Court filing
Defendant's Motion to Dismiss Count Ten for Lack of Venue, Kisha Sutton — United States v. Sutton
Summary
In this motion filed on 05/08/25 as Document 193 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 Ten of the Superseding Indictment, a bank fraud charge, for lack of venue. Count Ten alleges that Sutton caused the submission of a loan application and a Schedule C to Financial Institution 1 on behalf of Ms. Spencer, that a $15,625 loan was funded, and that Ms. Spencer remitted $1,000 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 Ten 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. 193, 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-240497-193-0-doc-193/
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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 TEN 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 Ten 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 Ten 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 Ten of the Superseding Indictment the GovernmenthasallegedthatMs.Sutton,onApril8,2021,“causedthesubmissionofaPPP loanapplicationandaScheduleCtoFinancialInstitution1onbehalfofLydiaSpencer.”See Sup. Indictment, para. 88. The application falsely stated that Ms. Spencer was a sole Case 2:24-cr-00192 Document 193 Filed 05/08/25 Page 1 of 9 PageID #: 1048 proprietor,thathisbusinesswasestablishedpriortoJanuaryof2016,andhadanincome ofmorethan$75,000.00whichmadeherfictitiouslyeligibleforPPPloanreliefduringthe Covid pandemic. Id. at para 89. Based on the false information provided, Financial Institution 1fundedtheloantoMr.Powellfor$15,625onoraboutJune21,2021.Id.at. Para 91. In exchange for Ms. Sutton’s efforts, the Government alleges that Ms. Spencer while in the Southern District of West Virginia, remitted $1,000 of the fraudulent PPP proceeds to Ms.Sutton.Id.atpara.92.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 fundMs.Spencer’sfictitiousPPPloan.BasedoninformationprovidedbytheGovernment, Harvest’s servers are located in Laguna Hills, California. East West Bank, which is also Case 2:24-cr-00192 Document 193 Filed 05/08/25 Page 2 of 9 PageID #: 1049 located in California, may have also funded the loan on behalfofHarvest.However,itis believedthatHarvest’sserversneveractuallyreceivedtheelectronicapplicationbecause Fountainhead was relying exclusively on Womply to underwrite and approve the loan applicationsatthattime.Regardless,noneofthisinformationwastransmittedthroughthe Southern District of West Virginia. UponfundingthePPPLoanonJune21,2021,Harvest(orpossiblyEastWestBank locatedinCalifornia)electronicallydeposited,viaACH,the$15,625PPPproceedsintoMs. Spencer’s CashAppaccount.CashAppisaSanFrancisco,CaliforniaCompany,butisnota certifiedbusinessinWestVirginia.ThereisnoreasontobelievethatCashApphasservers 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 193 Filed 05/08/25 Page 3 of 9 PageID #: 1050 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 193 Filed 05/08/25 Page 4 of 9 PageID #: 1051 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,CaliforniatoanaccountwithCashAppwastheessentialconductmakingupthebank fraudallegation.Inotherwords,thiswasallthatwasnecessarytocompletethecrimeand noneofthattouchestheSouthernDistrictofWestVirginia.Thefactthatitisallegedthat Ms.SuttonandMs.Spencerdevisedaschemetodefraudisirrelevant.Youcannotcommit bankfraudbydevisingaschemetodefraud,itistheexecutionthatmatters.Likewise,itis irrelevant that Ms. Spencer may have sent Ms. Sutton $1,000 as a kickback,becausethe 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 New Hampshire (in ourcaseCashApp-California)thatwaseffectedwhentheelectronic Case 2:24-cr-00192 Document 193 Filed 05/08/25 Page 5 of 9 PageID #: 1052 request was received and processed by the bank in Virginia (in our case wherever WomplyserversareorHarvestinCalifornia).TheCourtheldthatthatvenuewasproper intheEasternDistrictofVirginia,because“thebankfraudoffensewasbeguninMaryland, continuedintoNewHampshire,andwascompletedintheEasternDistrictofVirginia.”Id. Thismakessensebecausethemoneybeingmovedprocessedthroughthesejurisdictions. UnlikeBankole,theGovernmentinthiscaseisattemptingtohitchvenuetoMs.Spencer’s transactionintheSouthernDistrictofWestVirginiaafterherBank,CashApp,receivedthe 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.Spencer’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 193 Filed 05/08/25 Page 6 of 9 PageID #: 1053 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 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 193 Filed 05/08/25 Page 7 of 9 PageID #: 1054 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 193 Filed 05/08/25 Page 8 of 9 PageID #: 1055 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 193 Filed 05/08/25 Page 9 of 9 PageID #: 1056
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