Court filing
REPLY by Kisha Sutton as to Kisha Sutton, Shamiese Wright, Cylena… — United States of America v. Sutton et al (Dkt. 220)
Summary
Document 220, filed 05/30/25 in Case No. 2:24-cr-00192, in the U.S. District Court for the Southern District of West Virginia, Charleston, is a six-page reply by Kisha Sutton, through counsel Connor Robertson, to the government's response in opposition (ECF 216). It argues that bank fraud is a continuing offense but is executed when the application is submitted and funds move, so later acts such as the co-defendants' kickback payments in West Virginia cannot supply venue. The reply cites Fourth Circuit and other decisions on essential conduct elements and a District of Maryland dismissal for lack of venue. It says the indictment relies only on acts after the PPP loan applications were executed in New Jersey and asks the court to dismiss Counts Two through Ten for lack of venue.
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Record facts
| Court | U.S. District Court for the Southern District of West Virginia |
|---|---|
| Filed | 2025-05-30 |
Cite this document
“REPLY by Kisha Sutton as to Kisha Sutton, Shamiese Wright, Cylena… — United States of America v. Sutton et al (Dkt. 220).”
U.S. District Court for the Southern District of West Virginia, No. 2:24-cr-00192, Doc. 220, filed 2025-05-30. Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/full-docket-damisha-brown-wvsd-240502/2025-05-30-gov-uscourts-wvsd-240502-220-0-doc-220/
, SHA-256 f53a36f0e4438079178f5aec957c2a6f976d9d59706e0f0fec7ec62474ca49bc.Full text
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON UNITED STATES OF AMERICA, PLAINTIFF, V. CASE NO.: 2:24-cr-00192 KISHA SUTTON, DEFENDANT. DEFENDANT KISHA SUTTON’S REPLY TO RESPONSE IN OPPOSITION (ECF 216) Now comes the Defendant, Kisha Sutton, by and through counsel, Connor Robertson,andherebyrepliestotheUnitedStates’ResponseinOpposition(ECF216)and states as follows: Continuing Offense 1. Defendant, Kisha Sutton, recognizes that Bank Fraud is a continuing offense, but the offense ends upon the application submission and the movement of funds. Acts in Furtherance Do Not Count 2. The Government would like the Court to believe this means that acts occurring after the “execution” of the bank fraud scheme count. As applied, they want the Court to believe that the co-defendants’ acts of providing “kickback” paymentsin the Southern District of West Virginia fall within the continuing nature of Bank Fraud. However, this is against 4th Circuit case law as pointed out in Defendant Sutton’s original Objections. “Similarly,actswhichoccuronlyinfurtheranceofthe crime or after a crime iscompletecannotprovideabasisforvenuebecausethey Case 2:24-cr-00192 Document 220 Filed 05/30/25 Page 1 of 6 PageID #: 1182 arenotessentialtotheunderlyingoffense.”UnitedStatesv.Jefferson,674F.3d332, 367 (4th Cir. 2012) (finding venue improper for a wire fraud case because although acts in furtherance of the crime occurred in the relevant district, “the physical act of transmitting the wire communication for thepurposeofexecuting the fraud scheme,” did not); United States v. Harris, No. 3:12-cr-170, 2013 WL 1790140,at*2(E.D.Va.Apr.26,2013)(actiontakenafteracrimeiscomplete“does notqualifyasessentialconductoftheoffenseforthesimplereasonthatthecrime has already been completed”). 3. UnitedStatesv.Harris,No. 3:12-cr-170, 2013 WL 1790140, at *2 (E.D. Va. Apr. 26, 2013) (action taken after a crime is complete “does not qualify as essential conduct of theoffenseforthesimplereasonthatthecrimehasalready been completed”). Essential Conduct Element Count 4. The Defendant’s fixation on the “essential conduct element” of bank fraud is becausethe4thcircuithasdeterminedthatiswhattheCourtshouldevaluatewhen determiningvenue.“[V]enueisgenerallylimitedtotheplaceinwhichthe“essential conduct” elements oftheoffenseoccurred.”UnitedStatesv.Sterling,860F.3d233, (4thCir.2017).Itisuniversalthatthe“execution”ofthebankfraudistheessential element of the crime. “The bank fraud statute punishes the execution of the scheme.”United States v. Lemons,941 F.2d 309, 318 (5th Cir. 1991). 5. “A scheme is executedbythemovementofmoney,fundsorotherassetsfromthe institution,” United States v. Mancuso, 42 F.3d 578, 847 (4th Cir. 1994), and this Case 2:24-cr-00192 Document 220 Filed 05/30/25 Page 2 of 6 PageID #: 1183 movement of the money from the financial institution completes theexecutionof the scheme.United States v. Christo,129 F.3d 578, 580 (11th Cir. 1997). 6. Basedonthecaselaw,thefactthattheIndictmentliststhattheco-defendantswere intheSouthernDistrictofWestVirginiawhentheyprovidedthe“kickback”isofno moment to this court. 7. United States v. Adkinson, 158 F.3d 1147 (11th Cir. 1998) is an analogous case pointing out that only one phaseoftheusualthreephasesthathappeninabank fraudcasematter.InAdkinson,torebuttheattackonthesufficiencyoftheevidence challenge the Government wanted the Court to consider evidence of the three phasesofaschemetodefraud.Id.at1160.(“Thefirstphasewasthenegotiationsto buytheproperty,thesecondwastheapplicationforandreceiptoftheloansfrom Hill and Vision Banc; thethirdwasthecover-upofthefraudanddiversionofthe funds.”) (Incomparisontothecasebeforethiscourt,thefirstphasewouldbethe co-defendants providing their personal information to Ms. Sutton, the second phases would be the application and movement of funds by Ms. Sutton, and the thirdwouldbethe“kickback”.)TheAdkinsonCourtheldthatonlyrelevantphaseof bank fraud is the second – the application for and receipt of the loans: “The only phase of this scheme that is relevant to the substantive offenseofbankfraudisthesecond--theapplicationforandreceiptofthe loans.Bankfraudconsistsofmakingofmaterialmisrepresentationsduring that process. . . .” 8. The4thCircuithaslikewiseheldthattheschemetodefraudisanessentialelement ofwirefraud,butnotan“essentialconductelement”forvenuepurposes.“Indeed, the court determined that devising a scheme to defraud is clearly an essential element, but not an essential conduct element, of wire (or mail) fraud.” United Case 2:24-cr-00192 Document 220 Filed 05/30/25 Page 3 of 6 PageID #: 1184 Statesv.Jefferson,674F.3d332,366(4thCir.2012). “Rather,‘theessentialconduct prohibitedby[thewirefraudstatue]isthemisuseofwiresaswellasanyactsthat causesuchmisuse.”Id.at366.“Thus,becausetheessentialconduct,theactualwire transmission, did not involve the EasternDistrictofVirginia,venuewasimproper there.”Id. 9. Thesameanalysisgoesformajorfraudcrimes.InUnitedStatesv.Verclas,CaseNo.: GJH-18-160 (D. Md. Jan. 03, 2019), the Court dismissed an Indictment for lackof venue where there was no allegation thatVerclasexecutedherallegedschemein the District of Maryland when she submitted her fraudulentapplicationfromher office in New York. Importantly, the court found that “[o]nce the Defendant submitted the application,theschemehadbeenexecutedandshedidnotneedto engage in any additional conduct to commit the crime of Major Fraud.”Id. 10.All of these cases point out that the Government must allege that the execution portion of the bank fraud occurred in the Southern district ofWestVirginia.The Indictment before this Court, and the argument of the Government, only rely on acts that occurred after the execution of the PPPloanapplicationsinNewJersey. For this reason, the Indictment is insufficient to establish venue. Conclusion WHEREFORE, the Defendant respectfully requests the Court enter an Order dismissing Counts Two through Ten for lack of venue and for other such relief as is necessary and proper. Respectfully submitted, By Counsel Case 2:24-cr-00192 Document 220 Filed 05/30/25 Page 4 of 6 PageID #: 1185 S://Connor D. Robertson________ Connor Robertson (11460) ROBERTSON LAW PLLC 2939 Virginia Avenue, Suite 2010 Hurricane, WV 25526 (304) 557-1601 cdr@croblaw.com Case 2:24-cr-00192 Document 220 Filed 05/30/25 Page 5 of 6 PageID #: 1186 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON UNITED STATES OF AMERICA, PLAINTIFF, V. CASE NO.: 2:24-CR-000192-01 KISHA SUTTON, DEFENDANT. CERTIFICATE OF SERVICE I, Connor Robertson, certify that on the 30th day of May, 2025, a copy of the foregoing motion was served on theUnitedStatesbyECF,toJonathanStorage,Assistant United States Attorney to the following: Jonathan Storage Assistant United States Attorney Jonathan.Storage@usdoj.gov S:// Connor D. Robertson Connor Robertson (11460) ROBERTSON LAW PLLC 2939 Virginia Avenue, Suite 2010 Hurricane, WV 25526 (304) 557-1601 CDR@CROBLAW.COM Case 2:24-cr-00192 Document 220 Filed 05/30/25 Page 6 of 6 PageID #: 1187
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