Government's Motion to Accept Defendant's Guilty Plea and in Support of the Plea Agreement -- United States v. Aticha Jittaphol, a/k/a "Lily"

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       Case 1:21-cr-10270-MLW           Document 35        Filed 01/28/22      Page 1 of 7




                             UNITED STATES DISTRICT COURT
                              DISTRICT OF MASSACHUSETTS


 UNITED STATES OF AMERICA

                                                   CRIMINAL No. 21-cr-10270-MLW
        v.

 ATICHA JITTAPHOL,

        Defendant


     GOVERNMENT'S MOTION TO ACCEPT DEFENDANT'S GUILTY PLEA AND IN
                   SUPPORT OF THE PLEA AGREEMENT


       The government submits this brief in response to the Court’s inquiries at the hearing of

January 20, 2022 and the Court’s order requesting briefing on (1) why the Court should proceed

to accept the defendant’s guilty plea and defer its decision as to whether to accept the Rule

11(c)(1)(C) plea agreement until sentencing and (2) why the agreed-upon sentence is sufficient

under 18 U.S.C. § 3553(a).

       In short, the Court should accept the defendant’s guilty plea and defer its decision on the

plea agreement until after it has reviewed the presentence report, which will assist the Court in

deciding whether to accept the parties’ low-end guideline recommendation in the Rule

11(c)(1)(C) plea agreement. At the same time, the government believes that the Rule 11(c)(1)(C)

plea agreement’s 36-month probationary period is sufficient, but not greater than necessary

under the § 3553(a) factors, including providing adequate deterrence to criminal conduct, the

nature and circumstances of the offense, the defendant’s history and circumstances, the kinds of

sentences available, and the seriousness of the offense.
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I.     THE COURT SHOULD ACCEPT THE DEFENDANT’S GUILTY PLEA AND DEFER
       ACCEPTANCE OF THE PLEA AGREEMENT TO SENTENCING.

       As a procedural matter, the Court should accept the defendant’s waiver of indictment,

allow the defendant to enter a plea of guilty, and defer until sentencing its decision as to whether

to accept the Rule 11(c)(1)(C) plea agreement. Fed. R. Crim. P. 11(c)(3)(A) (“To the extent the

plea agreement is of the type specified in [Rule 11(c)(1)(C)], the court may accept the

agreement, reject it, or defer a decision until the court has reviewed the presentence report.”).

This approach would allow time for probation to prepare and the Court and parties to review the

presentence report. The presentence report will incorporate probation’s investigation of the

relevant conduct and probation’s interview with the defendant. It is specifically intended to shed

light on the § 3553(a) factors including the defendant’s history. Fed. R. Crim. P. 32(d)(2). With

the assistance of the presentence report, the Court will have a more comprehensive assessment of

the nature and circumstances of the offense and the history and characteristics of the defendant.

       Allowing the defendant to plead guilty and deferring a decision on the Rule 11(c)(1)(C)

plea agreement will not prejudice the defendant. If the Court rejects the plea agreement, Rule

11(c)(5) states that the Court must give the defendant an opportunity to withdraw her guilty plea.

Fed. R. Crim. P. 11(c)(5); see also Rule 11(d). In fact, if the Court rejects the Rule 11(c)(1)(C)

plea, the Court must advise the defendant that it is not required to follow the plea agreement and

that the Court may dispose of the case less favorably toward the defendant than the plea

agreement contemplated. Fed. R. Crim. P. 11(c)(5). In doing so, the Court can ensure that the

defendant’s guilty plea is knowing, intelligent, voluntary, and not bound by the plea agreement.

In Lopez, for example, the court rejected the co-defendant, Mateo’s, Rule 11(c)(1)(C) plea

agreement that contained a promise to dismiss charges against Lopez. United States v. Lopez,

944 F.2d 33, 37 (1st Cir. 1991). Mateo then entered an unconditional guilty plea after court


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rejected the guilty plea, and the First Circuit commended the district court for being “careful to

make absolutely certain that Mateo’s entry of a guilty plea was in no manner contingent upon

any provision in the unapproved plea agreement.” Id.

II.    THE PLEA AGREEMENT IS SUFFICIENT UNDER 18 U.S.C. § 3553(A)

       When the Court evaluates the Rule 11(c)(1)(C) plea agreement, it should find it sufficient

in light of the Federal Sentencing Guidelines and other § 3553(a) factors. In every case the

district judge must impose a sentence sufficient, but not greater than necessary, to comply with

the purposes of federal sentencing. 18 U.S.C. § 3553(a).     A plea agreement under Rule

11(c)(1)(C) does not discharge the “district court’s independent obligation to exercise its

discretion.” Freeman v. United States, 564 U.S. 522, 529, holding modified by Hughes v. United

States, 138 S. Ct. 1765 (2018). The district court must evaluate the defendant’s applicable

sentencing range and the § 3553(a) factors and only accept a Rule 11(c)(1)(C) plea agreement if

the court is satisfied that such sentence is an appropriate sentence within the applicable guideline

range. Freeman, 564 U.S. at 529.

       First, the plea agreement correctly sets for the guideline calculation, which provides an

offense level of 6 and a guideline range of 0-6 months. The defendant is charged with making

false statements in violation of 18 U.S.C. § 1001, which caused a loss amount of $7,066.67. The

defendant’s guideline calculation is below.

                  Jittaphol’s Sentencing Calculation                Offense Level
             Base Offense Level (U.S.S.G. § 2B1.1(a)(2))                  6
             Loss exceeds $6,500 (U.S.S.G. § 2B1.1(b))                   +2
             Acceptance of Responsibility (U.S.S.G.                      -2
             § 3E1.1)
             Total Offense Level After Plea                        6 (0-6 months)

The government has not identified any other applicable enhancements or aggravating factors

warranting an upward departure or variance.


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       Second, a low-end guideline sentence of 36 months of probation is sufficient, but not

greater than necessary, to comply with the purposes of sentencing under 18 U.S.C. § 3553(a).

       The recommended sentence affords adequate deterrence to criminal conduct. 18 U.S.C.

§ 3553(a)(2)(B). As the Court recognized, COVID-related fraud is a serious crime. Jittaphol,

Jan. 20, 2022 Hearing Tr. at 21. The Secret Service, for example, estimates that up to $100

billion in COVID-relief funds have been distributed to fraudulent applications. U.S. Secret

Service names National Pandemic Fraud Recovery Coordinator,

https://www.secretservice.gov/newsroom/releases/2021/12/us-secret-service-names-national-

pandemic-fraud-recovery-coordinator, last accessed Jan. 27, 2022. The individuals responsible

for this fraud span the spectrum from individuals to organized criminal networks. See id. Here,

although the loss amount is relatively modest ($7,066.67), the fact that the fraud is being

prosecuted provides general deterrence to other criminals, especially those responsible for

relatively small fraud amounts. In terms of specific deterrence, the investigation and the

conditions of the defendant’s pretrial release has shut down the defendant’s illicit business,

forced her to attend drug treatment programs, subjected her to drug testing, and may have

additional consequences related to her immigration status.

       The recommended sentence is also sufficient in view of the nature and circumstances of

the offense. 18 U.S.C. § 3553(a)(1). The defendant operated a massage parlor where employees

sometimes provided sexual services for a fee with the defendant’s knowledge and consent.

Customers typically paid $80 for a one-hour massage session and an added a tip for sexual

services. The defendant collected $40 for each one-hour session—the defendant received this

fee regardless of whether sexual services were provided. Extensive interviews revealed no




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evidence that Jittaphol’s employees were being trafficked or subject to fraud, force, or coercion.

Instead, the employees were mature, independent adults, many with permanent legal status.

       The defendant’s history and circumstances also support a low-end guideline sentence. 18

U.S.C. § 3553(a)(1). While the presentence report will likely shed more light on the defendant’s

history and circumstances, the defendant is part of a vulnerable population as a transgender

individual and a longtime sex worker. Historically, individuals from those backgrounds have

regularly suffered abuse, violence, and discrimination.

       The kinds of sentences available also support the parties’ recommended sentence. 18

U.S.C. § 3553(a)(3). The defendant’s immigration status does not necessarily indicate that the

defendant will be removed from the United States before she serves her 36-month probationary

sentence. As reported by probation, the defendant currently has a work authorization that allows

her to remain in the United States. ECF No. 33. This work authorization expires on July 13,

2022, but has been renewed several times. (The defendant originally entered the United States

on an F1 visa, which has since expired.) Additionally, the defendant has submitted and may

submit other immigration applications that could result in legal status. The defendant is not

currently subject to a detainer, and the government does not have any information about whether

federal immigration authorities will take enforcement action in the future. Based on the

available information, the defendant’s immigration status does not bar imposition and execution

of the recommended probationary sentence.

       Finally, the parties believe the proposed sentence reflects the seriousness of the offense

and provides just punishment for the offense. 18 U.S.C. § 3553(a)(2)(A). A 36-month

probationary sentence is a significant one, especially for an individual with the defendant’s drug-




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abuse problems. The lengthy probationary period will also allow the Court to craft appropriate

conditions and monitor the defendant’s behavior and rehabilitation closely.

III.   CONCLUSION

       For the reasons discussed above, the government respectfully requests that the Court

accept the defendant’s waiver of indictment, allow the defendant to enter a guilty plea, and defer

until sentencing its decision as to whether to accept the plea agreement. Additionally, the

government believes that the Rule 11(c)(1)(C) plea agreement provides for a sentence that is

sufficient, but not greater than necessary under Federal Sentencing Guidelines and the 18 U.S.C.

§ 3553(a) factors.




                                             Respectfully submitted,

                                             JOSHUA S. LEVY
                                             First Assistant United States Attorney


                                      By:    /s/ Elysa Q. Wan
                                             ELYSA Q. WAN
                                             Assistant United States Attorney

                                             ALYSSA TOCHKA
                                             LUKE GOLDWORM
                                             Special Assistant United States Attorneys




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                                CERTIFICATE OF SERVICE


I hereby certify that this document filed through the ECF system will be sent electronically to the
registered participants as identified on the Notice of Electronic Filing (NEF).

                                              /s/ Elysa Q. Wan
                                             Elysa Q. Wan
                                             Assistant United States Attorney




Date: January 28, 2022




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