Court filing
Defendant's Motion to Dismiss Count Two for Lack of Venue, Kisha Sutton — United States v. Sutton
Summary
In this motion filed on 05/08/25 as Document 185 in Case 2:24-cr-00192 in the Southern District of West Virginia, Kisha Sutton, through counsel Connor Robertson, asked the court to dismiss Count Two of the Superseding Indictment, a bank fraud charge, for lack of venue. The count alleges that Sutton caused the submission of a loan application and a Schedule C on behalf of defendant Ms. Wright, and that Financial Institution 3 funded a $15,625 loan to Wright, who remitted $3,000 to Sutton. The motion says the application was submitted from New Jersey through Womply, a financial technology company that matched applicants to lenders, and that no servers handling it were in the district. It argues that the essential conduct of the offense did not occur in the Southern District of West Virginia.
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Filed May 8, 2025 in United States v. Sutton et al.; one of 235 filings from this case.
Record facts
| Court | U.S. District Court for the Southern District of West Virginia |
|---|---|
| Filed | 2025-05-08 |
Cite this document
“Defendant's Motion to Dismiss Count Two for Lack of Venue, Kisha Sutton — United States v. Sutton.”
U.S. District Court for the Southern District of West Virginia, No. 2:24-cr-00192, Doc. 185, filed 2025-05-08. Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/full-docket-kisha-sutton-wvsd-240497/2025-05-08-gov-uscourts-wvsd-240497-185-0-doc-185/
, SHA-256 8b053aa8f02af0678cf5a271511748c472c4174b3ff4c20638286b68eb1c0e3b.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’S MOTION TO DISMISS COUNT TWO FOR LACK OF VENUE Now comes the Defendant, Kisha Sutton, by and through counsel, Connor Robertson, and respectfully moves this Honorable Court to Dismiss Count Two of the Defendant’s Superseding Indictment, charging the Defendant with “Bank Fraud” in violationofTitle18U.S.C.§1344(1)and(2),astheGovernmentcannotestablishVenuein the Southern District of West Virginia. In support thereof, the Defendant states as follows: Count II This is a fraudulent scheme prosecution with a very simple theory: Kisha Sutton prepared and submitted PPP Loan applications containing false information of her acquaintances in order to receive money from a bank or otherentitieswhichqualifyas financial institutions under federal law. In Count Two of the SupersedingIndictmentthe Government has alleged that Ms. Sutton, on April 19, 2021,“causedthesubmissionofa PPP loan application and a Schedule C to Financial Institution 3 on behalf of defendant Shamiese Wright.” See Sup. Indictment, para. 31. The application falsely stated that Ms. Case 2:24-cr-00192 Document 185 Filed 05/08/25 Page 1 of 9 PageID #: 976 Wrightwasasoleproprietor,thatherbusinesswasestablishedpriortoJanuaryof2017, and had an income of morethan$75,000.00whichmadeherfictitiouslyeligibleforPPP loan relief during the Covid pandemic. Id. at para 32. Based on the false information provided, Financial Institution 3 funded the loan to Ms. Wright for$15,625onorabout May7,2021.Id.at.Para34. InexchangeforMs.Sutton’sefforts,theGovernmentalleges that Ms. Wright, while in the Southern District of West Virginia, remitted $3,000 of the fraudulent PPP proceeds to Ms. Sutton. Id.atpara.35.Based on these accusations, Ms. Suttonischargedwith“bankfraud”inviolationof18U.S.C.§1344(1)&(2).Assumingfor the purposes of this Motion that the allegations of the above-captioned facts (and Indictment) are true, the Government cannot establish VenueintheSouthernDistrictof West Virginia. Facts AccordingtotheGovernment,Ms.SuttoncausedafraudulentPPPloanapplication and Schedule C tax forms to be submitted electronicallyfromaresidenceinNewJersey City,NewJersey.ThisallegationissupportedbyevidencethatanIPaddresslinkedtoMrs. Sutton’s name was captured when the application was submitted and received by a third-party vendor website called “Womply”. Womply is not a bank or a financial institutionasdefinedbyfederallaw,butinsteadwasafinancialtechnologycompanythat actedasafacilitatortomatchPPPapplicantstolenders.Basedoninformationandbelief, Womply had no servers in the Southern District of West Virginia. With this particular PPPloanapplication,Womplyelectronicallymatchedawilling lender,BenworthCapitolPartners,LLC(“Benworth”),outofCoralGables,Florida,tofund Ms. Wright’s fictitious PPP loan. Based on information provided by the Government, Case 2:24-cr-00192 Document 185 Filed 05/08/25 Page 2 of 9 PageID #: 977 Benworth’s servers arelocatedinMiami,Florida.However,itisbelievedthatBenworth’s servers never actually received the electronic application becauseBenworthwasrelying exclusively on Womply to underwrite and approve the loan applications at that time. Regardless, none of this information was transmitted through the Southern District of West Virginia. UponfundingthePPPLoanonMay7,2021,Benworthelectronicallydeposited,via ACH, the $15,625 PPP proceeds into Ms. Wright’s Bancorp Bank account - aka Chime. Bancorp Bank is registered as a Delaware Corporation,butisnotacertifiedbusinessin West Virginia. There is no reason to believe that Bancorp has servers that process electronic ACH money transfers in the Southern District of West Virginia. Finally,allofthefundingforPPPloanswasfederallybackedbytheSmallBusiness Administration. Based on information received from the Government, no servers processingPPPloans,whichwereelectronicallyreceived,resideintheSouthernDistrictof West Virginia. Law Federal Rule of Criminal Procedure 18 prescribes that “the government must prosecute an offense in the district where the offense was committed” unless a statute permitsotherwise.Fed.R.Crim.P.18.“BankFraud”asdefinedby18U.S.C.1344(1)&(2)is subject to the general federal venue statute, which states that a federalcriminaloffense which“beg[ins] in one district and completedinanother,orcommittedinmorethanone district,” may be “prosecuted in any district in which such offense begun, continued, or completed.” 18U.S.C.3237(a).Venue is“determinedfromthenatureofthecrimealleged and the location of the act oractsconstitutingit.”UnitedStatesv.Ebersole,411F.3d517, Case 2:24-cr-00192 Document 185 Filed 05/08/25 Page 3 of 9 PageID #: 978 524 (4th Cir. 2005). This means that there may be more than one appropriate venue, including“avenueinwhichthedefendanthasneversetfoot.”UnitedStatesv.Bowens,224 F.3d302,309(4thCir.2000).However,venueisgenerallylimitedtotheplaceinwhichthe “essential conduct” elements of the offense occurred. Id. “In order to determine the propriety of venue, we must first identify the conduct constituting the offense and the location of the criminal acts.” UnitedStatesv.Bankole,39 F. App'x 839, 841–43 (4th Cir. 2002)citing United States v. Barnette,211 F.3d 803,813 (4th Cir. 2000). The inquiry into venue has twoparts.First,theCourtsmust“identifytheconduct constitutingtheoffense,UnitedStatesv.Smith,452F.3d323,334(4thCir.2006)(quoting UnitedStatesv.Rodriguez-Moreno,526U.S.275,279(1999)),becausevenueislimited“to the place of the essential conduct of the offense.” UnitedStatesv.Bowens, 224F.3d302, 309(4thCir.2000).Second,theCourtdetermineswherethecriminalconducttookplace. Smith,452 F.2d at 334. In determiningtheessentialconductelementscourtsmay“analyzethekey‘verbs’ oractionssanctionedbythestatute[.]”UnitedStatesv.Sterling,860F.3d233,241(4thCir. 2017) (quoting UnitedStatesv.Rodriguez-Moreno,526 U.S. 275, 279 (1999). “Actswhich are merely ‘preparatory’ to the underlying offense and its essential conduct, however, cannot provide a basis for venue.” Id. at 241. Similarly, acts which occur only in furtherance of the crime or after a crime is complete cannot provide a basis for venue because they are not essential to the underlying offense.” UnitedStatesv.Jefferson, 674 F.3d 332, 367 (4th Cir. 2012) (finding venue improper for a wire fraud case because althoughactsinfurtheranceofthecrimeoccurredintherelevantdistrict,“thephysicalact of transmitting the wire communication for the purposeofexecutingthefraudscheme,” Case 2:24-cr-00192 Document 185 Filed 05/08/25 Page 4 of 9 PageID #: 979 didnot);UnitedStatesv.Harris,No.3:12-cr-170,2013WL1790140,at*2(E.D.Va.Apr.26, 2013)(actiontakenafteracrimeiscomplete“doesnotqualifyasessentialconductofthe offense for the simple reason that the crime has already been completed”). Argument The essential conduct element of “Bank Fraud” is the execution of a scheme to defraudafinancialinstitution.Asitrelatestothiscase,Ms.Sutton’smouseclicksubmitting the PPP loan application and Schedule CwithknowinglyfalseinformationinNewJersey City,NewJerseytotheWomplyplatformandBenworth’sfundingofthe$15,625inMiami orCoralGablesFloridatoanaccountwithBancorpwastheessentialconductmakingup thebankfraudallegation.Inotherwords,thiswasallthatwasnecessarytocompletethe crime and none of that touches the Southern District of WestVirginia.Thefactthatitis alleged that Ms. Sutton and Ms. Wright devised a scheme to defraud is irrelevant. You cannot commit bank fraud by devising a scheme to defraud, it is the execution that matters.Likewise,itisirrelevantthatMs.WrightmayhavesentMs.Sutton$3,000inasa kickback,becausethecrimeofbankfraudhadalreadybeencompletedatthepointwhere she submitted the false application. The execution of a Bank Fraud scheme does not require the receiving of funds. At best, the execution began in New Jersey and atworst ended when Benworth received the application in Florida. Therearemultiplecasesthat support this analysis. In United States v. Bankole, 39 F.App’x 839 (4th Cir. 2002)(per curiam), the Defendant was Indicted on Bank Fraud charges for initiating a debit transaction from Maryland (in our case New Jersey) which resulted in a transfer of fundstoavendorin NewHampshire(inourcaseBancorp-whereveritsserversare)thatwaseffectedwhen Case 2:24-cr-00192 Document 185 Filed 05/08/25 Page 5 of 9 PageID #: 980 the electronic request was received and processed by the bank in Virginia (in our case wherever Womply servers are orBensworthServersinMiami).TheCourtheldthatthat venuewasproperintheEasternDistrictofVirginia,because“thebankfraudoffensewas begun in Maryland, continued into New Hampshire, and was completed in the Eastern District of Virginia.” Id. This makes sense because the money being moved processed through these jurisdictions. Unlike Bankole, the Government in this caseisattemptingto hitchvenuetoMs.Wright’stransactionintheSouthernDistrictofWestVirginiaafterher Bank, Bancorp, received the money outside of West Virginia. UnitedStatesv.Verclas,No.GJH-18-160,2019WL95148(D.Md.Jan.3,2019),isa good example of what the Governmentistryingtodointhiscase-whichis,basevenue off of Ms.Wright’sactoftransferringportionsofthePPPloanproceedsintheSouthern DistrictofWestVirginiabacktoMs.SuttonaftertheessentialconductofBankFraudhad been completed. The Court would not allow it. TheDefendantinVerclassubmittedagrantapplicationthatfalselyrepresentedthat her Delaware based corporation was a New York non-profit organization with the legal authoritytoapplyforthegrant.Basedontheapplication,theStateDepartmentawarded Verclas’ corporation the grant money. She later withdrew it and used it on personal expenses.Thisisexactlytheconductinthecasebeforethiscourt. Todistributethegrant funds, the State Department used a Payment Management System located in Maryland. Verclas used the Payment Management System to withdraw the funds for her personal use.TheGovernmentchargedherwithaviolationoftheMajorFraudAct18U.S.C.§1031. Verclas moved to dismiss the Indictment challenging venue and arguing that the Indictment fails to allege facts showing that she committed the charged offense in the Case 2:24-cr-00192 Document 185 Filed 05/08/25 Page 6 of 9 PageID #: 981 DistrictofMaryland.TheGovernmentarguedthatheraccessingthePaymentManagement System to withdraw the funds, which were processed in Maryland, after they were received gave Maryland jurisdiction. The Court first determined what the conduct element to Major Fraud was and determined it was not the scheme to defraud, buttheknowingexecutionofthescheme. The Court held thatVerclasexecutedherschemetodefraudandobtainmoneyfromthe GovernmentwhenshesubmittedherfraudulentgrantapplicationfromherofficesinNew York. There was no allegation that this submission occurred or involved Maryland. The schemetodefraudwastoobtainthegrantmoneybysubmittingafraudulentapplication. The Court further, and more importantly, held that once the Defendant submitted the application, the scheme had been executed and she did not need to engage in any additional conduct to commit the crime. Because actually obtaining the money isnotan element of Major Fraud, much lessanessentialconductelement,itisnotrelevanttothe venue inquiry that the State Department awarded the funds through a Maryland based PaymentSystem.TheCourtheldthatactiondidnotcontributetoanyelementofthecrime and was not an essential conduct element. Conclusion WHEREFORE, the Defendant respectfully requests the Court enter and Order dismissing Count Two for lack of venue and for other such relief as is necessary and proper. Respectfully submitted, By Counsel Case 2:24-cr-00192 Document 185 Filed 05/08/25 Page 7 of 9 PageID #: 982 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 185 Filed 05/08/25 Page 8 of 9 PageID #: 983 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 8th 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 185 Filed 05/08/25 Page 9 of 9 PageID #: 984
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