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Defendant's Memorandum Re Speedy Trial Calculation -- United States v. Aticha Jittaphol, a/k/a "Lily"
No. 1:21-cr-10270-MLW · Doc. 107 · Docket on CourtListener
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Case 1:21-cr-10270-MLW Document 107 Filed 06/02/22 Page 1 of 6
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
United States of America No. 21-CR-10270-MLW
v.
Aticha Jittaphol
DEFENDANT’S MEMORANDUM RE SPEEDY TRIAL CALCULATION
Aticha Jittaphol, in response to the Court’s request, provides her position
concerning a speedy trial calculation. Ms. Jittaphol maintains that the clock
should run from May 2, 2022, the day that she filed a Notice of Withdrawal of
Guilty Plea. The government counters that the clock runs from May 10th, when
Judge Wolf entered an order providing that the guilty plea was withdrawn.
The government relies upon 18 U.S.C. § 3161(i) of the Speedy Trial Act,
stating that when a defendant withdraws a guilty plea, “the defendant shall be
deemed indicted … on the day the order permitting withdrawal of the plea
becomes final.” This provision should not be applied in the circumstances of this
case because Ms. Jittaphol had an absolute right to withdraw her “C” plea, there
was no motion required or pending, there is no basis to treat her notice of
withdrawal as a motion, and there was nothing for Judge Wolf to decide.
On September 9, 2021, Ms. Jittaphol entered into a plea agreement
pursuant to F.R.Crim.P. 11(c)(1)(C), providing for a sentence of no incarceration.
Rule 11(c)(5)(B) states that if the court declines to follow the
recommendation in a “C” plea, it “must” allow the defendant to withdraw the
plea. There is no discretion involved, and the defendant need not file a motion
Case 1:21-cr-10270-MLW Document 107 Filed 06/02/22 Page 2 of 6
asking for the court to permit the withdrawal. The court has no choice.
At a hearing on January 20, 2022, Judge Wolf stated, “… I have questions
as to whether it’s reasonably likely that I’ll accept the binding plea agreement …”
He added that if he were to reject the agreement, he would “… allow the
defendant an opportunity to withdraw her plea, as required by Federal Rule of
Criminal Procedure 11(c)(1)(4) and (5).” Tr. 1/20/22, p. 16; Attachment 1.
On March 8th, Judge Wolf accepted Ms. Jittaphol’s waiver of indictment
and guilty plea. He again told her, “… if I reject the binding plea agreement, if I
do not accept it, you will have an opportunity to withdraw your guilty plea and
go to trial.” Tr. 3/8/22, p. 11; Attachment 2. There was no suggestion that Ms.
Jittaphol’s ability to withdraw her guilty plea was conditioned upon the court’s
subsequent allowance of the permission that was previously granted, and which
was not discretionary to begin with.
Absent the rejection of a “C” plea agreement, the defendant has no absolute
right to withdraw a guilty plea and there is a basis to treat a notice of withdrawal
as a motion, since the court must decide whether to permit the withdrawal. See
United States v. Parrilla-Tirado, 22 F.3d 368 (1st Cir. 1994). The same is true
where a defendant files a notice of a change of plea to guilty. The court must
conduct a Rule 11 hearing to determine whether there is sufficient basis to
warrant acceptance and to establish the voluntary and knowing nature of the plea.
Unlike the withdrawal of a plea based on the court’s rejection of a “C” plea
agreement, the filing of a notice of a guilty plea, or of the withdrawal of a “B”
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plea, or of the withdrawal of a “C” plea that has not been rejected by the court,
are not exercises of a unilateral right controlled by the defendant.
In communications with counsel, the government has cited Coviello v.
United States, 287 F. App’x 503, 508 (6th Cir. 2008), for the proposition that the
withdrawal of a guilty plea must be treated as a motion. In Coviello, the Court
stated, “[b]ecause we treat a notice of a change of plea as a pretrial motion
requiring a hearing, we exclude the time from the filing through the conclusion of
the plea hearing …” Id. at 508. But Coviello is not about the withdrawal of a
guilty plea; it’s about a notice to change to a guilty plea. Unlike Ms. Jittaphol,
Coviello had no unilateral right to the change of plea. The court treated the notice
as a motion for a Rule 11 hearing, properly excluding the time from the filing of
the notice/motion and the court’s acceptance of the plea at a Rule 11 hearing.
In United States v. Mack, 669 F. 2d 28, 30 (1st Cir. 1982), the Court
described the Speedy Trial Act as “more like a jigsaw puzzle with missing parts
than a complete mosaic.” How to deal with a withdrawn “C” plea is one of those
missing parts. The Court details the rationale and legislative history behind §
3161(i), and it is apparent that the purpose of the provision is not applicable in
this case. The purpose is to prevent a defendant from gaming the system by
amassing non-excludable days prior to entering a guilty plea, and then
withdrawing the plea before sentencing and after expiration of the time limit, or
so late in the permissible time that the government could not adequately prepare
for trial. Id. at 31-32; accord United States v. Carter, 804 F.2d 508, 512 (9th Cir.
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1986) (“The purpose of § 3161(i) is to prevent defendants from pleading guilty
and then withdrawing the plea to thwart the time limit.”). Using the date of the
court’s order granting withdrawal is simply a reflection of the exclusion of time
from “delay resulting from any pretrial motion, from the filing of the motion
through the conclusion of the hearing on, or other prompt disposition of, such
motion.” 18 U.S.C. § 3161(h)(1)(D).
The notion that Ms. Jittaphol withdrew her plea to play the system is
absurd. She would not have withdrawn her plea if Judge Wolf had accepted the
“C” plea agreement to a guideline sentence.
In Carter, 804 F.2d at 58, the defendants entered “C” pleas, and the court
told the parties that the agreements would be rejected unless restitution was
included. Id. at 510. The defendants withdrew their pleas. There were no orders
issued. There were no hearings. The court treated the withdrawals as sufficient,
consistent with Rule 11(c)(5)(B). See also, United States v. Robertson, 260 F.3d
500, 503 (6th Cir. 2001) (trial court did not issue order confirming withdrawal of
rejected “C” plea and clock began anew at the time of withdrawal). The Ninth
Circuit held that the clock “started anew when the defendants withdrew their
guilty pleas …” Carter at 512. It simply makes no sense to find that if the trial
court had waited a month to issue an order that was unnecessary to begin with
and did nothing other than confirm the defendants’ unilateral right to withdraw
their “C” pleas a month earlier, the clock would have stopped while waiting for
the unnecessary order. Imagine two different cases -- in one case the court
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proceeds like the court in Carter and recognizes the legitimacy of the plea
withdrawal without issuing an order; in the other case the court takes Judge
Wolf’s approach and issues an order confirming the withdrawal – what possible
reason is there for treating the defendants’ speedy trial rights differently?
The government has voiced reliance on United States v. Solarzano-Rivera,
368 F.3d 1073 (9th Cir. 2004). This case, too, does not support the government’s
position. In Solarzano-Rivera, the defendant entered into a plea agreement and
pled guilty a few weeks after arrest. Three months later, he “moved to withdraw
his guilty plea.” The court granted the motion two weeks later. The STA
exclusion of those two weeks has nothing to do with this case. To begin with,
there is no suggestion that there was a “C” plea, and this may explain why the
defendant filed a motion to withdraw the guilty plea, rather than a notice of
withdrawal. Equally important, even if there was a “C” plea agreement, there is
no suggestion that the court rejected it. The unilateral right to withdraw a guilty
plea under Rule 11(c)(5) is not triggered unless the court informs the defendant
that the “C” plea agreement has been rejected. Absent the court’s explicit
rejection of a “C” plea, the only way a defendant can withdraw a guilty plea is by
motion, with the court’s allowance. Solarzano-Rivera’s routine holding that delay
caused by the reasonable consideration of a motion is excludable is irrelevant.
For these reasons, the Court should find that Ms. Jittaphol’s speedy trial
clock began anew on May 2, 2022, when she filed a Notice of Withdrawal of
Guilty Plea.
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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
June 2, 2022.
/s/ Keith Halpern
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