Plea Agreement as to Damisha Brown. (cc: U.S. Probation Office) — United States v. Sutton et al. (Dkt. 240, S.D. W. Va.)

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U.S. District Court for the Southern District of West Virginia · No. 2:24-cr-00192 · Doc. 240 · 2025-06-05 · Docket on CourtListener

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FILED
JUN - § 2025

United States Department of Justice

United States Attorney
RORY PERRY 1, CLERK Southern District of West Virginia
.S. District Court
Southern District ot West Virginia
Robert C. Byrd United States Courthouse 1-800-659-8726
300 Virginia Street, East 304-345-2200
Suite 4000 FAX: 304-347-5104

Charleston, WV 25301

May 15, 2025

Clayton T. Harkins
Dinsmore & Shohl LLP

707 Virginia Street, East
Suite 1300

Charleston, WV 25301

Re: United States v. Damisha Brown
Criminal No. 2:24-cr-00192-6 (USDC SDWV)

Dear Mr. Harkins:

This will confirm our conversations with regard to your
client, Damisha Brown (hereinafter “Ms. Brown”). As a result of
these conversations, it is agreed by and between the United States
and Ms. Brown as follows:

i PENDING CHARGES. Ms. Brown is charged in two counts of
a ten-count superseding indictment as follows:

(a) Count One charges Ms. Brown with a violation of 18 U.S.C.
§§ 1344 and 1349 (conspiracy to commit bank fraud); and

(b) Count Seven charges Ms. Brown with a violation of 18
U.S.C. §§ 1344 and 2 (aiding and abetting bank fraud).

2s RESOLUTION OF CHARGES. Ms. Brown will plead guilty to
Count One of said superseding indictment, which charges her with
a violation of 18 U.S.C. §§ 1344 and 1349. Following final
disposition, the United States will move the Court to dismiss Count
Seven in Criminal No. 2:24-cr-00192-6 as to Ms. Brown.

Sie MAXIMUM POTENTIAL PENALTY. The maximum penalty to which
Ms. Brown will be exposed by virtue of this guilty plea is as

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follows:
(a) Imprisonment for a period of 30 years;

(b) A fine of $1,000,000, or twice the gross pecuniary gain
or twice the gross pecuniary loss resulting from
defendant’s conduct, whichever is greater;

(c) A term of supervised release of 5 years;

(d) A mandatory special assessment of $100 pursuant to 18
U.S.C. § 3013; and

(e) An order of restitution pursuant to 18 U.S.C. §§ 3663
and 3664, or as otherwise set forth in this plea
agreement.

4. SPECIAL ASSESSMENT. Prior to the entry of a plea pursuant
to this plea agreement, Ms. Brown will tender a check or money
order to the Clerk of the United States District Court for $100,
which check or money order shall indicate on its face the name of
defendant and the case number. The sum received by the Clerk will
be applied toward the special assessment imposed by the Court at
sentencing. Ms. Brown will obtain a receipt of payment from the
Clerk and will tender a copy of such receipt to the United States,
to be filed with the Court as an attachment to this plea agreement.
If Ms. Brown fails to provide proof of payment of the special
assessment prior to or at the plea proceeding, the United States
will have the right to void this plea agreement. In the event
this plea agreement becomes void after payment of the special
assessment, such sum shall be promptly returned to Ms. Brown.

5. RESTITUTION. Notwithstanding the offense of conviction,
Ms. Brown agrees that she owes restitution in the amount of at
least $12,125.00 and agrees to pay such restitution, with interest
as allowed by law, to the fullest extent financially feasible. In
aid of restitution, Ms. Brown further agrees as follows:

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May 15, 2025 Re: Damisha Brown
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(a) Ms. Brown agrees to fully assist the United States in
identifying and locating any assets to be applied toward
restitution and to give signed, sworn statements and
testimony concerning assets upon request of the United
States.

(b) Ms. Brown will fully complete and execute, under oath,
a Financial Statement and a Release of Financial
Information on forms supplied by the United States and
will return these completed forms to counsel for the
United States within seven calendar days from the date
of the signing of this plea agreement.

(c) Ms. Brown agrees not to dispose of, transfer or otherwise
encumber any real or personal property which she
currently owns or in which she holds an interest.

(d) Ms. Brown agrees to fully cooperate with the United
States in the liquidation of assets to be applied towards
restitution, to execute any and all documents necessary
to transfer title of any assets available to satisfy
restitution, to release any and all right, title and
interest she may have in and to such property, and waives
her right to exemptions under the Federal Debt
Collection Procedures Act upon levy against and the sale
of any such property.

(e) Ms. Brown agrees not to appeal any order of the District
Court imposing restitution unless the amount of
restitution imposed exceeds the amount set forth in this
plea agreement. However, nothing in this provision is
intended to preclude the Court from ordering Ms. Brown
to pay a greater or lesser sum of restitution in
accordance with law.

a

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Clayton T. Harkins

May 15, 2025 Re: Damisha Brown
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6. PAYMENT OF MONETARY PENALTIES. Ms. Brown authorizes the

Financial Litigation Program in the United States Attorney’s
Office to obtain a credit report from any major credit reporting
agency prior to sentencing in order to assess her financial
condition for sentencing purposes. Ms. Brown agrees not to object
to the District Court ordering all monetary penalties (including
the special assessment, fine, court costs, and any restitution
that does not exceed the amount set forth in this plea agreement)
to be due and payable in full immediately and subject to immediate
enforcement by the United States. So long as the monetary
penalties are ordered to be due and payable in full immediately,
Ms. Brown further agrees not to object to the District Court
imposing any schedule of payments as merely a minimum schedule of
payments and not the only method, nor a limitation on the methods,
available to the United States to enforce the judgment.

Ms. Brown authorizes the United States, through the Financial
Litigation Program, to submit any unpaid criminal monetary penalty
to the United States Treasury for offset in accordance with the
Treasury Offset Program, regardless of the defendant’s payment
status or history at that time.

In addition to any payment ordered by the Court, Ms. Brown
shall pay all monies received from any source other than earned
income, including but not limited to, lottery winnings, gambling
proceeds, judgments, inheritances, and tax refunds, toward the
court ordered restitution or fine.

Ms. Brown agrees that if she retains counsel or has appointed
counsel in response to the United States’ efforts to collect any
monetary penalty, she shall immediately notify the United States
Attorney’s Office, Attention: Financial Litigation Program, 300
Virginia Street E., Suite 4000, Charleston, West Virginia 25301,
in writing and shall instruct her attorney to notify FLP
immediately of her representation.

\

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May 15, 2025 Re: Damisha Brown
Page 5
7. COOPERATION. Ms. Brown will be forthright and truthful

with this office and other law enforcement agencies with regard to
all inquiries made pursuant to this agreement, and will give
signed, sworn statements and grand jury and trial testimony upon
request of the United States. In complying with this provision,
Ms. Brown may have counsel present except when appearing before a
grand jury. Further, Ms. Brown agrees to be named as an unindicted
co-conspirator and unindicted aider and abettor, as appropriate,
in subsequent indictments or informations.

8. USE IMMUNITY. Unless this agreement becomes void due
to a violation of any of its terms by Ms. Brown, and except as
expressly provided for in paragraph 10 below, nothing contained in
any statement or testimony provided by her pursuant to this
agreement, or any evidence developed therefrom, will be used
against her, directly or indirectly, in any further criminal
prosecutions or in determining the applicable guideline range
under the Federal Sentencing Guidelines.

9. LIMITATIONS ON IMMUNITY. Nothing contained in this
agreement restricts the use of information obtained by the United
States from an independent, legitimate source, separate and apart
from any information and testimony provided pursuant to this
agreement, in determining the applicable guideline range or in
prosecuting Ms. Brown for any violations of federal or state laws.
The United States reserves the right to prosecute Ms. Brown for
perjury or false statement if such a situation should occur
pursuant to this agreement.

10. STIPULATION OF FACTS AND WAIVER OF FED. R. EVID. 410.
The United States and Ms. Brown stipulate and agree that the facts
comprising the offense of conviction include the facts outlined in
the “Stipulation of Facts,” a copy of which is attached hereto as
“Plea Agreement Exhibit A.”

Ms. Brown agrees that if she withdraws from this agreement,
or this agreement is voided as a result of a breach of its terms
by her, and she is subsequently tried for her conduct alleged in

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May 15, 2025 Re: Damisha Brown

Page 6

the superseding indictment, as more specifically described in the
Stipulation of Facts, the United States may use and introduce the
Stipulation of Facts in the United States case-in-chief, in cross-
examination of Ms. Brown or of any of his witnesses, or in rebuttal
of any testimony introduced by her or on her behalf. Ms. Brown
knowingly and voluntarily waives, see United States v. Mezzanatto,
513 U.S. 196 (1995), any right she has pursuant to Fed. R. Evid.
410 that would prohibit such use of the Stipulation of Facts. If
the Court does not accept the plea agreement through no fault of
the defendant, or the Court declares the agreement void due to a
breach of its terms by the United States, the Stipulation of Facts
cannot be used by the United States.

The United States and Ms. Brown understand and acknowledge
that the Court is not bound by the Stipulation of Facts and that
if some or all of the Stipulation of Facts is not accepted by the
Court, the parties will not have the right to withdraw from the
plea agreement.

11. WAIVER OF APPEAL AND COLLATERAL ATTACK. Ms. Brown
knowingly and voluntarily waives her right to seek appellate review
of her conviction and of any sentence imposed by the District
Court, including any term of imprisonment, fine, term or condition
of supervised release, term or condition of probation, or special
assessment, or the manner in which the sentence was determined, on
any ground whatsoever including any ground set forth in 18 U.S.C.
§ 3742(a), except that the defendant may appeal any sentence that
exceeds the maximum penalty prescribed by statute. Ms. Brown also
knowingly and voluntarily waives any right to seek appellate review
of any claim or argument that (1) the statute of conviction, 18
U.S.C. §§ 1344 and 1349, is unconstitutional, and (2) Ms. Brown
conduct set forth in the Stipulation of Facts (Plea Agreement
Exhibit B) does not fall within the scope of 18 U.S.C. §§ 1344 and
1349.

The United States also agrees to waive its right to appeal
any sentence imposed by the District Court, or the manner in which
the sentence was determined, on any ground whatsoever, including

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May 15, 2025 Re: Damisha Brown
Page 7

any ground set forth in 18 U.S.C. § 3742(b), except that the United
States may appeal any sentence that is below the minimum penalty,
iff any, prescribed by statute.

Ms. Brown also knowingly and voluntarily waives the right to
challenge her guilty plea and conviction resulting from this plea
agreement, and any sentence imposed for the conviction, in any
collateral attack, including but not Limited to a motion brought
under 28 U.S.C. § 2255.

The waivers noted above shall not apply to a post-conviction
collateral attack or direct appeal based on a claim of ineffective
assistance of counsel.

12. WAIVER OF FOIA AND PRIVACY RIGHT. Ms. Brown knowingly
and voluntarily waives all rights, whether asserted directly or by
a representative, to request or receive from any department or
agency of the United States any records pertaining to the
investigation or prosecution of this case, including without any
limitation any records that may be sought under the Freedom of
Information Act (FOIA), 5 U.S.C. § 552, or the Privacy Act of 1974,
5 U.S.C. § 552a, following final disposition.

13. FINAL DISPOSITION. The matter of sentencing is within
the sole discretion of the Court. The United States has made no
representations or promises as to a specific sentence. The United
States reserves the right to:

(a) Inform the Probation Office and the Court of all relevant
facts and conduct;

(bob) Present evidence and argument relevant to the factors
enumerated in 18 U.S.C. § 3553 (a);

(c) Respond to questions raised by the Court;

(d) Correct inaccuracies or inadequacies in the presentence

report;

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May 15, 2025 Re: Damisha Brown

Page 8

(e) Respond to statements made to the Court by or on behalf
of Ms. Brown;

(£) Advise the Court concerning the nature and extent of Ms.
Brown’s cooperation; and

(g) Address the Court regarding the issue of Ms. Brown’s
acceptance of responsibility.

14. VOIDING OF AGREEMENT. If either the United States or
Ms. Brown violates the terms of this agreement, the other party
will have the right to void this agreement. If the Court refuses
to accept this agreement, it shall be void.

15. ENTIRETY OF AGREEMENT. This written agreement
constitutes the entire agreement between the United States and Ms.
Brown in this matter. There are no agreements, understandings or
recommendations as to any other pending or future charges against
Ms. Brown in any Court other than the United States District Court
for the Southern District of West Virginia.

Acknowledged and agreed to on behalf of the United States:

LISA G. JOHNSTON

JTS/lab

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Clayton T. Harkins
May 15, 2025 Re: Damisha Brown
Page 9

I hereby acknowledge by my initials at the bottom of each of the
foregoing pages and by my signature on the last page of this nine-
page agreement that I have read and carefully discussed every part
of it with my attorney, that I understand the terms of this
agreement, and that I voluntarily agree to those terms and
conditions set forth in the agreement. I further acknowledge that
my attorney has advised me of my rights, possible defenses, the
Sentencing Guideline provisions, and the consequences of entering
into this agreement, that no promises or inducements have been
made to me other than those in this agreement, and that no one has
threatened me or forced me in any way to enter into this agreement.
Finally, I am satisfied with the representation of my attorney in
this matter.

aa 5) 2 6

DAM{SHA BROWN Date Signed
Defendant

é/2z/tous
CLAYJON T. HARKINS Date Signed
Counsel for Defendant

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON

UNITED STATES OF AMERICA

Vv. CRIMINAL NO. 2:24-cr~-00192-6

DAMISHA BROWN

STIPULATION OF FACTS

The United States and Damisha Brown (hereinafter “defendant,”
me,” “my,” “I,” and “her”) stipulate and agree that the facts
comprising the offense of conviction (Count One in the Superseding
Indictment in the Southern District of West Virginia, Criminal No.
2:24-cr-00192-6), include the following:

uw“

Coronavirus Relief Background

I agree that the Coronavirus Aid, Relief, and Economic
Security (“CARES”) Act was a federal law enacted in or around March
2020 and designed to provide emergency financial assistance to the
millions of Americans who were suffering the economic effects
caused by the COVID-19 pandemic. The CARES Act authorized the Small
Business Administration (“SBA”) to provide forgivable loans to
small businesses for job retention and certain other expenses,
through a program referred to as the Paycheck Protection Program
(“PPP”).

I agree that the PPP allowed qualifying small businesses and
other organizations to receive PPP loans. Businesses were required
to use PPP loan proceeds to cover payroll costs, interest on
mortgages, rent and utilities. The PPP allowed interest and
principal on the PPP loans to be entirely forgiven if the
businesses spent the loan proceeds to cover these expenses within
a designated time and used a certain specified percentage of the
PPP loan proceeds on payroll expenses.

I agree that to obtain a PPP loan, a qualifying business was
required to submit a PPP loan application. The PPP loan application
required the small business (through its authorized
representative) to acknowledge the program rules and make
affirmative certifications that the small business was eligible to

obtain the PPP loan. In addition, businesses applying for a PPP
joan were required to provide documentation showing their prior
gross income from either 2019 or 2020. Applicants aiso had to
certify that the small business was in operation on February 15,
2020.

I agree that a PPP loan application was processed by a
participating lender. If a PPP loan application was approved, the
participating lender funded the PPP loan using its own monies,
which were 100% guaranteed by the SBA.

Factual Basis for Plea

At all relevant times, I resided in Charleston, Kanawha
County, West Virginia, within the Southern District of West
Virginia.

Throughout 2021, I maintained a personal bank account with
Wells Fargo Bank, National Association (“Wells Fargo”). I agree
that Wells Fargo was a financial institution within the meaning of
18 U.S.C. § 20 that was headquartered in Nevada. Further, I agree
that Financial Institution 1 was a “financial institution” within
the meaning of 18 U.S.C. § 20 that participated in the PPP by
funding loans.

In or around April of 2021, in the Southern District of West
Virginia, I knowingly conspired with Kisha Sutton and others to
obtain a fraudulent PPP loan. I agreed to provide my personal and
banking information to Kisha Sutton so that she could apply fora
fraudulent PPP loan on my behalf. I further agreed that when the
PPP funds were deposited in my bank account, I would remit a
portion of the money to Kisha Sutton as compensation for her
facilitation of the loan.

On or about April 25, 2021, Kisha Sutton submitted, with my
full knowledge and authorization, a PPP loan application on my
behalf to Financial Institution 1. The application, including
supplemental documents, contained materially false information in
at least two respects. First, the documents falsely represented
that I was a self-employed “hair dresser” who received $75,000 in
gross income during 2020. Second, a fraudulent IRS Form 1040 -
Schedule C: Profit or Loss from Business Forms (“IRS Form 1040”),
for the year 2020. I never earned $75,000 in gross income as a
hair dresser in 2020 or during any tax year. The IRS Form 1040 was
also never submitted by me to the IRS; it was created for the sole
purpose of obtaining a fraudulent PPP loan. This information
qualified me for a loan amount I otherwise would not have been

PLEA AGREEMENT EXHIBIT A
2

qualified to receive. Financial Institution 1 approved the
fraudulent application.

On or about April 30, 2021, I received a $15,625 ACH transfer
disbursed by Financial Institution 1, and the funds were
electronically deposited in my Wells Fargo bank account. At the
time I received the funds, I knew the $15,625 represented proceeds
from the fraudulent PPP loan.

Between April 30, 2021, and May 27, 2021, I used CashApp to
transfer $3,500 to Kisha Sutton from the fraudulent PPP loan
proceeds, as compensation for facilitating the submission of my
fraudulent loan and consistent with our agreement.

I spent the remainder of the loan proceeds on personal
expenses.

This Stipulation of Facts does not contain each and every
fact known to defendant and to the United States concerning her
involvement and the involvement of others in the charges set forth
in the Information.

Stipulated and agreed to:

/\ S1 LY] ae

DAMISHA BROWN. Date
Defendant

6/2 / tors

CLAYZON T. HARKINS Date
Coufisel for Defer@ant
Date

orney

PLEA AGREEMENT EXHIBIT A
3

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