United States v. Jittaphol
| Decision Date | 18 April 2022 |
| Docket Number | Cr. No. 21-cr-10270-MLW |
| Citation | 598 F.Supp.3d 22 |
| Parties | UNITED STATES of America v. Aticha JITTAPHOL, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
Elysa Q. Wan, Assistant US Attorney, Kelly Begg Lawrence, United States Attorney's Office, Boston, MA, for United States of America.
Keith S. Halpern, Wellesley, MA, for Defendant.
WOLF, D.J.
On September 13, 2021, defendant Aticha Jittaphol was charged with two counts of making false statements in violation of 18 U.S.C. § 1001(a)(2) for falsely certifying in COVID-19 relief loan applications to the federal government that the massage business she owned, Mantra Dhevi Spa, was not engaged in any illegal activity under federal, state, or local law. In fact, as Jittaphol has since admitted, her massage business was providing commercial sex acts to customers in violation of state laws relating to prostitution.
Jittaphol was released on personal recognizance subject to conditions of release on October 26, 2021. See Dkt. No. 12. Since her release, Probation has filed four petitions that the court is addressing,1 which allege that Jittaphol has committed numerous violations of these conditions, including: testing positive for prohibited substances three times; failing to report to a substance abuse treatment program as directed by Probation two times; failing to participate in long-term inpatient substance abuse treatment as directed by Probation; failing to fully participate in outpatient substance abuse treatment two times; and failing to inform Probation and seek its permission before changing employment. See Dkt. Nos. 17, 21, 39-1, 58.
The court conducted hearings concerning the then pending alleged violations on January 20, 2022 and March 8, 2022, but did not decide them. On March 8, 2022, the court did modify Jittaphol's conditions of release to include additional requirements. It informed Jittaphol that it was essential that she comply fully with the conditions of her release. She promised to do so. However, two days later, she failed to attend a required outpatient drug counseling session. About a week later, she failed to attend a required session of Crystal Methamphetamine Anonymous ("CMA"). In addition, a sweat patch worn by Jittaphol from March 1 to 8, 2022 tested positive for methamphetamine. Therefore, these alleged violations were included in another petition.
The court conducted an evidentiary hearing concerning the violations in all of the pending petitions on April 1, 4, and 8, 2022. Jittaphol and her Probation officer testified. Jittaphol's testimony was not credible in material respects.
In summary, the court finds that there is probable cause to believe that Jittaphol committed a state and federal crime while on release by using and, therefore, possessing methamphetamine three times. The court also finds by clear and convincing evidence that Jittaphol committed six other violations of the conditions of her pretrial release. Because Jittaphol has repeatedly violated conditions of her release, despite multiple admonitions by both Probation and the court, the court finds by a preponderance of the evidence that Jittaphol is unlikely to abide by any condition or combination of conditions of release. Therefore, pursuant to 18 U.S.C. § 3148, the court is revoking Jittaphol's pretrial release.
Jittaphol entered into a Federal Rule of Criminal Procedure 11(c)(1)(C) binding plea agreement which, if accepted, would require Jittaphol be sentenced to three years probation rather than any time in custody. The court expressed skepticism concerning whether it would find such a sentence sufficient. However, at Jittaphol's Rule 11 hearing, the court accepted her guilty plea and deferred until sentencing its decision concerning whether to accept the binding plea agreement. As Jittaphol's release is now being revoked, and she will serve time in custody before her sentencing in June 2022 that would be credited against any prison sentence, it will not be possible for the court to impose a sentence that includes no time in custody. Therefore, the court is now rejecting the binding plea agreement and giving Jittaphol until May 2, 2022 to inform the court of whether she elects to withdraw her guilty plea. See Fed. R. Crim. P. 11(c)(5)(A), (B). If she does not withdraw her guilty plea, her sentence will necessarily be less favorable than the plea agreement contemplates. See Fed. R. Crim. P. 11(c)(5)(C).
Under 18 U.S.C. § 3148 (a), "the court shall enter an order of revocation and detention if, after a hearing," it:
"[P]robable cause under section 3148(b)(1)(A) requires only that the facts available to the judicial officer ‘warrant a man of reasonable caution in the belief’ that the defendant has committed a crime while on bail." United States v. Gotti, 794 F.2d 773, 777 (2d Cir. 1986) (quoting Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) ); see also United States v. Aron, 904 F.2d 221, 227 (5th Cir. 1990).
The "clear and convincing" standard is "demanding." Spence v. Superintendent, 219 F.3d 162, 172 (2d Cir. 2000). The Supreme Court has instructed that the standard is met only when a party can "place in the ultimate factfinder an abiding conviction that the truth of its factual contentions are ‘highly probable.’ " Colorado v. New Mexico, 467 U.S. 310, 316, 104 S.Ct. 2433, 81 L.Ed.2d 247 (1984). This standard is satisfied only when "the material [one party] offered instantly tilted the evidentiary scales in [its favor] when weighed against the evidence [the other party] offered in opposition." Id. The First Circuit has described the standard as "more than a preponderance but less than beyond a reasonable doubt." In re Pratt, 462 F.3d 14, 21 (1st Cir. 2006) ; see also United States v. Acevedo-Ramos, 600 F. Supp. 501, 509 (D.P.R. 1984), aff'd, 755 F.2d 203 (1st Cir. 1985).
Under § 3148(b)(2), "a district court's finding that a defendant will not abide by any conditions of release may be established by a preponderance of the evidence." Aron, 904 F.2d at 224 ; see also Gotti, 794 F.2d at 778.
The following facts have been proven by a preponderance of the evidence, which includes testimony by Jittaphol and a Probation officer, and 36 exhibits.3
On September 13, 2021, Jittaphol was charged by Information with two counts of making false statements in violation of 18 U.S.C. § 1001(a)(2). See Dkt. No. 1. On the same day, the parties submitted a binding plea agreement pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). See Dkt. No. 4. A revised binding plea agreement was filed on October 22, 2021. See Dkt. No. 7. Under the plea agreement, the parties agreed to a sentence of no incarceration, 36 months probation, and restitution in the amount of $7,066. See id. at ¶1.
At her initial appearance before the Magistrate Judge on October 26, 2021, Jittaphol was released on personal recognizance subject to conditions of release. See Order Setting Conditions of Release (Dkt. No. 12). These conditions required, among other things, that Jittaphol: not violate a state or federal law; not use or unlawfully possess a controlled substance unless prescribed by a medical practitioner; submit to testing for prohibited substances; and participate in a program of inpatient or outpatient substance abuse therapy and counseling if directed by the Pretrial Services Office or her supervising officer. See id. at 2-3.
Three days later, on October 29, 2021, Jittaphol tested positive for amphetamines and told Probation that she used methamphetamine daily. See Ex. 1, November 19, 2021 Petition for No Action (Dkt. No. 17) at 2. Jittaphol admitted this violation at the April 1, 2022 hearing concerning the alleged violations of her pretrial release. Therefore, there is probable cause to believe that Jittaphol committed a state and federal crime by using and, therefore, possessing methamphetamine. See 21 U.S.C. § 844 ; M.G.L. ch. 94C, § 34. In addition, her admission provides clear and convincing evidence that Jittaphol violated a condition of her pretrial release.
On November 19, 2021, Probation filed a petition advising the court of this violation, but requesting no action because Jittaphol was "amenable to receiving treatment to stop her illicit substance abuse." See Ex. 1, November 19, 2021 Petition for No Action (Dkt. No. 17) at 2. Probation directed Jittaphol to participate in an inpatient detox treatment program at SSTAR in Fall River, Massachusetts. See id. The court followed Probation's recommendation and did not then act on the alleged violation. However, in doing so, it wrote that "Probation shall report promptly if defendant does not properly participate in detox or otherwise violates the conditions of her release." Id.
On November 22, 2021, Jittaphol failed to report to the SSTAR program during intake hours as directed by Probation. See Ex. 2, January 11, 2022 Petition for Hearing (Dkt. No. 21). On April 4, 2022, Jittaphol testified that she failed to report on November 22, 2021 as directed because she could not find someone to take care of her dog. See Apr. 4, 2022 Tr. at 90:24-91:11.
After Probation rescheduled her admission for November 30, 2021, Jittaphol again failed to report during intake hours and was denied placement in the SSTAR program. See id. at 91:12-92:2; see also Ex. 6, March...
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