Defendant's Motion for Release from Custody, or, in the Alternative, for Waiver of Presentence Report and Immediate Imposition of Sentence -- United States v.…

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  Case 1:21-cr-10270-MLW        Document 129       Filed 06/21/22    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 MOTION FOR RELEASE FROM CUSTODY, OR, IN THE
     ALTERNATIVE, FOR WAIVER OF PRESENTENCE REPORT AND
             IMMEDIATE IMPOSTION OF SENTENCE
                    Assented-to by Government

      Aticha Jittaphol hereby moves for release from custody. A similar motion

was filed on June 9, 2022. The Court took no action on the motion, noting that it

had not been accompanied by an affidavit. Circumstances have changed since the

defendant’s earlier motion. Rather than modify the prior motion, defendant now

submits another motion seeking release, or, in the alternative, immediate

sentencing at the time of the June 23rd Rule 11 hearing, with a waiver of the

Presentence Report, in accord with the parties “C Plea” agreement.

      Ms. Jittaphol has opted to plead guilty. She has entered a “C Plea,”

providing for a sentence of time-served and no supervised release. A Rule 11

hearing is scheduled for June 23rd. At that point, she will have been in custody for

two months, in a case with a guideline range of 0-6 months. Probation is

scheduled to disclose a Presentence report on July 29th.

      Acceptance of the parties’ plea agreement would acknowledge that

supervised release is not warranted. Such an acknowledgement would be

inconsistent with continued incarceration based on a finding that there are no

conditions which would enable Ms. Jittaphol to comply with release conditions,
      Case 1:21-cr-10270-MLW               Document 129            Filed 06/21/22          Page 2 of 3




    since the sentence would not impose any supervised release conditions.

          The Court is far more familiar with Ms. Jittaphol than would normally be

    the case when dealing with a defendant seeking a Rule 11 hearing. The Court may

    feel that a Presentence Report is not necessary to decide that the plea agreement is

    acceptable. If that is the case, Ms. Jittaphol urges the Court to allow her to waive

    the Presentence Report and proceed with immediate sentencing on June 23rd.

          Ms. Jittaphol maintains that she has not used methamphetamine or any

    other illegal drug since she entered a detox program in December.1 She challenges

    the accuracy of the sweat patch tests that came back positive. After her last

    probation hearing, two additional patch tests came back positive, while all urine

    tests continued to come back negative. The continued inconsistency lends further

    support to her position that the patch tests are wrong. With the Court crediting

    the accuracy of the patch tests, it seems inevitable that Ms. Jittaphol’s release on

    conditions that included patch testing, or supervised release that included patch

    testing, would result in a never-ending cycle of positive patch tests coupled with

    negative urine tests. To the extent that this is a basis to avoid supervised release

    altogether, on the theory that Ms. Jittaphol will not be compliant, it also is a basis

    to release her from custody and terminate all drug testing immediately.

          Holding Ms. Jittaphol in custody until a sentencing date no earlier than

    August would impose an unfair and unwarranted punishment, inconsistent with

    the purpose of the plea agreement, which is to resolve this case as soon as possible

1
  The government assents to this motion insofar as it seeks release from custody on June 23rd, and assents to
the request that drug testing be terminated if Ms. Jittaphol is released pending sentencing later. but does not
assent to Ms. Jittaphol’s statements regarding patch testing.


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  Case 1:21-cr-10270-MLW              Document 129          Filed 06/21/22       Page 3 of 3




with no further incarceration or supervision.

       An affidavit from Ms. Jittaphol is provided at Attachment 1.

       For these reasons, Ms. Jittaphol should be released upon the Court’s

acceptance of the plea agreement with drug testing terminated pending sentencing,

or, in the alternative, the Court should permit Ms. Jittaphol to waive production

of a Presentence Report and impose a sentence in accord with the plea agreement

on June 23, 2022.

                                                         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 21, 2022.
                                                          /s/ Keith Halpern




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