MOTION by United States of America in Limine as to Kisha Sutton,… — United States of America v. Sutton et al (Dkt. 272)

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U.S. District Court for the Southern District of West Virginia · No. 2:24-cr-00192 · Doc. 272 · 2025-06-23 · Docket on CourtListener

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The government's motion for judicial notice, filed June 23, 2025 as Doc. 272 in United States v. Kisha Sutton and Shamiese Wright, No. 2:24-cr-00192, in the U.S. District Court for the Southern District of West Virginia. It asks the court under Fed. R. Evid. 201 to take judicial notice of the Small Business Administration's Paycheck Protection Program rules as published in the Federal Register, citing 44 U.S.C. § 1507. The motion lists several interim final rules, including 85 Fed. Reg. 21747 and 85 Fed. Reg. 36717, and says a compilation is attached as Exhibit A. It states the government intends to present the rules through a Rule 1006 summary chart. It also asks the court to notice that Huntington, Charleston and South Charleston are within the Southern District of West Virginia.

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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 FOR JUDICIAL NOTICE 
 
Comes now the United States of America, by Jonathan T. 
Storage, Assistant United States Attorney for the Southern 
District of West Virginia, and respectfully moves of the entry of 
an order taking judicial notice of federal administrative rules 
applicable to the implementation of the Paycheck Protection 
Program. Additionally, the government requests that the Court take 
judicial notice of the fact that Huntington, Cabell County, West 
Virginia; Charleston, Kanawha County, West Virginia; and South 
Charleston, Kanawha County, West Virginia, are within the Southern 
District of West Virginia.  
I. 
LEGAL STANDARD 
The Court may judicially notice a fact that is not subject to 
reasonable dispute because it (1) is generally known within the 
trial court’s territorial jurisdiction or (2) can be accurately 
and readily determined from sources whose accuracy cannot 
reasonably be questioned. Fed. R. Evid. 201(b). The court may take 
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judicial notice on its own, or it must take judicial notice if a 
party requests it, and the court is supplied with the necessary 
information. Fed. R. Evid. 201(c). “The court may take judicial 
notice at any stage of the proceeding.” Fed. R. Evid. 201(d). “This 
rule governs judicial notice of an adjudicative fact only, not a 
legislative fact.” Fed. R. Evid. 201(a).  
“Adjudicative facts are simply the facts of the particular 
case. Legislative facts, on the other hand, are those which have 
relevance to legal reasoning and the lawmaking process, whether in 
the formulation of a legal principle or ruling by a judge or court 
or in the enactment of a legislative body.” Fed. R. Evid. 201 
advisory committee’s note to 1972 proposed rules. 
“The doctrine of judicial notice is predicated upon the 
assumption that the source materials from which the court takes 
judicial notice are reliable.” United States v. Horn, 185 F. Supp. 
2d 530, 549 (D. Md. 2002). 
“The publication in the Federal Register of a document creates 
a rebuttable presumption (1) that it was duly issued, prescribed, 
or promulgated; (2) that it was filed with the Office of the 
Federal Register and made available for public inspection at the 
day and hour stated in the published notation; (3) that the copy 
contained in the Federal Register is a true copy of the original; 
and (4) that all requirements of this chapter and the regulations 
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prescribed under it relative to the document have been complied 
with.” 44 U.S.C. § 1507. 
“The contents of the Federal Register shall be judicially 
noticed.” 44 U.S.C. § 1507. 
“[W]hether an offense occurred within particular geographical 
boundaries is an appropriate subject for judicial notice. United 
States v. Wilkerson, 444 F. App’x 708, 709 (4th Cir. 2011). 
II. 
DISCUSSION  
A. 
The SBA’s PPP Rules 
The Court should take judicial notice of the Paycheck 
Protection Program (“PPP”) rules and regulations promulgated by 
the United States Small Business Administration and reported in 
the Federal Register. The program rules, such as loan eligibility 
requirements, are relevant to the case, and the rules are not 
subject to reasonable dispute because they can be accurately and 
readily determined from sources whose accuracy cannot reasonably 
be questioned. 
1. What is the Federal Register?  
The Federal Register “is the official daily publication for 
rules, proposed rules, and notices of Federal agencies and 
organizations, as well as executive orders and other presidential 
documents.” https://www.govinfo.gov/help/fr#about (last visited 
June 23, 2025). 
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“The Archivist of the United States, acting through the Office 
of the Federal Register, is charged with the custody and, together 
with the Director of the Government Publishing Office, with the 
prompt and uniform publishing of the documents required or 
authorized to be published by section 1505 of this title.” 44 
U.S.C. § 1502. 
“Documents required or authorized to be published by [44 
U.S.C. § 1505] shall be published immediately by the Government 
Publishing Office in a serial publication designated the ‘Federal 
Register.’” 44 U.S.C. § 1504. The codification of documents 
published in the Federal Register is known as the Code of Federal 
Regulations. 44 U.S.C. § 1510(b). 
2. Paycheck Protection Program Rules 
On April 15, 2020, the U.S. Small Business Administration’s 
(“SBA”) interim final rule implementing sections 1102 and 1106 of 
the Coronavirus Aid, Relief, and Economic Security Act (“CARES 
Act”) took effect. 83 Fed. Reg. 20811 (April 15, 2020). Section 
1102 of the CARES Act established the temporary Paycheck Protection 
Program under the SBA. Id.  
The PPP rules were amended numerous times. See, e.g., 85 Fed. 
Reg. 21747 (April 20, 2020) (“This interim final rule supplements 
the First PPP Interim Final Rule with guidance for individuals 
with self-employment income who file a Form 1040, Schedule C.”); 
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85 Fed. Reg. 23450 (April 28, 2020) (“This interim final rule 
supplements the previously posted interim final rules with 
additional guidance.”); 85 Fed. Reg. 36717 (June 18, 2020) (“This 
interim final rule revises SBA’s interim final rule published in 
the Federal Register on April 15, 2020 by changing the eligibility 
requirement related to felony convictions of applicants or owners 
of the applicant.”); 86 Fed. Reg. 15083 (March 22, 2021) (“[T]his 
interim final rule clarifies the eligibility for first draw PPP 
loans for applicants that are assigned a North American Industry 
Classification System (NAICS) code beginning with 72 and have more 
than one physical location and clarifies certain payroll cost 
exclusions included in the Economic Aid Act.”). 
The PPP rules, as amended, established the purpose of the 
program, the eligibility requirements for a PPP loan, the manner 
by which an applicant could apply for a loan, the spending 
requirements for any proceeds received, and the requirements for 
loan forgiveness.  
The SBA’s PPP rules were duly published in the Federal 
Register, and their existence cannot be subject to reasonable 
dispute. Moreover, the content of the rules can be accurately and 
readily determined “from sources whose accuracy cannot reasonably 
be questioned” – the Federal Register, itself. Importantly, 
Congress specifically enacted a statute commanding that the 
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contents of the Federal Register “shall be judicially noticed.” 44 
U.S.C. § 1507. A compilation of the relevant PPP rules is attached 
hereto as Exhibit A.  
3. Relevance of the PPP Rules in this Case  
The PPP rules are a central focus of the government’s case 
because the rules on eligibility, income certifications, intended 
use of loan proceeds, etc., help explain the defendants’ execution 
of their fraud scheme. The government’s evidence about the 
defendants’ falsehoods on PPP loan documents is put into context 
when the jury can consider the underlying rules of the program. 
4. Use of Rule 1006 Summary Charts 
Importantly, the government does not intend to simply 
introduce dozens of pages of SBA rules from the Federal Register 
and expect the Court, the jury, and the witnesses to digest the 
volume. Rather, the government intends to synthesize the rules 
into a Rule 1006 summary chart that clearly and accurately spells 
out eligibility and other program requirements. Moreover, taking 
judicial notice of the SBA PPP rules, to be followed-up with a 
Rule 1006 summary chart, will reduce the amount of time at trial 
needed to explain background matters relating to the PPP program 
and its requirements. 
B. 
Judicial Notice of Geographic Locations  
The government also seeks judicial notice of the fact that 
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the municipalities of Huntington, Cabell County, West Virginia; 
Charleston, Kanawha County, West Virginia; and South Charleston, 
Kanawha County, West Virginia, are within the Southern District of 
West Virginia. These municipalities are “generally known within 
the trial court’s territorial jurisdiction,” and judicial notice 
of their location within the district is appropriate. See 
Wilkerson, 444 F. App’x at 709 (“[W]hether an offense occurred 
within particular geographical boundaries is an appropriate 
subject for judicial notice.”). 
III. 
CONCLUSION  
For the reasons stated herein, the government respectfully 
requests that the Court take judicial notice of U.S. Small Business 
Administration’s Paycheck Protection Program rules, as published 
in the Federal Register, as well as the fact that the 
municipalities of Huntington, Cabell County, West Virginia; 
Charleston, Kanawha County, West Virginia; and South Charleston, 
Kanawha County, West Virginia, are within the Southern District of 
West Virginia. 
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 
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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 FOR JUDICIAL NOTICE” 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 272     Filed 06/23/25     Page 9 of 9 PageID #: 1359

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