Court filing

Discovery Requests Letter -- United States v. Aticha Jittaphol, a/k/a "Lily"

No. 1:21-cr-10270-MLW · Doc. 86 · Docket on CourtListener

Full text

Case 1:21-cr-10270-MLW Document 86 Filed 05/04/22 Page 1 of 10

May 4, 2022
Kelly Lawrence, AUSA
United States Attorney’s Office
United States Courthouse
One Courthouse Way
Boston, MA 02210

Re: Discovery Requests - United States v. Aticha Jittaphol

Dear Ms. Lawrence:

On behalf of Aticha Jittaphol, I request the following additional
discovery.1

All requests seek not only paper materials, but any form of electronic
material, including email, texts and materials stored by any electronic device,
software, or cloud method.

1
As used throughout this letter, the term “government” includes all branches of the
Department of Justice (DOJ), including the Bureau of Prisons (BOP), as well as all
state, local and federal police, investigative and prosecutorial agencies involved in the
investigation or prosecution of the crimes charged in the indictment. See Kyles v.
Whitley, 514 U.S. 419, 437 (1995) (“the individual prosecutor has a duty to learn of
any favorable evidence known to the others acting on the government’s behalf in the
case, including the police”); United States v. Osorio, 929 F.2d 753, 762 (1st Cir. 1991)
(“the prosecutor is duly bound to demand compliance with disclosure
responsibilities by all relevant dimensions of the government”); United States v.
Owens, 933 F. Supp. 76, 86 (D. Mass. 1996) (disclosure obligation “governs all the
office of the United States Attorney and the Justice Department itself, ... the Bureau
of Prisons ... and all other governmental agencies including state officers acting as
agents of the federal government”); United States v. Brooks, 966 F.2d 1500, 1503
(D.C. Cir. 1992) (federal prosecutor had authority to search for exculpatory
evidence in Washington, D.C. Metropolitan Police Department’s homicide and
internal affairs file). See also Giglio v. United States, 405 U.S. 150 (1972); United
States v. Bagley, 473 U.S. 667, 674-675 (1985); United States v. Upton, 856 F. Supp.
727, 750 (E.D.N.Y. 1994) (“The inquiry is not whether the United States Attorney’s
Office physically possesses the discovery material; the inquiry is the extent to which
there was a joint investigation with another agency.”); United States v. Libby, 429
F.Supp.2d 1 (D.D.C. 2006).
Case 1:21-cr-10270-MLW Document 86 Filed 05/04/22 Page 2 of 10

All requests relating to any statement include a request for notes
prepared by any law enforcement agent and/or prosecutor documenting or
detailing any such statement.

1. All recordings of communications that concern Ms. Jittaphol, and/or
the Mantra Dhevi Spa, (hereafter “Spa”), and/or any potential witness.

2. Copies of any transcripts, including preliminary transcripts, of any
recorded statements and/or communications that concern Ms. Jittaphol,
and/or the Spa, and/or any potential witness.

3. All documents and materials describing statements and/or
communications by anyone that concern Ms. Jittaphol, and/or the Spa,
and/or any potential witness.

4. All bank records of Ms. Jittaphol and/or the Spa.

5. All documents and materials concerning Pollawat Tippawong,
including but not limited to:

(a) How law enforcement became aware of Ms. Tippawong having any
association with Ms. Jittaphol;

(b) All photographs shown to Ms. Tippawong on February 2, 2021, or
March 19, 2021, or at any other time, the identity of each person whose
photo she was shown, when she was shown each photo, and all
documents and materials concerning any connection between any of
these individuals and Ms. Jittaphol;

(d) All bank records;

(e) All documents and materials concerning any loan extended by Ms.
Tippawong to anyone, including amounts charged or received in
consideration of the loan;

(f) All documents and materials concerning any false statement made by
Ms. Tippawong to the government, and/or any statement that any
government interviewee of Ms. Tippawong, any agent involved in this
investigation, and/or any prosecutor, suspected was false;
Case 1:21-cr-10270-MLW Document 86 Filed 05/04/22 Page 3 of 10

(g) All documents and materials concerning any statements made by
anyone concerning Ms. Tippawong;

(h) All documents and materials concerning any illegal activity of Ms.
Tippawong, including but not limited to prostitution, usury, money
laundering, customs violations, and any other crime, state or federal;

(i) All documents and materials concerning any effort to corroborate any
statement made by Ms. Tippawong concerning Ms. Jittaphol and/or
the Spa;

(j) Criminal record;

(k) All documents and materials concerning the 12/1/21 incident involving
a money seizure, including but not limited to the entire file concerning
CBPO seizure # 2022SZ0020525;

(l) All documents and materials concerning any investigation of the
source of the funds that were seized on 12/1/21;

(m) All documents and materials concerning any government
communications with Ms. Tippawong and/or her attorney following
the 12/1/21 incident concerning any potential consequences, and/or
any potential involvement in this case or any other criminal
investigation or prosecution;

(n) Disclosure of all criminal and/or immigration matters concerning
which Ms. Tippawong has provided the government with information,
all documents and materials concerning the information she provided,
and all promises, benefits or rewards she received or was informed she
could receive, including all documents and materials concerning any
such promise, reward or benefit;

(o) All documents and materials concerning any decision by any
governmental entity not to charge Ms. Tippawong with a crime;

(p) All Tec records.

6. All documents and materials concerning any communications between
the government and the owner of the building that housed the Spa, or any
Case 1:21-cr-10270-MLW Document 86 Filed 05/04/22 Page 4 of 10

representative of the owner, including but not limited to Anthony Nardelli,
concerning the Spa, and/or potential criminal liability.

7. All documents and materials concerning Ms. Jittaphol and/or the Spa
provided to the government by Attorney Albert Li.

8. All documents and materials concerning any criminal investigation of
Attorney Albert Li, including but not limited to any investigation concerning
any application for governmental benefits or loans.

9. All investigative case file documents and materials concerning any
investigation of Ms. Jittaphol, the Spa, the owner of the building housing the
Spa, and/or any potential witness.

10. To the extent that any individuals were questioned by law
enforcement and did not provide inculpatory information, such as Spa
workers who denied performing sexual acts, or Spa customers who denied
receiving sexual contact, any such communication is exculpatory, and
disclosure of this information is required regardless of whether reports were
prepared concerning any such communication. With respect to any
individuals who were questioned by law enforcement concerning Ms.
Jittaphol or the Spa, who provided statements that are not contained in any
report already produced, the defendant requests disclosure of the identity of
all such individuals, contact information, and a complete description of all
statements made.

11. With respect to each potential witness, their criminal records,
including all available information about the individual’s arrest and
conviction record, criminal activity and misconduct, including, but not
limited to:

(a) the full record (including certified copies) of federal or state
convictions, and any foreign convictions, whether misdemeanor or
felony2;

2
See Davis v. Alaska, 415 U.S. 308, 316 (1974); Ouimette v. Moran, 942 F.2d 1, 12
(1st Cir. 1991) (there is “no matter more material than a complete record of the
State’s star witness ... to be used for demonstrating the unworthiness of belief of his
testimony ...”). The defendant requests that the court order the government to
obtain such criminal records (other than for law enforcement witnesses, and
witnesses such as record-keepers).
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(b) all information known to the government of conduct that constitutes a
crime under federal or state law for which any potential witness could
be prosecuted3;

(c) a full statement of all criminal prosecutions and investigations against
the potential witness and of all civil or administrative actions or
investigations against the individual, regardless of whether or not
these cases are the subject of promises, rewards or inducements4;

(d) a full statement of whether the potential witness was, at any time
during the investigation or prosecution of this case, on probation,
parole, supervised release or some other form of government
supervision or had any criminal charges outstanding5; and

(e) the prison records of the individual if ever incarcerated in federal or
state prison6.

12. A complete statement of all promises, rewards, or inducements of any
kind made to any potential witness in this case, whether made in connection
with this case or in any other case, including, without limitation, the
following:

(a) all information regarding assurances, express or implied, by the
government that it will give or consider giving as to the charges,
sentencing or other assistance, including immigration issues, to the
person (or to a relative, friend, or associate) facing actual or possible
criminal charges, deportation or non-criminal sanctions, and all

3
See Osorio, 929 F.2d at 756-58; Owens, 933 F. Supp. at 88.
4
See United States v. Bonanno, 430 F.2d 1060, 1062 (2d Cir.) (requiring disclosure
of indictment of witness so that defendant could investigate all promises), cert.
denied, 400 U.S. 964 (1970).
5
See Davis, 415 U.S. at 317.
6
See Kyles, 115 S.Ct. at 1572; Davis, 415 U.S. at 316-17; Osorio, 929 F.2d at 758
(government should have disclosed information that key witness had engaged in
extensive drug trafficking for which he had not been charged); Alford v. United
States, 282 U.S. 687, 693 (1931) (prior criminal conduct is relevant where the witness
may have been promised or believed that his cooperation would lead to immunity);
Devose v. Norris, 867 F. Supp. 836, 849 (E.D. Ark. 1994) (conviction reversed where
government failed to disclose prior disciplinary action against witness for theft and
making false statements to supervisor and prosecuting attorney while employed as a
police officer).
Case 1:21-cr-10270-MLW Document 86 Filed 05/04/22 Page 6 of 10

suggestions or recommendations that any state government or any
other official agency do so; the information provided should include
the nature of the offense and/or issue, the court, agency and/or
governmental department in which the charge or issue is pending, the
docket or case number, and a detailed description of the assistance
given or proposed7;

(b) all statements made during negotiations as to what the government
might or might not do depending upon the person’s cooperation;

(c) all requests for payment or promises, rewards and inducements, or
favorable treatment of any kind, made by any potential witness,
whether or not such requests were agreed to by the government;

(d) all statements in the possession, custody or control of the government
regarding
promises, rewards and inducements or favorable treatment of any
kind, that any potential witness expects to receive or is trying to
obtain, whether or not the government has agreed to provide such
promises, rewards, inducements and treatment;

(e) a full description of each occasion when any government agent
accompanied a potential witness to a criminal court appearance and
spoke to any prosecutor, probation officer, clerk or judge concerning
the person; and

(f) all information regarding threats or promises made to the potential
witness or their family to motivate their cooperation8.

7
See Kyles, supra; Brady, supra; and Giglio, supra. See also United States v.
Drougas, 748 F.2d 8, 23 (1st Cir. (1984) (“[e]vidence relating to the impeachment of
prosecution witnesses and immunity or other preferential treatment ... is deemed to
be exculpatory within the meaning of the Brady rule”); Owens, 933 F. Supp. at 87
(“[t]he government has to reveal all promises, rewards and inducements to include
the quid for the quo[;] [a]nd if the quid pro quo involves other sovereigns, of course
that must be revealed”); Snell, 899 F. Supp. at 22 (“promises, rewards and
inducements – is both classic Brady and is specifically mentioned in the Local
Rules”).
8
See United States v. Partin, 493 F.2d 750, 757-60 (5th Cir. 1974) (it is proper
impeachment to question a witness about dropped charges or other preferential
treatment given to his family).
Case 1:21-cr-10270-MLW Document 86 Filed 05/04/22 Page 7 of 10

13. All past, anticipated, and foreseeable payments by the government or
any law enforcement agency of money or other things of value to a potential
witness — other than routine witness fees — given in exchange for
information or other assistance provided to the government or other such
agency, and all written records of same. Specifically, defendant requests all
ledgers, receipts, vouchers, and other documents which describe the sums
paid in any form to or for the benefit of the person or their family in this and
any other case in which the person assisted any federal, state or local
agency9.

14. All special arrangements made or facilitated by the government,
including but not limited to any special treatment or assistance given to a
potential witness while incarcerated or in connection with or during all
debriefings by government investigators and attorneys.

15. All information bearing upon the credibility of any potential witness,
including, without limitation:

(a) all inconsistent statements10;

(b) all false statements (or omissions of material facts) made during the
course of interviews by law enforcement officials11;

(c) all bias, prejudice, hostility, personal interest, financial interest or
special relationship that could cause the person to testify in favor of
the government or against the defendant12;

(d) all evidence of poor memory, in general or with respect to the events

9
See United States v. Cervantes-Pacheco, 826 F.2d 310, 315-16 (5th Cir. 1987) (“[t]he
government must also make a complete and timely disclosure to the accused of the
fee arrangement it has made with the informant”), cert. denied, 484 U.S. 1026
(1988). United States v. Williams, 954 F.2d 668, 671-72 (11th Cir. 1992) (“jury has a
right to know what may be motivating a witness” even if “the amount [of money]
paid an informant is felt by the government to be too prejudicial”).
10
See Kyles, 115 S. Ct. at 1569-71; Owens, 933 F. Supp. at 87; United States v.
Pellulo, 14 F.3d 881, 886 (3d Cir. 1994) (“an IRS memorandum detailing an
interview with [a witness] which set forth facts inconsistent with the testimony of
[the witness] ... qualifies as Brady evidence).
11
See Kyles, 115 S.Ct. at 1571-73.
12
See id. at 1571-72; Owens, 933 F. Supp. at 87; Snell, 899 F. Supp. at 23; United
States v. Cooper, 662 F. Supp. 913, 919 (D.R.I. 1987).
Case 1:21-cr-10270-MLW Document 86 Filed 05/04/22 Page 8 of 10

in question, including any statements by the potential witness
concerning same;

(e) all physical, mental, visual, or psychiatric treatments and/or
impairments and treatment (including legal or illegal use of drugs and
excessive use of alcohol) that could affect the potential witness’s
accuracy, and full details concerning same13;

(f) all results of scientific or quasi-scientific tests, such as polygraphs,
that fail to conclude that the potential witness has been completely
truthful with respect to any statement14;

(g) all evidence that the potential witness has a poor reputation for telling
the truth or has engaged in any conduct probative of untruthfulness15;

(h) all information tending to show a motive for the potential witness to
curry favor with the government; and

(i) all information tending to show that the potential witness has a
relationship with any other witness, informant or agent of the
government.

16. All inconsistent statements16 between different potential witnesses
concerning any facts material to the investigation, defense or prosecution17.

17. All information about whether any law-enforcement agent
participating in the investigation or trial of this case, whether employed by
the United States or by the Commonwealth of Massachusetts or by any
municipality of the Commonwealth, have been the subject of disciplinary

13
See Pennsylvania v. Ritchie, 480 U.S. at 60-61 (evidence of a witness emotional
impairment is discoverable); United States v. Barrett, 766 F.2d 609, 615-16 (1st Cir.)
(evidence of psychiatric treatment), cert. denied, 411 U.S. 983 (1973); United States
v. Fowler, 465 F.2d 664, 665-66 (D.C. Cir. 1972) (same).
14
See Jacobs v. Singletary, 952 F.2d 1282 (11th Cir. 1992) (government’s failure to
disclose witness’ polygraph testimony which significantly clashed with his
testimony at trial was Brady violation).
15
See Kyles, 115 S. Ct. at 1572.
16
As used throughout this letter, the term “statements” includes written statements,
electronic statements, such as emails and text messages, and oral statements,
recorded or otherwise.
17
See id. at 1569-71; Owens, 933 F. Supp. at 87.
Case 1:21-cr-10270-MLW Document 86 Filed 05/04/22 Page 9 of 10

investigation or criminal prosecution, or the subject of disciplinary action or
criminal prosecution, any of which were for conduct allegedly involving false
statements, perjury, obstruction of justice, receipt of gratuities or violation
of rights of a criminal suspect or defendant18.

18. All information tending to undercut in any way the credibility of the
government’s evidence or allegations.

19. Any information tending to diminish the defendant’s culpability under
the United States Sentencing Guidelines.

20. Pursuant to Fed. R. Crim. P. 16(a)(1)(G), the defendant requests that the
government disclose, no later than 45 days before trial, all testimony it
intends to offer under Fed. R. Evid. 702, 703 or 705 in its case-in-chief at trial,
including but not limited to the witnesses’ opinions, the bases and reasons
for those opinions, and the witnesses’ qualifications19.

21. The defendant requests that the government preserve all
contemporaneous notes, memoranda, statements, reports, surveillance log,
tape recordings and other documents memorializing matters relevant to the
charges made by or in the custody of any law enforcement officer whose
agency at the time was formally participating in an investigation, intended to
result in a criminal indictment, including all raw notes whether or not the
substance of such notes is incorporated in a written report, and all rough
drafts of reports. This request includes, but is not limited to, all notes
relating to any alleged communications involving the defendant. The
defendant requests the production of all notes described in Local Rule 116.9
and herein to the extent such notes constitute Jencks Act or Brady
material20.

18
See United States v. Garrett, 542 F.2d 23 (6th Cir. 1976) (error to foreclose
discovery of undercover agent’s disciplinary records relating to his use of narcotics
and failure to submit to urinalysis); Brooks, 966 F.2d at 1503 (government’s duty to
produce exculpatory material extended to local police department’s homicide and
Internal Affairs Division files); United States v. Henthorn, 931 F.2d at 31
(government’s failure to examine personnel files upon a defendant’s request for
production of exculpatory material was reversible error).
19
See United States v. Richmond, 153 F.R.D. 7 (D. Mass 1994) (“[I]n order to serve
the purposes of the Rule, the expert’s written summary must be disclosed to
defendant’s counsel not less than forty-five calendar days before trial”).
20
See 18 U.S.C. § 3500; United States v. Harris, 543 F.2d 1247, 1253 (9th Cir. 1976)
(requiring law enforcement agents to preserve original notes taken during interviews
Case 1:21-cr-10270-MLW Document 86 Filed 05/04/22 Page 10 of 10

22. The defendant requests that the government produce Jencks Act
material not later than 21 days before trial. This request pertains only to
Jencks Act material that is not exculpatory. Exculpatory witness statements,
including those that cast doubt on the credibility of a government witness,
see Rule 116.2(A)(2), should be turned over as part of automatic discovery21.

Very truly yours,

Keith Halpern

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 May 4, 2022.

with prospective government witnesses or with an accused in order “to permit
courts to play their proper role in determining what evidence must be produced
pursuant to the Jencks Act or other applicable law”); Brady, supra.
21
Snell, 799 F. Supp. at 24 (“nothing in the statute, preempts the court’s ability,
consistent with its obligations over case management, to order earlier disclosure
than required by the Act”); United States v. Campagnuolo, 592 F.2d 852, 859 n. 3
(5th Cir. 1979) (early release is “salutary practice”); United States v. Hubbard, 474 F.
Supp. 64 (D.D.C. 1979) (holding government to promise of early Jencks
production); United States v. Narcisco, 446 F. Supp. 252, 270-71 (E.D. Mich. 1977)
(ordering pretrial disclosure to promote efficiency and fairness).

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