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PROPOSED JURY INSTRUCTIONS by United States of America as to… — United States of America v. Sutton et al (Dkt. 211)
Record facts
| Court | U.S. District Court for the Southern District of West Virginia |
|---|---|
| Filed | 2025-05-27 |
U.S. District Court for the Southern District of West Virginia · No. 2:24-cr-00192 · Doc. 211 · 2025-05-27 · Docket on CourtListener
Summary
The proposed jury instructions of the United States in United States v. Kisha Sutton, et al., Criminal No. 2:24-cr-00192, in the U.S. District Court for the Southern District of West Virginia, filed May 27, 2025 as Doc. 211. The first instructions cover Count One of the Superseding Indictment, which charges Kisha Sutton and Shamiese Wright with conspiracy to commit bank fraud under 18 U.S.C. §§ 1344 and 1349. For Counts Two through Ten, aiding and abetting bank fraud, they recite the charge that a PPP loan application to Financial Institution 3 stated gross income of $75,000 and that the loan was funded for $15,625 on or about May 7, 2021. Other instructions define financial institution, scheme or artifice, knowingly and willful blindness, and address venue. The 30-page filing is signed by Assistant United States Attorney Jonathan T. Storage.
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Full text
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON
UNITED STATES OF AMERICA
v.
CRIMINAL NO. 2:24-cr-00192
KISHA SUTTON, ET AL.
PROPOSED JURY INSTRUCTIONS OF THE UNITED STATES
Comes now the United States of America, by Jonathan T.
Storage, Assistant United States Attorney for the Southern
District of West Virginia, and submits the following proposed jury
instructions.
Respectfully submitted,
LISA G. JOHNSTON
Acting United States Attorney
By:
/s/ Jonathan T. Storage
JONATHAN T. STORAGE
Assistant United States Attorney
WV Bar No. 12279
300 Virginia Street, East
Room 4000
Charleston, WV 25301
Telephone: (304) 345-2200
Fax: (304) 347-5705
Email: jonathan.storage@usdoj.gov
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UNITED STATES PROPOSED INSTRUCTION NO. 1
COUNT ONE: CONSPIRACY TO COMMIT BANK FRAUD
(18 U.S.C. §§ 1344 and 1349)
NATURE OF THE OFFENSE CHARGED
Count One of the Superseding Indictment charges defendants
KISHA SUTTON and SHAMIESE WRIGHT with violating Title 18, United
States Code, Sections 1344 and 1349, more specifically as follows:
Count One of the Superseding Indictment charges that
beginning no later than in or about April 2021, and continuing
until at least in or about July 2021, at or near Charleston,
Kanawha County, West Virginia, within the Southern District of
West Virginia, and elsewhere, defendants KISHA SUTTON and SHAMIESE
WRIGHT knowingly and intentionally conspired with each other and
with other persons both known and unknown to the Grand Jury, to
commit bank fraud in violation of 18 U.S.C. § 1344, that is, to
knowingly execute a scheme and artifice to defraud Financial
Institutions 1, 2, and 3, and to obtain moneys, funds, credits,
assets, securities, and other property owned by, and under the
custody and control of Financial Institutions 1, 2, and 3 by means
of false and fraudulent pretenses, representations, and promises
made in PPP loan applications and Schedules C.
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UNITED STATES PROPOSED INSTRUCTION NO. 2
COUNT ONE: CONSPIRACY TO COMMIT BANK FRAUD
(18 U.S.C. §§ 1344 & 1349)
ELEMENTS OF THE OFFENSE
First: that two or more persons agreed to commit bank fraud;
and
Second: that at some time during the conspiracy, the defendants
had knowledge of the criminal objective of the agreement
and willfully joined the conspiracy with the intent to
further its unlawful purpose.
United States v. Vinson, 852 F.3d 333, 351 (4th Cir. 2017).
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UNITED STATES PROPOSED INSTRUCTION NO. 3
ESSENCE OF A CONSPIRACY
The essence of conspiracy is the combination of minds in an
unlawful purpose.
Smith v. United States, 568 U.S. 106, 110 (2013).
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UNITED STATES PROPOSED INSTRUCTION NO. 4
MEMBERSHIP IN A CONSPIRACY
Upon joining a criminal conspiracy, a defendant's membership
in the ongoing unlawful scheme continues until he withdraws.
Because conspiracy is a continuing offense, a defendant who
has joined a conspiracy continues to violate the law through every
moment of the conspiracy's existence, and he becomes responsible
for the acts of his co-conspirators in pursuit of their common
plot.
Smith v. United States, 568 U.S. 106, at 107 & 111 (2013).
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UNITED STATES PROPOSED INSTRUCTION NO. 5
OVERT ACT NOT REQUIRED
When an indictment alleges conspiracy under 18 U.S.C. § 1349,
there is no overt-act requirement.
United States v. Chinasa, 789 F. Supp. 2d 691, 696 (E.D. Va. 2011),
aff'd, 489 F. App'x 682 (4th Cir. 2012).
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UNITED STATES PROPOSED INSTRUCTION NO. 6
COUNTS TWO THROUGH TEN: AIDING AND ABETTING BANK FRAUD
(18 U.S.C. §§ 1344 & 2)
NATURE OF THE OFFENSE CHARGED
Counts Two of the Superseding Indictment charges defendants
KISHA SUTTON and SHAMIESE WRIGHT with violating Title 18, United
States Code, Sections 1344 and 2. Additionally, Counts Three
through Ten of the Superseding Indictment charge defendant KISHA
SUTTON with violating Title 18, United States Code, Sections 1344
and 2.
Count Two of the Superseding Indictment charges that between
no later than on or about April 19, 2021, and continuing until at
least on or about May 21, 2021, defendants KISHA SUTTON and
SHAMIESE WRIGHT, aided and abetted by each other, knowingly
executed and attempted to execute a scheme or artifice to defraud
a financial institution. On or about April 19, 2021, defendant
KISHA SUTTON caused the submission of a PPP loan application and
a Schedule C to Financial Institution 3 on behalf of defendant
SHAMIESE
WRIGHT
and
with
defendant
SHAMIESE
WRIGHT's
authorization. The application and the Schedule C stated that
defendant SHAMIESE WRIGHT was a sole proprietor of a business that
was established January 1, 2017. The application stated that in
2020, the business had a gross income of $75,000. As part of the
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application, a 2020 Schedule C was submitted listing gross receipts
of $75,000 and a net profit of $48,750. In fact, defendant SHAMIESE
WRIGHT did not have a business in 2020 with those gross receipts
and profit. Defendant SHAMIESE WRIGHT's 2020 tax return listed
$21,716 in wages and no business income or expenses. Defendant
SHAMIESE WRIGHT applied for unemployment compensation throughout
2020 and stated, several times, that she was not self-employed.
Financial Institution 3 funded defendant SHAMIESE WRIGHT's PPP
loan for $15,625 on or about May 7, 2021. Between on or about May
7, 2021, and on or about May 21, 2021, Defendant SHAMIESE WRIGHT,
within the Southern District of West Virginia, remitted $3,000 of
the fraudulent PPP loan proceeds to defendant KISHA SUTTON.
Defendant SHAMIESE WRIGHT spent the remainder of the PPP loan
proceeds on personal, ineligible expenses.
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UNITED STATES PROPOSED INSTRUCTION NO. 7
COUNTS TWO THROUGH TEN: AIDING AND ABETTING BANK FRAUD
(18 U.S.C. §§ 1344 & 2)
ELEMENTS OF THE OFFENSE
Aiding and abetting a crime possesses the same elements as
the underlying offense.
First: A person aids and abets a crime when he intends to
facilitate that offense's commission.
Second: A person commits bank fraud when he knowingly executes,
or attempts to execute, a scheme or artifice -
a.
to defraud a financial institution; or
b.
to obtain any of the moneys, funds, credits,
assets, securities, or other property owned by, or
under the custody or control of, a financial
institution, by means of false or fraudulent
pretenses, representations, or promises.
United States v. Draven, 77 F.4th 307, 318 (4th Cir. 2023);
Rosemond v. United States, 572 U.S. 65, 76 (2014); 18 U.S.C. §
1344.
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UNITED STATES PROPOSED INSTRUCTION NO. 8
ALTERNATIVE METHODS TO PROVING BANK FRAUD
Bank fraud may be established under two alternative methods:
(1) defrauding a financial institution OR (2) obtaining property
owned by, or under the custody or control of, a financial
institution,
by
means
of
false
or
fraudulent
pretenses,
representations, or promises.
Where a statute defines two or more ways in which an offense
may be committed, all may be alleged in the conjunctive in one
count.
United States v. Saintvil, No. 22-10004, 2023 WL 3644976, at *4
(11th Cir. May 25, 2023), cert. denied, 144 S. Ct. 1067, (2024),
reh'g denied, 144 S. Ct. 2555, (2024).
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11
UNITED STATES PROPOSED INSTRUCTION NO. 9
DEFINITION OF FINANCIAL INSTITUTION
As used in the Superseding Indictment, the term "financial
institution" means a mortgage lending business.
18 U.S.C. § 20(10).
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UNITED STATES PROPOSED INSTRUCTION NO. 10
DEFINITION OF MORTGAGE LENDING BUSINESS
The term "mortgage lending business" means an organization
which finances or refinances any debt secured by an interest in
real estate, including private mortgage companies and any
subsidiaries of such organizations, and whose activities affect
interstate or foreign commerce.
18 U.S.C. § 27.
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UNITED STATES PROPOSED INSTRUCTION NO. 11
DEFINITION OF SCHEME OR ARTIFICE
The words “scheme or artifice” include any plan or course
of action intended to deceive or cheat others.
A “scheme or artifice to defraud" may be shown by deceptive
acts or contrivances intended to hide information, mislead, avoid
suspicion, or avert further inquiry into a material matter.
Pattern Jury Instructions for Federal Criminal Cases, Eric Wm.
Ruschky, 2020 Online Edition (pg. 262); United States v. Colton,
231 F.3d 890, 901 (4th Cir. 2000).
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UNITED STATES PROPOSED INSTRUCTION NO. 12
DEFINITION OF DEFRAUD
“To defraud” means wronging one in his property rights by
dishonest methods or schemes and usually signifies the deprivation
of something of value by trick, deceit, chicanery, or overreaching.
Pattern Jury Instructions for Federal Criminal Cases, Eric Wm.
Ruschky, 2020 Online Edition (pg. 262).
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UNITED STATES PROPOSED INSTRUCTION NO. 13
SHOWING OF ACTUAL FINANCIAL LOSS OR INTENT TO CAUSE FINANCIAL
LOSS NOT REQUIRED
The bank fraud statute does not require the government to
show any ultimate financial loss or a showing of intent to cause
financial loss.
Shaw v. United States, 580 U.S. 63, 67 (2016).
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UNITED STATES PROPOSED INSTRUCTION NO. 14
“KNOWINGLY”
An act is performed "knowingly" if it is done voluntarily and
intentionally, and not because of mistake or accident or other
innocent reason.
United States v. Jones, 735 F.2d 785, 789 (4th Cir. 1984).
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UNITED STATES PROPOSED INSTRUCTION NO. 15
“WILLFUL BLINDNESS”
The United States may prove that the defendant acted
“knowingly” by proving, beyond a reasonable doubt, that the
defendant deliberately closed his eyes to what would otherwise
have been obvious to him. No one can avoid responsibility for a
crime by deliberately ignoring what is obvious. A finding beyond
reasonable doubt of the intent of the defendant to avoid knowledge
or enlightenment would permit the jury to infer knowledge. Stated
another way, a defendant’s knowledge of a particular fact may be
inferred from a deliberate or intentional ignorance or deliberate
or intentional blindness to the existence of that fact.
One may not willfully or intentionally remain ignorant of a
fact material or important to his conduct to escape the
consequences of criminal law. If you find beyond a reasonable
doubt that the defendant was aware of a certain fact but he
deliberately and consciously avoided confirming this fact so he
could deny knowledge if apprehended, then you may treat this
deliberate avoidance as the equivalent of knowledge, unless you
find the defendant actually believed this fact not to be true. A
showing of negligence, mistake or even foolishness on the part of
the defendant is not enough to support an inference of knowledge.
It is, of course, entirely up to you as to whether you find
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any deliberate ignorance or deliberate closing of the eyes and the
inferences to be drawn from any such evidence.
You may not infer that the defendant had knowledge, however,
from proof of a mistake, negligence, carelessness, or a belief in
an inaccurate proposition.
1A O’Malley, Grenig & Lee, Federal Jury Practice and Instructions,
' 17.09 (6th ed. 2008); United States v. Guay, 108 F.3d 545, 551
(4th Cir. 1997); United States v. Hopkins, 53 F.3d 533 (2d Cir.
1995), cert. denied, 516 U.S. 1072 (1996); United States v. Gordon,
754 F. App’x. 171 (4th Cir. 2018) (jury could infer defendant
willfully avoided learning that funds came from illegal activity
by failing to ask questions of person who supplied the funds, or
notice obvious red flags raised by the odd nature of transactions)
(evidence at trial supported both actual knowledge and willful
blindness; if jury concluded defendant lacked actual knowledge as
to the nature of the funds, they could conclude he willfully
avoided learning this fact); United States v. Campbell, 977 F.2d
854, 859 (4th Cir. 1992) (real estate agent willfully blind to
client’s use of drug proceeds to purchase house); United States v.
Campbell, 977 F.2d 854, 859 (4th Cir. 1992) (real estate agent
willfully blind to client’s use of drug proceeds to purchase
house); United States v. Vinson, 852 F.3d 333, 357 (4th Cir. 2017)
(where evidence suggested, “at a minimum,” defendant failed to ask
questions that might have incriminated him, trial court acted well
within its discretion in giving willful blindness instruction);
United States v. Hoffler-Riddick, No. 4:05cr9, 2006 WL 2381859, *5
(E.D. Va. Aug. 16, 2006) (person who has a “strong suspicion” that
the money a drug dealer is using to conduct a financial transaction
is drug proceeds is willfully blind if she deliberately avoids
learning the truth) (“a willful blindness instruction is
appropriate even when there is evidence of both actual knowledge
and deliberate ignorance”); aff’d in part, rev’d in part, &
remanded by 253 F. App’x. 249 (4th Cir. 2007); United States v.
Sterling, 701 F. App’x. 196 (4th Cir. 2017) (willful blindness
instruction appropriate where defendant in lottery scam received
large sums of cash and wire transfers from persons she did not
know and subsequently transferred most of those funds to co-
conspirators in Jamaica; evidence also showed defendant’s fax
machine was used in the middle of the night to send documents
furthering the lottery scam); United States v. Nicholson, 176 F.
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App’x. 386, 400 (4th Cir. 2006) (willful blindness instruction as
to defendant’s knowledge of the source of the money she used to
buy a house was appropriate where the money came from defendant’s
son, who dealt drugs from defendant’s home and had no other visible
source of income); United States v. Hatcher, 132 F. App’x. 468,
475 (4th Cir. 2005) (“a willful blindness instruction is
appropriate even when there is evidence of both actual knowledge
and deliberate ignorance”); United States v. Hatcher, 132 F. App’x.
468, 475 (4th Cir. 2005) (“a willful blindness instruction is
appropriate even when there is evidence of both actual knowledge
and deliberate ignorance”); United States v. Matai, 173 F.3d 426
(4th Cir. 1999) (Table) (willful blindness instruction appropriate
where there is evidence of deliberate ignorance even though there
is also evidence of actual knowledge).
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UNITED STATES PROPOSED INSTRUCTION NO. 16
EVIDENCE INFERENCES -- DIRECT AND CIRCUMSTANTIAL
There are two types of evidence from which you may find the
truth as to the facts of a case -- direct and circumstantial
evidence. Direct evidence is the testimony of one who asserts
actual knowledge of a fact, such as an eyewitness.
Circumstantial evidence is where one fact or a chain of facts
gives rise to a reasonable inference of another fact. If one fact
or group of facts on the basis of common sense and common
experience leads you logically and reasonably to infer other facts,
then this is circumstantial evidence. Circumstantial evidence is
no less valid and no less weighty than direct evidence provided
the inferences drawn are logical and reasonable. In a criminal
case where a defendant's state of mind is at issue, where there
are questions of what the defendant intended or what his purpose
was, circumstantial evidence is often an important means of proving
what the state of mind was at the time of the events in question.
Sometimes it is the only means of proving state of mind.
While you should consider only the evidence, you are permitted
to draw such reasonable inferences from the testimony and exhibits
as you feel are justified in the light of common experience. In
other words, you may make deductions and reach conclusions that
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21
reason and common sense lead you to draw from the facts that have
been established by the evidence.
The law makes no distinction between the weight to be given
to either direct or circumstantial evidence. Nor is a greater
degree of certainty required of circumstantial evidence than of
direct evidence. Do not be concerned about whether evidence is
“direct evidence” or “circumstantial evidence.” You should
consider and weigh all of the evidence that was presented to you.
Pattern Jury Instructions of the District Judges Association of
the Fifth Circuit, Criminal Cases, Instruction No. 1.08 (1990); 1A
O’Malley, Grenig & Lee, Federal Jury Practice and Instructions, '
12.04 (6th ed. 2008); United States v. Dizdar, 581 F.2d 1031, 1036-
37 (2d Cir. 1978).
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22
UNITED STATES PROPOSED INSTRUCTION NO. 17
STATEMENTS OF COUNSEL AND STIPULATIONS
Statements and arguments of counsel are not evidence in the
case. When the attorneys on both sides stipulate or agree as to
the existence of a fact, you may, however, accept the stipulation
as evidence, and regard that fact as being proven. You are not
bound by stipulations, however, because the jury alone decides the
facts and their importance to the case.
United States v. Muse, 83 F.3d 672, 678 (4th Cir. 1996).
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UNITED STATES PROPOSED INSTRUCTION NO. 18
“ON OR ABOUT” -- PROOF OF
You will note the Indictment charges that the offenses were
committed “on or about” a certain date. The proof need not
establish with certainty the exact date of the alleged offenses.
It is sufficient if the evidence in the case establishes beyond a
reasonable doubt that the offenses were committed on a date
reasonably near the date alleged.
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UNITED STATES PROPOSED INSTRUCTION NO. 19
“AT OR NEAR” -- PROOF OF
You will note the Indictment charges that the offenses were
committed “at or near” a certain location. The proof need not
establish with certainty the exact location of the alleged
offenses. It is sufficient if the evidence in the case establishes
beyond a reasonable doubt that the offenses were committed at a
location reasonably near the location alleged.
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UNITED STATES PROPOSED INSTRUCTION NO. 20
“SYMPATHY”
You have been chosen and sworn as jurors in this case to try
the issues of fact presented by the allegations of the Indictment
and the denial made by the not guilty plea of the defendant. This
must be decided on the evidence that is presented in this case and
not from anything else.
You are to perform this duty without bias or prejudice as to
any party. You are not permitted to be governed by sympathy or
public opinion. Both the defendant and the public expect that you
will carefully and impartially consider all the evidence in the
case, follow the law as stated by the Court and reach a just
verdict, regardless of the consequences.
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UNITED STATES PROPOSED INSTRUCTION NO. 21
JUDICIAL NOTICE
During the course of this trial, the Court took judicial
notice of the fact that the city of Charleston is located in
Kanawha County, within the Southern District of West Virginia. We
know this fact to be true.
Since this is a criminal case, you may, but are not required
to accept as conclusive, any facts of which the Court has taken
judicial notice. If you choose to accept, as conclusive, any facts
which the Court has judicially noted, then such facts may be
regarded as evidence in the case without further proof, and are to
be weighed by you along with other evidence in the case.
1A O’Malley, Grenig & Lee, Federal Jury Practice and Instructions,
' 12.03 (6th ed. 2008) (modified).
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UNITED STATES PROPOSED INSTRUCTION NO. 22
TAPES AND TRANSCRIPTS
Recordings of various events and conversations have been
admitted into evidence. Transcripts of these recordings have been
prepared. The recording – not the transcript – is the evidence.
Therefore, the transcript is not in evidence. The transcript is
only to be used as a guide in following the recording. Your
understanding of the recording, rather than the transcript, is to
govern your deliberations.
If you detect any discrepancy between the recording and the
transcript, you are to consider as evidence only what you observe
in the recording.
1A O’Malley, Grenig & Lee, Federal Jury Practice and Instructions,
' 11.10 (6th ed. 2008); United States v. Meredith, 824 F.2d 1418,
1428 (4th Cir. 1987); United States v. Collazo, 732 F.2d 1200,
1203 (4th Cir. 1984); United States v. Long, 651 F.2d 239, 243
(4th Cir. 1981); United States v. Bryant, 480 F.2d 785, 791 (2d
Cir. 1973).
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UNITED STATES PROPOSED INSTRUCTION NO. 23
VENUE
Pursuant to the Constitution of the United States, a defendant
must be tried where the alleged crime was committed.
The selection of venue in a bank fraud prosecution is governed
by the general venue statute for federal criminal offenses.
The general venue statute provides that any offense against
the United States begun in one district and completed in another,
or committed in more than one district, may be inquired of and
prosecuted in any district in which such offense was begun,
continued, or completed.
Venue for a federal criminal prosecution is to be determined
from the nature of the crime alleged and the location of the act
or acts constituting it.
There may be more than one appropriate venue for such a
federal criminal charge, and a particular venue is not improper
simply because the defendant was never physically present there.
Unlike the elements of a charged crime, which must be proven
beyond a reasonable doubt, the government must prove venue by a
preponderance of the evidence.
United States v. Bankole, 39 F. App'x 839 (4th Cir. 2002)
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UNITED STATES PROPOSED INSTRUCTION NO. 24
PREPONDERANCE OF THE EVIDENCE
The burden of showing something by a preponderance of the
evidence simply requires the jury to believe that the existence of
a fact is more probable than its nonexistence.
United States v. Manigan, 592 F.3d 621, 631 (4th Cir. 2010).
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CERTIFICATE OF SERVICE
It is hereby certified that the foregoing “PROPOSED JURY
INSTRUCTIONS OF THE UNITED STATES” has been electronically filed
and service has been made on opposing counsel by virtue of such
electronic filing this 27th day of May, 2025.
/s/ Jonathan T. Storage
JONATHAN T. STORAGE
Assistant United States Attorney
WV Bar No. 12279
300 Virginia Street, East
Room 4000
Charleston, WV 25301
Telephone: (304) 345-2200
Fax: (304) 347-5705
Email: jonathan.storage@usdoj.gov
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