Court filing
Transcript of Hearing as to Aticha Jittaphol held on April — USA v. Jittaphol (Dkt. 88, 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. 88 · 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
April 1, 2022
2:38 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:
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
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
April 1, 2022.)
(Case called to order.)
THE COURT: You may be seated. Would the clerk please
administer the oath to the interpreter, who is going to
interpret simultaneously, I understand, remotely.
(Interpreter duly sworn.)
THE COURT: Thank you. Would counsel please identify
themselves for the Court and for the court reporter. Excuse
me. The interpreter needs to mute himself, except when he's
speaking to me.
MS. LAWRENCE: Good afternoon, Your Honor. Kelly
Lawrence for the United States.
U.S. PROBATION: Good afternoon, Your Honor. Taylor
Wertz for U.S. Probation.
MR. HALPERN: Good afternoon, Your Honor. Keith
Halpern for Ms. Jittaphol.
THE COURT: The defendant is present. Do we have
Probation Officer Pace on the Zoom as well, I hope?
MR. PACE: Yes, you do, Your Honor. James Pace for
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U.S. Probation present. And I apologize, I'm in training and I
do not have a sport jacket to wear during this matter.
THE COURT: That's fine, that's fine.
MR. PACE: Thank you, Your Honor.
THE COURT: We're here today pursuant to my March 30,
2022 order, docket number 61. I wrote that, "On March 8, 2022,
the Court modified the conditions of defendant Aticha
Jittaphol's conditions of pretrial release and continued the
hearing to address the alleged violations of the previously
imposed conditions in the November 19, 2021, January 11, 2022
and February 7, 2022 petitions for actions on conditions of
pretrial release," docket numbers 16, 20 and 38.
On March 28, Probation filed a petition for summons,
docket number 58, attached to the March 30 order, alleging
additional violations of Jittaphol's conditions of pretrial
release. So I wrote, "A hearing to address the alleged
violations in each of these petitions," the four of them, "will
be held on April 1, 2022 at 2:30 p.m. at the Moakley
Courthouse. Jittaphol shall attend and be prepared to be taken
into custody immediately if the Court revokes her release."
Have the parties received the March 31, 2022 release
status report that the Probation Office provided yesterday?
MS. LAWRENCE: Yes, Your Honor.
MR. HALPERN: Yes.
THE COURT: You want to stand up, Mr. Halpern.
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And the legal issue, the framework has been discussed
previously, including at the January 20, 2022 hearing. So this
is a hearing to determine whether the defendant's release
should be revoked. It's being conducted primarily under 18,
United States Code, Section 3148(b). Under section 3148(b), I
have to determine whether there's probable cause to believe the
defendant committed a state or federal crime since being
released on conditions.
And I also need to determine under section 3148(b)
whether there's clear and convincing evidence that she violated
some other condition of her release other than the prohibition
on committing crimes.
If violations are proven, basically section 3148(b) in
pertinent part states that, "The judicial officer shall enter
an order of revocation and detention if, after a hearing, the
judicial officer, one, finds there's probable cause to believe
that the person has committed a federal, state or local crime
while on release, or, B, clear and convincing evidence that the
person has violated any other condition of release and finds
that based on the factors set forth in section 3142(g), there
is no condition or combination of conditions," and then in
pertinent part, "that the person is unlikely to abide by any
condition or combination of conditions of release."
The standard for proving whether there are no
conditions or combination of conditions that will reasonably
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assure that the defendant will obey conditions of release is
proof by a preponderance of the evidence, as the Fifth Circuit
wrote in Aron, 904 F.2d, 221, 224, and as the Second Circuit
wrote in Gotti, 794 F.2d 773, 777. The Federal Rules of
Evidence do not apply in a revocation proceeding as provided in
Rule 1101(d). So if we get to it, I can consider hearsay that
I find to be reliable.
All right. That's the legal framework. Does somebody
have a different view of what the legal framework is? No.
All right. So I have four petitions, and I'd like to
go over them with the defendant and see which of the alleged
violations, if any, she admits and which she disputes, and then
to the extent, if any, that some are disputed, I'll proceed to
resolving the disputes, including hearing evidence if
necessary.
So the defendant should approach the witness stand and
be sworn. Mr. Halpern, you can go with her with copies of the
petitions, all four petitions, please.
MR. HALPERN: I don't have all four petitions.
THE COURT: What's that?
MR. HALPERN: I don't have all four petitions.
THE COURT: Okay. Jarrett, would you give him the
petitions, please.
Would the clerk please administer the oath to the
defendant.
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THE WITNESS: Do I need to stand up?
THE CLERK: She's not going to be able to hear the
interpreter from there with the headset.
THE COURT: All right. You can return to the table
because I'm told that she won't be able to hear the
interpreter.
(Defendant duly sworn.)
THE COURT: You may be seated. Would you please state
your full name.
THE DEFENDANT: Aticha Jittaphol.
THE COURT: And do you understand you've just taken an
oath to answer the questions I'm going to ask you honestly and
any failure to do that could be a separate prosecutable
criminal offense?
THE DEFENDANT: Yes.
THE COURT: And do you understand that if you're
confused by any of my questions or unsure about what an honest
and accurate answer would be, I'll give you a chance to speak
to Mr. Halpern so we can clear up any confusion and you can
give me a reliable response?
THE DEFENDANT: Yes.
THE COURT: In the last 24 hours have you taken any
drugs, medication or alcohol?
THE DEFENDANT: No, sir.
THE COURT: And have you talked with Mr. Halpern about
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the alleged violations of your pretrial release that are
contained in the four petitions that I described earlier?
THE DEFENDANT: Yes.
THE COURT: Are you fully satisfied with his work as
your lawyer?
THE DEFENDANT: Yes.
THE COURT: All right. The first petition, so I'm
going to ask you some questions about whether you -- actually,
before I do that, let me say the following:
Has the government or Probation made any
representations or promises to the defendant or to her counsel
as to what it will recommend if she admits any of the
violations?
MS. LAWRENCE: I have not, Your Honor.
THE COURT: You both want to keep your voices up.
Mr. Halpern, is that right?
MR. HALPERN: That's right.
THE COURT: All right. So I'm going to ask you if you
admit that you committed particular violations or if you deny
it. Do you understand?
THE DEFENDANT: Yes.
THE COURT: All right. So the first petition that was
filed is docket number 16. I signed it on November 24, 2021.
Do you have that one, Mr. Halpern?
MR. HALPERN: Yes, Your Honor.
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THE COURT: It actually doesn't have all of the
conditions of pretrial release on the first page because the
first condition in all of them is that the defendant must not
violate federal, state or local law while on release. That was
one of the conditions.
And then on page 2, it says that Ms. Jittaphol
reported daily use of methamphetamine. Ms. Jittaphol's
urinalysis from 10/29/21 was positive for amphetamines. Did
you tell Probation that you had been using methamphetamine
daily and used it on or shortly before October 29, 2021?
THE DEFENDANT: Yes.
THE COURT: Okay. So the defendant has admitted the
use of possession and use of methamphetamine in violation of
the first condition of her release.
MR. HALPERN: Can I be heard?
THE COURT: No. I mean, this is standard --
MR. HALPERN: I would like to provide context here.
THE COURT: What's that?
MR. HALPERN: I think the context here --
THE COURT: You'll get a chance to argue the
implications if I find that they're done. This is the third
time I could have done this. I want to find out what's
admitted and what is denied and then what's proven if it's
disputed. And once I find the facts, you'll get a chance to
argue the implications of them.
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Okay. So in that first petition Probation was not
asking me to revoke the defendant and told me that
Ms. Jittaphol is agreeable to entering detox at SSTAR in Fall
River and has signed releases. She was expected to start this
program on 11/22/21. It said, "Probation will update the Court
if any changes are necessary," and I approved, you'll see on
the petition, "No action," and wrote, "However, Probation shall
report promptly if defendant does not properly participate in
detox or otherwise violates the conditions of her release."
So I'll make that petition Exhibit 1 of today's date.
Then the second petition is docket number 21. It was filed on
January 12, 2022 and signed by me, the same day. It lists the
conditions of pretrial release that include, 10, "The defendant
must not use or unlawfully possess a narcotic drug or other
controlled substance unless prescribed by a licensed medical
practitioner."
That was also a condition noted in the first petition,
Exhibit 1, that was number 5. And condition 14 as described in
Exhibit 2, the second petition, states, "The defendant must
participate in a program for inpatient or outpatient substance
abuse therapy and counseling if directed by the Pretrial
Services Office or supervising officer."
And then on page 2, in pertinent part, the petition
says, "As outlined in the November 19 petition, the defendant
admitted to U.S. Probation Office daily use of methamphetamine
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and was subsequently amenable to participate in inpatient
substance use treatment. Following the Court's approval of
this plan, the defendant was referred for inpatient substance
abuse treatment, SSTAR, located in Fall River, Massachusetts
but was denied placement in the program due to failing to
report to the program during intake hours on November 22, 2021
and November 30, 2021."
Did the probation officer tell you to go to the SSTAR
program located in Fall River on November 22 and November 30?
THE DEFENDANT: Yes. But I --
THE COURT: Did she tell you to go there?
THE DEFENDANT: Yeah, she told me to go. I go
there --
THE COURT: Here, just listen to what I ask you and
say what's necessary to answer, but I'm going to give you a
chance to tell me. Did you go there during business hours on
November 22, 2021?
THE DEFENDANT: Yes, but I drive there, I just got
late, and they did not accept me inpatient.
THE COURT: Did you go there during business -- I'll
give you a chance to explain after you answer these questions.
Here, did you go there on November 22, 2021, and were you
denied placement in the program, were you told they weren't
going to place you in the program that day because you hadn't
come during business hours?
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THE DEFENDANT: Yes.
THE COURT: Okay.
THE DEFENDANT: Yes.
THE COURT: And did the same -- were you told by
Probation to go again on November 30, 2021?
THE DEFENDANT: Yes.
THE COURT: And did you go again on November 30, 2021?
THE DEFENDANT: Yeah, it's like 30 November that I be
there but I late. They not accept me.
THE COURT: They didn't accept you the second time
either?
THE DEFENDANT: No. The first time I missed that. I
called the Probation that I missed it, I could not make it
because I don't have anyone to take care of the dog for me.
THE COURT: The dog?
THE DEFENDANT: Yeah. And she make -- indicate that
November 30 for me, and she understand that.
THE COURT: Okay. So the probation officer told you
to go on November 30?
THE DEFENDANT: Yes.
THE COURT: And did she or the program tell you what
time to come?
THE DEFENDANT: Yes.
THE COURT: And what time were you told to be there?
THE DEFENDANT: I believe that 1:30 or 2:00, like
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that.
THE COURT: Okay.
THE DEFENDANT: I late, 15 minute. I call and they
say they not accept that because we have to accept -- I have to
be there on time.
THE COURT: All right. So they told you to be there
at about 1:30, and you got there late and they wouldn't admit
you; is that correct?
THE DEFENDANT: Yeah. Yes, yes.
THE COURT: All right.
THE DEFENDANT: Yes, I get in during the business
hour.
THE COURT: What's that?
THE DEFENDANT: I get there in the business hour.
THE COURT: It was in the business hours, but you were
late and they wouldn't accept you?
THE DEFENDANT: Exactly.
THE COURT: All right. And then did the probation
officer refer you to inpatient treatment through the Behavioral
Health Network?
THE DEFENDANT: Yes, in Springfield.
THE COURT: Okay. So the alleged violation of not
going to SSTAR as directed by Probation I find is admitted with
explanation that I may hear more about later from Mr. Halpern
at least, possibly from the defendant.
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Okay. Then the next paragraph says, "On December 6,
the defendant was admitted to inpatient substance abuse
treatment with Behavioral Health Network, BHN. On December 27,
2021, the defendant discharged from inpatient treatment without
notifying her U.S. probation officer."
Did you leave the Behavioral Health Network on or
about December 27, 2021, without notifying your probation
officer?
THE DEFENDANT: Actually, I thought the ST -- that
place, they connect with the Probation because when I asking
them, like, Hope Center, asking them when the cost will be done
or how long I have to stay here, they told me it depend. The
counselor told me it depend on the Probation, and they already
connect together with like, how long I have to stay for. They
all have -- Probation tell them on the -- when I leave from
there, because of The Hope Center, they give me the date that I
can leave. And I thought they connect to the Probation and
Probation told them it's fine that I can go. I cannot leave
there alone at all because everybody have a counselor and thing
like that. Yeah. I got the certificate from the -- I finish
the program and I got that.
THE COURT: Okay. So I'm going to treat that
allegation as denied. It's my understanding that the defendant
is saying that the people at BHN, which might also be called
The Hope Center, said she could leave and she thought they had
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talked to Probation about that. Is that what you want me to
understand?
THE DEFENDANT: Yes, yes, that is what I want you to
understand.
THE COURT: All right. So I'm treating that as
denied.
Did the people at the Behavioral Health Network tell
you that they recommended that you stay for additional
inpatient treatment?
THE DEFENDANT: No.
THE COURT: You deny that, because it's next -- the
Probation Office -- I'm just trying to identify what's in
dispute. The Probation Office says in the petition that,
"Further inquiry into the circumstances surrounding her
discharge reveals the defendant completed short-term inpatient
treatment and declined to participate in her next phase of
treatment, long-term treatment, which was clinically
recommended by the Probation staff."
MR. HALPERN: That's denied.
THE COURT: So she disputes that?
MR. HALPERN: Yes.
THE COURT: She denies that. Okay.
All right. And then the next paragraph talks about
what Mr. Halpern allegedly said to Probation, and I don't think
I'm going to ask about that unless somebody thinks I should.
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The third petition is docket number 39-1, which I
signed on February 10, 2022. It implicates the first condition
of pretrial release that, "The defendant must not violate
federal, state or local law while on release." And the tenth,
"The defendant must not use or unlawfully possess a narcotic
drug or other controlled substance unless prescribed by a
licensed medical practitioner."
On page 2, the petition states, "On 2/7/22, the U.S.
Probation Office received notification that the sweat patch
worn by the defendant between January 20, 2022 and January 27,
2022, returned positive with the presence of methamphetamine.
As such and as indicated below, we are asking the Court for a
summons to address this drug use and the need for the defendant
to recommence residential drug treatment. Evidence in support
of this violation are laboratory results from PharmChem, Inc.,
dated 2/7/22, confirming this result."
Did you use or possess methamphetamine between January
20, 2022 and January 27, 2022?
THE DEFENDANT: I got out of Hope Center, I never use
any drugs or anything like that, I'm swear.
THE COURT: So it's your testimony that after you were
released or left The Hope Center in December of 2021, you've
not used methamphetamine or any other controlled substance, any
other drug again?
THE DEFENDANT: No.
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THE COURT: Is that your testimony?
THE DEFENDANT: No, I don't use anything after I got
out from The Hope Center. No drug, no nothing.
THE COURT: All right. So I'm treating that as
denied.
Then there's the fourth and most recent petition. Do
you remember that I had a hearing here in this courtroom in
this case on March 8, several weeks ago?
THE DEFENDANT: Yes.
THE COURT: Okay. And do you recall that I said I was
continuing the hearing on all of the petitions; I wasn't
deciding whether the alleged violations were admitted or
proven, but I was adding some new conditions to your supervised
release? Do you remember that?
THE DEFENDANT: I think so.
THE COURT: You think you remember?
THE DEFENDANT: Not really.
THE COURT: Okay. Did Mr. Halpern ever give you the
order I issued the next day with those additional conditions?
THE DEFENDANT: Yes.
THE COURT: And the first of those conditions was
that, "The defendant must fully and properly participate in
outpatient substance abuse treatment with CPS Boston as
directed by the Probation Office."
The second was, "The defendant must fully and properly
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participate in crystal meth anonymous, CMA, as directed by the
Probation Office."
The third was that, "The defendant must fully inform
the Probation Office concerning her employment so it can decide
if that employment is permissible and appropriate. In
addition, the defendant must seek and receive the permission of
the Probation Office before changing employment or engaging in
additional employment."
And fourth, "The defendant must submit to urine
testing for prohibited substances observed by a male probation
officer on a weekly basis. The defendant must also submit to
sweat patch testing for prohibited substances on a weekly
basis."
Do you recall now that those were the four additional
conditions that I added at and then after the March 8 hearing?
THE DEFENDANT: I don't really remember those four
conditions as said.
THE COURT: Did the probation officer discuss those
conditions with you, those new conditions?
THE DEFENDANT: Probably, probably, but I don't
remember. Sorry about that.
THE COURT: The first alleged violation in the
petition I signed on March 28, docket 58, I believe, says that,
"On 3/28/2022, the U.S. Probation Office received notification
that the sweat patch worn by the defendant between 3/8/22 and
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3/18/22 returned positive with the presence of
methamphetamine."
Did you use methamphetamine in the period beginning on
or shortly before March 8, 2022 and ending on March 18, 2022?
THE DEFENDANT: No, I didn't.
THE COURT: So that's denied. What's that? You said
no. What did you say after that?
THE DEFENDANT: No. I didn't use any during that
time.
THE COURT: Okay. And then it says on -- I'll skip
ahead a little. It says, "Additionally, the defendant failed
to attend treatment with Crystal Meth Anonymous on March 26,
2022." Did you go to a session of Crystal Meth Anonymous on
March 26, 2022?
THE DEFENDANT: Actually, I missing the Saturday, but
I send the short notice to Probation.
THE COURT: I'm sorry, I didn't understand -- did you
go, on March 23 -- did you go on March 26, 2022 to a session of
Crystal Meth Anonymous?
THE DEFENDANT: No, I didn't go on that day. I didn't
go, did not.
THE COURT: All right. So I'm taking it as admitted
that she didn't go to the CMA that day. Did you go to
treatment with CPC on March 10, 2022?
THE DEFENDANT: I didn't go on that day.
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THE COURT: Okay. So I'm taking that as admitted
also.
And then it says that, "On March 23, 2022, U.S.
Probation Officer met with the defendant in the community at
her employment." Did you meet on March 23, with the probation
officer at the place you were working that day?
THE DEFENDANT: Yes, yes, yes, we met on that day.
THE COURT: And on that day did you meet at the place
you were working as a massage therapist which was then called
Emerald Massage located at 8 Academy Road in Brighton,
Massachusetts? You have to answer yes or no.
THE DEFENDANT: Yes.
THE COURT: And did you tell the probation officer
that that day, March 23, was your first day of work?
THE DEFENDANT: Yes, I did.
THE COURT: And when the probation officer came, did
you tell her that you had a client in the massage room?
THE DEFENDANT: Yes.
THE COURT: And before you went to work that first day
at Emerald Massage, did you tell the probation officer that you
wanted to start working there?
THE DEFENDANT: I haven't told the probation officer
about that, I didn't.
THE COURT: So I take that as admitted as well.
All right. So let me see, the defendant has admitted
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telling Probation in October 2021 that she was using
methamphetamine daily and that she possessed and used meth on
or about October 29, 2021. So that's one admission.
With regard to the second petition, Exhibit 2, she
admits that she didn't report to the SSTAR program two times on
the times she was supposed to, had been directed to, so that's
admitted. She denies leaving the Behavioral Health Network
without notifying Probation or staying there based on the
recommendation of program staff. That's Exhibit 2.
I'll make the third petition, docket number 39-1,
Exhibit 3. She denies using methamphetamine between about
January 20 and January 27, 2022, although the sweat patch
tested positive for it.
And I'll make Exhibit 4 the petition I signed on March
28, and the defendant denies using meth between about March 8
and March 18, 2022, although the sweat patch tested positive,
and she admits that she didn't tell the probation officer that
she was going to start employment at the Emerald Massage before
she did and get approval, and she admits that she didn't attend
one session of Crystal Meth Anonymous on March 26, and she
didn't go for treatment with CPC as directed on March 10, 2022.
So by my calculation, there are three open matters
that are in dispute to be resolved. One is whether she left
long-term treatment at the end of December without the
permission of the probation officer. The second is whether she
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possessed or used methamphetamine between about January 20 and
28, 2022. And the third is whether she used or possessed
methamphetamine between about March 8 and March 18, 2022.
So I'm accepting the admissions, and I'll hear
evidence on the three disputed matters and then argument. The
burden of proving an alleged violation is on the government.
And to find anything other than -- well, if there's probable
cause to believe a crime has been committed, that's one
standard, with regard to any other violation. And using meth
would be a crime, so that can be decided based on probable
cause, but it's also related to an alleged violation. And then
with regard to not following the directions of the probation
officer and leaving Hope House, that would have to be proven by
clear and convincing evidence.
On March 8 I had directed Probation to provide the
documents it had with regard to the discussions concerning Hope
House and whether she left to the parties and to the Court. I
saw this morning that I didn't have them, so I asked Probation
to send them to me. Did counsel get them, too?
MR. HALPERN: No.
THE COURT: No?
MR. HALPERN: No.
MS. LAWRENCE: I received it by email, Your Honor,
about a half hour before the hearing started. It could have
been in route.
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THE COURT: They were emailed at about 11:00, maybe a
little later, this morning. Do we have -- we'll give you a
copy, Mr. Halpern. We'll make this the next exhibit, Exhibit
5. We'll have to print another copy.
There's also, I have a sheet with the drug test. In
fact, it's 3:30. And you haven't -- let's talk about how we're
going to proceed. And then to the extent it implicates those
documents, I'll take a break so you can look at them, so I can
look at them, too. Well, you're making a face.
MR. HALPERN: I don't think I need -- I mean, I'll
look at them. I don't think I need much of a break because I
don't think what -- I communicated with both Probation and Hope
House concerning this. Nothing I was told has ever been
disputed, so I think I know what happened.
THE COURT: All right. Here, well, it gets a little
complicated if you're the lawyer and the witness, but we'll
find some reasonable way to do this. But I do want to -- I had
very little time to look at them, and it's my hope to conclude
this matter today.
What I think, what I suggest is that we hear from the
probation officer. You can each examine her. I probably have
some questions. And then if the defendant would like to
testify, she can testify. That would be the proper way for her
to explain some of this, so it can be subject to
cross-examination.
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And at the moment, I don't foresee any other
witnesses, except Mr. Halpern, who can make a proffer or
something, which I can consider.
Here, Mr. Halpern, if you don't need time to look at
it, listen to me. Don't multitask. So does anybody propose a
different way of proceeding, have the probation officer testify
and then, if she wants, the defendant?
MR. HALPERN: I think that's fine.
MS. LAWRENCE: That's fine, Your Honor. I apologize.
I have a flight at 5:30 p.m. today.
THE COURT: Well, I apologize, you might --
MS. LAWRENCE: I'm really sorry, Your Honor.
THE COURT: We had to start this later than I wanted
because it's remote. You're the third Assistant U.S. Attorney
on this case.
MS. LAWRENCE: I will get someone to cover. I didn't
anticipate the length of beyond two hours. And that's all,
Your Honor.
THE COURT: Well, we may or may not. Why don't -- I'm
surprised you're here by yourself. There were two others, and
they brought somebody new in because they were both going to be
unavailable for the sentencing in June. Today is March.
They've got the history of it.
I've got to prepare for sentencing a seventh MS-13
murderer next week. I have to prepare to start a trial the
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following week. I'll take -- I think it's really -- as I say,
I was surprised you were here by yourself, but I assumed you
were prepared to do this yourself.
MS. LAWRENCE: I am prepared, Your Honor, and I deeply
apologize. I moved the flight back when the hearing moved.
THE COURT: What's that?
MS. LAWRENCE: I moved my flight later when the
hearing moved to 2:30. I couldn't move it any later, and I'm
deeply sorry.
THE COURT: Well, when are you going to be back?
MS. LAWRENCE: Monday morning.
THE COURT: Well, let's see where we are. Maybe I'll
stop because I actually have something else to do today. But
when you come back, don't come back alone.
MS. LAWRENCE: Yes. Ms. Wan had anticipated her
pregnancy, naturally, and I have been attending the last three
hearings in your courtroom.
THE COURT: Well, I'm glad about that, but there was
somebody else here last time, too.
MS. LAWRENCE: She was unavailable this afternoon.
THE COURT: It didn't used to be this way. You get a
court order, and then you're available. I'll try to get you
out of here by 4:30.
MS. LAWRENCE: Thank you, Your Honor.
THE COURT: Or soon after. All right. So the
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probation officer is Taylor Wertz. She's here. Could I have
her approach the witness stand and be sworn.
TAYLOR WERTZ, Sworn
THE COURT: Jarrett, don't go so fast. It's got to be
translated. Go ahead.
DIRECT EXAMINATION BY MS. LAWRENCE:
Q.
Would you please state and spell your name for the record,
please.
A.
Taylor Wertz, T-a-y-l-o-r, W-e-r-t-z.
Q.
How you employed, Ms. Wertz?
A.
I am a U.S. probation officer.
Q.
How long have you held that position?
A.
The last two and a half years.
Q.
Are you familiar with the defendant in the courtroom
today?
A.
Yes.
Q.
How are you familiar with her?
A.
I currently supervise the defendant on her pretrial
supervision.
Q.
Okay. Have you been the supervising probation officer for
the defendant the entire time she's been under pretrial
supervision?
A.
I have not. I received her case in January of this year.
Q.
Who was the probation officer assigned prior?
A.
USPO Maureen Curran.
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Q.
Did you receive information from Probation Officer Curran
regarding the defendant?
A.
Yes.
Q.
And are you familiar with her entire record of pretrial
supervision?
A.
Yes.
Q.
One of the disputed allegations is the defendant's -- your
allegation, excuse me, that the defendant left The Hope Center
on December 27, 2021 without contacting the probation officer
first. Is that correct?
A.
Yes.
Q.
And at that time Ms. Curran was the supervising officer?
A.
That is correct.
Q.
Can you tell the Court what you understand from Ms. Curran
occurred on December 27 with respect to the defendant leaving
the treatment center.
A.
From what I understand, the defendant discharged from the
treatment center on December 27.
THE COURT: Excuse me. Go more slowly and speak into
the microphone, please.
THE WITNESS: Yes, Your Honor.
A.
From what I understand, on December 27, 2021, the
defendant discharged from the BHN, Behavioral Health Network
Treatment Center, after completing Hope Center's short-term
inpatient treatment.
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Q.
Prior to the defendant leaving The Hope Center's
short-term treatment plan, had you -- or sorry -- had
Ms. Curran told the defendant that she was required to stay at
the center through the completion of the next phase?
MR. HALPERN: Objection.
THE COURT: What's the basis of the objection?
MR. HALPERN: Did Ms. Curran tell the defendant?
MS. LAWRENCE: To Ms. Wertz' understanding, based on
what she knows from Ms. Curran.
MR. HALPERN: Objection.
THE COURT: Well, as far as I know, there are at least
two potential sources of knowledge. And just to reiterate what
I think I said before, hearsay is admissible. It has to be
reliable hearsay. And I think maybe you should lay a
foundation, for example, whatever -- does she have an
understanding of what the communications were between Ms.
Curran and the defendant on this issue; what's the
understanding based on, and then I'll be in a better position
to rule on the objection.
BY MS. LAWRENCE:
Q.
Okay. Have you discussed with Ms. Curran what she
communicated to the defendant prior to your taking over as
supervisor for the defendant?
A.
Yes. In reference to her treatment at the Behavioral
Health Network, it was communicated that the defendant would
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have to participate in treatment per the recommendations of the
clinical staff at the program.
Q.
Do you have a record of Ms. Curran's communications to the
defendant on this point?
A.
Yes, via email.
Q.
What is the basis for that understanding that you have?
What records do you have?
A.
I have chronological records from the U.S. Probation
Office and email correspondence from the treatment provider.
Q.
Okay. Are the email correspondence that you referred to
in the chronological record?
A.
Yes.
Q.
And is the chronological record you're referring to the
same document that the Court made an exhibit to this hearing --
THE COURT: I think it's 5.
Q.
-- Exhibit 5 to this hearing?
A.
Yes.
Q.
Okay. So in Exhibit 5, can you point to the information
that you referred to just a minute ago regarding communications
to the defendant about the expectations.
THE COURT: Actually, let me just do a little more to
expedite this but lay a foundation. So Exhibit 5 says,
"District of Massachusetts Pretrial Services Chronological
Record Report 10/26/2021 to 1/20/22 concerning Aticha
Jittaphol." Right?
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THE WITNESS: Correct, Your Honor.
THE COURT: And what is this chronological record?
THE WITNESS: This chronological record is
documentation that the U.S. Probation Office has in order to
track collateral contact that we have as well as personal
contact that we have regarding the defendant.
THE COURT: And is this a record that Probation
regularly makes in the course of its work?
THE WITNESS: Yes, Your Honor.
THE COURT: And is this something that probation
officers rely on in performing their duties?
THE WITNESS: Yes, Your Honor.
THE COURT: Okay. Go ahead.
BY MS. LAWRENCE:
Q.
In the record marked as Exhibit 5, is there information
that you relied on to understand what was communicated to the
defendant by Ms. Curran?
A.
Yes. Throughout the defendant's duration of treatment
with BHN, they had interactions regarding next steps in
treatment, especially in regards to aftercare planning as she
moved through the program.
Q.
Can you point us to that part of the record in Exhibit 5
that reflects that information.
A.
On page 24.
Q.
And can you read the relevant part of that communication
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-- sorry. Who is this communication from?
A.
Colleen from Behavioral Health Network.
Q.
Okay. And who is it to?
A.
To Maureen Curran, a U.S. probation officer.
Q.
And what's the date of the communication?
A.
January 4, 2022.
Q.
Okay. And you don't have to read it verbatim, but in
substance, what is being communicated?
A.
The piece that's being communicated was that the defendant
did not follow through with her aftercare plan and aspects of
programming that she did not comply with.
Q.
Do you have any understanding of what Ms. Curran
communicated directly to the defendant about the expectations
for the program?
A.
From my understanding of the chronological records is that
the recommendation for continued treatment was per the Court's
order to participate in treatment as well as what was discussed
with the clinical team at BHN and the U.S. Probation Office.
Q.
And again, I believe I asked you this at the beginning,
but is there any record that the defendant told Ms. Curran that
she was going to leave the program on December 27, 2021?
A.
No.
Q.
Do you know if the defendant ever directly communicated
that to Ms. Curran?
A.
I do not know.
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Q.
There are two other disputed allegations in the violation
petitions. The first is that between the date of January 20,
2021 and January 27, 2021, the defendant tested positive for
methamphetamines on a sweat patch test. Do you have evidence
of -- sorry. Maybe I should do this the other way.
MS. LAWRENCE: I would like to mark as Exhibit 6, Your
Honor --
THE COURT: Why don't you just stop for just a minute.
Let me ask my law clerk to come in with the copies. Why don't
you give one of those to Mr. Halpern. This will be Exhibit 6.
Do you have one?
MS. LAWRENCE: I have one. Thank you.
THE COURT: Jarrett, take it. I've got one.
BY MS. LAWRENCE:
Q.
This is a three-page document reflecting a drug test. Do
you have a copy at your witness stand?
A.
I do.
Q.
Okay. And the first page has the word "Taunton" in the
upper left-hand corner.
A.
Yes.
Q.
This says the defendant's name, Aticha Jittaphol, at the
top, and the collection date is 10/29/2021, in the middle, at
8:00 a.m.
A.
Yes.
MS. LAWRENCE: I'm just establishing for the record,
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Your Honor, that we have the same document, Exhibit 6.
THE COURT: Yes.
Q.
On page 2, if we could turn to that, can you describe what
this page is showing.
A.
Yes. This page is a document received from PharmChem,
Inc. referencing the results of a sweat patch that was worn by
the defendant from January 20, 2022 to January 27, 2022.
Q.
What does this reflect in terms of a positive or negative
result for methamphetamine?
A.
A positive result for methamphetamine.
Q.
And on page 3 -- before I get there, there's another
alleged violation that's been disputed. And that is that from
March 8, 2022 to March 18, 2022, the defendant had a positive
result on a methamphetamine test for, again, a sweat patch.
And turning to page 3 of Exhibit 6, can you explain what this
information shows.
A.
Yes. This is a PharmChem, Inc. drug test result from a
sweat patch that was worn on 3/8 to 3/18/2022.
Q.
And what is the result, positive or negative, for
methamphetamine?
A.
Positive for methamphetamine.
Q.
And again, on both page 2 and 3, the name of the person is
the defendant, correct?
A.
Yes.
Q.
Do you have any other evidence that supports these test
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results?
A.
No.
MS. LAWRENCE: That's all I have, Your Honor.
THE COURT: Mr. Halpern.
MR. HALPERN: Thank you.
CROSS-EXAMINATION BY MR. HALPERN:
Q.
Ms. Wertz, although you weren't working on the case, you
have familiarity with --
THE COURT: Mr. Halpern, get closer to the microphone,
please. We have to make sure the interpreter can hear you,
too.
BY MR. HALPERN:
Q.
You have some familiarity with how Probation initially got
involved working with Ms. Jittaphol, correct?
A.
Yes.
Q.
All right. So you know that the initial contact with
Probation was by me asking Probation for help. Is that right?
A.
Yes.
Q.
And in fact, that was before criminal charges were
brought, because I was appointed when she was a target.
A.
Yes.
Q.
And she came to me on her own when she found out that
there was a legal process going on and asked me to contact
Probation so that she could get into a detox.
A.
Yes.
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Q.
And I contacted Probation and was told that, until she
actually was charged, the Probation Department couldn't help
me.
A.
Yes.
Q.
All right. And I told Probation that at that point she
was using methamphetamine every day, multiple times a day, and
did not believe she could stop without going into detox.
A.
Yes.
Q.
So the recognition of the need for treatment was hers to
start with, right?
A.
Yeah.
Q.
She wanted to stop, right?
A.
Yes.
Q.
And she asked me to help reach out to Probation so she
could stop using meth.
A.
(Nods.)
Q.
And then she had to wait for the criminal case to start
and for Probation to find a place for her to go, correct?
A.
Correct.
Q.
And she didn't hide the fact that she was using
methamphetamine the entire time because from the start she had
told Probation, she had asked me to tell Probation that she
could not stop without going into a detox. Is that right?
A.
Yes.
Q.
All right. So then finally, she gets in -- so the initial
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test when she tests positive in the first report, I believe, on
October 29, that wasn't a surprise to anybody because she had
acknowledged that she was using, and this was before she got
into a detox?
A.
Yes.
Q.
Okay. So then she goes into a detox and she transitions
from the detox to a stepdown program, correct?
A.
Behavioral Health Network, you're referring to?
Q.
Right.
A.
Yes.
Q.
And she did both completely successfully?
A.
Yes.
Q.
And their communications with Probation was that she was a
model patient, they had no problems with her, and they thought
she was, you know, completely compliant, right?
A.
From the chronological records I have with BHN regarding
email correspondence, I can't speak to her complete compliance
with programming.
Q.
She was committed to stopping use, correct? The records
make it clear that, throughout the time she was there, she
wanted to stop using. She wasn't in denial, was she?
A.
Not about her use at that time.
Q.
Okay. So you're aware that at the point when she's ready
for discharge, I had communications with Ms. Curran. You know
about that, right?
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A.
From what Ms. Curran had told me, yes.
Q.
All right. And part of those communications was that I
was told that -- I questioned whether she needed long-term
residential care, right?
A.
Yes.
Q.
And at that point I had familiarized myself with some of
the criteria to determine whether long-term residential care
was appropriate, and I talked about those criteria with Ms.
Curran?
A.
Yes.
Q.
All right. And Ms. Curran told me, "We're not the
experts. We rely on what the provider recommends, and so I'm
not going to second-guess the provider. Hope Center
recommended that she have long-term care. We're not going to
contest that. They made the decision." That's what I was
told; you know that.
A.
Yes, to the extent you're describing it.
Q.
Okay. And you know that after that I contacted Hope
Center, because I talked with Ms. Curran about what happened a
number of times, what happened when I contacted Hope Center,
correct?
A.
Correct.
Q.
And what I told Ms. Curran and her supervisor was that
when I contacted Hope Center and asked what was the basis for
the recommendation of long-term inpatient residential care, I
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was told, "We never evaluated that. The reason we never
evaluated that" --
THE COURT: Why don't you go step by step.
Q.
All right. I was told that Hope Center had not conducted
an evaluation of whether long-term residential care was needed
because it was a contract provision between Probation and The
Hope Center, right? I told Probation that --
THE COURT: Here, you should testify essentially based
on what you know or understand, based on what Ms. Curran told
you and based on what's in the chronological file. Because I
think you said those are the two sources of your information;
is that right?
THE WITNESS: That is correct.
THE COURT: So if you know, you should confirm that
you know it. If you don't know, you should say you don't know.
THE WITNESS: I think I'm quite lost with just the
question, I guess is what I'm trying to speak to.
Q.
Okay. You're familiar with a form called a PS-45?
A.
It's a Program Plan 45.
Q.
And this is a form that Probation provides to the care
provider listing the types of care that they want the
provider --
INTERPRETER: I lost telephone contact with the
defendant. I don't think she hear me now.
THE COURT: Ms. Jittaphol, are you able to hear the
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translator?
THE DEFENDANT: Yes.
THE COURT: She said yes.
THE DEFENDANT: No, not now right now, no.
THE COURT: Are you able to hear the translator?
THE DEFENDANT: Right now, no.
THE COURT: He should say something to you, and we'll
see if you can hear it.
THE DEFENDANT: Sorry about that.
THE COURT: Can you hear him now? Ms. Lawrence,
you're going to make your plane.
THE DEFENDANT: Not yet.
INTERPRETER: I don't think -- I don't think she hear
me.
THE COURT: Can you hear him now?
INTERPRETER: Your Honor, Your Honor, I think she hear
me now.
THE COURT: Okay. Thank you. All right. Let me just
pause you for a minute because I've got quite a busy schedule
next week. I think we're not going to finish this today, but
I'm going to want to resume at 10:30 on Monday morning. Does
anybody have a concern about that?
MR. HALPERN: I've got a Zoom with an inmate that I
can change.
THE COURT: My availability is very limited.
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MR. HALPERN: I'll reschedule it.
THE COURT: Thank you very much. Ms. Lawrence?
MS. LAWRENCE: I am absolutely okay with that, Your
Honor.
THE COURT: What's that?
MS. LAWRENCE: I am absolutely okay with that.
THE COURT: Yes. Okay. Keep going. We'll go until
about 4:20 or something like that.
BY MR. LAWRENCE:
Q.
So the PS-45 is a form that Probation fills out and gives
to the care provider that lists the type of care that Probation
wants to be given to the recipient.
A.
The Program Plan 45 is a billing document that we use and
provide to the provider that authorizes certain modalities of
treatment.
Q.
Okay. So in this case, the PS-45 that was given to The
Hope Center included in the list of services that were going to
be paid for long-term inpatient residential care, correct?
A.
Yes.
Q.
All right. And so you know that I had communications with
Probation in which I spoke about the communications I had with
Hope Center, correct?
A.
Yes.
Q.
And you know that what I told Probation was that when I
contacted Hope Center and said, "Well, Probation says this was
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your call and they're relying on you, did you make an
assessment that she needed long-term inpatient residential
care," their response was, "We didn't do the assessment, and
the reason we didn't do the assessment is because Probation
contracted in this PS-45 for long-term inpatient residential
care."
THE COURT: Do you know that one way or the other?
A.
Yes. I can't speak to the exact conversation you had with
them, but that's from my understanding what you told me, yes.
Q.
Okay. And so there was a recognition at that point by
Probation that, if what I was saying was right, that The Hope
Center had misunderstood what a PS-45 was because it wasn't a
contract that they were required to provide certain services.
It was simply an agreement that, if they did provide the
services, they'd be paid for.
A.
Yes.
Q.
All right. So there was, what The Hope Center was
interpreting as a contract agreement was in fact an agreement
that if The Hope Center decided that something was clinically
appropriate, the cost would be covered?
A.
Yes.
Q.
All right. But they were supposed to do a clinical
assessment, correct?
A.
Not that Probation would have authorized. I'm not sure if
they do one internally for their next step.
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Q.
Okay. So ultimately Probation was saying we're relying on
The Hope Center to make an assessment that she needs long-term
inpatient care, and The Hope Center was saying, "We're relying
on a contract with Probation, and they're the ones that decided
she needed long-term inpatient care." So both sides were
pointing at the other. Is that fair to say?
A.
Yes.
Q.
And at that same time, nobody had actually done an
assessment for the need for long-term inpatient care.
A.
No. I believe The Hope Center did aftercare planning with
the defendant.
Q.
Are you familiar with some of the criteria --
THE COURT: Here, I need to understand this. The
defendant -- the witness just said that she understood that The
Hope Center did aftercare planning. Would you look at page 24
of the chronological file that's Exhibit 5.
THE WITNESS: Yes.
THE COURT: And look at the second full paragraph.
Then I'm going to ask you also about the bottom of the page.
But does the second full paragraph say -- so this is to
Maureen, the probation officer, from Colleen, somebody at Hope,
right?
THE WITNESS: Yes, Your Honor.
THE COURT: Does the second full paragraph say, "I
feel like the only aspect of programming that Aticha did not
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comply with was an aftercare plan. She refused both long-term
treatment, as well as IOP, despite counseling recommendations
as well as the recommendations of our aftercare counselors."
Did I read that right?
THE WITNESS: Yes, Your Honor.
THE COURT: And what do you understand IOP means?
THE WITNESS: Excuse me. Intensive outpatient
treatment, which typically happens in the community multiple
days a week.
THE COURT: And what do you understand that paragraph
that I just read communicates or was intended to communicate?
THE WITNESS: I believe it communicates that she was
offered aftercare planning either in the form of long-term
treatment or intensive outpatient treatment, and she did not
adhere to that recommendation.
THE COURT: So she was -- this is what I'm trying to
understand. So you think, you understand that means that she
was offered -- she was recommended for intensive aftercare,
either inpatient or intensive outpatient. Is that right?
THE WITNESS: My understanding is the clinical staff
met with her to develop an aftercare plan, of which could
either consist of long-term residential treatment or intensive
outpatient treatment.
THE COURT: And at the bottom it says, "PO also spoke
with Colleen re sub" -- the sub is the defendant, is that
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right?
THE WITNESS: Yes.
THE COURT: -- "an email above," that I just read part
of, "Colleen reports full participation while at the program
and believes if sub participates in OIP, that is sufficient."
THE WITNESS: Yes.
THE COURT: What does that communicate to you? What
do you understand from that?
THE WITNESS: From what I understand, given she had
already discharged at that point, Colleen was recommending
intensive outpatient treatment to address her aftercare plan.
THE COURT: Okay. Mr. Halpern, you can resume.
BY MR. HALPERN:
Q.
So it's clear that The Hope Center talked to her about
making a recommendation, right? "We recommend long-term
inpatient residential care," correct?
A.
That BHN offered her a recommendation for long-term
inpatient care, yes.
Q.
So the dispute that I was involved with with Ms. Curran
wasn't about whether or not Hope Center had recommended
long-term inpatient care. They did.
The dispute was why they did. And the issue was whether
the reason that they had recommended it was because they
thought they were contractually obligated to do it or whether
somebody had actually done a clinical assessment that made
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long-term inpatient care an appropriate medical decision. That
was the dispute, not whether or not they recommended it. We
knew they recommended it.
A.
Yeah.
Q.
So she tells them she does not think she needs inpatient
care to stay clean?
A.
Yes.
Q.
And that's the position she took with you from the time
you got involved, that she was confident that she did not need
inpatient care because she did not feel an urge to use,
correct?
A.
Yes.
Q.
And she has consistently said that, from the time she got
out of treatment, that she doesn't want to use, she doesn't
feel a desire to use, and she knows she is not going to use.
Regardless of any type of care, she doesn't want to use
anymore. She's told you that all along, right?
A.
That's what she has reported.
Q.
Okay. So she tells Hope Center that she does not want to
do long-term inpatient residential care and she goes home,
correct?
A.
Yes.
Q.
All right. So at that point Probation goes on a program
to test her compliance, correct?
A.
For drug testing, yes.
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Q.
Right. And initially there is a concern about doing --
how you're going to do urine tests.
THE COURT: While you're transitioning, it occurs to
me I have to ask somebody else about 10:30 Monday. Could the
interpreter please state his name for the Court and for the
record.
INTERPRETER: Chamroen Tansomboon, Your Honor.
THE COURT: Okay. And are you available from about
10:30 to 1:00 if necessary -- well, 10:30 going to about 1:00,
I hope, on Monday?
INTERPRETER: So Your Honor, the session will be 10:30
to 1:00?
THE COURT: Well, it starts at 10:30, and I hope to
end by 1:00.
INTERPRETER: After this session, can I check my work
schedule?
THE COURT: Can you check it now because I have to
tell everybody when to come back.
INTERPRETER: Okay, okay. So give me one minute. Let
me check my work calendar.
THE COURT: I will let you do that. While he's doing
that, I'm going to mention a case to you that I've read since I
saw you last. It relates -- and there may be others that you
want me to read. It relates to the reliability of sweat
patches.
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Mr. Halpern told me about Judge Young's decision in
Alfonso in about 2003. In 2007, the Eighth Circuit wrote
Meyer, 483 F.3d 865, 868-69. And it finds and references other
cases that find that courts have held sweat patches are
generally reliable but not infallible. Are you familiar with
that one, Mr. Halpern?
MR. HALPERN: I believe I've read it, yeah.
THE COURT: What's that?
MR. HALPERN: I believe I've read it, yes.
THE COURT: Why didn't you tell me about it?
MR. HALPERN: I don't know when I read it. I don't
know when I read it in comparison to when I filed the memo, but
I think I've read it.
MR. PACE: Your Honor, James Pace from U.S. Probation.
Can you please restate the cite for that case for probation
purposes?
THE COURT: Excuse me. The interpreter is back. Let
him answer the question. Can you help us at 10:30 on Monday
morning?
INTERPRETER: I can be available at that time, Your
Honor, but I may not be able to stay later than that because I
have some prior commitment after that, but 10:30 to 1:00 p.m.,
I think I can do it.
THE COURT: All right. I'm told that we will not need
you. Mr. Lovett, the deputy clerk, got somebody who can be
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available all day.
INTERPRETER: Thank you.
THE COURT: I appreciate you helping. Mr. Pace, is
there something you wanted to say?
MR. PACE: No, Your Honor, I can follow back --
THE COURT: That's fine, follow up after the hearing.
Mr. Halpern, you can resume for about ten minutes, then we'll
have to stop.
BY MR. HALPERN:
Q.
So there was a concern with respect to urine testing that
Ms. Jittaphol could not be observed by a female and that she
might be uncomfortable being observed by a male, right?
A.
Yes, she reported early on that she would be
uncomfortable.
Q.
So that was the initial reason for doing sweat patch tests
rather than urine tests, correct?
A.
Yes.
Q.
And then there came a point where you learned, where I
told you that she was agreeable to doing observed urine tests,
correct?
A.
Yes.
Q.
And urine tests were scheduled for her. And not only did
I tell you repeatedly that she was okay with being observed by
a man, she told you repeatedly when she went in for these tests
that she was okay being observed by a man, correct?
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A.
Yes.
Q.
But for a considerable period of time despite that,
Probation continued to do unobserved urine tests, right?
A.
Yes.
Q.
Now, eventually there's a positive sweat patch test,
right?
A.
Yes.
Q.
And that positive sweat patch test was for the period of
January 20 to January 27?
A.
Yes.
Q.
All right. Now, the sweat patch test is designed to be
able to identify drug use during the entire week that the patch
is worn, right?
A.
Yes.
Q.
Urine tests, and particularly with respect to
methamphetamine, are thought to be reliable going back three or
four days from drug use.
A.
Yes, I believe 72 hours.
Q.
All right. So it's almost as long but not quite.
A.
Yes, and I can just clarify, 72 hours, depending on use.
Q.
Okay. So she had --
THE COURT: I'm sorry, what do you mean by "depending
on use"?
THE WITNESS: Depending on the amount that is consumed
at a given time.
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THE COURT: So if somebody used a small amount, are
you saying that it might not be detectible for the full 72
hours?
THE WITNESS: That's correct.
BY MR. HALPERN:
Q.
Let's talk for a minute about your knowledge -- you've
worked with other people who use methamphetamine, correct?
A.
Yes.
Q.
All right. Methamphetamine is not the type of drug that
most users decide to use on a weekend or after work, correct?
A.
I can't speak to that.
Q.
Methamphetamine, I mean, you know methamphetamine is
extraordinarily addictive?
A.
Yes.
Q.
You know that most people who use methamphetamine use it
every day, correct?
A.
In some cases, that is correct.
Q.
Right. It's not a recreational drug that people take when
they go out partying on the weekend. It's a drug that people
take day in and day out, and addicts generally take it multiple
times a day.
A.
I can't speak directly to that. I'm not as well versed in
methamphetamine use, between recreational or daily use.
Q.
Based on your knowledge, among the various drugs that you
guys test for, is methamphetamine pretty much at the top of the
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list in terms of addiction?
A.
I think there's multiple drugs that are at that, I can't
speak to that.
Q.
All right. In your experience have you found
methamphetamine users who use it once a week and stop for six
days and then go back?
A.
Not in defendants that I have tested, not --
Q.
Okay. The people that you are familiar with use it
regularly?
A.
In some instances, yes. In other instances --
Q.
All right.
A.
-- no.
THE COURT: Well, you've got to let her answer.
MR. HALPERN: All right.
THE COURT: Excuse me, now I didn't hear the answer
because you interrupted it.
A.
In some instances, yes, that happens. In other instances,
that does not happen.
THE COURT: In some instances --
THE WITNESS: As far as the frequency of use.
THE COURT: So in some instances, people you supervise
use it regularly, and in some instances, they do not?
THE WITNESS: Yes.
BY MR. HALPERN:
Q.
If you look at the test results, the positive sweat patch
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test was for January 20 to January 27, correct?
A.
Yes.
Q.
And in that week, right, the same week that she tested
positive for the sweat patch, on January 26, there's a negative
urine test, correct?
A.
Yes.
Q.
All right. And if you assume that the urine test covers
three days, maybe four days, all three or four of those days
are within the same week that the sweat patch tested positive?
THE COURT: I think her assumption was it could be up
to 72 hours, three days.
MR. HALPERN: All right.
Q.
Let's say three days. All right. Those three days would
have been within the same week that the first sweat patch came
back positive, correct?
A.
With the urine testing? I think I just need you to
clarify.
Q.
The urine test was the 26th?
A.
Mm-hmm.
Q.
Right. The sweat patch was the 20th to the 27th, right?
A.
Yes.
Q.
So the three days that the urine test covered, assuming it
covered three days, were within the same week of the positive
sweat patch test?
A.
Yes.
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Q.
Right. So she would have, assuming the urine test was
accurate, she would have had to use in the couple of days
before that three-day window or in the day or two after the
three-day window?
A.
Yes.
Q.
And then stopped using?
A.
Yes.
Q.
Are you familiar with literature concerning the relative
reliability between urine tests and sweat patch tests?
A.
No.
Q.
She then had another negative urine test on February 3,
right?
A.
I don't have the drug test results in front of me at the
moment.
Q.
Okay.
THE COURT: Here, you didn't take those. We'll give
you a copy of the drug test results. We'll make that Exhibit
6. All right. Is the list of the drug tests in your memo?
THE WITNESS: It is in the release status memo that
was provided yesterday.
THE COURT: All right.
THE WITNESS: I do have a copy at my seat.
THE COURT: Okay. Why don't you go get your copy and
I'll look for mine.
I'll make her memo Exhibit 6. This is the status
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report 3/31.
THE WITNESS: I apologize for not bringing that.
THE COURT: I'm retracting the other Exhibit 6 because
she's not testifying about that, but the release status report
that the witness dated 3/31/2022 will be Exhibit 6. Go ahead.
Actually, when you reach a breaking point, I want to
let Ms. Lawrence get her plane.
MR. HALPERN: I mean, if you want me to stop now, I'll
stop now.
THE COURT: I think we'll stop now.
MS. LAWRENCE: Thank you. I'll tell you the
following. I just told you about a case concerning the
reliability of sweat patches that Mr. Halpern had read but
didn't cite to me. And I don't know whether the government has
read it or not. There may be others out there.
I'm ordering that if there are additional cases that
are relevant to this issue of reliability of sweat patches that
you file them by 9:00 on Monday morning. Today is the 1st.
That's the 4th.
And Mr. Halpern, this isn't a final answer. Do you
expect the defendant will testify?
MR. HALPERN: Well, yes.
THE COURT: You expect she will?
MR. HALPERN: Probably briefly, but yes.
THE COURT: Okay. All right. I think if we start at
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10:30, we should be able to finish by 1:00. And if we don't,
we'll resume after that. I just have other things to do and
get ready for. All right. Can the probation officer be back?
U.S. PROBATION: Yes, Your Honor.
THE COURT: Court will be in recess until 10:30 on
Monday, April 4. Court is in recess.
(Adjourned, 4:20 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 10th day of April, 2022.
/s/ Kelly Mortellite
_______________________________
Kelly Mortellite, RMR, CRR
Official Court Reporter
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