RESPONSE IN OPPOSITION by United States of America as to Kisha… — United States of America v. Sutton et al (Dkt. 216)

Record facts

U.S. District Court for the Southern District of West Virginia · No. 2:24-cr-00192 · Doc. 216 · 2025-05-28 · Docket on CourtListener

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The government's response in opposition to defendant Kisha Sutton's objections to a magistrate judge's order denying her motions to dismiss for lack of venue, filed May 28, 2025 in United States v. Sutton, No. 2:24-cr-00192, in the U.S. District Court for the Southern District of West Virginia, as Doc. 216. It asks the court to overrule the objections (ECF No. 204) to Magistrate Judge Aboulhosn's Order (ECF No. 203). The response argues that the Superseding Indictment alleges conduct within the Southern District of West Virginia, including kickback payments charged in Counts Two through Ten. It also argues that bank fraud is a continuing offense under 18 U.S.C. § 3237(a) and that 18 U.S.C. § 2 permits prosecution of an aider and abettor where the substantive crime was committed. The 10-page filing is signed by Assistant United States Attorney Jonathan T. Storage.

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UNITED STATES DISTRICT COURT  
 
SOUTHERN DISTRICT OF WEST VIRGINIA 
CHARLESTON 
 
 
UNITED STATES OF AMERICA 
 
 
v. 
 
 
 
 
 
 
CRIMINAL NO. 2:23-CR-00192-1 
 
 
KISHA SUTTON 
 
 
GOVERNMENT’S RESPONSE IN OPPOSITION 
 TO DEFENDANT’S OBJECTIONS TO MAGISTRATE’S ORDER 
 DENYING DEFENDANT’S MOTIONS TO DISMISS FOR LACK OF VENUE 
 
Comes now the United States of America, by Jonathan T. 
Storage, Assistant United States Attorney for the Southern 
District of West Virginia, and respectfully requests that the Court 
overrule the defendant’s objections (ECF No. 204) to Magistrate 
Judge Aboulhosn’s Order (ECF No. 203) denying the defendant’s venue 
challenge.  
I. 
LEGAL STANDARD 
“The Federal Magistrates Act permits a district court judge 
to refer a pretrial suppression motion to a magistrate for the 
conduct of hearings, including evidentiary hearings.” United 
States v. George, 971 F.2d 1113, 1117 (4th Cir. 1992), as amended 
(Aug. 12, 1992). “Upon the completion of hearings, the magistrate 
submits proposed findings of fact and recommendations to the court, 
which ‘shall make a de novo determination of those portions of the 
report or specified proposed findings or recommendations to which 
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objection is made.’” Id. at 1117 (quoting 28 U.S.C. § 636(b)(1)). 
“After conducting de novo review, a ‘judge of the court may accept, 
reject, or modify, in whole or in part, the findings or 
recommendations made by the magistrate. The judge may also receive 
further evidence or recommit the matter to the magistrate with 
instructions.’” Id. at 1117-18 (quoting 28 U.S.C. § 636(b)(1)). 
“[A] district court is required to consider all arguments directed 
to that issue, regardless of whether they were raised before the 
magistrate.” Id. at 1118. 
“When deciding a pretrial motion to dismiss an indictment for 
improper venue, the district court assesses only whether the 
allegations of the indictment, if true, would suffice to establish 
venue. The court may not, at this stage, consider evidence beyond 
the indictment.” United States v. Powers, 40 F.4th 129, 134 (4th 
Cir. 2022) (internal citation omitted). Likewise, in an appeal 
from the denial of a pretrial motion to dismiss the indictment, 
the Fourth Circuit will not consider the evidence that was 
presented at trial. Id. at 134. 
“[T]he selection of venue in a bank fraud prosecution is 
governed by the general venue statute for federal criminal 
offenses, set forth in 18 U.S.C. § 3237.” United States v. Bankole, 
39 F. App’x 839, 842 (4th Cir. 2002). “Venue for a federal criminal 
prosecution is to be determined ‘from the nature of the crime 
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alleged and the location of the act or acts constituting it.’” Id. 
at 842. 
“Venue must be determined from the nature of the crime 
alleged, determined by analyzing the conduct constituting the 
offense, and the location (or, if the crime is a continuing one, 
locations) of the commission of the criminal acts. If the crime 
consists of distinct parts, taking place in different localities, 
then venue is proper wherever any part can be proved to have taken 
place.” United States v. Scott, 270 F.3d 30, 35 (1st Cir. 2001). 
“One of the elements of bank fraud is proof of a scheme to defraud.” 
Id. at 36 (emphasis added). 
Bank fraud is a continuing offense under 18 U.S.C. § 3237(a), 
and venue is proper wherever the offense was “begun, continued, or 
completed.” Scott, 270 F.3d at 36; see also Bankole, 39 F. App’x 
at 843 (“[The verdict] supports a finding that the bank fraud 
offense was begun in Maryland, continued into New Hampshire, and 
was completed in the Eastern District of Virginia.” (emphasis in 
original)); see also United States v. Dupre, 117 F.3d 810, 822 
(5th Cir. 1997) (“Bank fraud, false statement, and money laundering 
offenses are ‘continuing’ offenses for purposes of § 3237.”). 
“A continuing offense is a continuous, unlawful act or series 
of acts set on foot by a single impulse and operated by an 
unintermittent force, however long a time it may occupy. Where 
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such an act or series of acts runs through several jurisdictions, 
the offense is committed and cognizable in each.” United States v. 
Midstate Horticultural Co., 306 U.S. 161, 166 (1939) (quoting with 
approval Armour Packing Co. v. United States, 153 F. 1 (8th Cir. 
1907), aff’d, 209 U.S. 56 (1908)). 
The Fourth Circuit has noted that “it was not always possible 
by the use of one analytical tool to discern the location of where 
a crime has been committed.” United States v. Cofield, 11 F.3d 
413, 417 (4th Cir. 1993), as amended (Jan. 5, 1994). “A review of 
relevant authorities demonstrates that there is no single defined 
policy or mechanical test to determine constitutional venue. 
Rather, the test is best described as a substantial contacts rule 
that takes into account a number of factors—the site of the 
defendant’s acts, the elements and nature of the crime, the locus 
of the effect of the criminal conduct, and the suitability of each 
district for accurate factfinding.” Id. at 417 (quoting with 
approval United States v. Reed, 773 F.2d 477, 481 (2d Cir. 1985)). 
“[T]he submission of a venue question to a jury is a proper 
procedure when the facts underlying venue are disputed.” Bankole, 
39 F. App’x 841; see also Green v. United States, 309 F.2d 852, 
857 (5th Cir. 1962) (holding that “the trial court erred in failing 
to submit the question of venue to the jury.”). At trial, “[t]he 
burden is on the Government to prove venue by a preponderance of 
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the evidence.” United States v. Robinson, 275 F.3d 371, 378 (4th 
Cir. 2001). 
“For some offenses, there may be ‘more than one appropriate 
venue, or even a venue in which the defendant has never set foot.’” 
United States v. Ebersole, 411 F.3d 517, 524 (4th Cir. 2005). 
“Whoever commits an offense against the United States or aids, 
abets, counsels, commands, induces or procures its commission, is 
punishable as a principal.” 18 U.S.C. § 2. To convict a defendant 
of being an aider and abettor, the government must show that the 
defendant’s conduct amounted to counseling, assisting, or 
facilitating the commission of a federal crime. See United States 
v. Honeycutt, 311 F.2d 660, 662 (4th Cir. 1962). 
Title 18, United States Code, Section 2 “has been construed 
to permit the prosecution of an aider and abettor not only in the 
district in which he committed the accessorial acts but also in 
the district where the substantive crime was committed.” United 
States v. Kilpatrick, 458 F.2d 864, 868 (7th Cir. 1972). “Congress 
has declared that an aider and abettor may be punished as a 
principal, and it follows that he may be punished in the same 
district as the principal.” Id. at 868. 
II. 
DISCUSSION 
Because the government has properly alleged venue within the 
Southern District of West Virginia in the Superseding Indictment, 
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the defendant’s objections to Magistrate Judge Aboulhosn’s Order 
should be overruled.  
A. The allegations within the four corners of the 
Superseding Indictment unequivocally assert that the 
charged conduct occurred within the Southern District of 
West Virginia.   
 
The starting point in considering a pretrial motion to dismiss 
for lack of venue is to examine the charging document. “When 
deciding a pretrial motion to dismiss an indictment for improper 
venue, the district court assesses only whether the allegations of 
the indictment, if true, would suffice to establish venue.” Powers, 
40 F.4th at 134. 
In the introductory paragraphs of the Superseding Indictment, 
each co-defendant and their role in the “scheme to defraud” is 
discussed. For example, in ¶ 9 of the Superseding Indictment, the 
Grand Jury alleges, while residing within the Charleston, Kanawha 
County, West Virginia, within the Southern District of West 
Virginia, “defendant SHAMIESE WRIGHT authorized defendant KISHA 
SUTTON to apply for a fraudulent PPP loan on her behalf. As a 
result, defendant SHAMIESE WRIGHT received fraudulent PPP loan 
proceeds and paid a portion of the proceeds to defendant KISHA 
SUTTON as a kickback for apply for the loan.” ECF No. 68 at 32. 
These introductory paragraphs are incorporated by reference in 
each of the charged counts. Moreover, Counts Two through Ten 
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specifically allege that the kickback payments to the defendant 
were initiated “within the Southern District of West Virginia.” 
Thus, the Superseding Indictment is direct and clear in alleging 
that the charged conduct, which includes both conspiracy and aiding 
& abetting offenses, are sufficiently associated with the Southern 
District of West Virginia to withstand a venue challenge at this 
stage of the proceedings. Powers, 40 F.4th at 134 (“The court may 
not, at this stage, consider evidence beyond the indictment.”). 
B. The defendant’s fixation on where the “essential conduct 
element” of an offense took place ignores the continuing 
offense character of the bank fraud statute.  
 
Bank fraud is a continuing offense under 18 U.S.C. § 3237(a), 
and venue is proper wherever the offense was “begun, continued, or 
completed.” Scott, 270 F.3d at 36; see also Bankole, 39 F. App’x 
at 843 (“[The verdict] supports a finding that the bank fraud 
offense was begun in Maryland, continued into New Hampshire, and 
was completed in the Eastern District of Virginia.” (emphasis in 
original)). During the hearing on the defendant’s motions to 
dismiss, the defendant conceded to the Court that bank fraud is a 
continuing offense for venue purposes. But the defendant’s 
objections (ECF No. 204) to the magistrate judge’s ruling make no 
mention of this fact.  
The case law, as well as the applicable venue statute (18 
U.S.C. § 3237(a)), are unambiguous that continuing offenses may be 
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brought in any district where an offense is begun, continued, or 
completed. The defendant attempts to confuse offense elements for 
bank fraud with other, inapposite crimes. See, e.g., ECF No. 204 
at 5 (discussing inapplicability of “preparatory acts” for venue 
purposes). Importantly, though, “[o]ne of the elements of bank 
fraud is proof of a scheme to defraud.” Scott, 270 F.3d at 36 
(emphasis added). In a bank fraud prosecution, the “scheme to 
defraud” is the offense conduct, and the United States Supreme 
Court has said as much. In examining the ways in which Congress 
changed the common law application of the certain fraud offenses 
(to include mail fraud, wire fraud, and bank fraud), the Supreme 
Court observed that by enacting the fraud statutes, Congress 
prohibited “the scheme to defraud, rather than the completed 
fraud.” Neder v. United States, 527 U.S. 1, 25 (1999) (internal 
quotations omitted) (emphasis added). 
As alleged in the Superseding Indictment, the “scheme to 
defraud” involved residents of the Southern District of West 
Virginia scheming with the defendant to apply for fraudulent PPP 
loans. The co-defendant’s sent their personal information to the 
defendant in furtherance of the scheme, received illicit proceeds 
as a part of the scheme in the Southern District of West Virginia, 
and sent a kickback payment to the defendant for her role in 
“aiding and abetting” the scheme. Title 18, United States Code, 
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Section 2 “has been construed to permit the prosecution of an aider 
and abettor not only in the district in which he committed the 
accessorial acts but also in the district where the substantive 
crime was committed.” Kilpatrick, 458 F.2d at 868. Accordingly, 
under both a conspiracy theory and aiding & abetting theory, both 
of which are alleged in the Superseding Indictment as to the 
defendant, venue has been properly alleged.  
III. 
CONCLUSION  
For the reasons stated herein, the government respectfully 
requests that the Court overrule the defendant’s objections (ECF 
No. 204). 
 
Respectfully submitted, 
 
LISA G. JOHNSTON 
Acting United States Attorney 
 
 
 
 
 
 
By: 
s/Jonathan T. Storage            
JONATHAN T. STORAGE 
Assistant United States Attorney 
WV State Bar No. 12279 
300 Virginia Street, East 
Room 4000 
Charleston, WV 25301 
Telephone: 304-345-2200 
Fax: 304-347-5104 
E-mail: Jonathan.Storage@usdoj.gov  
 
 
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CERTIFICATE OF SERVICE 
 
It is hereby certified that the foregoing “GOVERNMENT’S 
RESPONSE IN OPPOSITION TO DEFENDANT’S OBJECTIONS TO MAGISTRATE’S 
ORDER DENYING DEFENDANT’S MOTIONS TO DISMISS FOR LACK OF VENUE” 
has been electronically filed and service has been made on opposing 
counsel by virtue of electronic mail this the 28th day of May, 
2025, to: 
 
Connor D. Robertson, Esq. 
2702 Main Street 
Hurricane, WV 25526 
Email: cdr@croblaw.com 
 
 
 
 
s/Jonathan T. Storage            
JONATHAN T. STORAGE 
Assistant United States Attorney 
WV State Bar No. 12279 
300 Virginia Street, East 
Room 4000 
Charleston, WV 25301 
Telephone: 304-345-2200 
Fax: 304-347-5104 
E-mail: Jonathan.Storage@usdoj.gov  
 
 
 
 
 
Case 2:24-cr-00192     Document 216     Filed 05/28/25     Page 10 of 10 PageID #: 1176

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