Court filing
Transcript of Hearing as to Aticha Jittaphol held on March — USA v. Jittaphol (Dkt. 87, D. Mass.)
Filed May 2, 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 | 2022-05-02 |
U.S. District Court for the District of Massachusetts · No. 1:21-cr-10270-MLW · Doc. 87 · 2022-05-02 · Docket on CourtListener
Full text
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
)
UNITED STATES OF AMERICA,
)
)
Criminal Action
Plaintiff,
)
No. 21-10270-MLW
)
v.
)
)
ATICHA JITTAPHOL,
)
)
Defendant.
)
)
BEFORE THE HONORABLE MARK L. WOLF
UNITED STATES DISTRICT JUDGE
HEARING
March 8, 2022
2:31 p.m.
John J. Moakley United States Courthouse
Courtroom No. 2
One Courthouse Way
Boston, Massachusetts 02210
Kelly Mortellite, RMR, CRR
Official Court Reporter
One Courthouse Way, Room 3200
Boston, Massachusetts 02210
mortellite@gmail.com
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APPEARANCES:
On Behalf of the Government:
Elysa Q. Wan
Alyssa Tochka
Kelly Begg Lawrence
US Attorney's Office - MA
J. Joseph Moakley U.S. Courthouse
1 Courthouse Way
Suite 9200
Boston, MA 02210
617-748-3162
elysa.wan.@usdoj.gov
alyssa.tochka@usdoj.gov
kelly.lawrence@usdoj.gov
On Behalf of the Defendant:
Keith S. Halpern
572 Washington Street
Suite 19
Wellesley, MA 02482
617-722-9952
ksh@keithhalpern.com
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P R O C E E D I N G S
(The following proceedings were held in open court
before the Honorable Mark L. Wolf, United States
District Judge, United States District Court, District of
Massachusetts, at the John J. Moakley United States Courthouse,
One Courthouse Way, Courtroom 2, Boston, Massachusetts, on
March 8, 2022.)
(Case called to order.)
THE COURT: Good afternoon. You may be seated. Would
the clerk please administer the oath to the interpreter.
(Interpreter duly sworn.)
THE COURT: Thank you. Would counsel please identify
themselves for the Court and for the record. And I'm assuming,
if you are fully vaccinated and have no symptoms, you may take
the masks off if you're speaking or may be speaking.
MS. WAN: Good afternoon, Your Honor. Elysa Wan for
the government.
MS. TOCHKA: Good afternoon, Your Honor. Alyssa
Tochka for the government.
MR. HALPERN: Good afternoon, Your Honor. Keith
Halpern for Ms. Jittaphol.
THE DEFENDANT: Good afternoon, everybody. My name is
Aticha Jittaphol.
THE COURT: All right. This is a continuation, as you
know, of the January 2022 hearing. Have the parties received
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the memorandum I asked Probation to prepare dated today, March
8 concerning the results of the defendant's drug tests and drug
treatment since January 20?
MR. HALPERN: Yes, Your Honor.
MS. WAN: Yes, Your Honor.
THE COURT: Okay. And as I said in my order that was
docketed on February 10, I've considered the submissions
concerning the Rule 11(c)(1)(C) binding plea agreement and am
now willing to conduct the waiver of indictment and Rule 11
plea colloquy and decide whether to accept the defendant's
guilty plea.
And as I understand it, the binding agreement, if
accepted, would require a sentence of probation, no time in
custody, 36 months' probation, restitution in the amount of
$7,066 and a $200 special assessment.
So today I'll decide whether to accept the waiver of
indictment and guilty plea. I'll defer until the sentencing
hearing the decision of whether to accept the plea agreement
and impose the agreed-upon sentence. If at that time I don't
accept the agreed-upon sentence, I'll give the defendant an
opportunity to withdraw her plea, all pursuant to Rule
11.3(a)(4) and (5).
After taking the plea I'll address the petitions
regarding actual or possible violations of the conditions of
release and what should be done in the circumstances. Okay?
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So the defendant should approach the witness stand and
be sworn. You want to sit there.
MR. HALPERN: There?
THE COURT: There.
(Defendant duly sworn.)
THE COURT: You may be seated. Would you please state
your true full name.
THE DEFENDANT: Aticha Jittaphol.
THE COURT: Ms. Jittaphol, do you understand you've
just taken an oath to answer the questions that I'm going to
ask you truthfully and any failure to do that could be a
separate prosecutable criminal offense?
THE DEFENDANT: I understand, Your Honor.
THE COURT: Do you also understand that if you're
confused by any of my questions or unsure about what an honest
and accurate answer would be, I'll let you talk to Mr. Halpern
so we can clear up any confusion and you can give me a reliable
response?
THE DEFENDANT: Yes, Your Honor. Thank you.
THE COURT: Have you ever been arrested anywhere under
any name that's different than the name you just gave me?
THE DEFENDANT: No.
THE COURT: And how old are you?
THE DEFENDANT: 33 years old.
THE COURT: And where were you born?
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THE DEFENDANT: In Thailand.
THE COURT: Are you a United States citizen?
THE DEFENDANT: Not yet.
THE COURT: How far did you go in school?
THE DEFENDANT: High school diploma.
THE COURT: Have you ever been treated for mental
illness or drug addiction?
THE DEFENDANT: No.
THE COURT: Have you been treated for drug addiction?
THE DEFENDANT: Yes, I have been under treatment with
the court's order.
THE COURT: And have you taken any drugs or medication
or alcohol in the last 24 hours?
THE DEFENDANT: No. After the treatment, I have not
had anything to drink or did not use any drugs.
THE COURT: Do you understand that you're charged in
an information issued by the U.S. Attorney's Office alleging
two counts of making false statements to the government?
THE DEFENDANT: Yes.
THE COURT: Were those charges read to you in your
native language?
THE DEFENDANT: Yes.
THE COURT: Did you discuss them with Mr. Halpern,
including what the government would have to prove beyond a
reasonable doubt to convict you on each of the charges?
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THE DEFENDANT: Yes.
THE COURT: Are you fully satisfied with his work as
your lawyer?
THE DEFENDANT: Yes.
THE COURT: Do you understand that under the United
States -- well, do you understand that each of the charges
against you is a crime punishable by more than one year in
prison, making it what's called a federal felony?
THE DEFENDANT: Yes, I understand.
THE COURT: Do you understand that under the United
States Constitution, when a federal felony is involved, you
have a right to be charged in an indictment brought by a grand
jury rather than in an information like this one issued by the
United States Attorney's Office?
THE DEFENDANT: Yes.
THE COURT: Do you understand that a grand jury is
made up of 16 to 23 people, at least 12 of whom would have to
find probable cause to believe that you committed a particular
crime to convict you of that crime?
THE DEFENDANT: Yes.
THE COURT: And do you understand if this matter was
presented to a grand jury, it might or might not indict you?
THE DEFENDANT: Yes.
THE COURT: Do you or Mr. Halpern have a copy of the
letter dated October 20, 2021 from the U.S. Attorney's Office
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to him?
MR. HALPERN: Your Honor, I'm not sure which one --
THE COURT: It's the second plea agreement.
MR. HALPERN: The plea agreement.
THE COURT: It's docket number 7. And is that your
plea agreement with the government?
THE DEFENDANT: Yes.
THE COURT: Did you sign it on page 6?
THE DEFENDANT: Yes.
THE COURT: Was that letter read to you in your native
language before you signed it?
THE DEFENDANT: Yes.
THE COURT: Did you discuss the letter with
Mr. Halpern before you signed it?
THE DEFENDANT: Yes.
THE COURT: Did you feel you understood that letter
before you signed it?
THE DEFENDANT: Yes.
THE COURT: Does that letter both accurately and
completely describe your agreement with the government in
connection with your desire to waive indictment and plead
guilty to the information?
THE DEFENDANT: Yes.
THE COURT: Has anybody made any promises to you or
given you any assurances that are not in that letter?
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THE DEFENDANT: Yes.
THE COURT: Here, listen again. Has anybody made any
promises to you or given you any assurances that are not
written in that letter?
THE DEFENDANT: No.
THE COURT: And has anybody threatened you or tried to
force you to waive indictment or plead guilty?
THE DEFENDANT: No.
THE COURT: On page 3 of that letter, there's a
section 6 that says, "Waiver of Appellate Rights and Challenges
to Conviction or Sentence." Was that provision read to you in
your native language?
THE DEFENDANT: Yes, but I couldn't remember
everything.
THE COURT: Okay. Do you remember having that read to
you in your language?
THE DEFENDANT: Yes.
THE COURT: And do you understand that in this part of
your plea agreement you're giving up the rights that you would
otherwise have to appeal or challenge the fact that you're
guilty of the charges in the information and your right to
appeal your sentence if I accept the binding plea agreement and
sentence you to probation?
THE DEFENDANT: Yes.
THE COURT: Did you discuss that provision
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specifically with Mr. Halpern?
THE DEFENDANT: Yes.
THE COURT: And do you want to give up those rights to
challenge the fact you're guilty and your sentence if I give
the agreed-upon sentence?
THE DEFENDANT: Yes.
THE COURT: Okay. Well, I'm satisfied that the
defendant is competent, acting knowingly and voluntarily and
effectively represented in her desire to waive indictment, so
I'll accept it.
Mr. Halpern, is that a waiver of indictment form?
MR. HALPERN: Yes.
THE COURT: Okay. So here is a waiver of indictment
form. I'm going to make the plea agreement Exhibit 1 of
today's date, and I will sign the waiver of indictment form.
We'll now proceed to the arraignment phase. Would you
like the information read to you, or will you waive, give up
the reading of the information?
THE DEFENDANT: There's no need to, Your Honor.
THE COURT: No need to read?
THE DEFENDANT: No.
THE COURT: Okay. So I'm going to ask you some more
questions to decide whether I should accept your guilty plea.
Do you understand if I accept your guilty plea, you will become
a federal felon and you may lose certain rights if you have
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them, including the right to vote, to hold public office, to
serve on a jury and to possess a firearm?
THE DEFENDANT: Yes, I understand.
THE COURT: And do you understand that if I accept
your guilty plea, there's a very good chance that you will be
required to leave the United States or you will be removed from
the United States and not allowed to return without the
permission of the Secretary of Homeland Security?
THE DEFENDANT: Yes.
THE COURT: Do you understand that the maximum or
highest possible penalties for each of the two counts to which
you're pleading guilty are five years in prison, supervised
release for three years, a fine of up to $250,000, a mandatory
special assessment of $200, and restitution in the amount of
$7,066?
THE DEFENDANT: Yes.
THE COURT: And do you understand that at the time of
the sentencing hearing I will decide whether to accept the
binding plea agreement and sentence you to probation, five
years of probation and restitution, or, if I reject the binding
plea agreement, if I do not accept it, you will have an
opportunity to withdraw your guilty plea and go to trial. Do
you understand that?
THE DEFENDANT: Yes.
MS. WAN: Your Honor, I believe it's three years'
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probation, not five.
THE COURT: Three years' probation? I'm sorry. Do
you understand that the binding plea agreement provides for
three years' probation, not five?
THE DEFENDANT: (Nods)
THE COURT: All right. Do you understand that the
sentencing in this case will be governed by the advisory
guideline system that operates in federal courts?
THE DEFENDANT: Yes.
THE COURT: Do you understand -- have you talked with
Mr. Halpern about how that advisory guideline system might
apply in your case?
THE DEFENDANT: Yes.
THE COURT: Do you understand that if I don't accept
the binding plea agreement and you're convicted at trial or you
continue to plead guilty, depending on the facts, I might have
-- well, let me ask you this. Do you understand as we sit here
today, neither Mr. Halpern nor anybody else can tell you with
certainty what the guideline range is for your sentence or what
sentence I will impose if I don't accept the binding plea
agreement and you're convicted or plead guilty because, until I
conduct a sentencing hearing, I cannot make those decisions
myself?
THE DEFENDANT: (No response.)
THE COURT: I'm sorry, what's the answer?
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THE DEFENDANT: I understand.
THE COURT: And do you understand that if I don't
accept the binding plea agreement but because you're convicted
or continue to plead guilty, I sentence you, depending on the
facts, I could give you a sentence that's higher or lower than
the guideline range, but in many cases I find it's appropriate
to give a sentence in the guideline range?
THE DEFENDANT: Yes.
THE COURT: Do you understand that if I reject the
binding plea agreement, you and the government will have a
right to appeal my sentence?
THE DEFENDANT: Yes.
THE COURT: And do you understand, in that instance,
even if I give you a sentence that's higher than you hoped for
or higher than the government recommends, you wouldn't be
allowed to withdraw your plea?
THE DEFENDANT: Yes.
THE COURT: All right. But as I said earlier, if I
reject the binding plea agreement, you'll have an opportunity
to withdraw your guilty plea if you want to. Do you
understand?
THE DEFENDANT: Yes.
THE COURT: Do you understand you still have a right,
if you want to use it, to have the charges against you decided
at a trial by a jury?
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THE DEFENDANT: Yes.
THE COURT: And do you understand, if we had a trial,
you would have a right to a lawyer, and if you could not afford
a lawyer, a lawyer would continue to be appointed to represent
you at public expense?
THE DEFENDANT: Yes.
THE COURT: Do you understand if we had a trial, you
would be presumed innocent. You would not have to prove you
were innocent. Rather the government would have to prove you
were guilty as charged beyond a reasonable doubt to achieve
your conviction?
THE DEFENDANT: Yes.
THE COURT: Do you understand that if we had a trial,
you would have an opportunity through your lawyer to object to
the government's evidence and challenge its witnesses?
THE DEFENDANT: Yes.
THE COURT: Do you understand if we had a trial, you
would also have an opportunity but not an obligation to present
a defense?
THE DEFENDANT: Yes.
THE COURT: Do you understand that as part of that,
you would have an opportunity but not an obligation to testify
yourself, and if you decided not to testify, I would instruct
the jury that it could draw no suggestion that you were guilty
from your decision not to testify?
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THE DEFENDANT: Yes.
THE COURT: Do you understand that if I accept your
guilty plea, you'll be giving up your right to a trial and
there will be no trial?
THE DEFENDANT: Yes.
THE COURT: Do you understand that in this information
you're charged in two counts of making false statements to the
United States Government?
THE DEFENDANT: Yes.
THE COURT: And do you understand that you're
specifically being charged with making false statements in
connection with electronic PPP -- hold on just a second. I'll
come back to that.
So you're charged with two counts of making false
statements to a matter within the jurisdiction of the executive
branch of the United States. Do you understand that to prove
that charge, if we had a trial, the government would have to
prove beyond a reasonable doubt, first, that you knowingly and
willfully made a material false statement?
THE DEFENDANT: Yes.
THE COURT: And do you understand that a statement is
false if it was untrue when made?
THE DEFENDANT: Yes.
THE COURT: Do you understand that a statement is made
knowingly if it's made intentionally, not by accident or
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mistake, and it's made willfully if you knew it was unlawful?
THE DEFENDANT: Yes, I understand.
THE COURT: And do you understand that the government
would also have to prove -- and do you understand that a
statement is material if it has a natural ability to influence
the decision of the decisionmaker to whom it's addressed?
INTERPRETER: Your Honor, can we go over that again.
I just have --
THE COURT: That's okay.
INTERPRETER: -- to the other language.
THE COURT: You're doing a good job.
Do you understand that a statement is material if it
has the natural ability to influence the person making the
decision?
THE DEFENDANT: Yes.
THE COURT: Do you understand the government would
also have to prove that you made the statement voluntarily and
intentionally?
THE DEFENDANT: Yes.
THE COURT: And do you understand that in this case,
the government would have to prove that you made the statement
in connection with particular PPP electronic applications for
Mantra Dhevi Spa through Small Business Administration
authorized lender Bank of America? Do you understand that?
THE DEFENDANT: Yes.
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THE COURT: And in Count One it's charged in paragraph
17 that on or about March 31, 2020 in the District of
Massachusetts, you, also known as Lilly, knowingly and
willfully made a materially false, fictitious and fraudulent
statement and representation in a matter within the
jurisdiction of the executive branch of the government of the
United States as described in paragraph 12 of the information,
which discusses the submission on March 31, 2020 by you of an
electronic application for approximately $30,000, stating that
the applicant is not engaged in any illegal activity as defined
by federal guidelines. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: And did you commit the crime charged in
Count One?
THE DEFENDANT: Yes.
THE COURT: And in Count Two, in paragraph 19, it's
charged that on or about April 7, 2020, in the District of
Massachusetts, you, also known as Lilly, knowingly made another
materially false statement in a matter within the jurisdiction
of the executive branch of the government of the United States
particularly by submitting an electronic PPE application for
Mantra Dhevi Spa through the Small Business Administration
authorized lender Bank of America seeking a $5,066 loan
containing the false statement that the applicant is not
engaged in any activity that is illegal under federal, state or
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local law. Do you understand that's the charge in Count Two?
THE DEFENDANT: Yes.
THE COURT: And are you guilty of the crime charged in
Count Two?
THE DEFENDANT: Yes.
THE COURT: Now I'd like you to listen while the
government summarizes what its evidence would have been if we
went to trial, and then I'm going to ask if you agree with its
summary of what you did.
MS. WAN: Your Honor, if this case were to proceed to
trial, the government would prove beyond a reasonable doubt
that since in or around 2017 --
THE COURT: Excuse me. This has to be translated, so
you want to go slowly, please.
MS. WAN: I will. I apologize.
If this case were to proceed to trial, the government
would prove beyond a reasonable doubt that since in or around
2017, the defendant owned Mantra Dhevi Spa, a massage parlor in
Brighton, Massachusetts.
The defendant employed two to five employees and at
times herself worked at the Mantra Dhevi Spa. Employees at the
Mantra Dhevi Spa engaged in illegal activity, in particular
employees, including the defendant, provided sexual services
for a fee to customers. Employees did so with the defendant's
knowledge and consent, and the defendant profited from the
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illegal activity. Customers paid about $80 for a one-hour
massage session and the defendant received $40 for each
session. The defendant's employees kept the remaining $40 and
any tips.
Despite running an illegal -- excuse me. Despite
running a business engaged in illegal activity, the defendant
applied for and received COVID relief funds. On March 31,
2020, the defendant applied to the Small Business
Administration for an economic injury disaster loan of about
$30,000.
On April 7, 2020, the defendant submitted a Paycheck
Protection Program application to Bank of America, a Small
Business Administration-approved lender. Both applications
required the applicant to certify that the applicant is not
engaged in any activity that is illegal under federal, state or
local law. The defendant knowingly and willfully falsely
certified that she was not engaged in any illegal activity, and
she made these statements voluntarily and intentionally.
The false certification was also material. The Small
Business Administration would not have awarded the funds if
they were aware that the applicant was engaged in illegal
activity. The Small Business Administration is an executive
branch government agency.
Although the Small Business Administration declined to
give Jittaphol the full $30,000 loan amount she requested,
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they paid Jittaphol $2,000 under the EIDL Advance program, and
the defendant also collected $5,066 in funds from the PPP loan
program.
THE COURT: Do you agree with the government's summary
of what you did?
THE DEFENDANT: Yes.
THE COURT: And how do you now wish to plead to the
two counts against you, guilty or not guilty?
THE DEFENDANT: Guilty, Your Honor.
THE COURT: Then I'll direct the clerk to enter your
pleas of guilty to Count One and Two, because I find you are
competent, you are acting knowingly and voluntarily, you are
effectively represented, and there's an independent basis in
fact to support your guilty plea. You may take your seat back
at the table.
THE DEFENDANT: Thank you, Your Honor.
MS. WAN: Your Honor, if I could address one matter?
THE COURT: One matter relating to the guilty plea?
MS. WAN: Yes, Your Honor.
THE COURT: Well, what is that?
MS. WAN: Your Honor, while the plea agreement
reflects the agreement between the U.S. Attorney and the
defendant, we do want to make the Court aware that Ms.
Jittaphol has a pending Suffolk District Court charge for
possession with intent to distribute. And although the
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government has made no promises --
THE COURT: Why are you telling me this now, not
before I started questioning her?
MS. WAN: Your Honor, because I believe that we have
not made any promises, inducement or rewards.
THE COURT: All right. But this is -- here. Start
again and tell me what you want to tell me. But if it relates
to potential promises, I would have preferred to have known
about it before I questioned her, but go ahead.
MS. WAN: And Your Honor, I apologize for that. I was
hoping to have an opportunity, but I also didn't want to
interrupt the Court, and I see that that's my fault.
The federal prosecutors, including Alyssa Tochka, has
been coordinating with the state prosecution and understands
that the state plans to dismiss those charges and have informed
the defendant of the same.
THE COURT: You've told the defendant that?
MS. WAN: Not in terms of a promise but informed the
defendant that we've coordinated and asked what the status of
that court case is and that they intend to discuss those
charges.
THE COURT: But that's not a promise the government,
the United States Government has made to the defendant?
MS. WAN: Correct. And it's not something that we can
enforce because it's a Suffolk District Court case.
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THE COURT: All right. Mr. Halpern, is that your
understanding?
MR. HALPERN: Yes, it is.
THE COURT: All right. So there are no additional
promises?
MS. WAN: Yes, Your Honor.
THE COURT: Thank you. So I'm scheduling the
sentencing for June 14 at 2:00 p.m., unless somebody has a
foreseeable conflict. Sentencing memoranda, which will be
required, shall be filed by May 31, and any replies by June 7.
MS. WAN: Your Honor, I apologize, but I will be on
maternity leave during that time, and Alyssa Tochka will also
be on leave until I believe June 1 through 24.
THE COURT: Until when, until June what?
MS. WAN: 24th.
THE COURT: Well, this is fine. I'm not going to be
here after that.
MS. WAN: We can find someone else to cover.
THE COURT: There are about 175 lawyers in your
office. I don't want to interrupt your maternity leave but --
MS. WAN: We can find someone else to cover, Your
Honor.
THE COURT: How many weeks, was that the 12 weeks or
16 weeks, Jarrett?
That's 16. Can the Presentence Report be done, I'll
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ask, earlier than that?
U.S. PROBATION: I don't know the answer to that
question, Your Honor, but I can get clarification after the
hearing today.
MS. WAN: Your Honor, we can find someone else to
cover.
THE COURT: There may be flexibility. I'm not sure
when I'm going to be here in June, so we'll work it out. All
right. When is your colleague, whose name escaped me, going to
be back from her leave?
MS. TOCHKA: I will be back the last week of June, so
June 27 on.
THE COURT: 27th?
MS. TOCHKA: Yes, Your Honor.
THE COURT: That's not going to work because I'm not
going to be here. Okay. June 14. All right. Then there are
the pretrial release issues that we began discussing on January
20.
On November 19, 2021, in docket number 16, I was
advised that the defendant had tested positive for
methamphetamine and that she admitted using meth daily but that
she was agreeable to treatment. So I was asked by Probation to
not take any action on that.
Probation ordered certain treatment, and on January
12, 2022, in docket 21, another petition, I was informed that
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the defendant failed to report to the SSTAR program as directed
by Probation, a violation of a condition. She did not complete
the Behavioral Health Network program as directed by Probation,
which we discussed extensively on January 20, 2022.
I continued the hearing on the petition to possibly
revoke pretrial release so I could get further briefing on
whether I would consider the binding plea agreement and other
matters.
On February 7, 2022, in docket 38, I was informed the
defendant had tested positive in a sweat patch test that she
wore from January 20 to 27, 2022. And she has had subsequent
sweat patch and urine tests which were not observed where she
tested negative. The parties have, as I ordered, made written
submissions concerning what should be done in the
circumstances, what I should order in the circumstances.
In its written submission, the government indicated
that it was supporting a recommendation by Probation that I
again order the defendant into inpatient treatment rather than
do something else, including revoke her release. The defendant
in her written submission said she was agreeable to outpatient
counseling.
In my February 10 order, I stated that today I would
consider whether the defendant should be detained for violating
the conditions of her release as well as considering what the
parties were recommending. That revocation of release could be
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based on the fact that she used meth before November 19, 2021,
the fact that she didn't complete the inpatient treatment as
directed by Probation, and if I found that she used meth again
around the time or after the January 20 hearing, that would be
another violation. Although that issue is hotly disputed.
The sanction for violating a condition of release is
governed by 18, United States Code, Section 3148. And as the
parties know -- well, I've had questions about the defendant's
immigration status. And while I have additional submissions, I
still have questions. But I asked Probation to prepare this
memo that you received this morning, the March 8 memo, which we
should make Exhibit 2 of today's date. It hasn't been
docketed.
There have been all these negative tests since about
January 27 and Probation has ordered the defendant to
participate in outpatient substance abuse treatment services
through CPC located in Boston, and she attended her first
session with CPC last week and is scheduled to participate in
individual treatment sessions on a weekly basis, and I'm told
that defendant has also been directed to participate in Crystal
Meth Anonymous, CMA groups, and that she has provided Probation
of verification of her attendance in CMA meetings on February
19 and March 5.
So I'll ask, what are the government and Probation
recommending today?
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MS. WAN: Your Honor, we spoke with Probation earlier
today. Our understanding is that Probation is asking that the
defendant continue with her drug treatment program through CPC
and through Crystal Meth Anonymous and also continue with the
scheduled drug testing urinalysis and sweat patch drug testing,
and that, at this point in time, there is no recommendation
from Probation that the defendant attend an inpatient program.
THE COURT: All right. Would the probation officer
identify herself for the record, please.
U.S. PROBATION: Yes. This is Taylor Wertz from the
U.S. Probation Office.
THE COURT: And has the government accurately stated
what you're recommending?
U.S. PROBATION: Yes, Your Honor.
THE COURT: And what is CPC?
U.S. PROBATION: CPC is an outpatient treatment
provider. They treat for both substance abuse --
THE COURT: I'm sorry, could you keep your voice up a
little. I want to make sure the translator hears you and I
hear you, even though she's speaking.
U.S. PROBATION: Of course. CPC is an outpatient
treatment provider in the Boston area. They treat individuals
with substance abuse disorder as well as mental health issues.
We've been working with them for a number of years. They're a
good provider for our clients under supervision.
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THE COURT: All right. And you feel that's
appropriate and sufficient for Ms. Jittaphol?
U.S. PROBATION: Yes, at this time. I would also
state that the Crystal Meth Anonymous group will be very
beneficial for her, given her substance use --
THE COURT: Mr. Halpern, what's the defendant's
position with regard to that recommendation, or what's her
recommendation?
MR. HALPERN: We're in accord with that. She's fully
prepared to comply with the outpatient treatment
recommendation.
THE COURT: Speak into the microphone, please.
MR. HALPERN: We're in accord with the recommendations
of Probation. If you want me to address the issues of the
violations, I will.
THE COURT: No, no. Here, you've done a good job in
raising questions about whether the sweat patch positive test
is reliable. And if necessary, I could decide those questions
after hearing from you. But my inclination is to continue this
hearing to give the defendant another chance to follow these
orders. Conditions of release are court orders. If you
violate a condition of release, you can be locked up and can be
prosecuted for contempt as well. You can get six months in
prison for that.
MR. HALPERN: But I --
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THE COURT: Let me finish. Unless you want me to
change my mind?
MR. HALPERN: No. Go ahead.
THE COURT: You'll get a chance, if you want to, to
speak. But look, here is the concern. If I impose those
conditions, I will also require weekly sweat patch and urine
testing again. I will require that it be observed so we don't
have any more issues about whether the urine has been tampered
with. They'll be observed by males. That would be the
probation office's policy in this situation.
And I'm concerned because in the past Ms. Jittaphol
had said she's agreeable to treatment and then she decides she
would prefer not to do it or not to do this treatment, and
that's not acceptable. So she has to understand that if I
continue this hearing and don't decide whether to lock her up
today for violating the conditions of supervised release, which
would require certain showings by the government for me to have
the discretion to do that, that she's got to follow, she's got
to do it.
Mr. Halpern maybe knows the Herman Melville story,
Bartleby the Scrivener. The prosecutor does, too. Bartleby
the Scrivener is a famous story written by Herman Melville, who
also wrote even more famously Moby Dick. And Bartleby the
Scrivener takes a job in about 1850 in a law office in New
York, and he starts to do the job. And then his boss says,
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"Here, do this," and he says, "I prefer not." The boss says,
"Do this." He says, "I prefer not." And eventually he's not
doing anything.
That's not the way this works. You can't say, "I
prefer to do something else." You have to do what I order you
to do and what Probation tells you to do, because if I have to
see you again before I sentence you, there's a very good chance
that you're going to go from this courtroom to jail. And under
your plea agreement, if I accept it, you won't go to prison at
all. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: And are you prepared to fully participate
as directed in the CPC program?
THE DEFENDANT: Yes.
THE COURT: And also to go to all the required
meetings of Crystal Meth Anonymous?
THE DEFENDANT: Yes.
THE COURT: And to be drug-tested every week,
including observed by a man?
THE DEFENDANT: Yes.
THE COURT: All right. That's what I'm ordering.
Unless Mr. Halpern wants to be heard further, that's what I'm
ordering. I'm changing, I'm continuing your release, but I'm
not deciding the petition. If you violate a condition, it will
be all the violations that are proven or admitted that I'll
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take into account in deciding what to do, including using meth
daily for a while after you were charged in this case and
leaving the program in December that you were ordered to go in.
And I'm again directing Probation to tell me promptly
of any violations, and all the other existing conditions will
remain in effect.
Then there's one more issue that will need to be
further addressed in connection with the sentencing. So I
raised the question of the defendant's immigration status. I
was told she was here and allowed to be here until July of this
year on a student visa, which didn't make sense to me because
she's not in school, and I know a person can't work on a
student visa.
And now I've read the parties' submissions on this, of
course, the government's docket number 48. I asked the clerk
this morning to -- you filed it under seal without a motion to
seal, which is required by Local Rule 7.3, and I would have
ordered a redacted version. You filed a redacted version but
you redacted too much. I thought you would redact personal
identifiers, not all the exhibits. Under Kravetz, judicial
records are presumptively public and documents on which
judicial decisions are made, it's important they be public to
the maximum extent possible. The exhibits aren't all
confidential information.
But why doesn't the government explain to me what it
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understands her immigration status is, and Mr. Halpern can do
the same thing, and I'll tell you what my questions are looking
at the records.
MS. WAN: And Your Honor, first we'd like to apologize
for the different accounts that USCIS and HSI has given to
Probation. But from the best of our knowledge at this point,
the government believes that the defendant entered the United
States originally on a student visa in May of 2012. That
student visa expired shortly after her entry as soon as she
stopped attending a course of study. But in the meantime, the
defendant did apply for an asylum application.
THE COURT: Well, according to your papers, when did
she first apply for an asylum application? It looks like 2015.
I'm looking at Exhibit A.
MS. WAN: It was at least as early as 2015.
THE COURT: Well, why "at least"? Is there some
indication that it was earlier?
MS. WAN: Yes, Your Honor, because Exhibit A refers to
the work authorization applications.
THE COURT: Where is that?
MS. WAN: So the first one is actually Exhibit B.
THE COURT: Exhibit B?
MS. WAN: Correct. So this is an application for a
work authorization, and in it, it refers to a pending asylum
claim.
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THE COURT: So Exhibit B was signed by the defendant
on February 10, 2015, right?
MS. WAN: Correct.
THE COURT: She came here in 2011, right?
MS. WAN: I believe 2012, May of 2012.
THE COURT: 2012, and almost immediately wasn't in
school. So for a couple of years, it appears she was here
unlawfully, to me, based on what I know at the moment.
All right. And then this document says "Application
approved. Employment authorized to 3/29/2016," I believe. Is
that the way you read it?
MS. WAN: Correct, Your Honor.
THE COURT: And is there any document showing that she
was authorized to be employed after that?
MS. WAN: Yes, Your Honor. The next application is
attached as Exhibit C.
THE COURT: Exhibit C.
MS. WAN: That goes from 2016 through 2017.
THE COURT: 2015 or 2016?
MS. WAN: 2016.
THE COURT: To 2017?
MS. WAN: To 2017. And then, Your Honor, I know this
is confusing, but Exhibit A shows subsequent applications, and
it shows another application that was received on June 7,
2016 -- excuse me -- 2017.
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THE COURT: But it appears from Exhibits B and C that
each application can result or does result in a one-year
extension.
MS. WAN: From those two exhibits, yes, but then in
addition to that, we have received, and I believe the defense
counsel has a copy, an actual work authorization card that says
that it's valid from 2017 through --
THE COURT: Who did you receive that from?
MS. WAN: From the defendant.
THE COURT: Right. Who has the actual card? May I
see it, please? Would the government like to see it?
MS. WAN: Sure, Your Honor. Thank you.
THE COURT: Does the defendant need the actual card
now, or can it go to Probation, for example?
MR. HALPERN: I honestly don't know what the
requirements would be if she seeks another position. Whether
she would have to demonstrate that she has the card, I don't
know.
THE COURT: She could get it from Probation. She has
to inform -- it's in my file, but do the conditions of release
require that she inform Probation of her employment?
U.S. PROBATION: Yes, Your Honor. I believe the
condition reads -- excuse me, I misspoke. She does have a
condition that says she must continue or actively seek
employment.
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MR. HALPERN: What would the purpose be of
surrendering the card?
THE COURT: Well, if there's any question of validity
of it. I'm adding that condition, that she fully inform
Probation of the details of her current employment and not
change her employment without the permission of Probation. So
that's an additional condition.
But, Mr. Halpern, maybe you can help explain -- I
mean, the card looks valid, and I don't want to overcomplicate
this, but I also want to be fully informed about the person I'm
going to have to sentence.
MR. HALPERN: So I consulted with an immigration
attorney and everything I'm really saying, I'm repeating what I
was told. Applying for a work permit while an asylum
application is pending is routine, and they are granted
routinely. Her asylum application could be pending for a very
long time, and the likelihood that it would be resolved by
mid-June when the permit expires is zero. So she's eligible to
have the work permit reinstated, and there's no telling how
long the asylum application could be pending.
THE COURT: That's consistent with my understanding,
what you've said so far. But nobody has shown me a document
extending the work authorization to now.
MR. HALPERN: So her immigration attorney passed away,
and so my -- I've tried to get her file. I haven't managed to
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do that, so I don't have the application that led to the
issuance of the card, and I'm not sure I'm going to be able to
get it. You would think it would be on file somewhere with the
government, but I don't know.
THE COURT: You would think that, because these others
were.
MS. WAN: And, Your Honor, we have looked into that.
We have tried to get the more recent work authorizations. I do
want to be clear, Your Honor, that the July 13, 2022 date does
not come solely from the work authorization card that the
defendant provided. That was independently verified when we
asked HSI about this case. I'm not sure if -- I reviewed the
A-File, Your Honor. There's nothing in there that states that,
but, if necessary, we can ask for an affidavit or some sort of
internal printout showing that status.
THE COURT: I'm interested in this because Exhibit B
is an application of various things crossed out and handwritten
in.
MS. WAN: I can explain that, Your Honor. Usually
when an applicant goes in for an interview at USCIS, during the
interview, the USCIS employee helps them fill out the
application, so the red marks come from the USCIS examiner, and
eventually the applicant signs.
THE COURT: Well, I remain interested in seeing the
applications, whether they include any misrepresentations. All
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right. And I'm going to order the government to have another
attorney file by March 22 an appearance on behalf of the
government so I can know who is going to be responsible for
this when two prosecutors here today are not available.
Because sentencings are regularly scheduled 12 weeks from
pleas. They were 16 weeks. So if the U.S. Attorney sends two
of you here for good reasons, I'm sure, who can't be here 12
weeks from now, she should send a third lawyer for Mr. Halpern
to contend with.
All right. Is there anything further -- I'll ask the
probation officer to prepare a new set of conditions of release
that I'll append to my order as soon as she's able. And as I
said, I'm continuing the hearing on the petitions that could
result in the defendant's pretrial detention. But it's
everybody's preference that that not occur.
But Ms. Jittaphol, that's entirely up to you. If you
decide you'd prefer not to do any of the programs, either of
the programs that Probation has ordered you and I'm ordering
you to participate in, you can tell Mr. Halpern, and he can
talk to Probation about it. They can come and ask me to change
it. But unless I change the orders, you have to follow them.
Because if you decide like Bartleby the Scrivener that you just
prefer not to do it, you'll be telling me you prefer to go to
jail.
Anything else for today?
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MS. WAN: None from the government.
MR. HALPERN: Nothing else, Your Honor.
THE COURT: All right. Court is in recess.
(Adjourned, 3:41 p.m.)
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CERTIFICATE OF OFFICIAL REPORTER
I, Kelly Mortellite, Registered Merit Reporter
and Certified Realtime Reporter, in and for the United States
District Court for the District of Massachusetts, do hereby
certify that the foregoing transcript is a true and correct
transcript of the stenographically reported proceedings held in
the above-entitled matter to the best of my skill and ability.
Dated this 8th day of April, 2022.
/s/ Kelly Mortellite
_______________________________
Kelly Mortellite, RMR, CRR
Official Court Reporter
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