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March 24, 1977

CIRO RICCARDI, Petitioner, against UNITED STATES OF AMERICA, Respondent.

The opinion of the court was delivered by: PLATT



 Petitioner has filed, pro se, a motion to vacate, set aside, or correct a sentence imposed upon him by this Court. Title 28 U.S.C. § 2255.

 On May 29, 1975, petitioner and a co-defendant, Ronald Gigliotti, were convicted after a jury trial of collecting and attempting to collect an extension of credit through the use of violence and threats of violence in violation of Title 18 U.S.C. § 894. On August 29, 1975, the date set for sentencing, Mr. James LaRossa, petitioner's trial counsel, advised the Court of a letter from Dr. Joseph Carlisi which had not been referred to in the presentence report or included among the other presentence materials submitted to the Court. *fn1" / The letter, dated June 20, 1975, stated that the petitioner had been under Dr. Carlisi's care since July 11, 1974, that he had in the past suffered from "acute anxiety, depression, feelings of futility and many psychosomatic complaints". The Doctor added that "he has told me recently that he is coming up for sentencing and there has been a complete relapse of the psychiatric condition that I worked so hard to control". Mr. LaRossa further advised the Court that Riccardi's psychiatric problems "go back to his early schooling". *fn2" / Mr. LaRossa said, however, that: "I don't suggest to your Honor that in any way they rose to the level whereby Mr. Riccardi could have defended this action by insanity or any such thing. That is not the purpose of my submitting this to the Court." *fn3"

 The Court, concerned over the revelation of the petitioner's prior psychiatric history, sentenced him on Count Two of the indictment to twenty years imprisonment and ordered a psychiatric study pursuant to Title 18 U.S.C. § 4208(c). The Court stated that the sentence was subject to modification in accordance with Title 18 U.S.C. § 4208(b).

 Free on bail and apparently anticipating a sentence modification, petitioner voluntarily visited Dr. Train on November 25, 1975. Dr. Train reported in a letter dated February 2, 1976 that petitioner "had full factual and rational understanding of his legal position", had "no delusions or hallucinations", was "oriented fully and his memory was intact", and "his judgment is not grossly impaired". Dr. Train concluded that "there is no evidence of this man being a sociopathic personality and no history of any significant anti-social behavior." Dr. Train recommended that the petitioner be placed on probation.

 On January 5, 1976, petitioner was committed pursuant to the Court's sentence, to the Federal Medical Center for Federal Prisoners at Springfield, Missouri, where he began psychiatric examination and testing under Alan Weible, Case Manager, James M. Doolos, MD and Staff Psychiatrist, Emory Varhely, Ph.D., and Chief of the Psychology Service, and Delane Kinney, Psychologist Intern.

 Mr. Weible's report showed that the petitioner was functioning in the bright-normal range of intelligence, and was "a normal healthy male", with a "mild neurosis." Mr. Weible concluded that "there is no evidence of any psychosis at this time."

 Doctor Doolos' report stated that the petitioner's behavior was "within normal limits," that he was "coherent, relevant, and logical,... has no delusions and no hallucinations" and that his "orientation is good to time, place, and person." Doctor Doolos concluded that there was no evidence of any psychosis and recommended no medication.

 Dr. Varhely and Delane Kinney's report stated that a battery of psychological tests administered to the petitioner reflected that he was "tense, restless, fretful, and overly fatigued" and that he was depressed and anxious. The report concluded that "Mr. Riccardi evidences no signs of a psychotic disorder or an antisocial personality disorder", and that his symptoms "have probably been exacerbated by current situational stress."

 After the psychiatric study was completed, the petitioner was returned to New York for further proceedings. Again, apparently at his own request, petitioner was examined for the second time by Dr. John Train who reported in a letter dated April 14, 1976 that "at this time, as expected, his mental state is aggravated with agitated depression and anxiety". Dr. Train stated that the petitioner had described his experience in prison as "a nightmare". Dr. Train concluded that "it is my considered opinion that he is not a psychopathic anti-social person and not a threat to society" and requested that the petitioner be placed on probation.

 However, on April 19, 1976, while awaiting removal to the court, the petitioner attempted suicide by hanging. When the Court was made aware of this incident, it adjourned the proceeding and on April 23, 1976, ordered another psychiatric examination of petitioner by Dr. Edward Falsey, an independent psychiatrist agreeable to the defense and to the prosecution.

 Dr. Falsey detailed his findings in a letter to the Court dated May 25, 1976. He stated that he relied on the prior psychiatric reports and his own interviews with the petitioner in reaching his conclusion that the petitioner was suffering from "ganser syndrome". Dr. Falsey said that symptoms of the illness include a "mild degree of mental defect and hysterical symptoms of various kinds such as amnesia." He said that "the writers emphasize that [ganser syndrome] may be confused with voluntary malingering in prisoners who want to escape indictment."

 On may 28, 1976, after considering all of the aforementioned reports, this Court modified the petitioner's sentence to eight years in prison pursuant to Title 18 U.S.C. § 4205(b)(2) and recommended that he be given further psychiatric help. In accordance with this recommendation and special arrangements made by the Court, petitioner was committed to the psychiatric ward of the Federal Correctional Institution at Danbury, Connecticut. The chief of the psychiatric service of that institution, Dr. Frank A. Jones, Jr. reported in a letter to the Court dated August 26, 1976, that the petitioner showed no evidence of psychosis or depression. Dr. Jones agreed with Dr. Falsey that the petitioner suffered from ganser syndrome, which he stated was described as an "adjustment reaction of adult life" ...

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