Reply Memorandum of Law in Further Support of Defendant Breault’s Omnibus Motion — Kathleen Breault and Kelly McDermott, Cr. No. 23-CR-158 (ARR)(TAM) (Dkt. 35, E.D.N.Y.)

Summary

Sussman & Goldman, attorneys for Kathleen Breault, filed this reply memorandum on November 9, 2023 (Document 35) in United States v. Kathleen Breault and Kelly McDermott, Cr. No. 23-CR-158 (ARR)(TAM) in the Eastern District of New York, in further support of Breault's omnibus motion; Mary Jo Whateley is on the brief. It asks the court to dismiss the indictment, which charges a conspiracy under 18 USC 371 to defraud HHS and the CDC in administering COVID-19 vaccines and vaccination cards. The brief argues that the indictment alleges no lawful government function, because the emergency use authorization statute, 21 U.S.C. §360bbb-3(e)(1)(A), gives each person the option to accept or refuse an EUA vaccine and New York's Public Health Law bars mandatory vaccination of adult, non-student residents. It says Breault joins the co-defendant's argument that no federal program existed.

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Case 1:23-cr-00158-RPK Document 35 Filed 11/09/23 Page 1 of 9 PagelD #: 180

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
x

UNITED STATES OF AMERICA,
Cr. No. 23-CR-158 (ARR)(TAM)

-against-

KATHLEEN BREAULT and
KELLY McDERMOTT,

Defendants.

REPLY MEMORANDUM OF LAW IN FURTHER
SUPPORT OF DEFENDANT BREAULT’S
OMNIBUS MOTION

SUSSMAN & GOLDMAN, ESQS.
Attorneys for Defendant Breault
One Railroad Avenue

Suite 3

Goshen, NY 10924

(845) 294-3991

On the Brief:

_ Mary Jo Whateley, Esq. (mw9535)
. Case 1:23-cr-00158-RPK Document 35 Filed 11/09/23 Page 2 of 9 PagelD #: 181

PRELIMINARY STATEMENT

The instant Indictment proceeds on the theory that defendants intentionally
undermined a federal anti-COVID vaccination program by facilitating the pretense by
unvaccinated persons that they were vaccinated when they were not.

But, as shown below, the notion that either NY State or the federal government
could lawfully condition participation in a myriad of programs on obtaining a
vaccination contravenes both jurisdiction’s prohibition on mandatory vaccination
regimes. The government could not lawfully require persons to be vaccinated and, if
not, disallow them to participate in programs or deprive them of benefits. So, there was
no LAWFUL program with which these defendants interfered, certainly no program
authorized by Congress or the New York State legislature.

Matter of Medical Pros. for Informed Consent v. Bassett, 185 N.Y.S.3 578 (Jan.
13, 2023), appeal dismissed as moot at 2023 N.Y. App. Div. LEXIS 5028 (4 Dept.
October 6, 2023] vacated the mandatory vaccination regime imposed by the New York
State Department of Health. The day of the oral argument of the appeal the State
Attorney General announced abandonment of the appeal and dissolution of the policy.
These choices vindicate Supreme Court’s determination that the state vaccination
mandate, which is precisely what Breault was responding to, was unlawful ab initio.

As the court wrote, “The Commissioner [of Health] is specifically prohibited from
implementing a mandatory immunization program for adults and children, “except as
provided in section twenty-one hundred sixty-four and twenty-one hundred sixty-five of
the Public Health Law [Public Health Law §206(1)(1).” An identical prohibition on

mandatory immunization programs is found in Public Health Law §613. Public Health
. Case 1:23-cr-00158-RPK Document 35 Filed 11/09/23 Page 3 of 9 PagelD #: 182

Law §2164 covers children attending day care through high school (see, Public Health
Law §2164(1)(a)) and requires immunization for ‘poliomyelitis, mumps, measles,
diphtheria, rubella, varicella, Haemophilus influenzae type b (Hib), pertussis, tetanus,
pneumococcal disease, and hepatitis B” Public Health Law §2164(2)(a). Boosters are
detailed in subparagraph b of said paragraph (ibid. sub. C). Public Health Law §2165
covers college students and requires immunization for “measles, mumps and rubella”
(Public Health Law §2165). COVID-19 or coronavirus generally are not covered by any of
the aforementioned sections. Respondents are clearly prohibited from mandating any
vaccination outside of those specifically authorized by the Legislature.” Id. This
Indictment was filed months after this decision.

DISMISSAL IS WARRANTED BECAUSE THE INDICTMENT

FAILS TO ALLEGE A VIOLATION OF A LAWFUL
FUNCTION OR STATUTE

“Indictments under the broad language of the general conspiracy statute (18 USC
371), which penalizes conspiracies to defraud or commit offenses against the United
States, must be scrutinized carefully as to each of the charged defendants because of the
possibility, inherent in a criminal conspiracy charge, that its wide net may ensnare the
innocent as well as the culpable.” Dennis v United States, 384 US 855, 857 [1966].

In addition to "the danger [of injustice] inherent in a criminal conspiracy
charge," Dennis, 384 U.S. at 860, the defraud clause of section 371 has a special
capacity for abuse because of the vagueness of the concept of interfering with a proper
government function. United States v. Goldberg, 105 F3d 770, 775 [1st Cir 1997].

A legally sufficient indictment “must identify the lawful government functions at
issue with some specificity.” United States v. Concort Mgmt. & Consulting LLC, 347 F.

Supp. 3d 38 (D.D.C. 2018). Here, the Indictment alleges that defendants “did
Case 1:23-cr-00158-RPK Document 35 Filed 11/09/23 Page 4 of 9 PagelD #: 183

knowingly and willfully conspire to impede, impair, obstruct and defeat the lawful
government functions of HHS and CDC, departments and agencies of the United States,
in the administration and distribution of COVID-19 vaccines and COVID-19 Vaccination
Cards.” Indictment, 7 25. |

Mandating EUA Covid-19 Vaccines was not a “legal function”
of the CDC or HHS

Between December 11, 2020 and February 27, 2021, the FDA approved three
Covid-19 vaccines for emergency use only. Indictment, J 10. The status of these
vaccines never changed during the relevant time period. Pursuant to the Emergency
Use Authorization statute, mandating vaccines that have been approved only for
emergency use, such as the Covid-19 vaccines at issue here, is categorically
prohibited, since each person must be given “the option to accept or refuse
administration of the product...” 21 U.S.C. §360bbb-3(e)(1)(A) (Gi) (II)... If this be so, a
person can both forego taking the vaccination and may not be penalized for that
decision. Absent the latter qualification, a mandatory vaccination regime exists because
while people are allegedly free to choose not to vaccinate, the choice comes at a painful
cost, as measured by loss of employment, income and the consequences which follow.

Likewise, as fully elaborated in Medical Professionals for Informed Consent,
supra., New York State prohibits mandatory vaccinations of adult, non-student
residents. See Public Health Law §§ 206(l) and 613(c).

Here, despite these restrictions, the federal/state program sought to burden
persons who refused to get vaccinated by denying them the right to participate in a
panoply of otherwise lawful activities, including their right to work and support their

families during COVID. The government claims that it was not “mandating” a regime of
Case 1:23-cr-00158-RPK Document 35 Filed 11/09/23 Page 5 of 9 PagelD #: 184

vaccinations, but, by disallowing persons from engaging in basic activities without proof
of vaccinations, this is precisely what it was doing, CONTRARY to the federal law cited
above, let alone New York’s Public Health Law.

So, the question raised is whether defendant Breault acted unlawfully when she
helped covered persons circumvent the “mandatory” aspects of this vaccination regime,
that which improperly prohibited person from engaging in basic activities absent the
vaccination card, a symbol of mandatory vaccination and an entrance card to a whole
range of activities which would otherwise be barred by citizens [despite the prohibition
in both state and federal law of mandatory vaccination regimes].

If a law or regulation mandating vaccination is contrary both federal and state
law, then how can someone who assists persons evade the impact of such a “program”
[which, in practice, has imposed such a regime] be held criminally liable. Here,
defendant merely facilitated the exercise by those who sought out her assistance of their
right to not be vaccinated and not to bear the unlawful and often dire consequences of
the mandatory vaccination regime.

Recently, our courts have caught up to these concepts; for example, as explained
above, New York State has abandoned its mandatory vaccination program which costs
tens of thousands of health care workers around their state their employment and
severely harmed the delivery of health care in many parts of our state and New York City
has now been ordered to reinstate and provide back pay to teachers who sought
religious exemptions to mandatory vaccination programs in public schools, were denied,
refused to vaccinate, and lost their jobs. DiCapua, et al., v. City of NY, Index No.

85035/2023 [Sup. Ct. Staten Island 2023].
Case 1:23-cr-00158-RPK Document 35 Filed 11/09/23 Page 6 of 9 PagelD #: 185

For the Department of Justice to pursue a prosecution to penalize a person for his
exercise of legal rights is "patently unconstitutional.” Bordenkircher v Hayes, 434 US
357, 363 [1978]); Chaffin v. Stynchcombe, supra, at 32-33, n. 20; United
States v. Jackson, 390 U.S. 570.

Co-defendant claims that she did not commit fraud against the United States
because doing so would require a federal program which, in fact, did not exist here. The
government replies that the program did exist and was implemented in concert with
states. Breault joins her co-defendant’s argument.

In defending the existence of a federal program, the government points to no
statute which authorized or defined the federal program and made unlawful conduct
which interfered with it or imposed specific sanctions for any such conduct. The
government submits that the executive branch implemented a program on its own and
without any authorizing legislation. However, it is respectfully submitted that dismissal
of the indictment is warranted since fundamental principles of due process mandate
that no individual may be forced to speculate, at the peril of indictment, whether his/her
conduct is prohibited. See Grayned v. City of Rockford, 408 U.S. 104, 108
(1972); United States v. Harriss, 347 U.S. 612, 617 (1954); Lanzetta v. New Jersey, 306
U.S. 451, 453 (1939); McBoyle v. United States, 283 U.S. 25, 27 (193).

As applied here, a predicate for a lawful Indictment would have been adoption by
Congress of a law which both defined the federal program and enumerated the
consequences of its violation. The government points to no so such enactment and, to
our knowledge, there was none, notwithstanding the serious nature of the pandemic.

Congress also did not amend the afore-cited EAU statute as a predicate to any
Case 1:23-cr-00158-RPK Document 35 Filed 11/09/23 Page 7 of 9 PagelD #: 186

mandatory vaccination regime or sanction a federal program which cost workers their
jobs [with the attendant consequences] during the pandemic.

“,.. to ensure that a legislature speaks with special clarity when marking the
boundaries of criminal conduct, courts must decline to impose punishment for

actions that are not "plainly and unmistakably" proscribed. “ Dunn v United States,
442 US 100, 112-113 (1979), quoting, United States v. Gradwell, 243 U.S. 476, 485
(1917); see, also, United States v. Harris, 347 U.S. 612, 617, 98 L. Ed. 989, 74 S. Ct. 808
(1954); Lambert v. California, 355 U.S. 225, 228, 2 L. Ed. 2d 228, 78 S. Ct. 240
(1957); United States v. MacKenzie, 777 F.2d 811, 817 (2d Cir. 1985), cert. denied 476
U.S. 1169, 90 L. Ed. 2d 977, 106 S. Ct. 2889 (1986); United States v Gulla, 833 F Supp
274, 278 (SDNY 1993). This logic should apply here and make suspect prosecution of
persons who violated a program which is ineffable and was never statutorily adopted.
Here, as noted, the Government cites no specific law which criminalized
McDermott or Breault’s behavior. There is no federal law which states that people who
acted as they are alleged to have acted may be criminally prosecuted and subject to
certain punishment. Moreover, Breault acted to assist persons escape the draconian
consequences of an unauthorized federal program which had no basis in Congressional
action, was predicated upon the discredited claim that vaccinations affected the spread
of COVID and did impose actual hardships on those with contrary religious convictions
based upon that fraud. In New York State, such rationale has already been found to
have been arbitrary and capricious. “Arbitrary action is without sound basis in reason
and is generally taken without regard to the facts. Pell v. Bd. of Ed. of U.F.S. Dist. No. 1,

34 NYad 222, 231...The Mandate is entitled “Prevention of COVID-19 transmission by

covered entities” (10 NYCRR § 2.61). In true Orwellian fashion, the Respondents
. Case 1:23-cr-00158-RPK Document 35 Filed 11/09/23 Page 8 of 9 PagelD #: 187

acknowledge then-current COVID-19 shots do not prevent transmission...” Medical
Profs. at 586.

Accordingly, assisting these individuals avoid something which both Congress
and the New York State legislature specifically prohibited should not subject Breault to
criminal prosecution. “Making it easy for people to cheat on their taxes hardly deserves
a good conduct medal. And Caldwell might indeed have conspired to obstruct the
government by deceitful or dishonest means; the government may still try to prove this
by retrying her before a properly instructed jury. But what the government actually did
prove - that Caldwell conspired to make the IRS's job harder - just isn't illegal. “There
are places where, until recently, "everything which [was] not permitted [was] forbidden .
. .. Whatever [was] permitted [was] mandatory .... Citizens were shackled in their
actions by the universal passion for banning things." Yeltsin Addresses RSFSR Congress
of People’s Deputies, BBC Summary of World Broadcasts, Apr. 1, 1991, available
in LEXIS, Nexis Library, OMNI file. F ortunately, the United States is not such a place,
and we plan to keep it that way. If the government wants to forbid certain conduct, it
may forbid it. If it wants to mandate it, it may mandate it. But we won't lightly infer that
in enacting 18 U.S.C. § 371 Congress meant to forbid all things that obstruct the
government or require citizens to do all those [**11] things that could make the
government's job easier. So long as they don't act dishonestly or deceitfully, and so long
as they don't violate some specific law, people living in our society are still free to
conduct their affairs any which way they please.” United States v Caldwell, 989 Fed

1056, 1061 [9th Cir 1993].
Case 1:23-cr-00158-RPK Document 35 Filed 11/09/23 Page 9 of 9 PagelD #: 188

CONCLUSION

Contrary to the government’s characterization of defendants’ arguments as
“factual”, in fact, under the plain language of the EUA statute, the CDC and HHS lacked
authority to mandate EUA vaccines in the first instance, as Congress had specifically
prohibited mandatory vaccination with an EUA. Further, as a matter of law, New York
state legislature strictly prohibited the mandatory vaccination of adult, non-student
residents of its State.

Thus, the court should dismiss the indictment in its totality, as having no basis in
law.

Dated: November 7, 2023.

Goshen, New York

Yours respectfully,

MICHAEE SUSSMAN (3€2%)
SUSSMAN & GOLDMAN

PO BOX 1005
GOSHEN, NEW YORK 10924

(845)-294-3991

Counsel for Breault

Mary Jo Whateley, Esq., on the brief

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