Defendant's Memo Re Sweat Patch Cases -- United States v. Aticha Jittaphol, a/k/a "Lily"

Summary

A defense memorandum regarding sweat patch cases, filed April 3, 2022 as Document 64 in United States v. Aticha Jittaphol, No. 1:21-cr-10270-MLW, in the U.S. District Court for the District of Massachusetts. Defense counsel Keith Halpern states that, apart from the Alfonso case, his file contains no other sweat patch cases and that he does not recall whether he had read the Meyer case before his February 23rd memo. The memo argues that sweat patch reliability is a fact issue and that Meyer, an Eighth Circuit decision, is of limited significance because it offers no review of medical literature on false positive rates. It also argues the facts of Meyer differ from this defendant's situation. The two-page memo ends with a certificate of service.

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Full text

   Case 1:21-cr-10270-MLW        Document 64       Filed 04/03/22    Page 1 of 2




                      UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF MASSACHUSETTS


United States of America                                No. 21-CR-10270-MLW
     v.
Aticha Jittaphol

              DEFENDANT’S MEMO RE SWEAT PATCH CASES

      My normal practice is to download cases that I find when doing research if

I think they are significant. Aside from the Alfonso case, my electronic file for Ms.

Jittaphol’s case does not contain any other cases concerning sweat patches. I’ve

looked at the Meyer case. I don’t remember whether I read it prior to filing my

February 23rd memo, or whether I’ve ever read it before.

      I don’t know whether I would have referenced Meyer even if I had read it.

Whether or not a sweat patch is reliable strikes me as a fact issue, not a

conclusion of law. This is buttressed by the Court’s direction that district courts

should assess the issue on a case-by-case basis. I also may not have considered an

Eighth Circuit decision binding on this Court.

      More importantly, having now read the case, there are many reasons I find

it of very limited significance and may not have referenced it. It offers no review

of medical literature concerning reliability. It does not mention studies finding

false positive rates of over 20% in cocaine detection and 8% in opiate detection,

or studies finding higher false positive rates when the subjects sweated a lot,

whether from exercise or hot weather. It involved a defendant that tested positive

eight times. It doesn’t say whether Meyer’s negative urine tests were monitored. It
  Case 1:21-cr-10270-MLW              Document 64          Filed 04/03/22       Page 2 of 2




doesn’t involve a defendant that was repeatedly asking Probation to monitor their

urine tests. It is completely different that Ms. Jittaphol’s situation, where, if you

assume that all the test results are accurate, her drug use would be completely

inconsistent with her addiction history, when she used multiple times every day

and could not stop, and with the way addicts routinely use methamphetamine. On

this issue, I think the medical literature describing daily usage and multiple day

binges is far more compelling than Ms. Wertz’s testimony.

       In conclusion, I do not have any other cases and I don’t know if I’d read

Meyer before today.

                                                         ATICHA 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
April 3, 2022.
                                                          /s/ Keith Halpern




                                                2


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