Court filing
Motion in Limine as to Kisha Sutton to Exclude Evidence — United States v. Sutton et al. (Dkt. 263, S.D. W. Va.)
Filed June 23, 2025 in United States v. Sutton et al.; one of 133 filings from this case.
Record facts
| Court | U.S. District Court for the Southern District of West Virginia |
|---|---|
| Filed | 2025-06-23 |
U.S. District Court for the Southern District of West Virginia · No. 2:24-cr-00192 · Doc. 263 · 2025-06-23 · Docket on CourtListener
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 KISHA SUTTON’S MOTIONIN LIMINETO EXCLUDE EVIDENCE OF OTHER CRIMES, WRONGS, OR ACTS PURSUANT TO RULES 4O3 AND 404(b) OF THE FEDERAL RULES OF EVIDENCE NOW COMES the Defendant, Kisha Sutton, by and through counsel, Connor Robertson,pursuanttoRules403and404(b)oftheFederalRulesofEvidencetoprevent the Government from introducing, during its case inchief,anyevidenceofothercrimes, wrongs, or other acts allegedly committed by the Defendant. In support thereof, the Defendant states as follows: INTRODUCTION ThisisafraudulentschemeprosecutionwherebytheIndictmentallegesthatKisha Sutton prepared and submitted PPP Loan applications containing false personal informationofherfriendsandfamily.Theloanapplicationswereultimatelyapprovedand money was deposited into the bank accounts of her friends and relatives. For consideration of Ms. Sutton’s work, her friends and relatives sent a portion of the proceeds back to Ms. Sutton. Case 2:24-cr-00192 Document 263 Filed 06/23/25 Page 1 of 8 PageID #: 1299 There have been three grand jury presentations in this case, each leading to an Indictment. In the Indictment and the Superseding Indictment, Ms. Sutton was charged with one count of Conspiracy to commit Bank Fraud andnineseparatecountsofaiding and abetting Bank Fraud (one count for each loan application she submitted on her friends’behalf).However,theGovernmentdramaticallychangedandreducedthescopeof its case in the most recent Second Superseding Indictment. Therein, Ms. Sutton is now charged with onecountofaidingandabettingBankFraudwithShamiseWrightandone count of money laundering with Shamise Wright. All other co-defendants have been removed from the Second Superseding Indictment. Now that the other co-defendants have been removed from the Indictment, the Government nonetheless intends to offer their testimony and various loan documents associated with each individual’s fraudulent loan into evidence against Ms. Sutton pursuant to Rule 404(b). This Motion asks the Court to bar this from happening for a varietyofreasonssetforthbelow.First,theGovernment’s404(b)NoticetotheDefendant is insufficient. 404(b) NOTICE FederalRuleofEvidence404(b)(1)providesthat“[e]videnceofacrime,wrong,or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person actedinaccordancewiththecharacter.”Thegovernment, therefore, “may not introduce evidence of extrinsic offenses to demonstrate the defendant’spropensitytocommitunlawfulactsortoprovethatthedefendantcommitted thecrimewithwhichheispresentlycharged.”UnitedStatesv.Powers,59F.3d1460,1464 (4th Cir. 1995) (internal quotation marksomitted).Although“otheracts”evidenceisnot Case 2:24-cr-00192 Document 263 Filed 06/23/25 Page 2 of 8 PageID #: 1300 admissible to prove criminal propensity, such evidence “may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, knowledge, identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2). Because it is the Government’sburdentoestablishthatevidenceofadefendant’s prioractsisadmissibleforaproperpurpose,theGovernmentmust“identifyeachproper purpose for which itwillusetheotheractsevidenceandexplainhowthatevidence“fits into a chain ofinferences-achainthatconnectstheevidenceto[each]properpurpose, no link of whichisaforbiddenpropensityinference."UnitedStatesv.HaroldHall,Jr.,858 F.3d 254 (4th Cir. 2017) quoting UnitedStatesv.Davis,726F.2d434,442(3dCir.2013). Rule 404(b)(3) setsoutthethreerequirementsoftheGovernment’sobligationofNotice as follows: (3) Notice in a Criminal Case. In a criminal case, the prosecutor must: (A) Providereasonablenoticeofanysuchevidencethattheprosecutorintends to offer at trial, so that the defendant has a fair opportunity to meet it; (B)Articulate in the notice the permitted purpose for which the prosecutor intends tooffertheevidenceandthereasoningthatsupportsthepurpose; and (C)Do so in writing before trial - or in any form during trial if the court, for good cause, excuses lack of pretrial notice. The notice requirement of Rule 404(b)(3) is specific and was put in place to prevent general 404(b) disclosures. The Committee Notes on Rules for the 2011 Amendment highlight the reason the rule was amended to provide for more specific notice by saying: “The prosecution must not only identify theevidencethatitintends to offer pursuant to the rule but also articulate anon-propensitypurpose for which the evidence is offered and the basis for concluding that the evidenceisrelevantinlightofthepurpose.Theearlierrequirementthatthe prosecutionprovidenoticeofonlythe“generalnature”oftheevidencewas understood by some courts to permit the governmenttosatisfythenotice Case 2:24-cr-00192 Document 263 Filed 06/23/25 Page 3 of 8 PageID #: 1301 obligation without describing the specific act that theevidencewouldtend to prove, and without explaining the relevance of the evidence for a non-propensity purpose. This amendment makes clear what notice is required.” Fed. R. Evid. 404(b) advisory committee notes (2011). GOVERNMENT’S 404(b) NOTICE INSUFFICIENT The Government’s 404(b) notice is exactly the type of generic catch-all disclosure that the Rule was amended to prevent. In the Second Supplemental Response of the United States of America to Defendant’s Standard Discovery Request and Request of theUnitedStatesforReciprocalDiscovery(ECF258),the Governmentindicatesitsintentiontopresent404(b)evidenceagainstKishaSutton. The Disclosure is as follow: “ThegovernmentintendstopresentevidencelinkingdefendantKisha Sutton to the PPP loans applied for and received in the names of Lydia Spencer, Cylena Sutton, Rahmel Meekins, William Powell, Damisha Brown, andJasmineSpencer.Theevidenceincludesinternetprotocoladdresses(“IP Addresses”), Verizon subscriber information, IRS Form 1040-Schedule C, PPP loan applications, Docusign records, bank account records, CashApp account records and the like. Thegovernmentseekstointroducesuchevidenceforthepurposeof proving motive, opportunity, intent, preparation, plan, knowledge identity, absence of mistake and lackofaccident,aspermittedbyRule404(b)(2)of the Federal Rules of Evidence.” This disclosure fails to “precisely articulate the purpose of the proffered [404(b)] evidence.”UnitedStatesv.Birch,39F.3d1089,1093(10thCir.1994).First,thisdisclosure simply restates all of the non-propensity exceptions in a broad manner. Second, the disclosurefailstoexplaintheinferenceeachpieceofevidencewillprovidetoaparticular non-propensity purpose. Case 2:24-cr-00192 Document 263 Filed 06/23/25 Page 4 of 8 PageID #: 1302 This type of broad disclosure has been ruled as inadequate. In United States v. Kearn, 863 F.3d 1299 (10th Cir. 2017), the Government 404(b) Notice was very similar. There the government filed a pre-trial motion to introduce evidence found on the Defendantssmartphoneandcomputerwhichincludedsexuallyexplicitimagesofminors, nudevideoclips,andsearchtermsindicatinganinterestinsuchmaterial.Thegovernment sought to introduce the evidence under Rule 404(b) to show “the defendant’s intent, knowledge, absence of mistake and lack ofaccident.”Id.TheKearnCourtheldthebroad statementwasinadequate.Id.SeealsoUnitedStatesv.Birch,39F.3d1089,(10thCir.1994) (“Inthiscase,thegovernmentfailedtoarticulatewithprecisiontheevidentiarypurposeof the Rule 404(b) evidence it offered. Although the government filed a pretrial Notice of Intent to Introduce Evidence Pursuant to Rule 404(b), the Notice stated only that the evidence’s purpose was to “prove the defendant’s knowledge, identity, and absence of mistake.” The Notice does not articulate “the relevantpurposeandspecificinferencesto be drawn from . . . [the] evidence of other acts’ offered by the Government.”). A district court must make a thresholddeterminationthattheofferedevidenceis probative of a material issue other than character before admitting the evidence under Rule 404(b). Huddlestonv.UntiedStates,485U.S.681,686(1998).Inthiscase,theCourt could not do so on the broad disclosure. Thus, any 404(b) evidence should be barred. SUBSTANTIVE 404(b) CHALLENGE Ms. Sutton cannot, at this point,effectivelymounta404(b)challengebecauseshe has not been properly put on notice of exactly what evidence isbeingoffered,forwhat purpose,andhowitrelatestothecurrentcharges.“Thegovernmentbearstheburdenof establishing that the evidence of a defendant’s prior badactsisadmissibleforaproper Case 2:24-cr-00192 Document 263 Filed 06/23/25 Page 5 of 8 PageID #: 1303 purpose.UnitedStatesv.HaroldHall,Jr.,858F.3d254(4thCir.2017)quotingUnitedStates v.Youts,229 F.3d 1312, 1317 (10th Cir. 2000). To doso,theGovernmentmustmeetthe following criteria set forth inUnited States v. Queen, 132 F.3d 991 (4th Cir. 1997): 1. “The evidence mustberelevanttoanissue,suchasanelementofanoffense,and must not be offered to establish the general character of the defendant.” 2. “Theactmustbenecessaryinthesensethatitisprobativeofanessentialclaimor an element of the offense.” 3. “The evidence must be reliable.” 4. “Theevidence’sprobativevaluemustnotbesubstantiallyoutweighedbyconfusion or unfair prejudice in the sense thatittendstosubordinatereasontoemotionin the factfinding process.”Id. Ms. Sutton can envision mounting multiple attacks to the currently proposed evidence after the Government explains its purpose. However, without knowing how exactly the Government intends to link its proposed evidence to a relevant issue in the case, Ms. Sutton is effectively prejudiced by guessing how the Government willproceed. Forthatmatter,thereareaspectsofthiscasethatMs.Suttonmaynotnecessarilydispute and therefore 404(b)evidencewouldnotbeanythingotherthanpropensityevidenceto pileontoanissuenotindispute.IfaDefendantdoesnotdisputeanissue,thenthe404(b) evidencesprobativevaluedecreasesandtheprejudicialvalueincreases.SeeUnitedStates v. Harold Hall, Jr., 858 F.3d 254 (4th Cir. 2017) (“But, also like his prior possession conviction, Defendant’s prior convictions for possession with intent to distribute marijuana are of minimal probative value because Defendant did not contest his knowledge of marijuana and because the government did not introduce evidence Case 2:24-cr-00192 Document 263 Filed 06/23/25 Page 6 of 8 PageID #: 1304 suggestingthatDefendant’sknowledgeofmarijuanawouldhavepermittedhimtoidentify the smell as emanating from the deadbolt-locked bedroom.)Id. Despite Ms. Sutton’s disadvantage, should the Court not bar 404(b) evidence outrightforfailuretoprovidepropernotice,orallowthegovernmenttorevisethenotice, Ms.Suttonchallengestheproposed404(b)evidenceasbeingirrelevant,non-probativeto any issue in the case, or itsprobativevalueissubstantiallyoutweighedbythedangerof unfair prejudice, confusing the issues, misleading the jury, undue delay, wastingtime,or needlesslypresentingcumulativeevidence.TheCourtshouldholda404(b)hearingprior to trial in order to allow Ms. Sutton the opportunity to challenge the evidence properly. CONCLUSION WHEREFORE,forthereasonssetforthabove,Ms.Suttonrespectfullyrequeststhat the Court bar the Government frompresenting404(b)evidenceasgenericallyidentified in its 404(b) disclosure. In the alternative, Ms. Sutton respectfully requests the Court ORDER the Government to revise the disclosure to allow her propernoticeofwhatshe must defend. Additionally, and most importantly, hold an evidentiary 404(b) hearing on the matter prior to trial so that a full record can be developed. 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 263 Filed 06/23/25 Page 7 of 8 PageID #: 1305 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 23rd day of June, 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 263 Filed 06/23/25 Page 8 of 8 PageID #: 1306
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