MOTION by United States of America in Limine as to Kisha Sutton,… — United States of America v. Sutton et al (Dkt. 270)

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U.S. District Court for the Southern District of West Virginia · No. 2:24-cr-00192 · Doc. 270 · 2025-06-23 · Docket on CourtListener

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The government's motion in limine to preclude arguments and evidence advocating jury nullification in United States v. Kisha Sutton and Shamiese Wright, Criminal No. 2:24-CR-00192, in the U.S. District Court for the Southern District of West Virginia, filed June 23, 2025 as Doc. 270. The motion first sets out case law holding that neither the court nor the parties may invite a jury to disregard the law. It then asks the Court to exclude evidence and argument about potential penalties, the effect of a conviction on training, career or licensure prospects, family and financial responsibilities, and medical, physical or emotional afflictions. The nine-page filing is signed by an Assistant United States Attorney and ends with a certificate of service.

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UNITED STATES DISTRICT COURT  
 
SOUTHERN DISTRICT OF WEST VIRGINIA 
CHARLESTON 
 
 
UNITED STATES OF AMERICA 
 
 
v. 
 
 
 
 
 
 
CRIMINAL NO. 2:24-CR-00192 
 
 
KISHA SUTTON – 1 
SHAMIESE WRIGHT - 2 
 
 
GOVERNMENT’S MOTION IN LIMINE TO PRECLUDE  
ARGUMENTS AND EVIDENCE ADVOCATING JURY NULLIFICATION 
 
Comes now the United States of America, by Jonathan T. 
Storage, Assistant United States Attorney for the Southern 
District of West Virginia, and submits this motion in limine to 
preclude certain arguments and evidence that would tend to invite 
jury nullification.  
I. 
LAW REGARDING NULLIFICATION  
“Nullification is, by definition, a violation of a juror’s 
oath to apply the law as instructed by the court—in the words of 
the standard oath administered to jurors in the federal courts, to 
render a true verdict according to the law and the evidence.”  
United States v. Thomas, 116 F.3d 606, 614 (2d Cir. 1997) (emphasis 
in original) (internal quotation marks omitted). As the Supreme 
Court pronounced over a century ago, “[p]ublic and private safety 
alike would be in peril if the principle be established that juries 
in criminal cases may, of right, disregard the law as expounded to 
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them by the court, and become a law unto themselves.” Sparf v. 
United States, 156 U.S. 51, 101 (1895). Although a jury has the 
power to ignore the court’s instructions, neither the Court nor 
the parties have the right to instruct the jury regarding its 
ability to disregard the law. See United States v. Moylan, 417 
F.2d 1002, 1006–07 (4th Cir. 1969) (explaining that jury has 
“undisputed power . . . to acquit, even if its verdict is contrary 
to the law as given by the judge and contrary to the evidence” but 
holding that jury may not “be instructed that it may disregard the 
law as declared by the judge”). Therefore, it is proper for the 
Court to instruct a jury to take the law only from the Court’s 
instructions and not draw its own conclusions about the law. See 
Sparf, 156 U.S. at 102 (“Upon the court rests the responsibility 
of declaring the law; upon the jury, the responsibility of applying 
the law so declared to the facts as they, upon their conscience, 
believe them to be.”). 
It follows that it is improper for a defendant to suggest to 
the jury that it should acquit him for reasons beyond the facts 
and the law according to the district court’s instructions.  
United States v. Muse, 83 F.3d 672, 677 (4th Cir. 1996) (“Although 
a jury is entitled to acquit on any ground, a defendant is not 
entitled to inform the jury that it can acquit him on grounds other 
than the facts in evidence.”); see also, e.g., United States v. 
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Perez, 86 F.3d 735, 736 (7th Cir. 1996) (“An unreasonable jury 
verdict . . . is lawless, and the defendant has no right to invite 
the jury to act lawlessly. Jury nullification . . . is not a right, 
either of the jury or of the defendant.”); Scarpa v. Dubois, 38 
F.3d 1, 11 (1st Cir. 1994) (“[D]efense counsel may not press 
arguments for jury nullification in criminal cases.”); United 
States v. Trujillo, 714 F.2d 102, 106 (11th Cir. 1983) 
(“Appellant’s jury nullification argument would have encouraged 
the jurors to ignore the court’s instruction and apply the law at 
their caprice. While we recognize that a jury may render a verdict 
at odds with the evidence or the law, neither the court nor counsel 
should encourage jurors to violate their oath.”). Cf. United States 
v. Edwards, 101 F.3d 17, 19 (2d Cir. 1996) (holding that good 
motives do not invalidate defendant’s violation of law and jury 
should not be encouraged to consider such arguments). 
In the same vein, a defendant may not offer evidence that 
would be otherwise inadmissible for the purpose of encouraging the 
jury to disregard the law and acquit the defendant. See United 
States v. Benson, 957 F.3d 218, 236–37 (4th Cir. 2020) (holding 
that district court did not abuse its discretion by giving curative 
instruction that dismissal on state charges was irrelevant and 
should not be considered by jury after defense counsel mentioned 
dismissal in closing argument); United States v. Peterson, 945 
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F.3d 144, 157 (4th Cir. 2019) (holding that district court properly 
excluded evidence about defendant’s “lengthy state sentence” due 
to its “low probative value”). See also, e.g., Zal v. Steppe, 968 
F.2d 924, 930 (9th Cir. 1992) (Trott, J., concurring) (“[N]either 
a defendant nor his attorney has a right to present to a jury 
evidence that is irrelevant to a legal defense to, or an element 
of, the crime charged.” (emphases in original)); United States v. 
Gorham, 523 F.2d 1088, 1097–98 (D.C. Cir. 1975) (affirming trial 
court’s refusal to admit evidence that bore no legal relation to 
charges but might encourage “conscience verdict” of acquittal); 
United States v. Lucero, 895 F. Supp. 1421, 1426 (D. Kan. 1995) 
(“[D]efendants are not entitled to present evidence which is 
irrelevant for any purpose other than to provoke the finder of 
fact to disregard the law.”). 
II. 
SPECIFIC AREAS OF EVIDENCE AND ARGUMENT TO BE EXCLUDED 
 
A. Potential Penalties  
The defendants, if convicted, will be exposed to a sentence 
of numerous years of imprisonment. The possibilities of what their 
ultimate sentences may be should not be presented to the jury 
during trial. 
Sentencing considerations are irrelevant to the jury’s 
determination of a defendant’s guilt or innocence. See Rogers v. 
United States, 422 U.S. 35, 40 (1975) (“[T]he jury ha[s] no 
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sentencing function and should reach its verdict without regard to 
what sentence might be imposed.”); United States v. Meredith, 824 
F.2d 1418, 1429 (4th Cir. 1987) (“The jury must reach its verdict 
without considering possible sentences.”); see also Fed. R. Evid. 
401 (setting forth standard for relevance). As the Supreme Court 
explained in Shannon v. United States, 
The principle that juries are not to consider the 
consequences of their verdicts is a reflection of the 
basic division of labor in our legal system between judge 
and jury. The jury’s function is to find the facts and 
to decide whether, on those facts, the defendant is 
guilty of the crime charged. The judge, by contrast, 
imposes sentence on the defendant after the jury has 
arrived at a guilty verdict. Information regarding the 
consequences of a verdict is therefore irrelevant to the 
jury’s task. Moreover, providing jurors sentencing 
information invites them to ponder matters that are not 
within their province, distracts them from their fact-
finding 
responsibilities, 
and 
creates 
a 
strong 
possibility of confusion.  
512 U.S. 573, 579 (1994).   
Put simply, arguments about the penalties a defendant faces 
or has faced are a “self-evident invitation to jury nullification.” 
United States v. Peterson, 945 F.3d 144, 157 (4th Cir. 2019). A 
defendant’s suggestion to the jury, whether implicit or explicit, 
that it should acquit him based on the sentence he faces, even if 
it finds the evidence sufficient to prove his guilt beyond a 
reasonable doubt, plainly runs afoul of the well-established 
principle that the jury’s verdict should be based only on the 
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evidence and the law as instructed by the court. Therefore, the 
United States respectfully requests that the Court prevent the 
defendants in this case from presenting arguments and evidence 
relating to the potential penalties to which they are exposed if 
convicted of the crimes charged in the Second Superseding 
Indictment. 
B. Nursing Education Programs / Nursing Licensure  
The government understands that defendant Shamiese Wright is 
seven months into a nursing program. She is expected to complete 
the program in five months, and she plans to enroll in a two-year 
registered nurse (“RN”) program at Trocare College. The government 
understands from communications with counsel that defendant 
Shamiese Wright is very concerned about what a felony conviction 
will do to her prospects of become an RN.  
Matters relating to the defendants’ course of study, their 
future career plans, and the potential harm a felony conviction 
would do to their plans are irrelevant to whether or not they 
committed the crimes alleged, and introducing such facts to the 
jury would invite jury nullification. For this reason, government 
requests that the Court preclude defendants from introducing 
evidence or argument about their current training, career goals, 
and the effect a felony conviction may have on those matters. 
 
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C. Child / Family Care / Financial Responsibilities  
As is the case with many defendants, defendants Kisha Sutton 
and Shamiese Wright very likely have family and financial 
responsibilities at home. But the defendants’ person circumstances 
at home are irrelevant to the matters at issue, and the 
introduction of such personal matters would only invite jury 
nullification. For these reasons, the Court should exclude any 
evidence or argument about the defendants’ home, family, or 
financial responsibilities.  
D. Medical Diagnoses / Physical & Emotional Disabilities  
To the extent that the defendants are afflicted by one or 
more physical or emotional disabilities, disorders, traumas, pain, 
etc., the defendants should be precluded from introducing any 
evidence or argument about such afflictions. Introducing evidence 
and argument about irrelevant pain and suffering from some medical, 
physical, or emotional trauma would invite jury nullification and 
should be excluded. To the extent that any such afflictions are 
apparent through casual observations, the defendants should be 
precluded from emphasizing the afflictions in front of the jury.  
III. 
CONCLUSION 
For these reasons, the government requests that the Court 
enter an order precluding the defendants from introducing evidence 
and arguments relating to certain subject matter that would invite 
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jurors to abandon their oaths and acquit the defendant for reasons 
unrelated to the relevant law and facts of the case. The Court 
should preclude evidence and argument relating to (A) the potential 
criminal penalties the defendants may face upon conviction; (B) 
the effect any criminal conviction would have on current training, 
career, or professional licensure prospects; (C) the family and 
financial responsibilities the defendants may have at home; and 
(D) any medical, physical, or emotional afflictions they may have. 
  
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 
MOTION IN LIMINE TO PRECLUDE ARGUMENTS AND EVIDENCE ADVOCATING 
JURY NULLIFICATION” has been electronically filed and service has 
been made on opposing counsel by virtue of electronic mail this 
the 23rd day of June, 2025, to: 
 
Connor D. Robertson, Esq. 
2702 Main Street 
Hurricane, WV 25526 
Email: cdr@croblaw.com 
 
 
Michelle R. Fox, Esq. 
LAW OFFICES OF MICHELLE ROMAN FOX 
3359 Teays Valley Road 
Hurricane, WV 25526 
Email: michellefox@smithlawpllc.net 
 
 
 
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 270     Filed 06/23/25     Page 9 of 9 PageID #: 1347

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