Defendant's Post-Hearing Memorandum -- United States v. Aticha Jittaphol, a/k/a "Lily"

Summary

Defendant's Post-Hearing Memorandum filed April 9, 2022 in United States v. Aticha Jittaphol, No. 1:21-cr-10270-MLW, in the U.S. District Court for the District of Massachusetts, as Document 74. Defense counsel Keith Halpern adds remarks to closing argument about sweat patch drug testing that Probation was ordered to conduct. The memorandum asks why Probation does not use the patch for all defendants and cites scientific literature it says reports false positive rates of up to 21%. It argues that randomly conducted negative urine tests cannot be squared with the positive patch results, contesting a 72-hour detection window drawn from a PharmChem document and citing defense exhibits supporting a 3-7 day window. The 3-page filing ends with a certificate of service.

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   Case 1:21-cr-10270-MLW        Document 74       Filed 04/09/22     Page 1 of 3




                      UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF MASSACHUSETTS


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

              DEFENDANT’S POST-HEARING MEMORANDUM

      Defendant wishes to add a few remarks to those made in closing argument.

      Counsel asked why it was that Ms. Jittaphol was the only person being

patch tested. The Court interjected that Probation had been ordered to do the

testing. The issue counsel intended to raise was not why she had been singled out

for testing, but why everyone else was not being patch tested. This goes to

counsel’s opinion that the materials attached to the Court’s April 4, 2022 Order

were useless, and that Probation’s conduct indicates that it, too, finds the

documents unpersuasive.

      In 1998, the Administrative Office documented a PharmChem executive’s

statements that the patch was better than urine tests -- more reliable, less subject

to adulteration, less expensive. If the patch test has been so good for the past 24

years, and if FDA approval in 1995 means that the test is an equally reliable and

less expensive alternative to urine testing, then why isn’t Probation using it for

everyone? Probation has declined to answer the question. Counsel thinks it may

have something to do with scientific literature reporting false positive rates of up

to 21%.

      Initially, Probation’s use of the patch was to be sensitive to Ms. Jittaphol
  Case 1:21-cr-10270-MLW           Document 74       Filed 04/09/22       Page 2 of 3




being transgender. But the rationale for continuing the patch test after Ms.

Jittaphol agreed to being observed, and the Court’s continuation of the protocol,

is more difficult to understand. Counsel suspects that Ms. Jittaphol may be the

only transgender defendant being drug tested, and also may be the only person

being patch tested at all. Probation has declined to say whether anyone other than

Ms. Jittaphol is being patch tested. Ms. Jittaphol is not the only defendant to have

a positive drug test. Are the others being patch tested? If the only defendant being

patch tested also is the only transgender defendant, continuing this protocol

despite Probation’s apparent belief that urine testing is more reliable than patch

testing, consistent with all the scientific literature, is problematic.

      Counsel noted that if the two positive tests were accurate, it is extremely

difficult to square Ms. Jittaphol’s use of methamphetamine a couple of times this

year with a lengthy addiction history of daily use, several times a day, and an

inability to stop. Probation speculated, as did the Court, that Ms. Jittaphol’s drug

treatment could account for the occasional use. This speculation deserves some

further consideration. Ms. Jittaphol has not received treatment guidance on how

to use just once in a while. How exactly would treatment to eliminate drug use

help an addict avoid a full-blown relapse if they use again? Getting treatment for

alcoholism and going to AA meetings does not make it more likely that someone

can have an occasional drink and avoid relapse. Treatment does not explain the

inconsistency. Nothing does.

      It also should be noted how much luck would have to be involved to




                                           2
  Case 1:21-cr-10270-MLW              Document 74          Filed 04/09/22       Page 3 of 3




account for the negative urine tests if the sweat patch tests were legitimate.

Counsel pointed out that the 72-hour window mentioned by Ms. Wertz is based

on a PharmChem document, and this is not a particularly reliable source given the

company’s goal of replacing urine testing (“It stinks”). The defendant has

provided evidence supporting a 3-7 day window, Ex. 14, American Addictions

Center article, and medical literature finding “highly variable” methamphetamine

metabolite elimination, “highly dependent on urinary pH.” Ex. 32, Wagner

article, p.1. But even if a 72-hour window were assumed, then there would be a

period of 2-3 days that was covered by the first positive patch on 1/27/22 that was

not covered by a negative urine on 1/26/22, and she would have had to stop use

after those 2-3 days. See Ex. 6, Wertz Memo, p.3. All the negative urines were

randomly conducted. Putting aside the idea that she has developed the remarkable

ability to use and then stop for weeks, it would be extraordinary if Ms. Jittaphol

somehow managed to use meth only on occasions when she would not be caught

by a urine test. There is a much simpler explanation: she didn’t use.

                                                         ATICHA JITTAPHOL
                                                         By her Attorney,

                                                         /s/ Keith Halpern
                                                         Keith Halpern, BBO # 545282
                                                         572 Washington Street, Suite 19
                                                         Wellesley, MA 02482

                                   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 9, 2022.
                                                          /s/ Keith Halpern



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