Indictment — No. 1:23-cr-00158 (Dkt. 1, E.D.N.Y.)

Summary

An indictment filed April 11, 2023 as Document 1 in United States v. Kathleen Breault and Kelly McDermott, Cr. No. 23-CR-158 (Case 1:23-cr-00158-RPK), in the U.S. District Court for the Eastern District of New York. The indictment describes Sage-Femme Midwifery PLLC and the federal COVID-19 vaccine program, including CDC COVID-19 Vaccination Cards and the New York State Immunization Information System. It alleges that Sage-Femme issued forged COVID-19 Vaccination Cards and charges conspiracy to defraud the United States, citing 18 U.S.C. § 371. It also includes a criminal forfeiture allegation.

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“Indictment — No. 1:23-cr-00158 (Dkt. 1, E.D.N.Y.).” Original at archive.org. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/indictment-no-1-23-cr-00158-dkt-1-e-d-n-y-17672eb406/, SHA-256 28b35579ed05e09540c4fb806131a31bb7c51252209467ab79dd8d4197e52529.

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Case 1:23-cr-00158-RPK Document 1 Filed 04/11/23 Page 1 of 10 PageID #: 1
FILED
IN CLERK’S OFFICE
US DISTRICT COURT E.D.N.Y.
* APRIL 11, 2023 *
BROOKLYN OFFICE
DJ/HDM:PJC
F. #2022R00246
Judge Allyne R. Ross
UNITED STATES DISTRICT COURT Magistrate Judge Taryn A. Merkl
EASTERN DISTRICT OF NEW YORK
X

UNITED STATES OF AMERICA INDICTMENT

- against - Cr. No. 23-CR-158
KATHLEEN BREAULT and (T. 18, U.S.C.,§§ 371, 981(a)(1)(C),
KELLY MCDERMOTT, and 3551 et seq.: T. 21, U.S.C., § 853(p);
T. 28, U.S.C.,§ 2461(c))
Defendants.

THE GRAND JURY CHARGES:

INTRODUCTION

At all times relevant to this Indictment, unless otherwise indicated:

1. The Defendants and Relevant Individuals and Entities

1. Sage-Femme Midwifery PLLC ("Sage-Femme") was a provider of

women's health care services, including midwife services. Sage-Femme maintained offices in

Albany, Sharon Springs and Saratoga, New York. Sage-Femme purported to administer

COVlD-19 vaccines and maintained and issued Centers for Disease Control and Prevention

("CDC")COVID-19 vaccination record cards("COVID-19 Vaccination Cards").

2. The defendant KATHLEEN BREAULT was a certified nurse midwife

licensed by New York State who worked at Sage-Femme.

3. The defendant KELLY MCDERMOTT was a certified nurse midwife

licensed by New York State and the founder, owner and operator of Sage-Femme.

4. Co-conspirator-1, an individual whose identity is known to the Grand

Jury, was a licensed practical nurse licensed by New York State who worked at Sage-Femme.
Case 1:23-cr-00158-RPK Document 1 Filed 04/11/23 Page 2 of 10 PageID #: 2

5. Individual-1, an individual whose identity is known to the Grand Jury, was

a resident of the Eastern District ofNew York who received a forged COVID-19 Vaccination

Card from Sage-Femme.

6. Individual-2, an individual whose identity is known to the Grandy Jury,

received a forged COVID-19 Vaccination Card from Sage-Femme.

7. The CDC was a federal agency under the United States Department of

Health and Human Services("HHS")- The CDC was established to protect public health

through the prevention of disease.

8. The New York State Department of Health ("NY DOH")was a New York

State agency tasked with overseeing the health, safety and well-being of New Yorkers. NY

DOH enrolled medical providers in New York State to administer COVID-19 vaccines and

provided COVID-19 vaccines in accordance with CDC guidelines for vaccine administration.

IT Background

A. The Federal COVID-19 Vaccine Program

9. On or about January 27, 2020, the Secretary of HHS declared a national

public health emergency under Title 42, United States Code, Section 247d as a result of the

spread of novel coronavirus COVID-19 within the United States. On or about March 13, 2020,

the President of the United States issued Proclamation 9994 declaring a national emergency

beginning on March 1, 2020, as a result of the rapid spread of COVID-19. Since then, COVID-

19 has killed more than one million Americans.

10. As part of the response to the COVID-19 pandemic, the federal

government provided funding to pharmaceutical and biotechnology companies capable of

developing a vaccine for COVID-19. The United States Food and Drug Administration
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approved the Pfizer COVID-19 vaccine for emergency use on or about December 11, 2020, the

Modema COVID-19 vaccine for emergency use on or about December 18, 2020, and the Janssen

COVID-19 vaccine, also referred to as "J&J," for emergency use on or about February 27, 2021.

Thereafter, the CDC prepared for widespread administration of the COVID-19 vaccines,

including at pharmacies, state-run vaccination sites and medical clinics.

11. The government also contracted with various companies to (a) print

COVID-19 Vaccination Cards according to CDC specifications, including a requirement that the

cards include a space to record the dates of administration of the vaccine doses, and (b) distribute

the cards as part of vaccine ancillary kits sent to each vaccine distribution location. The CDC

and HHS also developed rules and protocols for the entities that would administer the COVID-19

vaccine at locations around the country.

12. All COVID-19 vaccination providers were required to give patients who

had received a COVID-19 vaccine a COVID-19 Vaccination Card. These COVID-19

Vaccination Cards listed the name and date of birth of the patient, name of the manufacturer of

the COVID-19 vaccine that the patient received, the date the patient received it, the lot number

of the vaccine dose and the location where each dose was administered.

B. New York Immunization Database

13. NY DOH maintained a record of immunizations in the New York State

Immunization Information System ("NYSIIS"). The purpose of the NYSIIS was to promote

public health by securely maintaining immunization records and making them easily accessible.
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Health care providers in New York State were responsible for entering complete and accurate

COVID-19 vaccination data into the NYSllS within 24 hours of vaccine administration.

14. In or about April 2021, New York State established the Excelsior Pass.

Using patient data recorded in immunization databases, an Excelsior Pass stored and displayed a

user's vaccination status via a QR code. The pass was intended to be shown at participating

businesses and venues, which relied on the QR code as proof of vaccination.

15. Proof of vaccination, as reflected in a COVlD-19 Vaccination Card or

Excelsior Pass, was required to travel to certain locations and attend certain events where large

numbers of people congregate, such as sporting events, concerts, restaurants and bars. In

addition, some employers and government agencies required employees to receive a C0VID-I9

vaccination and some foreign countries required proof of COVID-19 vaccination for entry.

Proof of vaccination requirements were intended to limit the spread of COVID-19 and maximize

the safety of the community.

III. The COVID-19 Vaccination Card Fraud Scheme

16. From approximately June 2021 to March 2022, the defendants

KATHLEEN BREAULT and KELLY MCDERMOTT,together with others, engaged in a

scheme to fraudulently obstruct the government's administration and distribution of COVID-19

vaccines. BREAULT, MCDERMOTT and their co-conspirators executed the scheme by

enrolling with NY DOH to provide COVID-19 vaccines in order to obtain genuine COVID-19

Vaccination Cards and forging the COVID-19 Vaccination Cards to indicate that unvaccinated

persons had received COVID-19 vaccines.

17. In furtherance of the scheme and to facilitate creating false entries in the

NYSIlS and the issuance offorged COVID-19 Vaccination Cards, the defendant KELLY
Case 1:23-cr-00158-RPK Document 1 Filed 04/11/23 Page 5 of 10 PageID #: 5

MCDERMOTT and Co-conspirator-1 submitted enrollment paperwork to the NY DOH that

listed MCDERMOTT as Sage-Femme's "primary COVID-19 vaccine coordinator" and listed

Co-conspirator-1 as Sage-Femme's "back-up COVID-19 vaccine coordinator." On or about

June 1, 2021, MCDERMOTT signed a memorandum of understanding with the NY DOH,

falsely and fraudulently agreeing to comply with all New York State and federal law governing

vaccine administration and further agreeing to abide by all NY DOH guidelines regarding the

administration of the COVID-19 vaccine.

18. The defendant KELLY MCDERMOTT enrolled Sage-Femme with NY

DOH as a COVID-19 vaccine administrator to obstruct HHS and CDC's efforts to ensure

accurate proof of vaccination by obtaining proof of COVID-19 vaccination without being

vaccinated, and to provide this opportunity to Sage-Femme patients. MCDERMOTT's name

was fraudulently entered into NYSIIS on the first date that Sage-Femme began reporting vaccine

administrations.

19. The defendants KATHLEEN BREAULT and KELLY MCDERMOTT

and their co-conspirators solicited individuals, including individuals residing in the Eastern

District of New York, to attend appointments at Sage-Femme to receive false and fraudulent

documentation of having received a COVID-19 vaccine. MCDERMOTT referred individuals to

Co-conspirator-1 rather than provide fake COVID-19 Vaccination Cards herself.

20. The defendant KATHLEEN BREAULT and Co-conspirator-1 concealed

and disguised the scheme by separately holding purported vaccination clinic days at Sage-

Femme. When individuals visited Sage-Femme for a COVID-19 vaccine, BREAULT and Co-

conspirator-1 met with the individuals but did not in fact administer the COVID-19 vaccine.

Instead, BREAULT and Co-conspirator-1:(a) destroyed vials of COVID-19 vaccines that were
Case 1:23-cr-00158-RPK Document 1 Filed 04/11/23 Page 6 of 10 PageID #: 6

intended to be used to vaccinate patients;(b)forged, and provided forged, COVID-19

Vaccination Cards to individuals that made it falsely appear that these individuals had received a

dose of vaccine that had, in fact, been destroyed; and (c) made entries in the NYSIIS falsely and

fraudulently indicating that these individuals had been vaccinated. These steps allowed

individuals to falsely present themselves as vaccinated, obstructing HHS and CDC's efforts to

vaccinate the public and ensure accurate proof of vaccination.

21. Individuals who received forged COVID-19 Vaccination Cards sometimes

provided a cash donation to Sage-Femme in exchange for forged COVID-19 Vaccination Cards.

Donated cash was collected by Co-conspirator-I, the defendant KATHLEEN BREAULT,and

other co-conspirators and provided to the defendant KELLY MCDERMOTT.

22. From approximately June 2021 to March 2022,the defendants

KATHLEEN BREAULT and KELLY MCDERMOTT and their co-conspirators, through the

COVID-19 Vaccination Card Fraud Scheme, distributed forged COVID-19 Vaccination Cards

and created more than 2,600 false entries in the NYSIIS, including for individuals who resided in

Brooklyn and Staten Island, New York,thereby negatively impacting COVID-19 vaccine

distribution and public health in the Eastern District of New York.

23. Based on NYSIIS records, Sage-Femme reported the highest number of

COVID-19 vaccine administrations in New York State, outpacing large, New York State-run

vaccination sites. Additionally, the NYSIIS records indicated that Sage-Femme purportedly

provided COVID-19 vaccines to dozens of minors who were not eligible for the vaccine, and to

Canadian citizens who lacked the immigration documents necessary to enter the United States.
Case 1:23-cr-00158-RPK Document 1 Filed 04/11/23 Page 7 of 10 PageID #: 7

CONSPIRACY TO DEFRAUD THE UNITED STATES

24. The allegations contained in paragraphs one through 23 are realleged and

incorporated as if fully set forth in this paragraph.

25. In or about and between June 2021 and March 2022, both dates being

approximate and inclusive, within the Eastern District of New York and elsewhere, the

defendants KATHLEEN BREAULT and KELLY MCDERMOTT,together with others, did

knowingly and willfully conspire to impede, impair, obstruct and defeat the lawful government

functions of HHS and the CDC, departments and agencies of the United States, in the

administration and distribution of COVID-19 vaccines and COVID-19 Vaccination Cards.

26. In furtherance of the conspiracy and to effect its objects, within the

Eastern District of New York and elsewhere, the defendants did commit and cause the

commission of, among others, the following:

OVERT ACTS

(a) On or about May 25, 2021, MCDERMOTT and Co-conspirator-1

submitted a CDC COVID-19 Vaccination Program Provider Agreement listing MCDERMOTT

as Sage-Femme's primary COVID-19 vaccine coordinator and listing Co-conspirator-1 as Sage-

Femme's back-up COVID-19 vaccine coordinator.

(b) On or about December 29, 2021, Co-conspirator-1 provided a

COVID-19 Vaccination Card via interstate mail to Individual-1 in the Eastern District of New

York even though individual-1 had not received the COVID-19 vaccine.

Vaccination Card to IndividuaI-2 even though lndividual-2 had not received the COVID-19

vaccine.
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(d) In or after June 2021, Co-Conspirator-1 provided a COVID-19

Vaccination Card to BREAULT even though BREAULT had not received the COVID-19

vaccine.

(Title 18, United States Code, Sections 371 and 3551 et seq.J

CRIMINAL FORFEITURE ALLEGATION

27. The United States hereby gives notice to the defendants that, upon their

conviction of the offense charged herein, the government will seek forfeiture in accordance with

Title 18, United States Code, Section 981(a)(1)(C) and Title 28, United States Code, Section

2461(c), which require any person convicted of such offense to forfeit any property, real or

personal, constituting, or derived from, proceeds obtained directly or indirectly as a result of

such offense.

28. If any ofthe above-described forfeitable property, as a result of any act or

omission of the defendants:

(a) cannot be located upon the exercise of due diligence;

(b) has been transferred or sold to, or deposited with, a third party;

(d) has been substantially diminished in value; or

(e) has been commingled with other property which cannot be

divided without difficulty;

it is the intent ofthe United States, pursuant to Title 21, United States Code, Section 853(p), to
Case 1:23-cr-00158-RPK Document 1 Filed 04/11/23 Page 9 of 10 PageID #: 9

seek forfeiture of any other property of the defendants up to the value of the forfeitabie property

described in this forfeiture allegation.

(Title 18, United States Code, Sections 981(a)(1)(C); Title 21, United States

Code, Section 853(p); Title 28, United States Code, Section 2461(c))

A TRUE BILL

PERSON

BREON PEACE
UNITED STATES ATTORNEY
EASTERN DISTRICT OF NEW YORK

GLENN S. LEON
CHIEF, FRAUD SECTION
CRIMINAL DIVISION
U.S. DEPARTMENT OF JUSTICE
Case 1:23-cr-00158-RPK Document 1 Filed 04/11/23 Page 10 of 10 PageID #: 10

F. #2021R010I9

FORM DBD-34 No.
JUN. 85

UNITED STATES DISTRICT COURT

EASTERN District of NEW YORIC

CRIMINAL DIVISION

THE UNITED STATES OF AMERICA
vs.

KATHLEEN BREAULT and KELLY MCDERMOTT

Defendants.

INDICTMENT

(T. 18, U.S.C., §§ 371, 981(a)(1)(C), and 3551
T. 21, U.S.C., § 853(p); T. 28, U.S.C., § 2461(c))

A true bill.
IA ^ A .

/ Foreperson

Filed in open court this day.

of A.D. 20

Clerk

Bail, S

Patrick J. Campbell, DOJ Trial Attorney (718) 254-6366

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