RESPONSE IN OPPOSITION by United States of America as to Kisha… — United States of America v. Sutton et al (Dkt. 291)

Record facts

U.S. District Court for the Southern District of West Virginia · No. 2:24-cr-00192 · Doc. 291 · 2025-06-28 · Docket on CourtListener

Summary

The Government's Response to defendant Kisha Sutton's motion to continue the trial, filed June 28, 2025 as Document 291 in United States v. Kisha Sutton, Criminal No. 2:24-CR-00192-1, in the United States District Court for the Southern District of West Virginia. It answers the motion at ECF No. 265 and asks that it be denied. The government argues the Second Superseding Indictment implicates no new fact or evidence, the charged conduct arising from the same transactions alleged in the original Indictment filed in November 2024. It argues the noticed evidence is intrinsic to a common scheme to defraud so that Rule 404(b) is not implicated, citing United States v. Grimmond and United States v. Basham, and that the rule's requirements are met in any event, per its response at ECF No. 289. It states the trial is more than 2 weeks away.

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UNITED STATES DISTRICT COURT  
 
SOUTHERN DISTRICT OF WEST VIRGINIA 
CHARLESTON 
 
 
UNITED STATES OF AMERICA 
 
 
v. 
 
 
 
 
 
 
CRIMINAL NO. 2:24-CR-00192-1 
 
 
KISHA SUTTON – 1 
 
GOVERNMENT’S RESPONSE TO  
DEFENDANT KISHA SUTTON’S MOTION CONTINUE TRIAL 
 
Comes now the United States of America, by Jonathan T. 
Storage, Assistant United States Attorney for the Southern 
District of West Virginia, and files its response to defendant 
Kisha Sutton’s motion to continue the trial date. ECF No. 265. For 
the reasons stated herein, the government respectfully requests 
that the Court deny the motion. 
I. 
DISCUSSION 
The defendant’s motion to continue the trail should be denied 
because the government’s Second Superseding Indictment does not 
implicate any new fact or piece of evidence: the charged conduct 
arises from the same set of transactions and circumstances as those 
alleged in the original Indictment filed in November 2024. Even 
so, the government has satisfied all of the requirements associated 
with introducing permissible Rule 404(b) evidence, and the 
defendant’s Rule 404(b) challenge is meritless.  
 
Case 2:24-cr-00192     Document 291     Filed 06/28/25     Page 1 of 4 PageID #: 1480

2 
 
A. 
Same Evidence / Same Issues  
The defendant bases her whole argument for a motion to 
continue on the issue of the government having noticed potential 
Rule 404(b) evidence. As the government stated in its response to 
the defendant’s motion to exclude Rule 404(b) evidence, the 
proposed evidence is intrinsic to a common scheme to defraud. See 
ECF No. 289). When evidence is intrinsic to the crime charged, 
Rule 404(b) is not implicated. United States v. Grimmond, 137 F.3d 
823, 832 (4th Cir. 1998) (deciding that “when ‘other crimes, 
wrongs, or acts’ evidence is relevant to establishing an element 
of the offense, Rule 404(b) is not even implicated”).  
B. 
Rule 404(b) Requirements Satisfied  
The government has satisfied Rule 404(b)’s requirements, even 
though Rule 404(b) is likely inapplicable. In its response (ECF 
No. 289), the government explained how and why the proposed 
evidence is relevant to an issue not having to do with character, 
is necessary to the government’s case, and is reliable. Moreover, 
the evidence does not unfairly prejudice the defendant. See United 
States v. Basham, 561 F.3d 302, 326 (4th Cir. 2009) (recognizing 
that damage to a defendant’s case is not a basis for excluding 
probative evidence).  
As of this writing, the trial is more than 2 weeks away. These 
issues can be resolved on the filed papers without further delaying 
Case 2:24-cr-00192     Document 291     Filed 06/28/25     Page 2 of 4 PageID #: 1481

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the trial, which as been continued several times already. If 
anything, the Second Superseding Indictment simplified the case 
for all involved. 
II. 
CONCLUSION 
For the reasons stated herein, the government respectfully 
requests that the Court deny the defendant’s motion to continue 
the trial. ECF No. 265. 
 
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  
 
 
Case 2:24-cr-00192     Document 291     Filed 06/28/25     Page 3 of 4 PageID #: 1482

4 
 
CERTIFICATE OF SERVICE 
 
It is hereby certified that the foregoing “GOVERNMENT’S 
RESPONSE TO DEFENDANT KISHA SUTTON’S MOTION CONTINUE TRIAL” has 
been electronically filed and service has been made on opposing 
counsel by virtue of electronic mail this the 28th 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 291     Filed 06/28/25     Page 4 of 4 PageID #: 1483

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