A former nurse convicted of spreading hepatitis C in two Northern Utah hospitals by diverting injectable narcotics from patients is trying again to get a compassionate early release from her five-year federal prison term.
In a 13-page, handwritten motion to U.S. District Judge Howard Nielson Jr. filed in Salt Lake City on Friday, Elet Neilson claimed she has heightened risk from COVID-19 because she has hepatitis C.
The former emergency room and intensive care registered nurse, who worked at McKay-Dee and Davis hospitals, also said she has rejected an offer of the Moderna vaccine where she is incarcerated, the minimum security Alderson prison camp in West Virginia.
“I have had adverse reactions to vaccines in the past,” she said. “I have no confidence in the substandard medical care (at the prison) to treat such a reaction in an urgent manner.”
She further said she is at greater risk for COVID-19 because she had a history of smoking, is overweight and had a substance use disorder.
Neilson, 54, was sentenced in January 2020 to five years in prison and a subsequent two years of supervised probation. She had pleaded guilty to two counts of tampering with a consumer product and two counts of fraudulently obtaining a controlled substance.
Prosecutors said Neilson in 2014-15 shorted patients of narcotics injection doses, using the remaining drugs herself. In the process, she spread the disease to at least seven people. The hospitals together alerted 7,200 former patients who may have been exposed and offered them free blood tests.
Neilson first petitioned U.S. District Judge Dee Benson for compassionate release during 2020, but the judge denied the request, saying hepatitis C was not on the list of conditions listed by the Centers for Disease Control and Prevention as presenting an elevated risk. She otherwise did not present a compelling case for release, he said.
Nielson handled the nurse’s appeal of Benson’s decision, but he also denied it, in February this year. Nielson said Neilson had presented no new evidence in her favor, including any controlling decisions in the federal courts justifying her request.
In her new appeal, Neilson cites several federal circuit court decisions that she argues give the judge discretion to release her. One such opinion from the 4th U.S. Circuit Court of Appeals said “conditions not contemplated by the original sentencing court undoubtedly increase a prison sentence’s punitive effect,” she said.
In his February decision, Neilson pointed out that the prison sentence imposed by Benson was three months less than called for by guidelines for her crime. He also said Neilson still has served only a fraction of her five-year term.
Neilson’s letter included some expression of remorse, a listing of her favorable qualities, the needs of her husband and autistic teenage son waiting for her at home in Layton, plus a litany of complaints about consequences of her sentence and her objections to U.S. Bureau of Prisons policies.
“My offense was unintentional as I was ignorant to the fact that I was a carrier of the hepatitis C virus,” she said. “I was not ignorant, however, of the fact that self medicating with controlled medication not prescribed to me was terribly wrong. The remorse, guilt and shame I still carry nearly seven years later is real.”
Neilson said she was enduring a divorce at the time, working nights, being a single mother to two children and “rebuilding a home I purchased that was burned down by fire.”
“I was broken,” she said. “I made (a) poor choice to self-medicate.”
She told Nielson she think she’s been punished enough already.
“After enduring extensive public humiliation and the negative attention my case drew, the deterrence for me is more than satisfied,” she said.
She said she will begin the Bureau of Prisons’ Residential Drug Abuse Program, RDAP, in June and already has completed other rehabilitation programs.
But she complained about not getting a year trimmed from her sentence for taking RDAP.
“At sentencing I was led to believe by the court I would qualify for 12 months off my sentence upon completion of the RDAP program,” she said, but the BOP later told her she did not qualify for that reduction.
Neilson also said her case manager said she “would consider me for home confinement” upon early release, but she did not qualify for that either.
Under COVID-19 restrictions, the Alderson camp “feels like a maximum security lockdown facility,” she said, adding that religious services are not offered to her and that instead of hot food, inmates get “three brown-bag cold expired meals daily.”
The U.S. Attorney’s Office in Utah has not yet responded to Neilson’s latest release request, but prosecutors last year lambasted her request.
“The elephant in the room, now expressed, is that the defendant contracted hepatitis C by committing her crimes and spread that same disease to seven known and innocent persons while acting in the capacity of an ER nurse under the imputed ethic of doing no harm,” they said in court files.
If she is released, it would mean “crime, for her, would pay,” the prosecution said. “Sustaining a motion that is based in such palpable irony would lead to an entirely bizarre and unjust result.”
The Attorney’s Office also pointed to Neilson’s DUI arrest in Davis County while she was awaiting trial on the federal felony charges against her.
Neilson pleaded guilty in 2019 to a reduced charge of class B misdemeanor impaired driving in Layton.
In 2015, before the larger hepatitis C investigation began, she pleaded guilty in an Ogden court to class A misdemeanor attempted possession or use of a controlled substance. That case stemmed from her time at McKay-Dee.