Emergency Motion to Postpone Date to Report Federal Bureau of Prisons & Request for Hearing — No. 1:23-cr-00034 (Dkt. 85, D.R.I.)

Summary

Ernest P. Ricci, through counsel Christopher M. Mulhearn, filed this emergency motion in the District of Rhode Island (Case No. 1:23CR00034-001) on July 9, 2024, asking the Court to postpone the July 11, 2024 date on which Ricci was to report to the Federal Bureau of Prisons. The motion says that on or about May 28, 2024 the Court sentenced Ricci under a plea agreement to a thirty-six (36) month period of incarceration at FMC Devens. It says a poem procedure for an esophageal condition at Brigham & Women's Hospital set for June 26, 2024 was cancelled over an out of network coverage issue with United Health, and that the hospital proposed September 27, 2024, or October 11, 2024. The motion says Ricci is not seeking a reduction or modification of the sentence and asks for an emergency in-person hearing; Exhibit A is the hospital's July 2, 2024 letter.

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UNITED STATES DISTICT COURT
FOR THE DISTRICT OF RHODE ISLAND

UNITED STATES OF AMERICA,
vs. : Case No.: 1:23CR00034-001

ERNEST P. RICCI

ERNEST P. RICCI’S EMERGENCY MOTION TO POSTPONE DATE TO REPORT
FEDERAL BUREAU OF PRISONS & REQUEST FOR HEARING

NOW COMES Defendant, Ernest P. Ricci (“Ricci”), by and through counsel, and
hereby moves the Court on an emergency basis to postpone the July 11, 2024 date which
Ricci is required to report to the Federal Bureau of Prisons (“BOP”) in connection with the
above-identified proceeding until such time as he has undergone and completed recovery
pursuant to a medically necessary surgical procedure to address a serious pre-existing
and deteriorating esophageal condition.

In support of the within request, Ricci states and represents as follows:

1. On or about May 28, 2024, pursuant to Ricci’s “plea agreement’ with the United
States, this Court sentenced Ricci to a thirty-six (36) month period of
incarceration at FMC Devens.

2. Prior to Ricci’s sentencing, Ricci was scheduled to undergo a surgical
procedure, fo wit, poem procedure, at Brigham & Women’s Hospital in Boston,
Massachusetts, on June 26, 2024, in order to address a pre-existing and
deteriorating esophageal condition. Ricci previously documented to this Court

his underlying condition prior to sentencing.

. Upon information and belief, taking into account Ricci’s prior scheduled June
26" medical procedure, the Court ordered Ricci to report to the BOP on July
11, 2024.
. Notwithstanding, shortly before June 26, 2024, Ricci was advised by Brigham
& Women’s Hospital that the June 26" procedure would not be going forward
on that date as scheduled through no fault of Ricci’s or Brigham & Women’s
Hospital.
. Ricci was advised that the June 26" procedure was cancelled as a result of an
“out of network” health insurance coverage issue involving Ricci’s health
insurer, United Health. Specifically, Ricci came to learn through Brigham &
Women’s Hospital that a “waiver” was required from United Health given that
Ricci was a Rhode Island resident and the procedure at issue was being
performed out of state, and thus, deemed “out of network.” The foregoing was
not previously not known to Ricci insofar as United Health had authorized
and/or provided coverage for other prior medical procedures that Ricci had
undergone at Brigham & Women’s Hospital related to his esophageal condition.
Ricci is apprised that the United Health “waiver” is available to him given that
his condition is pre-existing, and, further, that no physician and/or medical
facility in Rhode Island performs the so-called poem procedure. Ricci is in the
process of securing the “waiver” from United Health with the assistance of his
primary care physician.
. Brigham & Women’s Hospital has urged that Ricci’s surgical procedure be

rescheduled as soon as possible, and has proposed September 27, 2024, or

October 11, 2024, for the procedure to be performed, subject to the United
Health “waiver.”

Brigham & Women’s Hospital has opined that absent the so-called poem
procedure that Ricci will be unable to digest regular food and will regurgitate
solid food which will assuredly result in significant weight loss and a
compromised health condition’. See July 2, 2024 correspondence from
Brigham & Women’s Hospital appended hereto as Exhibit A.

Moreover, Brigham & Women’s Hospital has recommended that the recovery
time for the poem procedure will be at least one (1) month which will require,
at least initially, a strictly liquid diet before Ricci can transition over to solid food.
See Exhibit A appended hereto. Even more, Ricci will be required to be in close
contact with Brigham & Women’s Hospital during the recovery period. See
Exhibit A appended hereto. Thus, incarceration at this time would not be

conducive to the medically necessary procedure, or resulting recovery period.

10.Based upon the medical recommendation of Brigham & Women’s Hospital it is

urgent and advisable that Ricci’s “report date” be postponed to allow for him to

undergo, complete and recover from the medically necessary poem procedure.

11.Ricci submits that no party would be prejudiced should this Court grant the

requested relief insofar the same is not seeking a reduction or modification of

his sentence, but merely a postponement of the July 11" “report date.”

WHEREFORE, for the foregoing reasons, Ricci respectfully prays that this Court

1 Ricci previously experienced a significant weight loss - 26 pounds (Ibs) in 28 days - during a prior period
of incarceration at the Donald W. Wyatt Detention Facility in or about April, 2023, as a result of his

condition.

grant his emergency motion and postpone his July 11, 2024 “report date” to the BOP until
such time as he undergo, complete and recover from the medically necessary surgical
procedure, to wif, poem procedure, and that this Court award to Ricci such other further

relief as this Court may deem fair, just and reasonable.

Respectfully submitted,

Is! Christopher WU. WUulhearu

Christopher M. Mulhearn (#5188)

Law Office of Christopher M. Mulhearn, Inc.
100 Centerville Road, Suite 1

Warwick, RI 02886

Tel.: (401) 533-9330

Email: cmulhearn@mulhearnlawri.com

Date: July 9, 2024

EMERGENCY HEARING REQUEST

Given the nature and significance of the within request, Ricci respectfully
requests an expedited or emergency in-person hearing, or such other proceeding as the
Court deems necessary or appropriate to address the relief requested.

CERTIFICATION

| certify that on the 9" day of July, 2024, | electronically filed the foregoing
document(s) and that they are available for viewing and downloading from the Court's
CM/ECF system, and that all participants in the case are registered CM/ECF users and
that service will be accomplished by the CM/ECF system.

Edward C. Roy, Jr., Esq. John P. McAdams, Esq.

577 Tiogue Avenue, 2™ Floor Assistant United States Attorney
Coventry, RI 02816 United States Attorney’s Office
Edward Roy@hotmail.com One Financial Plaza, 17 Floor

Providence, RI 02903
john.p.mcadams@usdoj.com

/s/ Christopher M. Mulhearn


EXHIBIT A

7/2/24, 5:12 PM Ricci, Ernest P "Ernie" (MRN 46978193) DOB: 10/01/1961 Encounter Date: 06/28/2024

Letter by Geremia, Jennifer Lynn, PA-C on 7/2/2024

— Brigham and Women’s Hospital BWH Weight Management Program @ Foxborough

EE
== Founding Member, Mass General Brigham 20 PATRIOT PL
FOXBOROUGH MA 02035

Dept Phone #: 617-525-3597
Dept Fax #: 508-718-4011

July 2, 2024

Ernest P Ricci
180 Plain Road
North Kingstown RI 02852

To Whom It May Concern:

This letter is regarding patient Ernest Ricci DOB 10/1/61. The patient had a scheduled
poem procedure scheduled for June 26, 2024 this was cancelled due to no fault of the
patient or this office. The reason for the cancellation relates to out of network coverage
issues with his insurance and PCP. This medical condition of Mr. Ricci is of a serious
nature & needs to be rescheduled as soon as possible. Without this procedure he will
soon be unable to digest regular food and will regurgitate solid foods which will
thereby result in a tremendous loss of weight and other related medical issues, as
already happened last April 2023 when he lost 26 Ibs in 28 days while incarcerated.
Any delay in the procedure will only exacerbate his condition and will leave him in a
very compromising & serious health condition. This procedure needs to be
rescheduled as soon as possible. The concern is if the esophagus issue isn’t resolved
the patient will be unable to eat & thereby not be able to consume necessary calories,
protein, and nutrients or will result in increased mortality and malnutition. This is a
highly specialized procedure and not something all Gastroenterologists practice none
specifically in Rhode Island and has to be done by an advanced endoscopist at a
Tertiary care center. In Mr. Ricci’s case he very well may be dealing with his issue for
the rest of his life.

To date he has had 2 POEM procedures and now is having a 3rd procedure because
the previous two did not yield adequate resolution of symptoms. It is rare that the
issue was not resolved after these 2 prior procedures. But this patient has a more
refractory case of achalasia requiring a third procedure

Recovery time for this procedure is at least a month after surgery where the patient
would be on a strict full liquid only diet before he could transition to regular food. He
will need to be in close contact with this office during the recovery time both medical
providers and nutrition. This recovery time should not be during incarceration because
it would be detrimental to the recovery process and could be detrimental to his long
term recovery and would result in a grade decline. In the interim an additional botox
injection may be necessary based on the patients ability to tolerate food intake. His
last botox procedure was December 12, 2023 and normally the botox treatment lasts
3-6 months. He’s is now 6.5 months into that last treatment.

This botox treatment is a temporary procedure used to allow a patient to be able to
digest food while waiting for the next procedure. Should that be required a period of
time will need to pass prior to scheduling the next procedure. That is determined on a
case by case basis. Leaving time for the insurance coverage issue to be resolved; the
next available date for this procedure would be late September/early October. At this
point September 27, 2024 and October 11, 2024subject to insurance coverage
resolution and the proximity to any botox procedure, should one become necessary.

Per advanced endoscopist Dr. Thompson if this third poem procedure is not

Printed by Geremia, Jennifer Lynn, PA-C at 7/2/2024 5:12 PM 1/2

712724, 5:12 PM Ricci, Ernest P "Ernie" (MRN 46978193) DOB: 10/01/1961 Encounter Date: 06/28/2024

successful the patient would need to see a surgeon for complex esophageal surgery
which would require a 4 to 14 day stay in the hospital and prolonged recovery period

If you have any questions or concerns, please contact me or my office. 617-732-6389

Sincerely,

Jennifer Lynn Geremia, PA-C

Communication Routing Information

Recipient Relationship Method Details
Ernest P. Ricci “Ernie” Patient Patient Gateway

Printed by Geremia, Jennifer Lynn, PA-C at 7/2/2024 5:12 PM 2/2

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