Ernest P. Ricci's Motion for Reconsideration — No. 1:23-cr-00034 (Dkt. 87, D.R.I.)

Summary

A motion by Ernest P. Ricci for reconsideration of the Court's denial of his emergency motion to postpone his date to report to the Federal Bureau of Prisons, with a request for hearing, filed in the U.S. District Court for the District of Rhode Island in United States v. Ernest P. Ricci, Case No. 1:23CR00034-001, docketed as 1:23-cr-00034. Through counsel, Ricci asks the Court to reconsider its July 10, 2024 denial of his request to postpone the July 11, 2024 report date until he has undergone and recovered from a medically necessary surgical procedure for a serious, deteriorating esophageal condition. He notes that the Text Order entered at about 9:00 a.m. on July 10, 2024, appended as Exhibit A, found no evidence of any condition the Bureau of Prisons cannot adequately handle, and that the United States had filed its position at about 5:57 p.m. on July 9, 2024.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Full text

Text recognized from a scanned document; may contain errors.

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 MOTION FOR RECONSIDERATION OF COURT’S DENIAL OF
EMERGENCY TO POSTPONE DATE TO REPORT FEDERAL BUREAU OF
PRISONS & REQUEST FOR HEARING

NOW COMES Defendant, Ernest P. Ricci (“Ricci”), by and through counsel, hereby
moves this Court to reconsider its July 10, 2024 denial of Ricci’s emergency motion 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. The Court’s July 10 Text Order denying Ricci’s emergency request indicates

that “[T]here is no evidence before the Court of any condition from which Mr.

Ricci allegedly suffers that the Bureau of Prisons cannot adequately handle.”

* At approximately 9:00 a.m. on July 10, 2024, this Court entered a Text Order denying Ricci’s request for
relief. A true and accurate copy of the Text Order is appended hereto as Exhibit A. That said, at
approximately 5:57 p.m. on July 9, 2024, the United States (the “Government’) filed its opposition to
Ricci’s emergency motion with the Court. A true and accurate copy of the ECF Notice indicating the
Government's opposition filing is appended hereto as Exhibit B. Upon receipt of the Government's
objection, the Court “set” the deadline for Ricci’s reply to the same as July 16, 2024. Notwithstanding,
prior to Ricci having an opportunity to address the Government's opposition, the Court denied Ricci’s
request. With this filing it is Ricci’s hope that the Court may reconsider its position in denying the subject
motion.
See Exhibit A appended hereto. |n the first instance, by the Government’s own
admission, the July 2, 2024 communication from Brigham & Women’s Hospital
(the “July 2"? Correspondence”) “contains vastly more information than one

would typically observe in medical documentation... .". See Government
Response in Opposition to Defendant’s “Emergency” Motion to Delay Self-
Report Date [Dkt. 86] at p. 3. This admission is significant insofar as the July
2" Correspondence expressly states that “[T]his is a highly specialized
procedure and not something all Gastroenterologists practice none [sic]
specifically in Rhode Island and has to be done by an advanced endoscopist
at a Tertiary care center.” (Emphasis supplied.) See July 2
Correspondence at 41%. As such, conversely there is no evidence to support
the fact that the Federal Bureau of Prisons (“BOP”) has the ability and/or
facilities to care for and/or treat Ricci’s serious and chronic underlying
esophageal condition.

2. The Government wrongfully presupposes that Ricci’s recent filing is a
deliberate attempt to delay his self-report date to evade his sentence. Put
simply, any such suggestion is misplaced. Admittedly, Ricci was advised — for
the very first time — on June 20, 2024, that the scheduled June 26" surgical
procedure would not be going forward because of an “out-of-network” health

insurance coverage issue. This is not something that Ricci had any control

over, nor was it anything he was previously privy to. Upon being so apprised,

? The July 2"? Correspondence is appended to Ricci’s emergency motion to postpone report date as
Exhibit A. See Dkt. 865.
however, beginning on June 21, 2024, Ricci commenced his efforts to attempt
to resolve the insurance issue, by, in the first instance, communicating with
Brigham & Women’s Hospital at which time he was advised that the facility was
unwilling to schedule the procedure until such time it was assured the insurance
coverage dispute was resolved.

. Given that the June 26" surgical procedure would not be going forward as
scheduled, Ricci next turned his attention to securing counsel to assist in his
request to the Court to postpone his report date to the BOP, as well as obtaining
documentation from Brigham & Women’s Hospital in support of any such
request. After a series of communications with his care provider, Brigham &
Women’s Hospital made available the July 2"? Correspondence to him on that
date. At or about that same time Ricci secured new counsel tn this matter.
That said, given the intervening July 4" holiday and the undersigned’s time
away from the office in observance of the same, Ricci’s motion was filed with
this Court on July 9, 2024 [Dkt. 85]. Despite the Government’s suggestion to
the contrary, Ricci was not dilatory under the circumstances.

. Ricci has absolutely no control over the dates that Brigham & Women’s
Hospital has available to reschedule any procedure. As such, any suggestion
by the Government that Ricci’s condition is not emergent or lacks urgency is
misplaced. To the contrary, the July 2"? Correspondence plainly underscores

the seriousness of Ricci’s condition, and, further, describes, based upon Mr.
Ricci’s prior history of incarceration, as to its physical manifestations may very
will be absent surgical intervention’. See Dkt. 85.

5. In further support of the within, Ricci reminds the Court that Brigham &
Women’s Hospital has recommended that the recovery time for the so-called
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
Dkt. 85. Even more, Ricci will be required to be in close contact with Brigham
& Women’s Hospital during the recovery period. /d. Thus, incarceration at this
time would not be conducive to the medically necessary procedure, or resulting
recovery period.

6. Again, 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.

7. Ricci reiterates 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

reconsider its July 10, 2024 denial of his emergency motion to postpone his July 11"
report date, that the Court 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

? 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.
medically necessary surgical procedure, to wit, poem procedure, and that this Court

award to Ricci such other further relief as this Court may deem fair, just and reasonable.

Respectfully submitted,

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@mulhearniawri.com

Date: July 10, 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 10‘ 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
Christopher Mulhearn

From: cmect@rid.uscourts.gov

Sent: Wednesday, July 10, 2024 9:00 AM

To: cmecfnef@rid.uscourts.gov

Subject: Activity in Case 1:23-cr-00034-JJM-PAS USA v. Ricci et al Order on Motion for

Miscellaneous Relief

This is an automatic e-mail message generated by the CM/ECF system. Please DO NOT RESPOND to this e-mail
because the mail box is unattended.

***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and
parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if
receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges,
download a copy of each document during this first viewing. However, if the referenced document is a transcript, the
free copy and 30 page limit do not apply.

U.S. District Court

District of Rhode Island

Notice of Electronic Filing

The following transaction was entered on 7/10/2024 at 9:00 AM EDT and filed on 7/10/2024
Case Name: USA v. Ricci et al

Case Number: 1:23-cr-00034-JIM-PAS

Filer:

Document Number: No document attached

Docket Text:

TEXT ORDER denying [85] Emergency Motion to Postpone Report Date as to Ernest P. Ricci
(1): Mr. Ricci’s Emergency Motion to Postpone Report Date [85] is DENIED. There is no
evidence before the Court of any condition from which Mr. Ricci allegedly suffers that the
Bureau of Prisons cannot adequately handle. So Ordered by Chief Judge John J. McConnell,
Jr. on 7/10/2024.(Jackson, Ryan)

1:23-cr-00034-JJM-PAS-1 Notice has been electronically mailed to:

Christopher M. Mulhearn cmulhearn@mulhearnlawri.com

Gary G. Pelletier gpelletier@pcclaw.net, jet2574@yahoo.com

John P McAdams _— john.p.mcadams@usdoj.gov, CaseView.ECF @usdoj.gov, emma.caslowitz@usdoj.gov,
jade.brennan@usdoj.gov, manuel.urbaez@usdoj.gov, michele.sisson@usdoj.gov, Tara.Moniz@usdoj.gov,

taylor.dalton@usdoj.gov, usari-ecf@usdoj.gov

Milind M Shah = milind.shah@usdoj.gov, ashleigh.beauregard@usdoj.gov, CaseView.ECF@usdoj.gov,

1
emma.caslowitz@usdoj.gov, Jade.Brennan@usdoj.gov, manuel.urbaez@usdoj.gov, Tara. Moniz@usdoj.gov,
taylor.dalton@usdoj.gov, usari-ecf@usdoj.gov

1:23-cr-00034-JJM-PAS-1 Notice has been delivered by other means to:
Christopher Mulhearn

—
From: cmecf@rid.uscourts.gov

Sent: Tuesday, July 09, 2024 5:58 PM

To: cmecfnef@rid.uscourts.gov

Subject: Activity in Case 1:23-cr-00034-JJM-PAS USA v. Ricci et al Response to Motion

This is an automatic e-mail message generated by the CM/ECF system. Please DO NOT RESPOND to this e-mail
because the mail box is unattended.

***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and
parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if
receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges,
download a copy of each document during this first viewing. However, if the referenced document is a transcript, the
free copy and 30 page limit do not apply.

U.S. District Court

District of Rhode Isiand

Notice of Electronic Filing

The following transaction was entered by McAdams, John on 7/9/2024 at 5:57 PM EDT and filed on 7/9/2024
Case Name: USA v. Ricci et al

Case Number: 1:23-cr-00034-JJM-PAS

Filer: USA

Document Number: 86

Docket Text:
RESPONSE In Opposition to by USA as to Ernest P. Ricci re [85] MOTION Emergency Motion
to Postpone Report Date Replies due by 7/16/2024. (McAdams, John)

1:23-cr-00034-JJM-PAS-1 Notice has been electronically mailed to:

Christopher M. Mulhearn cmulhearn@mulhearnlawri.com

Edward C. Roy, Jr Edward_Roy@hotmail.com

Gary G. Pelletier gpelletier@pcclaw.net, jet2574@yahoo.com

John P McAdams _—john.p.mcadams@usdoj.gov, CaseView.ECF@usdoj.gov, emma.caslowitz@usdoj.gov,
taylor.dalton@usdoj.gov, usari-ecf@usdoj.gov

Milind MShah milind.shah@usdoj.gov, ashleigh.beauregard@usdoj.gov, CaseView.ECF @usdoj.gov,
emma.caslowitz@usdoj.gov, Jade.Brennan@usdoj.gov, manuel.urbaez@usdoj.gov, Tara.Moniz@usdoj.gov,

taylor.dalton@usdoj.gov, usari-ecf@usdoj.gov

1:23-cr-00034-JJM-PAS-1 Notice has been delivered by other means to:

1
The following document(s) are associated with this transaction:

Document description:Main Document

Original filename:n/a

Electronic document Stamp:

[STAMP dcecfStamp_ID=1096917572 [Date=7/9/2024] [FileNumber=1968727-0]
[67ca5a55848abc17df16d78d789fbb60e3a97311b4c3d1bf437adb2b2b78b65cl1fe2


File and source

File

87.pdf

Size

372,167 bytes

SHA-256

e5e3d65546148a5a8622a0abf85b14223d2390641bae59fd9c06b1a7bdf42a0f

Our copy

87.pdf

Original

No public link identified.