphol was admitted on December 6, 2021. However,
on December 27, 2021, Ms. Jittaphol allegedly discharged
herself from this treatment without notifying Probation after
she completed short-term inpatient treatment, and declined to
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 9 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
03:43
03:44
9
participate in the next phase of long-term treatment that was
clinically recommended by the BHN staff. Probation directed
Jittaphol to participate in the long-term treatment, but
Ms. Jittaphol's attorney informed Probation that she was not
agreeable to complying with this directive, so a January 11
petition was filed, and Probation requested a hearing as soon
as possible.
On January 12 I allowed Probation's request for a
hearing on the petition and issued a summons. I scheduled a
hearing on the petition for the same time as the waiver and
plea hearing; that is, today at 3:30 p.m. On January 18 the
defendant filed an opposition to probation revocation which
urges the Court not to require participation in inpatient drug
treatment as a condition of probation unless Jittaphol tests
possible for methamphetamine and there is a determination that
she needs inpatient treatment to remain sober. That's
Docket 24.
On January 14 Jittaphol filed an ex parte motion
requesting funds to retain a psychiatrist with expertise in
addiction treatment to address the appropriate care and whether
it is proper to require her to participate in inpatient
treatment for methamphetamine use. On January 19 Ms. Jittaphol
filed a motion to modify her conditions of pretrial release to
allow her to travel domestically to participate in volleyball
tournaments and potentially pursue temporary job opportunities
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 10 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
03:45
03:46
10
in other states.
In some of those prior submissions, particularly the
defendant's, I was told that the defendant was drug tested at
her request on January 12, 2022. The Probation Department told
me today that test was negative.
I've also received, in addition to the documents I
mentioned, the bail report that was prepared for Magistrate
Judge Bowler, the Pretrial Services report -- that was provided
to defense counsel and the government in accordance with local
Rule 57.1 -- and the defendant's CORI, C-O-R-I, criminal
record. It also includes information from the Registry of
Motor Vehicles. But is that chronology that I've described
accurate from the perspective of the government and the
defendant?
MS. WAN: That's accurate from the government's
perspective.
MR. HALPERN: It's accurate. This is the first I've
heard of the issues with the Fall River facility, so I can't
address that.
THE COURT: Now, I don't know, haven't you seen the
petition?
MR. HALPERN: I haven't seen a petition concerning
Fall River.
THE COURT: Well, it's in -- here, let me do the
following. Have you seen -- I thought you were responding to
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 11 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
03:48
03:48
11
it. Just one second.
MR. HALPERN: The petition that I saw does --
THE COURT: Just let me finish. Let me finish.
There's Docket 21, the petition filed on January 12, 2022, and
did you receive that one?
MR. HALPERN: Yes. I believe that concerns the
failure to do inpatient treatment now.
THE COURT: All right, but, here, look at Page 2.
MR. HALPERN: Oh, I mean, I don't have it in front of
me.
THE COURT: All right. Well, Page 2 says that "As
outlined in the petition for action on conditions of pretrial
release dated November 19, 2021, the defendant admitted to the
U.S. Probation Office daily use of methamphetamine and was
subsequently amenable to participate in inpatient substance
abuse treatment. Following the Court's approval of this plan,
the defendant was referred for inpatient substance abuse
treatment with SSTAR located in Fall River, Mass., but was
denied placement at the program due to failing to report to the
program during intake hours on November 22, 2021, and
November 30, 2021. Due to this, the Probation Office referred
the defendant to participate in inpatient treatment through the
Behavioral Health Network," and then the next paragraphs deal
with matters relating to the Behavioral Health Network.
MR. HALPERN: I just missed it.
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 12 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
03:50
03:50
12
THE COURT: Yes, okay. All right, and is there
anything else that I said with regard to the chronology that
wasn't accurate?
MR. HALPERN: There's nothing inaccurate. The only
thing I think that is significant is the period of time
preceding that chronology because my appointment dates all the
way back to July. So even though there wasn't an information
and a court appearance until September, she was part of the
process way back in the summer.
THE COURT: Okay, and you wrote about that, and when
we get to the substantive discussion, you can address it again.
Okay, since this is the first time I'm seeing you, I
think I'll follow my usual practice and, although I've read
everything, give first the government a chance to briefly give
me an overview of this case.
MS. WAN: Sure, your Honor. Your Honor, Ms. Jittaphol
is charged with two counts of making false statements in
violation of 18 U.S.C. 1001. These false statements relate to
an application to the Small Business Administration for an
Economic Injury Disaster Loan and a Paycheck Protection Program
loan. Ms. Jittaphol, from starting in about 2017, owned and
operated Mantra Dhevi Spa, a massage parlor in Brighton,
Massachusetts, where she employed up to five employees at a
time, and Ms. Jittaphol herself worked at the Mantra Dhevi Spa
as well. With Ms. Jittaphol's knowledge and consent, employees
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 13 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
03:52
03:53
13
at the Mantra Dhevi Spa provided sexual services for a fee to
many customers. Ms. Jittaphol herself received a portion of
the earnings. For example, if customers paid about $80 for a
one-hour massage, Ms. Jittaphol kept $40, and the remaining in
tips would go to the workers at the spa.
In relation to the applications to the Small Business
Administration, which is an Executive Branch agency,
Ms. Jittaphol made false statements in the application stating
that the applicant is not engaged in any illegal activity, as
defined by federal guidelines, and that federal guidelines do
define "illegal activity" as including any illegal activity
under federal, state, or local law. That statement was false
because Ms. Jittaphol was violating several state laws related
to prostitution. And the Small Business Administration relied
on those statements in order to provide funds under the
Economic Injury Disaster Relief loan and the PPP loan. In
total, Ms. Jittaphol received $7,066.67 in funds from the Small
Business Administration based on those applications which
contained false statements.
THE COURT: And did the prostitution, alleged
prostitution that you described constitute -- the government
considers it or involves sex trafficking?
MS. WAN: Your Honor, not under the -- the federal
statute, we don't believe it involved "by force or coercion,"
but certainly under the state statute, it involved prostitution
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 14 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
03:54
03:55
14
and profiting from prostitution, and promoting and sponsoring
prostitution.
THE COURT: Okay. And, Mr. Halpern, is there anything
I should know at this point to have a fuller flavor of this
case from the defendant's perspective?
MR. HALPERN: Well, I think just -- I don't need to
get terribly graphic, but the nature of the prostitution did
not involve intercourse. It involved massage, and it was not a
constant -- essentially the workers were on their own to agree
to what they wanted to agree to behind closed doors, and
Ms. Jittaphol was aware that in some instances they would agree
to perform sexual services, but the sexual services did not
include intercourse.
THE COURT: And Ms. Jittaphol owned the massage
parlor, the business; is that right?
MR. HALPERN: Right.
THE COURT: Maybe the government should address this
at least first, but the Pretrial Services report that went to
Magistrate Bowler says that the defendant entered the United
States on May 2, 2012, on an F-1 visa, which I understand is a
student visa, and is legally in the United States until
July 13, 2022. Does the government know what kind of visa, if
any, she's on now?
MS. WAN: Your Honor, I don't have any additional
information other than what was in the bail report.
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 15 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
03:56
03:57
15
THE COURT: Well, it's my understanding that an
individual is not -- I mean, is the defendant in school now?
Was she in school recently?
MR. HALPERN: She was in training. She's not currently
in school.
THE COURT: I know, but prior to the pandemic, was she
in school?
MR. HALPERN: I don't know the exact dates, your
Honor.
THE COURT: Well, I'll ask Probation to determine
this. I'm surprised the government doesn't know it, what her
immigration status is, because, as I understand it, if you're
in the United States on a student visa, A, you need to be in
school, and, B, there are limits to the amount you could work.
So she wasn't in school; she was working. She may be in the
United States illegally, which is a crime.
So, Mr. Pace, would you look into that for us,
please --
MR. PACE: Yes, your Honor.
THE COURT: -- after this hearing?
MR. PACE: Yes. And do you want me to notify the
Court or notify the parties? How would you like me to proceed?
THE COURT: You can notify all of us simultaneously.
All right, so the plea agreement in this case is a
Rule 11(c)(1) binding plea agreement. That means that usually
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 16 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
03:58
04:00
16
I would conduct a waiver-of-indictment colloquy and then a
Rule 11 colloquy. If all of the answers were satisfactory, I
would accept the guilty plea; I would defer until sentencing
whether to accept the plea agreement and impose the agreed-upon
sentence, or allow the defendant an opportunity to withdraw her
plea, as required by Federal Rule of Criminal Procedure
11(c)(1)(4) and (5). And then, after accepting the guilty
plea, presumably I would address the petition to revoke
supervised release and the related questions as to whether the
conditions of pretrial release should be revised.
But I have a question concerning whether I should
conduct a Rule 11 colloquy because to an unusual, possibly
unique degree, I have questions as to whether it's reasonably
likely that I'll accept the binding plea agreement if we go
through the protracted process of having the presentence report
prepared, and let me explain.
(Defendant speaking.)
THE COURT: The defendant needs to be quiet and listen
to this, okay? As the Supreme Court wrote in Freeman v. United
States, 564 U.S. 522 at 529, a decision not in pertinent part
altered by the later Supreme Court decision in Hughes, as I
understand it, in Freeman the Supreme Court wrote, "Federal
sentencing law requires the District Judge in every case to
impose a sentence sufficient but not greater than necessary to
comply with the purposes of federal sentencing in light of the
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 17 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
04:01
04:02
17
Guidelines and other Section 3553(a) factors. The Guidelines
provide a framework, a starting point, a basis in the
common-sense meaning of the term for the Judge's exercise of
discretion. Rule (c)(1)(C) permits the defendant and the
prosecutor to agree that a specific sentence is appropriate,
but that agreement does not discharge the District Court's
independent obligation to exercise its discretion."
Then, after some other language, the Supreme Court
wrote, "11(c)(1)(C) makes the parties' recommended sentence
binding on the Court once the Court accepts the plea agreement,
but the governing policy confirms the Court's acceptance is
itself based on the Guidelines. See Guideline Section 6B1.2.
That policy statement forbids the District Judge to accept an
11(c)(1)(C) agreement without first evaluating the recommended
sentence in light of the defendant's applicable sentencing
range. The commentary to Section 6B1.2 advises that a Court
may accept an 11(c)(1)(C) agreement only if the Court is
satisfied either that such a sentence is an appropriate
sentence within the Guideline range, or, if not, the sentence
departs from the applicable Guideline range for justifiable
reasons."
So as I read that, it's not automatic, even if the
agreed sentence is within the Guideline range, that the Court
must accept it. I have to consider all the 3553(a) factors and
decide whether it provides for an appropriate sentence. And
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 18 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
04:03
04:04
18
that's consistent with the Advisory Committee note, the 1974
Advisory Committee note to Rule 11 which says, "The plea
agreement procedure does not attempt to define criteria for the
acceptance or rejection of a plea agreement. Such a decision
is left to the discretion of the individual trial judge."
That was written before the Guidelines came into
effect in 1987, which to some extent focused what should be
considered in exercising discretion, and at the moment, I doubt
that I would find the agreed-upon sentence sufficient. As I
understand it, it provides for no time in custody, three years
probation, no fine, and it would require the defendant to repay
the $7,000 she illegally obtained. And one of the
Section 3553(a) factors I have to consider at sentencing was
whether the need for the sentence to reflect the seriousness of
the offense, to promote respect for the law, and to provide
just punishment for the offense. And I also have to consider
whether the sentence would be sufficient to afford adequate
deterrence to criminal conduct, and I have to consider whether
it would be sufficient to protect the public from further
crimes of defendant.
I think it would be most efficient if the parties,
starting with the government, right now would address why I
should find that this sentence is sufficient because --
MS. WAN: Thank you, your Honor.
THE COURT: Oh, okay, go ahead.
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 19 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
04:06
04:07
19
MS. WAN: Thank you. We understand that this sentence
is in many ways a generous offer from the government. There
were certain mitigating factors that we considered in coming to
this conclusion. One is that Ms. Jittaphol herself was not
just a ringleader or a leader of a brothel, but she herself was
a worker. She was a sex worker and participated in prostitution,
and the profits from the employees were not sufficient to
support her as only an overseer.
THE COURT: So the United States regards it as a
mitigating factor that she was a prostitute?
MS. WAN: Your Honor, I think that's not exactly what
we're saying. I think it's a mitigating factor in the sense
that this isn't a top-down trafficking organization the way
that we've seen in other places where there is a defendant at
the top and the worker is below. This seems to be actually a
much more flat organization and one where Ms. Jittaphol was
also subjected to sex work as well.
THE COURT: She was also what?
MS. WAN: She was also subjected to sex work as well.
THE COURT: When you say "subjected," nobody else
subjected her, did they?
MS. WAN: I do think also at the same time we
recognize that Ms. Jittaphol had certain characteristics that
made her more vulnerable than other people might be. For
example, Ms. Jittaphol is a transgender individual. She also
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 20 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
04:08
04:09
20
has, as you can see from the chronology, a drug addiction
problem; and although those aren't necessarily mitigating
factors, that played into the overall picture of what we saw.
THE COURT: Well, I heard you say earlier that it was
a mitigating factor that she wasn't earning enough money to
support herself from the people who worked in her massage
parlor. Did I understand that right?
MS. WAN: Your Honor, again, I'm sorry for the
ineloquence. I guess what I'm trying to say is, she wasn't
profiting greatly from the people who were working at her
massage parlor.
THE COURT: But, you know, in fraud cases, sometimes
people are just greedy and sometimes they need money. The
whole, you know, fundamental premise of the criminal law is to
deter people who need more money, or think they need more
money, from committing crimes, lying to the United States
government. And I think I can take judicial notice of this:
The U.S. Attorney's Office started this case with great
fanfare. It released a press release, and it talks about -- do
you know about the press release?
MS. WAN: Yes, your Honor, I'm sure I know about it.
THE COURT: It was released by the Department of
Justice on September 14, 2021. It reviews the allegations
and...
Is this case a case brought by the Attorney General's
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 21 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
04:10
04:11
21
COVID-19 Fraud Enforcement Task Force that's mentioned in the
press release?
MS. WAN: No, your Honor. I think we just cited that
to highlight the efforts and the DOJ's efforts to fight COVID
fraud, which this is one of.
THE COURT: Well, I mean, you're the first prosecutor
I've asked this question to, but if -- and I think somebody
reading the press release would get the impression that this is
part of that task force, which is said to have been constituted
to investigate and prosecute the most culpable domestic and
international criminal acts, but, anyway...
I mean, my concern, though, basically I have to
consider -- you consider -- and you have to advocate for your
plea agreement, so I'm not even going to ask you this. I
consider fraud during the pandemic to be serious, you know, a
lot of money. There was an effort to distribute huge sums of
money to people who were entitled to it and needed it very
quickly with fewer safeguards than usual, I think the evidence
would indicate, and it was a program vulnerable to fraud, and
we're still in such a period. I assume that a purpose of
prosecution is deterrence, including general deterrence,
sending the message, "Don't criminally abuse this system
because it will have serious consequences for you."
But in this case -- and I'm saying this so you'll at
some appropriate point address it and again more note it -- in
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 22 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
04:13
04:13
22
this case, somebody looking at Ms. Jittaphol will see here's
somebody -- and I'll assume for present purposes that she's in
the country legally and authorized to work -- but so here's
somebody running a massage parlor, profiting from prostitution,
and who two times lied to the federal government to get a total
of $7,000, and she got caught, and she got prosecuted. And the
penalty is that she doesn't do a day in custody, she doesn't
have to pay any fine that she might not have the means to pay,
and she has to give the $7,000 back, if she's got it.
So I think there are a lot of calculating criminals
out there who would think, if they were well-informed about
this case, that "Why not defraud the United States government?
Why not lie to the United States government to get COVID relief
money because if I get caught, all I have to do is give the
money back?" And I don't know that that's sufficient to serve
the purpose of deterrence, which is one of the 3553(a) factors,
or to recognize the seriousness of the crime. That's the heart
of my concern.
MS. WAN: Thank you, your Honor, for the explanation,
and I definitely understand the deterrence issue here. I think
the complicating factor is simply the Sentencing Guidelines
calculation based on the $7,000 in losses. I do think there is
some deterrence value to bring this type of prosecution. As
you know from our office and from DOJ's standpoint, COVID-19
fraud has been rampant, and there's rarely these type of cases
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 23 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
04:15
04:15
23
where the fraud amount is so low, and I do believe there's a
deterrence effect in the very fact that we're prosecuting a
crime with a $7,000 loss figure.
And the other complicating factor is, when we get to
the Sentencing Guidelines, the plea is a Guideline plea. Based
on the loss amount, the total offense level is about VI, and --
THE COURT: And the Guideline range is what?
MS. WAN: Is zero to six months.
THE COURT: Right, so it's the lowest end of the
Guideline range. And, as I told you, the Supreme Court says
that, A, I have discretion, and it has to be an appropriate
sentence within the Guideline range, which now is only
presumptive anyway. In appropriate cases, I can give a
sentence that's higher than the Guideline range.
I mean, a prosecution is expensive. It requires a lot
of prosecutorial resources, lawyers' pay; Probation spends a
lot of time on it, as this case is demonstrating, and it
requires a lot of judicial time. You know, the resources of
your office and all these other resources are finite; and, you
know, I wonder why, if the United States thought there were so
many mitigating factors, that it should devote its limited
resources to prosecuting this defense. And I think you gave me
the answer, and that is, you want to send a message that even
if you lie to get the $7,000, not $70,000 or $700,000, you
might be prosecuted. But, you know, then the only penalty is
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 24 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
04:17
04:17
24
the publicity. And if she's only authorized to be in the
United States until -- I think I said July, which doesn't
appear you focused on that, I don't know that this is going to
be much of a problem for her in time. I don't know what it's
going to deter. It may be the U.S. Attorney's press release
that talks about the maximum 20-year sentence would give
somebody the misleading impression that the government is going
to try to lock them up for 20 years if they lie and get $7,000,
and this concerns me.
MS. WAN: And, your Honor, I think the immigration
issue is one that I have looked into. I don't have that at my
fingertips now. I don't have any information that she's going
to be leaving the country in July or anything like that.
THE COURT: You do. You do. You do. It's in the
bail report.
MS. WAN: Other than what you've provided, but other
than that, I don't -- I believe --
THE COURT: Well, I can provide it. Were you involved
before Magistrate Judge Bowler?
MS. WAN: I was. I was. I apologize. Other than the
bail report. And, your Honor, that's something that I will
look into, but I believe she has -- she has -- in talking with
defense counsel, I understood that she has plans to stay. I'm
not sure through exactly what mechanism, but I understood that
the 36-month probation period would be served in the United
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 25 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
04:19
04:19
25
States, and that's been my understanding.
THE COURT: Okay. Well, I mean, the sentence
shouldn't give her some rights -- and obviously I don't know
anything except what's in the bail report. It says she came on
an F-1 visa -- that's a student visa -- eleven years ago, but I
don't think --
MR. HALPERN: She's actively seeking to stay in the
United States and avoid deportation, in large measure because
of the way that transgender individuals are treated in Thailand.
THE COURT: So, here, let me stop because, I mean, the
explanation I got from the government is helpful. And they've
got a plea agreement; they have to advocate the plea agreement.
But I've got many, many cases, and I wouldn't want to get -- I
don't know that I want to accept the plea and get to
sentencing, reject the plea and present the defendant with the
dilemma of withdrawing the plea or, you know, taking the risk
of a higher sentence. I just want to be as transparent as
possible.
So what should I hear from your point of view
essentially --
MR. HALPERN: So I --
THE COURT: -- within the range of reason and I should
accept it?
MR. HALPERN: Well, I think there's a few factors I
just want to make sure you're aware of. This is not a case
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 26 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
04:20
04:21
26
that we read about involving coerced sex workers, women who
have been sort of forced to work in these places, owe money to
the people who brought them into the country. There's none of
that in this case. There's no evidence of coercion. The
employees worked there because they wanted to, and they made
the decision of what to do when they gave these massages. We
refer to it generically as "prostitution." You know, it's a
massage parlor, like the massage parlors that Bob Kraft went
into. It's a massage parlor in which the women did not take
their clothes off. It's a massage parlor in which the massages
sometimes included sexual acts.
If you look at the credit card statements of the
customer base -- and a majority of the customers paid by credit
card -- a very, very high percentage of them were women. So
this is not, you know, a whorehouse. This was a massage parlor
in which the majority of the business was legitimate, some of
it wasn't, and that complicates the issue of the fraud because
this isn't a case -- I mean, I've got cases where people
created, you know, phony identities to get better COVID
benefits, and so they knew it was all or nothing; they knew it
was a fraud. This is a more ambiguous situation where this
business was not a sham business. It was a legitimate
business, but a piece of it was illegal. And so it wasn't so
clear that applying for COVID benefits was a crime because it
wasn't so clear that the business itself was entirely a crime.
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 27 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
04:23
04:23
27
THE COURT: Well, that could create -- if she didn't
know she was committing a crime --
MR. HALPERN: No, she knew that it was illegal, all
right? But there is a difference to creating a scam for the
purpose of stealing COVID money versus, "Well, let's just
ignore the fact that some of the guys are getting sexual
services, so a percentage of our business isn't appropriate and
we're violating this rule." It's more of a gray area than I
think the vast, vast majority of COVID fraud. So I think
that's important.
And obviously the sum of money is important. You
know, I mean, I've got another case right now -- I think it may
be with you -- where, you know, we're talking millions of
dollars that were stolen. I mean, so here --
THE COURT: A COVID-related case?
MR. HALPERN: Yes.
THE COURT: What's the name of that one?
MR. HALPERN: I'm trying to remember the lead
defendant. I mean, it was a group of guys that across the
country applied for the enhanced unemployment benefits that
COVID created under -- I mean, it was a huge amount of money.
THE COURT: I'll ask my clerk to look for that because
that's what we should be spending our time on, although I -- I
know that I'm no longer Assistant to the Attorney General of
the United States, I know I'm no longer the Deputy U.S. Attorney
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 28 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
04:25
04:25
28
who used to have to approve every indictment, and I know there
can be good reasons to charge a case like this where there's a
small amount of money involved, so people won't think they're
immuned if they don't get some certain higher amount. And, you
know, maybe I'll go along with this. I think at this point --
But, as I said, it's unusual, bordering on unique, for me to
pick up a file like this and have such major questions because
in contrast to some of my colleagues, I don't consider binding
plea agreements disfavored generally, but --
MR. HALPERN: Another factor that I think needs to be
acknowledged here is, while she's transgender, she has not had
surgery for the transition, although she may in the future. So
incarceration is a challenge, right, compared to, I mean, where
exactly --
THE COURT: You're addressing the first judge in the
United States who ordered sex reassignment surgery for a
transgender inmate, but in that case, Kosilek, K-o-s-i-l-e-k,
the state Department of Corrections, first with regard to
hormones and then with regard to sex reassignment surgery,
said, well, we can't have a person with breasts in a male
prison or a person who's anatomically a woman in a male prison;
it would cause too many problems. And we can't have that
person in a female prison because in that case, he murdered his
wife. And I found that that was pretextual. And when the
Department of Corrections decided to give hormones, Kosilek
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 29 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
04:27
04:27
29
developed breasts and lived uneventfully for years in a male
prison. I think it's since been, without sex reassignment
surgery, transferred to a female prison.
So, look, I don't know that that's something the
government took into account. And the government is being
faithful to its obligations, I understand, Bello and one of the
First Circuit cases, Taylor, they have to advocate for the plea
agreement.
Look, I think there's two things I can do right now:
I can conduct the waiver and plea colloquy, or I can postpone
it for a week or two till you have more time to think about
this. So you can maybe give me there's more you'd like to say
because you didn't know this was coming, you know, sort of in
support of why I think that's a reasonable way to proceed.
But, you know, there should be a reasonable likelihood that
I'll accept the plea agreement and impose that sentence, and
then see, because I defer you till sentencing, see everything
that I get in the Presentence Report and your, I'm sure,
thorough sentencing memos.
And I think the defendant's immigration status may be
somewhat material to my assessment. The government has made
its decision. It has to live with this plea agreement, and I
can't rewrite it. I can just reject it. But I just felt I
should raise these with you.
Do you think I should continue this hearing, let
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 30 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
04:29
04:30
30
Mr. Pace -- and the government should do it -- get information
on the defendant's immigration status and then schedule a
further hearing? You know, you're telling me things that I
need to think about when I tell you I have reservations about
this. Does that make sense with regard to this aspect?
MR. HALPERN: Yes.
THE COURT: Ms. Wan?
MS. WAN: Yes, that sounds fine. And, your Honor, we
can brief the issue of the immigration status.
THE COURT: Well, I don't know how long it will take
to ascertain that and -- today is the 20th. Mr. Pace, do you
have any idea how long it's likely to take to find from the
Department of Homeland Security the defendant's immigration
status?
MR. PACE: Your Honor, I've already sent a message to
some colleagues at ICE to determine exactly her status. It
does say her immigration is going to end in July, and most
likely she'd have to reapply; and during that time, she could
potentially be deported if she's convicted of a crime. So I
think that does play a role for them to make a determination,
if she does reapply, what would that look like, your Honor?
THE COURT: Okay, so ICE says that her status in the
United States expires in July of this year?
MR. PACE: No. From the report, your Honor, the
pretrial. But I'm on a call with the agents to see if they can
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 31 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
04:31
04:32
31
find out some information.
THE COURT: All right. Do you have some idea how long
that would take?
MR. PACE: I'm hoping to hear back from one today, but
if not, it most likely will take us about a week, your Honor,
to get certified information in writing.
THE COURT: Well, I'm going to do the following, and I
can extend this: One, I think I'm going to order that
Probation inform us all as promptly as possible of defendant's
immigration status, what kind of visa is she here on now? Does
it authorize her to work, and when does it expire? And if
there's a good reason, I'll extend this, but now I'm immersed
in it. I'm ordering that the parties by January 28 file
memoranda in support of why this agreed sentence is sufficient
and I should proceed to take the waiver and the plea and defer
until sentencing a decision on whether to accept the plea
agreement and impose that sentence.
It may turn out -- I was actually told something else
today that may be relevant to -- what I thought was relevant to
what we're going to discuss next. I was told that the
defendant is now working -- Probation just learned that -- and
that she's being paid in cash, which raises some other possible
issues.
Anyway, so I'm ordering that you order the transcript
of this hearing on an expedited basis, and that Probation
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 32 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
04:34
04:35
32
inform the parties and the Court as soon as possible as to the
defendant's immigration status, and that the parties file
memoranda explaining their views as to why, in the context of
the Section 3553(a) factors, the agreed-upon sentence is
sufficient, and I should take the plea and defer until I have a
fuller record at sentencing the decision whether to accept the
plea agreement. Okay?
All right, then I have the petition relating to the
defendant's refusal to do inpatient drug treatment. On
October 26, 2022, the conditions of release the defendant
signed require her to participate in a program of inpatient or
outpatient substance abuse therapy and counseling, if directed
by the probation officer or the supervising officer. That's
Docket 12. And it appears from that report that the defendant
asked to get drug treatment and agreed to go into the SSTAR
program in Fall River but twice failed to appear for intake.
That's in Docket 16. And I had previously ordered Probation to
inform the Court promptly if the defendant didn't properly
participate in drug treatment or otherwise violated conditions,
a condition of her supervised release.
The January 12 petition states that the defendant
discharged herself from inpatient treatment at Behavioral
Health Network without notifying Probation. Probation directed
her to go into long-term inpatient treatment service, and her
lawyer said that she would not, and then Probation requested
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 33 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
04:36
04:37
33
this hearing, which I regard as a hearing to consider whether
her pretrial release should be revoked, whether I should put
her in custody.
Potential revocation -- well, revocation of pretrial
release is governed by 18 United States Code, Section 3148.
Section 3148(a) says that violation of a condition of release
can result in revocation, detention, and the finding of
contempt. Section 3148(b) provides that the Court can revoke
release if there's probable cause to believe the defendant has
committed another state or federal crime, or there's clear and
convincing evidence that the defendant has violated a condition
of release, and the Court finds, based on the Section 3142(g)
factors, that no combination of conditions will reasonably
assure the defendant will not flee or be a danger, or,
significantly for this matter, that the defendant is unlikely
to abide by any combination of conditions of release. And it's
the burden of the -- well, I would have to find by a
preponderance of the evidence what I think is most relevant
here, but maybe not the only relevant consideration, has it
been proven by a preponderance of the evidence the defendant is
not likely to abide by any combination of conditions of
release? The preponderance of evidence standard was found to
be an appropriate one by the Fifth Circuit in Aron, A-r-o-n,
904 F. 2d 221 at 224, and Gotti, 794 F. 2d 773 at 777.
So, again, to be as transparent as possible, I wonder
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 34 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
04:39
04:40
34
why I should find that the defendant is likely to obey any
condition of release. It appears she didn't report to the
SSTAR Program. She left the drug treatment program Probation
ordered her to participate in prematurely. She refused the
direction to return.
And, again, I just want to lay all this out so you can
address it. The criminal record document that I received today
from Probation shows that she has a possession with intent to
distribute Class B charge that she's scheduled to appear in
Brighton District Court on on January 24, and then it's got a
Registry of Motor Vehicles document. Do the parties have this
document, the CORI? I can have the Deputy Clerk email it to
all of you in case you don't have it or have it easily
accessible.
Please send it to Ms. Wan and Mr. Halpern. I think
Mr. Pace has it, right?
MR. PACE: I do, your Honor.
THE COURT: But you'll see this record shows that on
3/29/21, the RMV says she failed to appear for trial/court. On
2/28/2021 she failed to appear for trial/court. On January 26,
2021, she failed to appear for trial/court. On January 14,
2020, her license was suspended. November 26, 2019, it says
"License suspended." It says "INC." I don't know what that
means. May 1, 2019, it says she failed to pay a fine and
costs.
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 35 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
04:41
04:42
35
So basically, primarily for Mr. Halpern, she was
directed by Probation to go into inpatient treatment, and she
had a court order, a condition of release, to follow directions
of Probation. In my view, the proper way for this to have
proceeded would have been for you to do what you attempted to
do and persuade Probation to change the direction, and if it
didn't, you could have filed a motion with me to modify the
conditions of her pretrial release. But it's not up to the
defendant to decide which court order she's going to follow and
which one she's not, and this is about following court orders,
not whether the directions or, again, drug treatment are most
appropriate or not, in my current conception.
MR. HALPERN: I didn't find out that there was an
issue at all until January when I was contacted by Probation,
and I was told that they wanted her to go into an inpatient
residential program and she had rejected that. I think you
really have to go back to how this began. The only reason that
Probation knew anything about drugs was because she brought it
up. This wasn't a drug case. She asked me when I was
appointed in July if I could help get her into a detox program,
and she wanted to go into a detox program. That got deferred
until charges were actually filed in September. I don't know
what happened with Fall River, so I can't really address that.
I didn't know about it, and I would have to talk to her about
it, but my guess is that there is a legitimate explanation that
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 36 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
04:43
04:44
36
she could provide, based on my dealing with her, that she
didn't get there in time, something happened, I don't know
what. But the bottom line is, she did go to inpatient detox,
and I've provided documentation. I believe she started the
first week of December. It was a one-week program, and she
completed it successfully.
They then transferred her to a two-week inpatient
program at the Hope Center. She didn't discharge herself. She
didn't walk out against medical advice. She got a certificate.
She completed the program. The issue was that when she
completed the program, she apparently was told, "We want you to
transfer now to a third program. We want you to go to a
residential inpatient program." And she didn't go. She went
home. So it's not that she walked out. It's that she did not
go to the next step.
THE COURT: Well, two things. Just let me pause you
for a minute. One, I mean, the petition I got November 18 said
Ms. Jittaphol reported daily use of methamphetamines.
Ms. Jittaphol's urinalysis from 10/29/21 was positive for
amphetamines. So she failed the drug test, although she may
have said that she was using methamphetamine before Probation
got the results. I don't know what the chronology was.
MR. HALPERN: She acknowledged all along that she
could not stop using methamphetamine on her own. She asked to
go into a detox. I asked Probation in July, all right, July
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 37 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
04:45
04:46
37
whether they could put her into a detox. They said "no," all
right? So the fact that she was using wasn't deceptive. I
told them that she could not quit; she told them she couldn't
quit. She begged to go into a detox. She got into a detox in
December. She completed it successfully. There is no
evidence, none, that she has used from the time she got out of
treatment.
She's been tested once. The only reason she was
tested was because I said I wanted her tested. She got tested
a week ago. That result came back today, and it was negative.
What I think is critical here is, she knew she had a
problem. She wanted to overcome it. She asked for help. She
was completely candid with me and with Probation that she
needed help to stop using. Now she completes the program, and
she says to me and she says to Probation, "I'm okay. I don't
want to use. I don't have any desire to go back to it, and I
don't need inpatient treatment." And there's no evidence that
she does, so --
THE COURT: Well, excuse me, excuse me. Maybe
Mr. Pace should speak to this. My understanding from what I
read is that the one-week program stated that she needed
additional inpatient treatment, and Probation directed her to
do that.
MR. HALPERN: And she did it.
THE COURT: No, the additional --
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 38 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
04:47
04:48
38
MR. HALPERN: She did it.
THE COURT: She did what, more than a week?
MR. HALPERN: She did the additional inpatient
program. She finished a one-week inpatient detox.
THE COURT: No, but that -- stop and listen to me. I
know she did one week and got a certificate. Let's let
Mr. Pace talk about this.
MR. PACE: Thank you, your Honor.
THE COURT: What transpired? Because, as I said, my
understanding from reading the petitions was that the one-week
program opined that she needed additional inpatient treatment,
and Probation directed that she do it and she refused, she
didn't follow directions --
MR. HALPERN: No, that's wrong.
THE COURT: Here, let's let Mr. Pace speak.
MR. PACE: Thank you, your Honor. Yes, that's what we
indicated, that defendant was advised that they wanted her to
seek long-term treatment. The defendant completed, yes, the
one-week program; but at the end of that one-week program, they
referred her to a residential program for long-term success,
and she refused and walked out. And that's why we tried to get
her to participate in a long-term residential treatment program,
your Honor.
MR. HALPERN: That's not what happened. And you have
the documents. I gave them to you.
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 39 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
04:49
04:49
39
THE COURT: You gave them to who?
MR. HALPERN: To you.
THE COURT: Stop. Mr. Halpern, as always, I admire
your zeal. However, you address me when it's your turn to
address me. Understand?
MR. HALPERN: I understand.
THE COURT: Mr. Pace, go ahead.
MR. PACE: Yes, from the summary that we have, the
discharge summary from the admission, it states that they
wanted her to participate in long-term treatment and she
refused, and that's in the discharge paperwork. And that's the
documentation they have that she completed a program? Yes, she
completed a program -- I believe that was a detox program --
but she did not complete the long-term treatment as requested
by the program, your Honor.
THE COURT: And did Probation direct her to participate
in that long-term program?
MR. PACE: Yes, we did, your Honor, and based off of
prospective other conditions of the program, your Honor.
THE COURT: I'm sorry. Based on what?
MR. PACE: Based off the recommendation of the
treatment program, we directed her to participate as
recommended.
THE COURT: Okay.
MR. HALPERN: Can I address that now?
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 40 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
04:50
04:51
40
THE COURT: Not yet. So you direct her to do it, and
did she do it?
MR. PACE: No, she did not, your Honor.
THE COURT: All right, Mr. Halpern, go ahead.
MR. HALPERN: Okay, so that is not what happened, and
my filing includes certificates that make it evident that
that's not what happened.
THE COURT: Here, so here's one thing I'm going to do.
I'm ordering that Probation provide the government, the
defendant, and the Court the portions of its records that
reflect what Mr. Pace just told me. Now, you're talking about
your filing. Let's see, which one is that, your opposition to
Probation's revocation?
MR. HALPERN: Yes.
THE COURT: Filed --
MR. HALPERN: My filings included a certificate -- I
want to try to pull it up -- from Hope Center. She was in two
different facilities, both of them under the BHN network. The
first place she went was a one-week detox. That's called the
Carlson Rehabilitation Center, I believe. And not only did I
provide you a certificate, but I gave your clerk a letter from
her counselor there, which has not been filed but you have
that.
THE COURT: Hold on just one second. So I'm looking
at Docket 24 filed on January 18, which is your opposition to
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 41 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
04:52
04:53
41
probation revocation, and it has two certificates attached.
MR. HALPERN: And you'll notice that one of them --
THE COURT: Stop. Let me finish. But they both
appear to be exactly the same. It says she's completed the
Hope Center program this 27th day of December, 2021.
MR. HALPERN: There's a letter. There's a certificate,
and there's also a letter.
THE COURT: So then there's a letter that I had the
clerk direct you to file. You can redact her date of birth if
you want, but does Probation have this letter?
MR. HALPERN: I believe so, but I was referring to a
different letter that I believe I filed as an attachment to
that opposition.
THE COURT: Okay, hold on a second. Let me look, but
I don't think so. I don't have anything attached except what
appear to be two copies of the same certificate.
MR. HALPERN: All right, I may have goofed. I can
send it to you, but --
THE COURT: Hold on just one second. So I have a
letter that Mr. Halpern emailed today, and it looks like I
think the clerk told you you had to file it under seal. It
says, "To Keith Halpern: Per your request, I'm writing this
letter regarding Aticha's federally mandated admission on
12/6/2021. She formulated treatment goals, including taking
better care of her health in mind, by refraining from
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 42 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
04:54
04:55
42
methamphetamine use, stopping methamphetamine use, as it
interfered with her work and personal life, and discharging to
Hope Center CSS, even though she would rather not, but she
wanted to cooperate with her mandate. She attended
psychoeducational groups once she felt better, and noted how
moved she was by the life stories her peers shared. Aticha was
polite, cooperative, and participatory, as reflected through
her verbiage and demeanor. She successfully discharged to Hope
Center on 12/13/21." And the Hope Center certificate says that
she was discharged 12/27/21, but this does sound -- well --
MR. HALPERN: That's a different letter than the one
I'm referring to.
THE COURT: It sounds like I don't have everything I
should have.
MR. PACE: Your Honor, if I may, James from Probation?
THE COURT: Yes.
MR. PACE: I'm going to send -- you requested us to
send you the discharge summary. I think the Hope House was the
one program the next step after that, so I think that's why
counsel may be a little confused. She did complete the Hope
House, but there was a program afterwards that the program
wanted to refer her to to complete the long-term one. So, yes,
she completed Hope House. There was a program after the Hope
House that the program wanted her to participate in. So I'm
going to forward that to counsel. I know they requested it
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 43 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
04:56
04:57
43
before, and I'll forward it to your clerk and the AUSA also,
your Honor, the discharge summary.
THE COURT: Thank you.
MR. HALPERN: Your Honor, I'm not confused about
anything. Probation misstated what happened. She was in the
Carlson detox for one week. They transitioned her to Hope
House for a two-week program. I thought I attached a letter to
my memo. I just emailed you a copy of that letter confirming
that she completed that program. It was a two-week program.
THE COURT: All right, and then was she ordered,
advised by that Hope Center to go inpatient for a longer
period?
MR. HALPERN: My understanding is that they told her,
"We recommend that you go inpatient." She said she didn't want
to. She went home. She didn't walk out of a program --
THE COURT: I understand that, and my order was that
she follow the directions of Probation.
MR. HALPERN: Yes.
THE COURT: So Mr. Pace, who's being very helpful,
although this wasn't his case until earlier today -- he's just
supervising somebody else -- what Mr. Pace is telling me is
that then Probation directed her to go to that inpatient
program and she didn't. That's what I understand to be the
alleged violation. And, as I said, I don't regard the primary
issue here as to whether she should be inpatient or didn't need
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 44 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
04:58
04:59
44
it. The primary issue is whether she's going to follow
directions from Probation as the Court ordered her to do. And
it's a very important question, who decides? She doesn't
decide if Probation directs her to do something. So there are
basically three options: One, she does it, reluctantly but
does it; two, you join her in trying to persuade Probation to
change the direction, but she has to follow the direction
unless Probation alters it; and then, if you're dissatisfied
with that, you can file a motion with me to modify the
condition of release, say she doesn't need drug treatment.
But this -- you know, one week ago I get a motion from
Probation that tells me, reminds me that I directed them to
tell me promptly if she violated any condition of her release,
and they tell me, "We directed her to go to inpatient treatment
and she refused it." So I reorder my priorities, and here we
are at 5:00 o'clock, which is fine, but I am concerned that she
doesn't understand the way this works.
MR. HALPERN: She may not understand the way it works,
but I got a phone call -- the first I learned of this --
THE COURT: Oh, she doesn't. That's the heart of the
issue. Let's not lose what I told you. I'm seriously
considering ordering her to report to the Marshal tomorrow to
be locked up because she doesn't understand that conditions of
release are Court-ordered and because I'm persuaded that she's
not likely to obey my orders in the future.
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 45 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
05:00
05:01
45
MR. HALPERN: The first I found out about this was
around January 4 when I got a call from Probation. They told
me that they wanted her to go into a program. I talked to her,
and I told Probation we should get this in front of you, all
right, as soon as possible because she didn't think she needed
a program; and based on what I was told, I didn't think she
needed a program either. Probation didn't say, "No, we're not
going to wait a week. She has to go there today." So we
agreed to defer this until we had an opportunity to tell you
the story.
THE COURT: All right. Well, I don't have all the
documents, and let's get them. You and Probation can
supplement your -- I do want to get soon whatever documents
you're talking about. Apparently I don't have a complete
record. I don't have Probation's record. I don't have some
letter that I think you thought you attached to your
submission. So file them promptly, tomorrow. And then I think
I'm going to wait until I get your report on January 28
relating to the plea so I can again deal with this together. I
have, among other things, the sentencing of an MS-13 murder
case next week, a RICO murder case, among other things, and
motions for compassionate release to deal with tomorrow.
But I'm denying the request -- well, you can be heard
on it briefly if you want. I'm not letting her go out of
Massachusetts to play basketball or to look for work. I'm also
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 46 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
05:02
05:03
46
concerned -- well, Mr. Pace, what did you learn and when did
you learn it about Ms. Jittaphol's current employment?
MR. PACE: Your Honor, when Ms. Jittaphol was released
from custody, I mean, after her release was planned, she said
that she was unemployed. According to a filing, a motion, she
requests that she's currently working under the table as a
massage therapist. I informed counsel that Probation is going
to make an assessment because (Inaudible) a guardian for her.
We're not saying that she can't work at that employment, but we
just want to do an assessment to determine if there's any
third-party risk, and also if the employment is appropriate at
this time. So I think we're going to be following up with the
defendant to gather more information to make that determination
and inform the Court if we believe this employment is not
deemed appropriate by our standards.
THE COURT: Mr. Halpern, you talk to your client about
that too.
MR. HALPERN: There's no statement that she was
working under the table. She's self-employed.
THE COURT: No, excuse me. I think what Mr. Pace had
told me more factually, in a less conclusory way, that she said
she couldn't provide a record of her employment because she was
being paid in cash. And then what's she doing? Because now I
know that what she used to do involved some illegal activity by
her. That you can't do when you've been charged with a federal
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 47 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
05:04
05:05
47
crime. One of the conditions of her release is that she not
commit another state or federal crime.
MR. HALPERN: Which she's not.
THE COURT: Well, you don't know. Let me put it this
way: I don't know. I don't want her to. My point, you know,
if... I have good reason to doubt that she understands the
seriousness of those conditions of release, that they're Court-
ordered. If you violate a Court order, typically you get
locked up. And that's not just a question whether she's going
to go inpatient or not. It's a question whether she's going to
get locked up because I'm persuaded by a preponderance of the
evidence that she's not likely to abide by any combination of
conditions of release.
And I don't see a need to authorize funding for a
psychiatrist. I mean, what do you expect the psychiatrist will
opine?
MR. HALPERN: I expect that one of the things the
psychiatrist would say is that the most essential criteria in
determining whether inpatient treatment is necessary is whether
there's a reason to believe the person is going to relapse in
the absence of inpatient treatment, and there's no evidence
that she's going to relapse. She's been out for nearly a
month. She tested negative. The fact is, she was --
THE COURT: No, but here, just stop. We don't have to
argue this now. I'm going to accept that as a proffer. You
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 48 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
05:06
05:06
48
don't have to pay $1,500 to a psychiatrist to tell me that. I
trust that the psychiatrist said that to you, and I accept
that.
I'm ordering Probation to test the defendant once a
week for drugs and tell me whether she fails, and you should
start tomorrow. Can you do that, Mr. Pace?
MR. PACE: Yes, your Honor. The defendant actually
started today. She's actually on a sweat patch, and we
replaced that sweat patch. I know the defendant had
discussions of going back to the uniform form of testing, which
is a urine sample. I don't know if she wants to speak to her
counsel about that, but that is a thing that we could test her
weekly in a more efficient fashion.
THE COURT: What does a sweat patch do? I'm not
familiar with it.
MR. PACE: The sweat patch collects glands and
determines through the glands if you're using any type of
substance, and we send that in to the national lab. We sent
one in today. We're hoping to get results in the next two to
three days. But usually we do a urine sample where we send
that to a lab and get more efficient results.
THE COURT: Well, I think you should get the urine
sample as well as the sweat patch because, again, it will
provide information that will be valuable.
MR. PACE: Not a problem, your Honor, and we can have
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 49 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
05:07
05:08
49
her report tomorrow and have somebody collect a sample from
her.
THE COURT: Okay, so --
MR. HALPERN: Your Honor?
THE COURT: Is there anything else that we should be
discussing?
MR. HALPERN: I do want to -- I believe that what
Dr. Gitlow would -- I'm in the process of obtaining her
treatment records from the three weeks that she was in
treatment. So my intention would have been to have Dr. Gitlow
review the records, interview her. And this is what he does;
he's an expert in addiction treatment.
THE COURT: We'll see if it's necessary. We'll see if
it's necessary. It's going to just protract this. And, you
know, you've told me -- you know, at some point you may want to
talk to your client, or she may need to testify about this.
But the question for me, I told you, is not whether she needs
treatment. The question is whether she failed to follow
direction, which based on what Mr. Pace told me is going to be
proven, and then whether she's unlikely to abide by any
combination of conditions of release I impose, because I don't
have the impression she understands the seriousness of this.
MR. HALPERN: If she were ordered to go into inpatient
care, she would. She made a determination that she didn't need
it. She --
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 50 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
05:10
05:10
50
THE COURT: She was ordered to go by Probation, and
that's Probation's job, not ordinarily mine. So that's it.
We're repeating ourselves. You order the transcript of this
hearing on an expedited basis. I'll get some more information
by the 28th. I will probably see you all the following week,
and maybe I'll go through the waiver and plea colloquy; maybe
I'll proceed with the revocation proceeding; maybe that won't
be necessary. You'll be exchanging more information.
But, Ms. Jittaphol, what I hope you've learned today
is that the conditions of your release, which Mr. Halpern
should and will review with you again, are Court orders; and to
the extent they require you to do what Probation directs you to
do, you have to do it unless and until I change that order.
Now, right now they're not ordering you to go into
inpatient treatment, as I understand. I'm willing to treat
this as a motion. And maybe they'll change their mind, maybe
you'll persuade them, but it's very important that you not use
drugs. It's very important that you not go outside of
Massachusetts. It's very important that you not do anything
illegal. You want to plead guilty to what I and others regard
as a serious crime, and there are a lot of issues we've been
discussing relating to that, but you don't want to make matters
worse in the near future. And even if this is stressful to
you, don't use drugs. Talk to Mr. Halpern and cooperate with
your probation officer, do what she says you need to do, okay?
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 51 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
51
Is there anything further in this matter for today?
All right, I'll see my staff and the Court Reporter in the
breakout room. Court is in recess.
(Adjourned, 5:11 p.m.)
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 52 of 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
52
C E R T I F I C A T E
UNITED STATES DISTRICT COURT )
DISTRICT OF MASSACHUSETTS ) ss.
CITY OF BOSTON )
I, Lee A. Marzilli, Official Federal Court Reporter,
do hereby certify that the foregoing transcript, Pages 1
through 51 inclusive, was recorded by me stenographically at
the time and place aforesaid in Criminal No. 21-10270-MLW,
United States of America v. Aticha Jittaphol, and thereafter by
me reduced to typewriting and is a true and accurate record of
the proceedings.
Dated this 25th day of January, 2022.
/s/ Lee A. Marzilli
__________________________________
LEE A. MARZILLI, CRR
OFFICIAL COURT REPORTER
Case 1:21-cr-10270-MLW Document 49-1 Filed 02/23/22 Page 53 of 53File and source
- File
- gov.uscourts.mad.237964.49.1.pdf
- Size
- 196,903 bytes
- SHA-256
- c40571c1906b2e2ae3a4ecb9542cb9dda2fcdf8a6d4917dc48bcd3b8df715c9a
- Our copy
- gov.uscourts.mad.237964.49.1.pdf
- Original
- PACER (login required)