Defendant Kelly McDermott’s Sentencing Memorandum — United States v. Kathleen Breault and Kelly McDermott, No. 23-CR-158 (Dkt. 56, E.D.N.Y.)
Summary
Defendant Kelly McDermott’s sentencing memorandum in United States v. Kathleen Breault and Kelly McDermott, 23-CR-158, in the U.S. District Court for the Eastern District of New York, dated November 26, 2024 and signed by Benjamin W. Hill of Capezza Hill, LLP ahead of sentencing on December 10, 2024. It states that McDermott, a licensed midwife who runs Sage-Femme Midwifery, pleaded guilty on July 25, 2024 to the sole charge, in a case about COVID-19 vaccination cards provided to persons who did not receive the vaccination, and has paid the full restitution of $37,414.40. The memorandum objects to two-point enhancements for abuse of trust and role in the offense, argues for a total offense level of 8 and a range of 0-6 months, and opposes an upward departure. It asks for probation, citing letters of support and recidivism data.
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
__________________________________________
UNITED STATES OF AMERICA,
DEFENDANT KELLY
McDERMOTT’S SENTENCING
MEMORANDUM
-against-
23-CR-158
KATHLEEN BREAULT and
KELLY MCDERMOTT,
Defendants.
__________________________________________
Kelly McDermott comes before this Court for sentencing on December 10, 2024, having
voluntarily surrendered on April 17, 2023, and thereafter entered a guilty plea to the sole charge in
the Indictment on July 25, 2024. She has been on pre-trial release since her arraignment and has
fully complied with all the conditions set by and all requests of her pre-trial supervisor.
This case concerns the provision of COVID-19 vaccination cards to persons who did not
actually receive the vaccination. Ms. McDermott recognizes and has accepted responsibility for
her actions and non-actions regarding the provision of vaccination cards. However, Ms.
McDermott did not act out of malice or greed, but rather, her decisions were motivated by the
belief that her patients should have the choice and liberty to make informed decisions about their
own healthcare. Kelly McDermott is not “anti-vax,” rather, she is pro-choice and pro-patient.
Nonetheless, she admits and recognizes that in seeking to provide choice for her patients, she
violated the law, something she has never even been accused of doing before.
Kelly McDermott is a licensed midwife who has provided midwifery services to women
for nearly 30 years. As the many letters of support attest, she has been a rock of support for
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countless mothers, babies, and their families. In many ways, she and her business, Sage-Femme
Midwifery, represent and provide a traditional version of healthcare – one of house calls and
consultations without a stopwatch, one that considers and intentionally makes room for
environment, patient comfort, patient goals, and decision-making through information and
communication, not doctor fiat. These aspects of her care create patient-practitioner bonds of trust
and affection that could not be more prominently stated in the character letters provided to this
Court. All of them speak of a mother, partner, friend, and healthcare provider who is generous,
hardworking, and constantly helping others in ways large and small.
Kelly McDermott has never been charged with or convicted of any crime. Her midwifery
license has never been revoked or suspended. In addition to pleading guilty and accepting
responsibility for her actions in word, she has also done so in deed, having already paid the entire
restitution amount of $37,414.40, which was to be owed jointly and severally by all three
defendants in this case, to the Clerk of the Court. 1
Consistent with the Probation Department’s recommendation, we respectfully submit this
Court exercise its discretionary powers and sentence Ms. McDermott to a period of probation.
Probation, under these circumstances, is a sentence that is sufficient but not greater than necessary
to accomplish the aims of sentencing. See 18 U.S.C. § 3553.
DISCUSSION
A. Background – Kelly McDermott
Kelly McDermott is a sixty-two (62) year old mother, wife, and midwife. Having already
obtained a bachelor’s degree in sociology and women’s studies from SUNY Albany in 1985, she
went back to school and obtained a bachelor’s degree in nursing in 2001 and later obtained a
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Ms. McDermott’s bank records show that the restitution check was negotiated on or about November 7, 2024.
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master’s of science in midwifery in 2004. For over twenty years, she has provided midwifery
services through her business Sage-Femme Midwifery along with other nursing positions she has
held at Burdett Health Center/Samaritan Hospital and other such healthcare providers.
Kelly grew up in difficult circumstances in Queens, New York. Her father was largely
absent from her life and died at a young age due to alcoholism, and her mother and aunts struggled
with serious mental health and addiction issues. Kelly and her siblings were the victims of neglect
and physical and emotional abuse on the part of their mother and maternal aunts who helped raise
them. Kelly was told she was no good and was otherwise regularly denigrated, so much so that
she left her home at seventeen years old and never went back.
Despite her difficult upbringing and their difficult relationship, Kelly cared for her mother
at the end of her life during her battle with cancer, taking her to appointments and ensuring that
her daily needs were met. Likewise, Kelly refused to continue a cycle of abuse and dysfunction
when it came to her own family and children – as set forth below, she has supported her children
financially, emotionally, and otherwise with love and dedication through very difficult
circumstances.
Kelly has three adult children from a prior marriage, Nina, Mariah, and Galen. Galen is
disabled and suffers from autism and significant mental health problems and often resides with
Kelly and her husband. Kelly is Galen’s appointed payee for SSI benefits and is also his caretaker
when he allows her to act in that role. Kelly checks in with Galen on a daily basis to make sure he
is doing well and his needs are met.
In addition, Kelly and her husband Gary Edelman have two grown children, Ezra and
Rachel. Sadly, a third child, Celeste, died of a heroin overdose in 2016 at age twenty-one.
Celeste’s death was a significant blow to Kelly, Gary, and their family. Despite Kelly and Gary’s
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repeated and heart-breaking efforts, Celeste’s illness could not be overcome. They live every day
with the loss of their child and Kelly has sought mental health treatment to cope with PTSD,
anxiety, and depression and participates in support groups for adults grieving the loss of their
children. Kelly and Gary also support their son Ezra financially and with his mental health issues,
which developed after the death of his sister.
As made clear in the support letters, Kelly has not hidden this case or her plea from her
family, her patients, or her community. Ever sensitive to their choice, feelings and prerogatives
and wanting them to feel free to choose another provider if they so desired, Kelly affirmatively
informed her patients about the accusations against her and later her guilty plea. So too her husband
is aware of and has acknowledged Kelly’s admission of guilt and the reasons for her guilty plea.
PSIR at ¶ 72.
Kelly provides numerous midwifery and healthcare services on a pro bono and/or reduced
rate basis, particularly for those who cannot afford care. She has also created milk banks, launched
diaper, food and clothing drives, and provides hospice care for infants and their families. Kelly’s
practice includes providing services, often at free or reduced rates, to Amish and Mennonite
communities in Schoharie County and elsewhere in Upstate New York. These communities often
set themselves apart from modern medicine, but nonetheless trust Kelly to provide midwifery and
other healthcare services. There is a marked shortage of licensed midwives whose practice
includes serving these rural and separated communities who are often uninsured or underinsured.
Kelly also provides midwifery services to many in the Orthodox Jewish community, which
requires familiarity and comfort with traditions and laws that are both unique and important to
those receiving care from that community.
B. Support from Family, Friends, Patients, and Community Members
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Kelly has received overwhelming, incredible support from her family, friends, patients, and
community members. At last count, this office has received over 200 letters of support for Kelly.
But, out of respect for the Court and judicial economy, and also because many of the same themes
run through these letters, we have selected and submitted a handful for the Court’s review as
representatives of the greater whole. One could not begin to contrive such an outpouring of
support, gratitude and admiration – as one writer states, Kelly “really is who [the] letters say she
is.” These letters demonstrate that Kelly McDermott is much more than a person who has
committed a crime; she is a person who has touched the lives of many through her generosity, care,
and friendship.
Some of the detailed acts of generosity and charity described in the letters include: paying
out of pocket for psychological services for her clients; accepting patients on a “pay what you can”
basis; continuing to treat patients whose insurance carriers would not provide coverage; mentoring
others; opening her home to a young woman in need who lived with her rent-free for three years;
initiating drives for clothing, equipment, milk, diapers, baby food and other material goods for
mothers in need; providing space at Sage-Femme free of charge to other professionals with small
practices; etc.
The support letters also describe the care Kelly provides and her philosophy of informed
consent and informed decision-making in patient care. For example, Melissa Martin describes
how Kelly counseled her about the risks/benefits of getting a flu vaccine, which Melissa ultimately
decided to receive at Sage-Femme. Others provide accounts of hours spent counseling and caring
for pregnant women and their families and above all the pivotal and unique role she plays as a
healthcare provider in the community.
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Kelly cares for those who have been harmed or neglected by prior providers, those who do
not, for cultural and/or religious reasons, feel comfortable in a hospital setting, and those who
otherwise could not afford the type of personalized care she provides. This is particularly true of
those in the Orthodox Jewish, Amish, and Mennonite communities. As one of her patients Marian
Fisher states in her letter, Kelly’s willingness to perform home births in remote Amish communities
hours from the closest birth center has “saved more than one concerned parent a trip to the
emergency room.” Nurse Keturah Beiler writes that Kelly fills a critical “role in providing
culturally sensitive care [that] has been instrumental in bridging the gap between modern
healthcare practices and the unique needs of the Amish population.” Hospice care for infants with
genetic anomalies in Amish communities is an example of one such unique need.
She is also the rock of her own family, supporting her husband and her children financially
while also providing various forms of care, love, and generosity to her grown children who have
disabilities. As mentioned above, Kelly is involved in managing and supporting the well-being of
her son Galen, who suffers from executive function deficits and requires assistance managing the
tasks of daily life.
All these letters either directly or implicitly ask the Court for leniency and to consider
Kelly’s admitted guilt to this single charge within the greater context of who she is, what she has
done for others, and the need for her midwifery practice to continue. Kelly assists underserved
communities, and incarceration would create a void in those communities. Jordan and Leah
Fruchter directly asked themselves whether they were “comfortable with a felon delivering [their]
child[?]” They concluded that to define Kelly only through her conviction “would ignore who
[she] is as a person and all of the good she has done helping families like [their] own.”
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Likewise, Washington County Chief Assistant District Attorney Christian Morris’s letter
describes asking Kelly the “hard questions” about the charge against her from the perspective of a
seasoned prosecutor, which were met with open and honest answers, not “excuses or
justifications.” Formally pleading guilty before the Court demonstrates a personal acceptance of
responsibility. Openly articulating and accepting guilt before those who hold her in such high
esteem, and whose trust she has worked tirelessly to earn, demonstrates a “strength of character
that few have.”
C. Nature of the Offense
The essence of the Government’s charge, and the basis for Kelly McDermott’s guilty plea,
is that she (along with Kathleen Breault and Sherilyn Pellitteri) facilitated the provision of COVID-
19 vaccination cards to persons who did not obtain the vaccination. Kelly McDermott admits these
essential allegations but must provide some context to the Court regarding Sage-Femme, her role
in the offense, and her underlying motivation.
Sage-Femme Midwifery is not a typical business, much less a typical healthcare business.
While it is a for-profit business, it shares many of the hallmarks associated with not-for-profit
organizations, including mission-driven (rather than profit-driven) services, community-oriented
support and social connections, a focus on charitable causes and needs, and an egalitarian rather
than hierarchical corporate structure.
Notably, both Breault and Pellitteri were not employees of Sage-Femme, rather, they were
independent contractors who provided services to Sage-Femme and its patients through their own
businesses that subcontracted with Sage-Femme. Breault maintained her own business called
“Safe Passage Midwifery,” while Pellitteri mainlined her own business called “Mother Love Birth
Service.” Over the years, several other businesses and individuals have either rented space at
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Sage-Femme or provided services to Sage-Femme patients as independent contractors, such as
chiropractic, massage therapy, lactation, nursing, etc. Kelly McDermott was not the “boss” of any
of these contractors, who treated their patients independently, and who were provided access to
the Sage-Femme office through keypad access, including when Kelly McDermott was at the
Sharon Springs office in Schoharie County, New York, every Wednesday and Friday. The same is
true of Breault and Pellitteri, who were independent contractors from the beginning. Breault, as
an affiliate of Sage-Femme, still had her own clients and Pellitteri, also a nurse, provided services
to both Kelly McDermott’s clients and clients of Kristin Klein (another formerly-affiliated
midwife).
Without denying her guilt or that she was aware that cards were being distributed, the fact
is that Kelly McDermott did not play an outsized or leadership role in the conspiracy. She was
mostly not present on the “clinic days” at the Sage-Femme office in Albany, which were held on
the days Kelly was at the Sharon Springs Sage-Femme office. Moreover, Kelly McDermott did
not at the time know how many persons received the cards because she almost entirely out of the
office on days when Breault and Pellitteri ran the “clinics,” and Kelly has always maintained a full
and busy schedule (averaging 7 births per month), including during the COVID-19 pandemic. She
is not tech savvy and did not have access to or know how to access NYSIIS. While she became
aware that several (approximately 15) of her own patients and a cousin of hers received vaccination
cards, she did not know the full scale of others that apparently received cards, nor that proofs of
vaccinations had been apparently processed for children by Breault and/or Pellitteri.
Importantly, Kelly McDermott’s treatment philosophy regarding vaccines is more nuanced
than has been presented. Kelly is not “anti-vaccination,” rather, she is pro-choice, pro-information,
and pro-patient. Kelly respects a patient’s right to choose whether to receive a vaccination, or
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choose not to after being informed of the attendant risks and benefits. Indeed, Kelly counseled her
own family members who did receive the COVID-19 vaccination and the same is true of patients
she counseled who did elect to receive the flu vaccination. Kelly’s philosophy is born out in her
practice: agency over one’s own body. For example, Kelly asks her patients, every time, if she may
touch them before she does, because patient choice and agency are central to Kelly’s care.
Without renouncing her philosophy of care upon which is the foundation for her treatment
of every patient and mother, Kelly has admitted guilt because her actions crossed the line, violating
the law.
D. Pre-Sentence Report and Guideline Calculation
The Presentence Investigation Report (“PSIR”) scores Ms. McDermott as follows:
Probation assigned a total offense level of 12 and a criminal history Category I, resulting in a
guideline range of ten (10) to sixteen (16) months. Ms. McDermott does not object to the base
offense level or to the four-point enhancement for loss to the victim under §2B1.1(C), though as
set forth above, she has paid restitution in full such that there is presently no “actual loss” to the
CDC. However, for the reasons below, we object to the two-point enhancements for abuse of trust
and role in the offense and object to an upward variance. Because those enhancements should not
apply, Ms. McDermott meets the criteria for a zero-point offender adjustment under §4C1.1,
resulting in a total offense level of 8, and a guideline range of 0-6 months in Zone A.
1. Leadership Enhancement under §3B1.1(c) Should not Apply
Kelly McDermott was and is the principle officer of Sage-Femme Midwifery, however,
that fact does not ipso facto make her a manager/supervisor of the instant conspiracy. It is
inaccurate that McDermott “set the days and work hours in which Breault and Pellitteri” provided
cards. Indeed, Breault and Pellitteri were the distributors of the cards and Breault was not often in
the office space during weekdays. Pellitteri filled out the onboarding documents with the CDC
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and DOH, naming herself “back-up COVID-19 vaccine coordinator,” but in fact was directly and
actively providing vaccine cards to others along with Breault. There is no evidence or accusation
that Kelly McDermott directed or instructed Breault or Pellitteri on how to distribute cards or how
to input data into NYSIS, which was entirely done by Pellitteri and/or Breault. Moreover, Pellitteri
worked as a 1099 independent contractor with Sage-Femme, providing services not just to Sage-
Femme, but also to other independent contractors who rented or shared space in the Sage-Femme
building, including Breault. As mentioned above, Breault and Pellitteri maintained their own
businesses. Thus, while it is true that the “clinic days” occurred at the Sage-Femme Albany office,
there is no evidence that Kelly McDermott was any more of an “organizer, leader, manager, or
supervisor” in the instant offense than Breault and/or Pellitteri.
Again, this is not to suggest that Kelly is not culpable or was not part of this conspiracy.
Rather, it is to explain that the conspiracy was a reflection of Sage-Femme’s egalitarian rather than
hierarchical corporate structure, moving parts and people, disorganization at times, and
independent providers/actors.
2. Abuse of Trust Enhancement under §3B1.3 Should Not Apply
The proposed application of §3B1.3 is based on the alleged abuse of a position of public
trust. As evidenced by the many letters of support, however, there is no evidence or accusation that
she breached the trust of any patient or client, nor that she failed to provide any service in breach
of a professional duty. Kelly McDermott was a certified nurse midwife at all times relevant to these
charges, and remains certified today. However, there is no allegation or evidence that Kelly
McDermott used any of her skills as a nurse or midwife in the commission of the offense.
The position of public trust enhancement under §3B1.3 is typically applied in instances
where the offense causes harm to the person whose trust has been placed with the defendant, such
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as “embezzlement of a client’s funds by an attorney serving as a guardian” or “criminal sexual
abuse of a patient by a physician.” USSG §3B1.3, Commentary at ¶1. “An abuse of trust
enhancement may not be imposed on a defendant convicted of fraud solely because of a violation
of a legal obligation to be truthful and victim’s reliance on a misrepresentation.” U.S. v. Hirsch,
239 F.3d 221, 227 (2d Cir. 2001). A defendant “who merely engages in arms-length dealings in a
commercial transaction does not hereby occupy a position of trust.” U.S. v. Wright, 160 F.3d 905,
910 (2d Cir. 1998). “Nor does a corporate officer who negotiates a procurement contract with the
government thereby occupy a position of trust vis-à-vis the government.” Id. (citation U.S. v.
Broderson, 67 F.3d 452, 455 (2d Cir. 1995)). The extent to which Kelly McDermott was directly
involved in the procurement and distribution of the COVID vaccines at issue here was extremely
limited and, for the same reasons discussed in Wright and Broderson, does not justify the
application of §3B1.3.
E. No Upward Departures are Warranted
We similarly submit that an upward departure is inappropriate in this case. Applicability of
an upward departure must be established by a preponderance of the evidence. U.S. v. Cordoba-
Murgas, 233 F.3d 704 (2d Cir. 2000). There is no evidence, let alone a preponderance of the
evidence, that Kelly McDermott caused a significant disruption of a government function by
extending “the time needed by HHS and CDC to reach herd immunity against COVID-19, allowed
for unnecessary spread of the COVID-19 virus” and prolonged the pandemic. As of February 4,
2021, over 35,203,000 doses of the Covid-19 vaccine had been administered. To suggest that the
vaccination cards for which Kelly McDermott is responsible had a significant enough impact to
delay herd immunity (however that term is defined) and thereby prolonged the pandemic, is highly
speculative and without factual support.
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Moreover, application of §5K2.7 applies “[i]f the defendant’s conduct resulted in a
significant disruption of a governmental function.” However, “departure from the guidelines
ordinarily would not be justified when the offense of conviction is an offense such as bribery or
obstruction of justice; in such cases interference with a governmental function is inherent in the
offense.” Similarly, here, interference with governmental function is inherent in the offense of
conspiracy to defraud the United States – our federal government. Moreover, such alleged
disruption is speculative as set forth above.
F. A Sentence of Probation is Warranted
In considering the restitution paid, Kelly’s overall life, her lack of criminal history, as well
as her success on unsupervised release since the onset of this case, it is respectfully submitted that
a period of probation and restitution is the proper punishment, and that any term of imprisonment
would be greater than necessary under the factors outlined in 18 U.S.C. § 3553(a).
1. Seriousness of the Offense & Just Punishment 18 USC § 3553(a)(2)(A)
Kelly McDermott has completely accepted responsibility for the crime she committed and
paid restitution in full on behalf of herself and to the benefit of her co-defendants. However, Kelly
McDermott did not harm or intend to harm anyone, nor did she intend to prevent anyone who
wanted a vaccine from obtaining one. Indeed, there is no accusation and the Government has
provided no evidence that her actions prevented anyone from getting the COVID-19 vaccine.
Notwithstanding the Government’s suggestions to the contrary, we have been provided no
evidence that any individual was, at any time, harmed.
Rather, this case concerns the frustration of a government-funded program. Kelly
McDermott has accepted the loss amount asserted by the Government based solely on the
representations of AUSA Campbell and has already paid restitution in full to CDC. No other victim
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has been identified and if any had been, Ms. McDermott would have taken steps to make them
whole.
2. Deterrence – 18 USC §3553(a)(2)(B)
Kelly McDermott is a 62-year old midwife with no criminal history whatsoever. She is
committed to her practice and the patients she serves. She has no history of drug or alcohol abuse.
She has no history of violence or malevolence of any nature. For those in Category I over the age
of fifty, the recidivism rate is a mere 6.2%. U.S. Sent’g Comm’n, Measuring Recidivism: The
Criminal History Computation of the Federal Sentencing Guidelines, at 15 (2004), Ex. 9 at 28.
Available at https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-
publications/2004/200405_Recidivism_Criminal_History.pdf. For those in Category I who are
married, the recidivism rate is 9.8%, and the rate is 7.1% for college graduates. Id., Exhibit 10 at
29.
In imposing a sentence, the Court should consider the statistically low risk of recidivism
presented by Kelly’s history and characteristics. United States v. Hamilton, 323 Fed. Appx. 27, 31
(2d Cir. 2009) (“the district court abused its discretion in not taking into account policy
considerations with regard to age recidivism not included in the Guidelines”), Simon v. United
States, 361 F. Supp. 2d 35, 48 (E.D.N.Y. 2005) (basing variance in part on defendant’s age of 50
upon release because recidivism drops substantially with age). Simply put, Kelly does not pose a
threat to commit future crimes.
In paying restitution in full, Kelly has proven that she is already deterred from committing
any future crime and has taken every step possible to take responsibility for and make amends for
her serious actions that caused this prosecution. To the extent that there is further need for
deterrence, it can be accomplished through probation.
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Finally, it must be considered that this case has been pending for over a year-and-a-half,
during which time Kelly McDermott successfully maintained her status with pre-trial services and
continued her practice. Thus, she has proved that she is law-abiding and will perform well on
probation if that is the Court’s determination.
3. Incapacitation – 18 USC §3553(a)(2)(C)
Incapacitation deals primarily with removing a dangerous person to protect society. As set
forth in numerous character letters submitted on her behalf, Kelly is not a dangerous person, she
is a helper and a healer. She is someone who contributes to society and provides healthcare services
to communities and women at the margins. Thus, there is no reason to incapacitate her from doing
her important work. Indeed, as set forth in the numerous character letters, removing Kelly from
the community would harm those who depend on her care and expertise.
4. Need to Avoid Unwarranted Disparities or Similarities – 18 USC §3553(a)(6)
Historically within the Second Circuit, defendants convicted of crimes involving fraud,
theft, or embezzlement represent a larger percentage of the individuals sentenced to non-
incarceration sentences relative to the percentage of total cases they represent. For example, in
2023, individuals convicted of fraud, theft, or embezzlement made up only 17.6% of defendants
in the Second Circuit, but accounted for 41% of all individuals sentenced to non-incarceration
sentences. See U.S. Sent’g Comm’n, Satistical Info. Packet, Fiscal Year 2023, Second Circuit,
Table 5 (2023). 2
2
The Sentencing Commission’s data is available at https://www.ussc.gov/sites/default/files/pdf/research-and-
publications/federal-sentencing-statistics/state-district-circuit/2023/2c23.pdf. Similar trends emerge for both 2022
and 2021. See U.S. Sent’g Comm’n, Statistical Info. Packet, Fiscal Year 2021, Second Circuit, Table 5 (2021),
available at https://www.ussc.gov/sites/default/files/pdf/research-and-publications/federal-sentencing-statistics/state-
district-circuit/2021/2c21.pdf; U.S. Sent’g Comm’n, Statistical Info. Packet, Fiscal Year 2022, Second Circuit, Table
5 (2022) available at https://www.ussc.gov/sites/default/files/pdf/research-and-publications/federal-sentencing-
statistics/state-district-circuit/2022/2c22.pdf.
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These same data show similar trends in the use of downward departures or variances.
Nationally, defendants convicted of crimes involving fraud, theft, or embezzlement in 2021, 2022,
and 2023 saw downward departures or variances in 43.4%, 43.8%, and 45.5% respectively. See
U.S. Sent’g Comm’n, Statistical Info. Packet, Fiscal Year 2021, Second Circuit, Table 10 (2021);
See U.S. Sent’g Comm’n, Statistical Info. Packet, Fiscal Year 2022, Second Circuit, Table 10
(2022); See U.S. Sent’g Comm’n, Statistical Info. Packet, Fiscal Year 2023, Second Circuit, Table
10 (2023).
What these numbers tell us is that in like cases, courts in this Circuit and nationally have
continued to favor downward departures and variances and use of non-incarceration alternatives.
While every case is unique, this case warrants similar considerations and as probation has
recommended, a statistically consistent outcome.
ADDITIONAL REQUESTS
If the Court determines that Kelly’s conduct warrants some incarceration, which for the
reasons set forth herein we believe is not necessary, it is respectfully requested that the Court make
the following recommendations to the Bureau of Prisons. That she:
(a) be allowed to self-surrender and report;
(b) be assigned to a minimum-security facility; and
(c) be assigned to such a facility as close to Albany, New York as possible so she can
remain near her family.
Regarding facility determinations, we recognize that the Bureau of Prisons makes the
ultimate determination. However, the Bureau of Prisons does try to accommodate and/or honor a
judge’s recommendation.
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CONCLUSION
For the reasons set forth herein, we request that Kelly McDermott be sentenced to a modest
period of probation, restitution in the amount of $37,414.40, and the mandatory special assessment.
Such a sentence is sufficient, but not greater than necessary, to comply with the statutory directives
set forth in 18 U.S.C. §3553(a). Kelly has accepted responsibility for her actions and is committed
to continuing her work as a midwife and care provider in a lawful manner.
Dated: November 26, 2024 CAPEZZA HILL, LLP
_______/s_____________________
BENJAMIN W. HILL, ESQ.
Attorney for Defendant Kelly McDermott
30 South Pearl St., P-110
Albany, NY 12207
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