Court filing
Objections by Kisha Sutton to Magistrate's — United States v. Sutton et al. (Dkt. 204, S.D. W. Va.)
Summary
Kisha Sutton's objections to the magistrate judge's order denying her motions to dismiss for lack of venue in United States v. Sutton, Case No. 2:24-cr-00192, U.S. District Court for the Southern District of West Virginia, filed 05/23/25 as Document 204. The superseding indictment accuses her of one count of conspiracy to commit bank fraud and nine counts of bank fraud, alleging she submitted false PPP loan applications using personal information from her co-defendants and received kickback money after their loans were funded. She argues the magistrate's order (ECF 203) wrongly merged the essential conduct that establishes venue for conspiracy with that required for bank fraud, and relied on government case law unrelated to venue. She asks the court to set aside the order and dismiss Counts Two through Ten. These are the defendant's arguments.
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Filed May 23, 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 | 2025-05-23 |
Cite this document
“Objections by Kisha Sutton to Magistrate's — United States v. Sutton et al. (Dkt. 204, S.D. W. Va.).”
U.S. District Court for the Southern District of West Virginia, No. 2:24-cr-00192, Doc. 204, filed 2025-05-23. Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/full-docket-kisha-sutton-wvsd-240497/2025-05-23-gov-uscourts-wvsd-240497-204-0-doc-204/
, SHA-256 56216d26b78d5fa23dda161fc327f31681013ce3ba38decc0dbd0803c91dee54.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 OBJECTIONS TO MAGISTRATE’S ORDER DENYING DEFENDANT’S MOTIONS TO DISMISS FOR LACK OF VENUE Pursuantto28U.S.C.§636(b)(1)andRule59.6oftheLocalRules,Defendant,Kisha Sutton, respectfully makes the following objections to the ORDER (ECF 203) entered in this matter on May 20, 2025 denyingDefendant’sMotionstoDismissforLackofVenue. (ECF 185-193).Forthereasonsstatedbelow,theCourtshouldsetasidetheMagistrate’s Order and Dismiss Counts two (2) through ten (10) of the Defendant’s Superseding Indictment. KishaSuttonisallegedtohavesubmittedfalseormisleadingPPPloanapplications byinputtingpersonalinformationprovidedbyherco-defendants.Thiswasallegedlydone to secure PPP funds, and in exchange, she is alleged to have received“kickback”money after the co-defendants' loans were funded. Based on this conduct, the Superseding Indictmentaccusesherofone(1)countofconspiracytocommitbankfraudandnine(9) counts of actual bank fraud. Case 2:24-cr-00192 Document 204 Filed 05/23/25 Page 1 of 9 PageID #: 1092 Ms. Sutton challenges the Superseding Indictment by arguing that countstwo(2) through ten (10) fail to allege acts that satisfy venue in the Southern District of West Virginia. The Magistrate’s denial of the Defendant’s argument seems to incorporate the essential conduct establishing venue for conspiracy into the essential conduct which establishesvenueforbankfraud;howevertheyarenotthesame.Additionally,insupport of the denial, the Magistrate seems, at least in part, to rely on case law cited by the government which has nothing to do with theissuevenueandorthe“essentialconduct elements” of bank fraud relative to venue for that crime. Because of these reasons,this Court should set aside the Order and dismiss counts two (2) through ten (10). Legal Standard ThisCourt’sreviewisdenovo.See28U.S.C.§636(b)(1)(“Ajudgeofthecourtshall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.”). Objections I. An indictment that incorporates by reference paragraphs relevant to the chargingofonecrime(Conspiracy)intothechargingofanothercrime(Bank Fraud) is not sufficient to satisfy Venue when the “essential conduct” ofthe crimes are distinct. In the second paragraphunderthe“Discussion”sectionoftheMagistrate’sOrder, the Magistrate correctly analyzes the allegations against Ms. Sutton charging Conspiracy with regard to venue. Most importantly, as identified by the Magistrate, the Indictment makes specific reference, in paragraph 1 of the Superseding Indictment, to Ms. Sutton conspiring with others “within the Southern District of West Virginia”. At theIndictment stage,thisisallthatisneededtoestablishvenuefortheconspiracycount.Thisisbecause “venue is proper in any district in which some act in furtherance oftheconspiracywas Case 2:24-cr-00192 Document 204 Filed 05/23/25 Page 2 of 9 PageID #: 1093 committed.” UnitedStatesv.Moussaoui,591F.3d263,300(4thCir.2010);UnitedStatesv. Bowens, 224 F.3d 302, 311 n. 4 (4th Cir. 2000) (“venue is proper for all defendants wherevertheagreementwasmadeorwhereveranyactinfurtheranceoftheconspiracy transpires.”). As noted bytheMagistrate,undersignedcounselconcededthispointatthe Motion to Dismiss hearing. However, the Magistratethenseeminglyrulesthatvenuehas been likewise established in the bank fraud counts simply because the conspiracy paragraphs are incorporated by reference into the bank fraud counts. Ms. Sutton respectfullyrejectsthispositionbecausethe“essentialconductelement”ofconspiracyto commitbankfraudisdifferentfromthe“essentialconductelement”ofactualbankfraud. The “essential conduct element” of conspiracy is the agreement; the “essential conduct element” bank fraud is the execution. Thus, the Indictment needs to specify allegations withinthebankfraudcountstoindependentlyestablishvenueandtothat,theIndictment is silent. The Magistrate’s analysis seemingly suggests that because the conspiracy theory necessarily matches up or aligns with the aiding and abetting theory of the bank fraud theory, that venue is sufficiently plead in the Indictment. (“As pointed out by the United States,thisCount(andtheremainingCounts)alignswiththeconspiracytheoryofliability to the extent that it also relies upon an aiding and abetting theory, which does notrely upon the actual physical presence of the Defendant within this District to establish venue.”) But respectfully this is not the analysis because the venue analysis requires a reviewofthe“essentialconductelement”ofeachindependentcrimechargedandwecan’t just rely on allegations incorporated by reference because they are similar theories of liability. Instead, the question is whether the separate crimes share similar “essential Case 2:24-cr-00192 Document 204 Filed 05/23/25 Page 3 of 9 PageID #: 1094 conduct elements”. If conspiracy to commit bank fraud and the act of bank fraud’s “essential conduct element” were the same, the magistrate’s analysis would be correct. However, asstatedaboveandarguedpreviously,the“essentialconductelement”ofbank fraud is the execution and the “essential conduct element” of conspiracy is the “agreement”. Asaresult,becausethe“essentialconductelement”forconspiracyandbankfraud aredifferent,thefaceoftheIndictmentmustmakesomeallegationwithinthebankfraud countsthatthe“essentialconductelement”ofbankfraudwastiedtotheSouthernDistrict of West Virginia. In this case it does not. II. The Indictment fails to specify any essential conduct of Bank Fraud that occurred in the Southern District of West Virginia. ThefirstreferencetotheSouthernDistrictofWestVirginiacomesinparagraph1 of the Superseding Indictment alleging that Ms. Sutton and others conspired to commit bankfraud.Asarguedabove,itisirrelevanttothebankfraud“essentialconductelement” analysis that the conspiracy count includedthisjurisdictionaltietotheSouthernDistrict ofWestVirginiaandthenincorporateditbyreferencetotheothercounts.Theonlyother referencestotheSouthernDistrictofWestVirginiaintheSupersedingIndictmentcomein theparagraphsallegingthatMs.Sutton’sco-defendantswerewithintheSouthernDistrict of West Virginia when they sent the “kickback” payments to Ms. Sutton in New Jersey. These “kickback” allegations are also irrelevant, because the “kickback” payments were merelyactsinfurtheranceofthebankfraudexecution.FourthCircuitlawclearlysupports this analysis as acts in furtherance of the crime are not venue related conduct. Maybe the easiestwaytobreakdownthisIndictmentistoconsidertheallegations in three parts: Case 2:24-cr-00192 Document 204 Filed 05/23/25 Page 4 of 9 PageID #: 1095 First,theco-defendantsintheSouthernDistrictofWestVirginiadevisedascheme whereby they would agree to commit bank fraud and to do so shared their personal informationtoMs.SuttoninNewJerseysothatshecouldtypeitintotheloanapplication. This is what is called a preparatory act. “Acts which are merely ‘preparatory’ to the underlying offense anditsessentialconduct,however,cannotprovideabasisforvenue.” United States v. Sterling, 860 F.3d 233, 241 (4th Cir. 2017) (quoting United States v. Rodriguez-Moreno,526 U.S. 275, 279 (1999). “Actswhicharemerely‘preparatory’tothe underlying offense anditsessentialconduct,however,cannotprovideabasisforvenue.” Id.at 241. Second, Ms. Sutton took the personal information of her co-defendants and submittedanapplication.Thisactisthe“essentialconductelement”ofbankfraudasitis theexecutionofthepreviouslydevisedscheme.“[V]enueisgenerallylimitedtotheplace in which the “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). Third, after the PPP Funds were deposited into the co-defendant’s accounts, the co-defendants provided “kickback” payments. The act of providing “kickback” payments are acts in furtherance of the bank fraud crime and cannot be used to analyze venue. “Similarly, acts which occur only infurtheranceofthecrimeorafteracrimeiscomplete cannotprovideabasisforvenuebecausetheyarenotessentialtotheunderlyingoffense.” UnitedStatesv.Jefferson,674F.3d332,367(4thCir.2012)(findingvenueimproperfora wirefraudcasebecausealthoughactsinfurtheranceofthecrimeoccurredintherelevant Case 2:24-cr-00192 Document 204 Filed 05/23/25 Page 5 of 9 PageID #: 1096 district, “the physical act of transmitting the wire communication for the purpose of executing the fraud scheme,” did not); UnitedStatesv.Harris,No. 3:12-cr-170, 2013WL 1790140, at *2 (E.D. Va. Apr.26,2013)(actiontakenafteracrimeiscomplete“doesnot qualifyasessentialconductoftheoffenseforthesimplereasonthatthecrimehasalready been completed”). In the Superseding Indictment, the only ties identified or alleged to theSouthern District of West Virginia are the “kickback” paragraphs. (For example, paragraph 35 of Count 2 below). There isnomentionoftheSouthernDistrictofWestVirginiawithinthe essential conduct element paragraphs nor the sharing of information paragraphs. (Paragraph 31) Thus, the Indictment is defective and does not establish venue.Count2, below,isrepresentativeofallofthebankfraudcountsanditisclearfromtheallegations therein that there is no reference, other than the “kickback”paymentparagraph, tothe Southern District of West Virginia: Count Two 29. The allegations set forth in paragraphs 1 through 28areherebyrealleged and incorporated herein. 30. Between no later than on or about April 19, 2021, and continuinguntilat leastonoraboutMay21,2021,defendantsKishaSuttonandShamieseWright,aidedand abettedbyeachother,knowinglyexecutedandattemptedtoexecutetheabove-mentioned scheme. 31. On or about April 19, 2021, 2021, defendant Kisha Sutton caused the submissionofaPPPloanapplicationandaScheduleCtoFinancialInstitution3onbehalf of defendant Shamiese Wright and with defendant Shamiese Wright’s authorization. Case 2:24-cr-00192 Document 204 Filed 05/23/25 Page 6 of 9 PageID #: 1097 32. The application and the Schedule CstatedthatdefendantShamieseWright was a sole proprietor of a business that was established on January 1, 2017. The applicationstatedthatin2020,thebusinesshadagrossincomeof$75,000.00.Aspartof theapplication,a2020ScheduleCwassubmittedlistinggrossreceiptsof$75,000.00and a net profit of $48,750. 33. In fact, defendant Shamiese Wright did not have a business in 2020 with those gross receipts and profit. Defendant Shamiese Wright’s 2020 tax return listed $21,716 in wages and no business income or expenses. Defendant Shamiese Wright appliedforunemploymentcompensationthroughout2020andstated,severaltimes,that she was not self-employed. 34. Financial Institution 3 funded defendant Shamiese Wright’s PPP loan for $15,625 on or about May 7, 2021. 35. Between on or about May 7, 2021, and on or about May 17, 2021, Defendant Shamiese Wright, within the Southern District of West Virginia, remitted $3,000 of the fraudulent PPP loan proceeds to defendant Kisha Sutton. Defendant Shamiese Wright spent the remainder of the PPP loan proceeds on personal, ineligible expenses. In violation of Title 18, United States Code, Sections 1344 and 2. III. The Indictment is defective on its face and therearenoquestionsoffacton that issue. The Magistrate ruled that the issues presentedinDefendant’sMotionstoDismiss are ultimately questions of fact. Ms. Sutton certainly agrees that whether or not the Government can prove venue is a question of fact to bedeterminedbyajury;however, Case 2:24-cr-00192 Document 204 Filed 05/23/25 Page 7 of 9 PageID #: 1098 the issueofwhethertheIndictmentsufficientlyallegesvenueisaquestionoflawforthe Court.UndersignedcounselrecognizesthattheargumentswithintheDefendant’sMotion to Dismiss did raise questions of fact, but during oral argument on the Motion did recognizetheproperanalysisatthisstageoftheproceedings wasonthefour-cornersof theindictmentandtailoredhisargumenttothatend.Basedontheargumentsabove,this Court should set aside the Magistrate’s Order and Dismiss Counts two (2) through ten (10). 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 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 204 Filed 05/23/25 Page 8 of 9 PageID #: 1099 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 23th 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 204 Filed 05/23/25 Page 9 of 9 PageID #: 1100
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