Court filing
Motion to Dismiss Count Four for Lack of Venue as to Kisha Sutton — United States v. Sutton et al. (Dkt. 187, S.D. W. Va.)
Summary
Kisha Sutton's motion to dismiss Count Four of the superseding indictment for lack of venue, filed 05/08/25 as Document 187 in United States v. Sutton et al., Case 2:24-cr-00192, in the U.S. District Court for the Southern District of West Virginia. Through counsel Connor Robertson, Sutton says the government's theory is that she prepared and submitted pandemic loan applications with false information about acquaintances to obtain money from financial institutions. She says Count Four alleges that she caused the submission of a loan application for another person, falsely claiming a sole proprietorship with income over $75,000.00, which a lender funded for $15,625. She argues the government cannot establish venue for that count in the Southern District of West Virginia. These are the defendant's arguments.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
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
“Motion to Dismiss Count Four for Lack of Venue as to Kisha Sutton — United States v. Sutton et al. (Dkt. 187, S.D. W. Va.).”
U.S. District Court for the Southern District of West Virginia, No. 2:24-cr-00192, Doc. 187, 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-240497-187-0-doc-187/
, SHA-256 ebc0b6988b1d89e61e3107d9e4c9ba88577cbac7a5a720a0843fcc7929b731c4.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 FOUR 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 Four of the Defendant’s Superseding Indictment, charging the Defendant with “Band 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 Four 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 CountFouroftheSupersedingIndictmentthe Government has alleged that Ms. Sutton, on April 14, 2021,“causedthesubmissionofa PPPloanapplicationandaScheduleCtoFinancialInstitution1onbehalfofC.Sutton.”See Sup. Indictment, para. 45. The application falsely stated that Ms. C. Sutton’s was a sole Case 2:24-cr-00192 Document 187 Filed 05/08/25 Page 1 of 9 PageID #: 994 proprietor,thatherbusinesswasestablishedpriortoJanuaryof2017,andhadanincome ofmorethan$75,000.00whichmadeherfictitiouslyeligibleforPPPloanreliefduringthe Covid pandemic. Id. at para 46. Based on the false information provided, Financial Institution1fundedtheloantoMs.C.Suttonfor$15,625onoraboutMay2,2021.Id.at. Para48. In exchange for Ms. Sutton’sefforts,theGovernmentallegesthatMs.C.Sutton, while in the Southern District of West Virginia, remitted $500 of the fraudulent PPP proceeds to Ms.Sutton.Id.atpara.49.Basedontheseaccusations,Ms.Suttonischarged with “bank fraud” in violation of 18 U.S.C. § 1344(1)&(2). Assumingforthepurposesof thisMotionthattheallegationsoftheabove-captionedfacts(andIndictment)aretrue,the Government cannot establish Venue in the Southern District of 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,HarvestSmallBusinessFinance,LLC(“Harvest”),outofLagunaHIlls,California,to fund Ms. C. Sutton’s fictitious PPP loan. Based on information provided by the Government, Harvest’s servers are located in Laguna Hills, California. East West Bank, Case 2:24-cr-00192 Document 187 Filed 05/08/25 Page 2 of 9 PageID #: 995 which is also located in California may have also funded the loan on behalf of Harvest. However, it is believed that Harvest’s servers never actually received the electronic application because Harvest was relying 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. Upon funding the PPPLoanonMay2,2021,Harvest(orpossiblyEastWestBank locatedinCalifornia)electronicallydeposited,viaACH,the$15,625PPPproceedsintoMs. C.Sutton’sBancorpBankaccount-akaChime. BancorpBankisregisteredasaDelaware Corporation,butisnotacertifiedbusinessinWestVirginia.Thereisnoreasontobelieve 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 Case 2:24-cr-00192 Document 187 Filed 05/08/25 Page 3 of 9 PageID #: 996 and the location of the act oractsconstitutingit.”UnitedStatesv.Ebersole,411F.3d517, 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 Case 2:24-cr-00192 Document 187 Filed 05/08/25 Page 4 of 9 PageID #: 997 of transmitting the wire communication for the purposeofexecutingthefraudscheme,” 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,NewJerseytotheWomplyplatformandHarvest’sfundingofthe$15,625inLaguna HIlls,CaliforniatoanaccountwithBancorpwastheessentialconductmakingupthebank fraudallegation.Inotherwords,thiswasallthatwasnecessarytocompletethecrimeand noneofthattouchestheSouthernDistrictofWestVirginia.Thefactthatitisallegedthat Ms.SuttonandMs.C.Suttondevisedaschemetodefraudisirrelevant.Youcannotcommit bankfraudbydevisingaschemetodefraud,itistheexecutionthatmatters.Likewise,itis irrelevant that Ms. C. Sutton may have sent Ms. Sutton $500 as a kickback, because the crime of bank fraud had already been completed at the point where she submitted the falseapplication.TheexecutionofaBankFraudschemedoesnotrequirethereceivingof funds. At best, the execution began in New Jersey and at worst ended when Harvest received the application in California - if they received it at all. There aremultiplecases that 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 Case 2:24-cr-00192 Document 187 Filed 05/08/25 Page 5 of 9 PageID #: 998 NewHampshire(inourcaseBancorp-whereveritsserversare)thatwaseffectedwhen the electronic request was received and processed by the bank in Virginia (in our case wherever WomplyserversareorHarvestServersinCalifornia).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 hitch venue to Ms. C. Suttons’stransactionintheSouthernDistrictofWestVirginiaafter her 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 offofMs.C.Sutton’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 Case 2:24-cr-00192 Document 187 Filed 05/08/25 Page 6 of 9 PageID #: 999 Indictment fails to allege facts showing that she committed the charged offense in the 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 Four for lack of venue and for other such relief as is necessary and proper. Respectfully submitted, By Counsel Case 2:24-cr-00192 Document 187 Filed 05/08/25 Page 7 of 9 PageID #: 1000 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 187 Filed 05/08/25 Page 8 of 9 PageID #: 1001 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 187 Filed 05/08/25 Page 9 of 9 PageID #: 1002
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