Court filing
Defendant's Preliminary Memo Re Probation Petition -- United States v. Aticha Jittaphol, a/k/a "Lily"
No. 1:21-cr-10270-MLW · Doc. 43 · Docket on CourtListener
Full text
Case 1:21-cr-10270-MLW Document 43 Filed 02/12/22 Page 1 of 5
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
United States of America No. 21-CR-10270-MLW
v.
Aticha Jittaphol
DEFENDANT’S PRELIMINARY MEMO RE PROBATION PETITION
In response to Probation’s Petition for Action on Conditions of Pretrial
Release, the Court ordered the parties to file memoranda by February 23rd. Ms.
Jittaphol intends to file an additional memorandum by that date, more fully
addressing the matter. However, Ms. Jittaphol wishes to now provide the Court
with information regarding the Petition and give the Court the option to compel
observed urine testing. Ms. Jittaphol has not used methamphetamine or any other
illegal drug since she was admitted to a detox on December 6, 2021. Accordingly,
Ms. Jittaphol provides the Court with a chronology of relevant events.
January 20, 2022
During a hearing scheduled for Waiver of Indictment and Plea to
Information, the Court ordered Probation to conduct regular urine tests. Prior to
the hearing, and after Ms. Jittaphol’s release from treatment, Probation had
conducted one urine test, with a sample taken on January 11th and a negative
result reported on January 18th. After January 11th, until the hearing, Probation
used a sweat patch for testing and stopped urine testing, based on a policy of not
having a woman observe the taking of a urine sample from an individual with
male genitals, and Ms. Jittaphol expressing discomfort over being observed by a
Case 1:21-cr-10270-MLW Document 43 Filed 02/12/22 Page 2 of 5
man. A sweat patch was removed for testing on January 14th; a negative result
was reported on January 25th.
Immediately after the hearing, counsel spoke to Ms. Jittaphol about the
importance of allowing a man to observe urine sampling. Ms. Jittaphol agreed
that she would permit a man to observe, and to promptly tell this to Probation.
Ms. Jittaphol went to the court after the Zoom hearing. A sweat patch was
removed for testing and replaced. The removed patch recently tested positive.
January 21, 2022
Ms. Jittaphol went to the court and provided a urine sample. She did not
meet Ms. Wertz and believes that she spoke with a male supervisor. She offered to
provide a urine sample while observed by a man. She was told that it was “fine”
to provide the sample unobserved. She questioned whether unobserved testing
would cause a problem that could result in her soon having to come back to
provide another sample and was told it would not be a problem. The urine sample
was taken unobserved. A negative result was reported on January 27th.
January 26, 2022
Ms. Wertz conducted a home visit. Prior to the visit, she did not tell Ms.
Jittaphol of her intention to take a urine sample. From the time that Ms. Wertz
arrived until when Ms. Jittaphol went into a bathroom to provide a sample, Ms.
Jittaphol was never outside of Ms. Wertz’s observation. A negative result was
reported on February 1st.
January 27, 2022
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Case 1:21-cr-10270-MLW Document 43 Filed 02/12/22 Page 3 of 5
Ms. Jittaphol went to the court. A sweat patch was removed for testing. The
result has not yet been produced. No new patch was put on.
February 3, 2022
Ms. Jittaphol went to the court and met with Ms. Wertz. She again offered
to be observed by a man, and Ms. Wertz replied that it was, “O.K.” to provide a
urine sample unobserved. A negative result was reported on February 7th.
February 7, 2022
Ms. Jittaphol went to the court and a new sweat patch was placed. She also
provided another unobserved urine sample to Ms. Wertz.
The result of the sweat patch test for the patch removed on January 20th
was received, with a positive finding for methamphetamine.
Probation files Petition for Action.
February 11, 2022
In response to concerns raised by counsel, including the failure to notify the
Court or counsel of the negative tests, Probation agreed to produce the test results
and inform the Court of the negative results. However, in a phone call between
counsel, Ms. Wertz and Ms. Affsa, Probation asserted that the negative urine tests
were unreliable because the sampling was unobserved and Ms. Jittaphol could
have provided someone else’s urine, despite acknowledging that Ms. Jittaphol had
offered to be observed by a man. Probation speculates that Ms. Jittaphol brought
someone else’s urine to court even though she repeatedly offered to be observed,
knew that she could avoid observation and provide the imagined counterfeit
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Case 1:21-cr-10270-MLW Document 43 Filed 02/12/22 Page 4 of 5
sample if she just kept quiet, and had no way of knowing whether Probation
would take her up on her offer to be observed. Ms. Affsa stated that Probation
would consider what to do about conducting observed sampling. Thus, despite the
Court’s order requiring urine testing, and Ms. Jittaphols’s repeatedly raising the
fact that she had no objection to being observed by a man, Probation now
maintains that the tests it conducted should not be deemed reliable.
Counsel did a Google search for medical literature on the topic of reliability
of sweat patch vs. urine test, and in a matter of seconds found numerous articles
stating that sweat patch tests have a far higher rate of false positives. One such
article is Joseph A. Levisky, et al., Comparison of Urine to Sweat Patch Test
Results in Court Ordered Testing, Forensic Science International 122, 65-68
(2001), finding a “… high incidence of false positive sweat patch tests,” and
referencing studies reporting false positive rates of 21.1% in cocaine detection and
7.9% in opiate detection. See Attachment 1.
Counsel did a caselaw search for First Circuit opinions concerning sweat
patches and immediately found United States v. Alfonso, 284 F.Supp.2d 193 (D.
Mass. 2003), in which Judge Young expressed concern over the reliability of
sweat patches and emphasized that his finding that the defendant had likely used
drugs was based on the repetition of four positive patch tests.
In summary, the testing of Ms. Jittaphol since January 2022 is as follows:
Type of Test Date of Sample Date of Result Result
Urine 1/11/22 1/18/22 Negative
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Patch 1/14/22 1/27/22 Negative
Patch 1/20/22 2/7/22 Positive
Urine 1/21/22 1/27/22 Negative
Urine 1/26/22 2/1/22 Negative
Urine 2/3/22 2/7/22 Negative
Urine 2/7/22
ATTICHA JITTAPHOL
By her Attorney,
/s/ Keith Halpern
Keith Halpern, BBO # 545282
572 Washington Street, Suite 19
Wellesley, MA 02482
(617) 722-9952
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) and paper copies will be sent to those indicated as non-registered participants on
February 12, 2022.
/s/ Keith Halpern
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