PROPOSED JURY INSTRUCTIONS by Kisha Sutton — United States of America v. Sutton et al (Dkt. 317)

Summary

Defendant Kisha Sutton's amended proposed jury instructions, filed July 13, 2025 as Document 317 in United States v. Sutton, Case 2:24-cr-00192 in the Southern District of West Virginia. The 32-page filing by her counsel, Connor Robertson, proposes 27 instructions, from reasonable doubt through conspiracy and intent to defraud. Instruction 26 says the government must prove venue by a preponderance of the evidence for each count, that for bank fraud the execution of the scheme must have occurred in the Southern District of West Virginia, and that for money laundering the financial transaction itself must have taken place there. Instruction 27 says the government alleges the target of the scheme, Benworth Capital, was a mortgage lending business, and that the jury must acquit of bank fraud unless it finds Benworth was a financial institution as defined by law.

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Case 2:24-cr-00192 Document 317 Filed 07/13/25 Page 1 of 32 PagelD #: 1748

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

UNITED STATES OF AMERICA,

PLAINTIFF,

V. CASE NO.: 2:24-cr-00192-01

KISHA SUTTON,
DEFENDANT.

DEFENDANT SUTTON’S AMENDED PROPOSED JURY INSTRUCTIONS

S:// Connor Robertson

Connor Robertson (11460)
ROBERTSON LAW PLLC
2702 Main Street
Hurricane, WV 25526
(304) 522-4100

cdr(@croblaw.com
Case 2:24-cr-00192 Document 317 Filed 07/13/25 Page 2 of 32 PagelD #: 1749

DEFENDANT’S PROPOSED JURY INSTRUCTION NO. 1

DUTY TO FOLLOW INSTRUCTIONS

You, as jurors, are the judges of the facts. But in determining what actually happened —
that is, in reaching your decision as to the facts — it is your sworn duty to follow all of the rules of
law as I explain them to you.

You have no right to disregard of give special attention to any one instruction, or to
question the wisdom or correctness of any rule I may state to you. You must not substitute or
follow your own notion or opinion as to what the law ought to be. It is your duty to apply the law
as I explain it to you, regardless of the consequences. However, you should not read into these
instructions, or anything else I may have said or done, any suggestion as to what your verdict
should be. That is entirely up to you.

It is also your duty to base your verdict solely upon the evidence, without prejudice or

sympathy. That was the promise you made and the oath you took.
Case 2:24-cr-00192 Document 317 Filed 07/13/25 Page 3 of 32 PagelD #: 1750

DEFENDANT’S PROPOSED JURY INSTRUCTION NO. 2

PROOF — REASONABLE DOUBT

The defendant has pled not guilty to the charges in the Indictment. The government has the
burden of proving the defendant guilty beyond a reasonable doubt. The law does not require a
defendant to prove his innocence or produce any evidence at all. The government has the burden
of proving the defendant guilty beyond a reasonable doubt, and if it fails to do so, you must find
the defendant not guilty.

Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the
defendant’s guilt. There are a few things in this world that we know with absolute certainty, and
in criminal cases, the law does not require proof that overcomes every possible doubt. It is only
required that the government’s proof exclude any “reasonable doubt” concerning the defendant’s
guilty. A reasonable doubt is a doubt based on reason and common sense after careful and impartial
consideration of all the evidence in the case. If, based on your consideration of the evidence, you
are firmly convinced that the defendant is guilty of the crime(s) as charged, you must find him
guilty. If, on the other hand, you think there is a reasonable possibility that he is not guilty, you

must give him the benefit of the doubt and find him not guilty.
Case 2:24-cr-00192 Document 317 Filed 07/13/25 Page 4 of 32 PagelD #: 1751

DEFENDANT’S PROPOSED JURY INSTRUCTION NO. 3

MULTIPLE COUNTS
A separate crime is charged against the defendant in each count of the Indictment. You
must separately consider the evidence against the defendant on each count. Your verdict as to any

one count, whether it is guilty or not guilty, should not influence your verdict as to any other count.
Case 2:24-cr-00192 Document 317 Filed 07/13/25 Page 5 of 32 PagelD #: 1752

DEFENDANT’S PROPOSED JURY INSTRUCTION NO. 4
ON OR ABOUT
You will note that the Indictment charges that the crimes were committed on or about
certain dates. The government must prove beyond a reasonable doubt that the defendant committed

the crime or crimes reasonably near the date or dates charged.
Case 2:24-cr-00192 Document 317 Filed 07/13/25 Page 6 of 32 PagelD #: 1753

DEFENDANT’S PROPOSED JURY INSTRUCTION NO. 5

EVIDENCE — DEFINED

You must make your decision based only on the evidence that you saw and heard here in
court. Do not let rumors, suspicions, or anything else that you may have seen or heard outside of
the court influence your decision in any way.

The evidence in this case includes only what the witnesses said while they were testifying
under oath, the exhibits that I allowed into evidence, and the stipulations that the lawyers agreed
to.

Nothing else is evidence. The lawyers’ statements and arguments are not evidence. Their
questions and objections are not evidence. My legal rulings are not evidence. And my comments
and questions are not evidence.

During the trial, to the extent that I did not let you hear the answers to some of the questions
that the lawyers asked, or ruled that you could not see some of the exhibits that the lawyers wanted
you to see, or ordered you to disregard things that you saw or heard, or struck from the record, you
must completely ignore all of those things. Do not even think about them. Do not speculate about
what a witness might have said or what an exhibit might have shown. These things are not

evidence, and you are bound by your oath not to let them influence your decision in any way.
Case 2:24-cr-00192 Document 317 Filed 07/13/25 Page 7 of 32 PagelD #: 1754

DEFENDANT’S PROPOSED JURY INSTRUCTION NO. 6
EVIDENCE — DIRECT AND CIRCUMSTANTIAL - INFERENCES

There are, generally speaking, two types of evidence from which a jury may properly
determine the facts of a case. One is direct evidence, such as the testimony of an eyewitness. The
other is indirect or circumstantial evidence, that is, the proof of a chain of facts which point to the
existence or non-existence of certain other facts.

As a general rule, the law makes no distinction between direct and circumstantial evidence.
The law simply requires that you find the facts in accord with all the evidence in the case, both
direct and circumstantial.

While you must consider only the evidence in this case, you are permitted to draw
reasonable inferences from the testimony and exhibits, inferences you feel are justified in light of
common experience. An inference is a conclusion that reason and common sense may lead you to
draw from facts which have been proved.

By permitting such reasonable inferences, you may make deductions and reach conclusions
that reason and common sense lead you to draw from the facts which have been established by the

testimony and evidence in this case.
Case 2:24-cr-00192 Document 317 Filed 07/13/25 Page 8 of 32 PagelD #: 1755

DEFENDANT’S PROPOSED JURY INSTRUCTION NO. 7
NON-TESTIFYING DEFENDANT
The defendant did not testify and I remind you that you cannot consider a decision not to
testify as evidence of guilt. You must understand that the Constitution of the United States grants
to a defendant the right to remain silent. That means the right not to testify. That is a constitutional
right in this country, it is very carefully guarded, and you must not presume or infer guilt from the

fact that a defendant does not take the witness stand and testify.
Case 2:24-cr-00192 Document 317 Filed 07/13/25 Page 9 of 32 PagelD #: 1756

DEFENDANT’S PROPOSED JURY INSTRUCTION NO. 8
CREDIBILITY OF A WITNESS

I remind you that it is your job to decide whether the government has proved the guilt of
the defendant beyond a reasonable doubt. In doing so, you must consider all of the evidence. This
does not mean, however, that you must accept all of the evidence as true or accurate.

You are the sole judges of the credibility or “believability” of each witness and the weight
to be given to the witness’s testimony. An important part of your job will be making judgments
about the testimony of the witnesses who testify in this case. You should think about the testimony
of each witness you have heard and decide whether you believe all or any part of what each witness
had to say, and how important that testimony was. In making that decision, I suggest that you ask
yourself a few questions: Did the witness impress you as honest? Did the witness have any
particular reason not to tell the truth? Did the witness have a personal interest in the outcome of
the case? Did the witness have any relationship with either the government or the defense? Did the
witness seem to have a good memory? Did the witness clearly see or hear the things about which
he/she testified? Did the witness have the opportunity and ability to understand the questions
clearly and answer them directly? Did the witness’s testimony differ from the testimony of other
witnesses? When weighing the conflicting testimony, you should consider whether the discrepancy
has to do with a material fact or with an unimportant detail. And you should keep in mind that
innocent misrecollection — like failure of recollection — is not uncommon.

In reaching a conclusion on a particular point, or ultimately in reaching a verdict in this
case, do not make any decisions simply because there were more witnesses on one side than on

the other side.
Case 2:24-cr-00192 Document317 Filed 07/13/25 Page 10 of 32 PagelD #: 1757

DEFENDANT’S PROPOSED JURY INSTRUCTION NO. 9
IMPEACHMENT

You are instructed that a witness may be discredited or impeached by contradictory
evidence or by evidence that, at other times, the witness made statements which are inconsistent
with the witness’s present testimony.

If you believe that any witness has been impeached and thus discredited, it is your exclusive
province to determine the credibility of the witness and to give the testimony of that witness such
weight, if any, as you may think it deserves.

If any witness is shown to have knowingly testified falsely concerning any material matter,
you have the right to distrust such witness’s testimony in other particulars, and you may reject all

or any part of the testimony of that witness, or give it only such weight as you may think it deserves.
Case 2:24-cr-00192 Document 317 Filed 07/13/25 Page 11 of 32 PagelD #: 1758

DEFENDANT’S PROPOSED JURY INSTRUCTION NO. 10

CAUTION — CONSIDER ONLY CRIMES CHARGED
You are here to decide whether the government has proved beyond a reasonable doubt that
the defendant is guilty of the crimes charged. The defendant is not on trial for any act, conduct, or

crime not charged in the Indictment.
Case 2:24-cr-00192 Document 317 Filed 07/13/25 Page 12 of 32 PagelD #: 1759

DEFENDANT’S PROPOSED JURY INSTRUCTION NO. 11

PUNISHMENT
If you find the defendant guilty of any of the crimes charged, it will be my duty to decide
what the punishment will be. You should not discuss or consider the possible punishment in any

way while deciding your verdict.
Case 2:24-cr-00192 Document 317 Filed 07/13/25 Page 13 of 32 PagelD #: 1760

DEFENDANT’S PROPOSED JURY INSTRUCTION NO. 12

LAW ENFORCEMENT WITNESS
You have heard the testimony of a law enforcement official. The fact that a witness may
be employed by the federal or state government as a law enforcement official does not mean that
his testimony is necessarily deserving of more or less consideration or greater or lesser weigh than
that of an ordinary witness.
It is your decision after reviewing all the evidence whether to accept the testimony of the

law enforcement witness and to give that testimony whatever weight, if any, you find it deserves.
Case 2:24-cr-00192 Document 317 Filed 07/13/25 Page 14 of 32 PagelD #: 1761

DEFENDANT’S PROPOSED JURY INSTRUCTION NO. 13
CONSPIRACY - AGREEMENT

A conspiracy is an agreement between two or more persons to accomplish an unlawful
purpose. It is kind of a “partnership in criminal purposes” in which each member becomes the
agent or partner of every other member. Once a person becomes a member of a conspiracy, he is
held legally responsible for the acts of the other members done in furtherance of the conspiracy,
even though he was not present or aware that the acts were being committed.

Mere similarity of conduct among various persons, and the fact that they may have
associated with each other, and may have assembled together and discussed common aims and
interests, does not necessarily establish proof of the existence of a conspiracy.

The evidence in the case need not show that the members entered into any express or formal
agreement. Nor is it necessary that the evidence show that the members stated between themselves
what their object or purpose was to be, or the details thereof, or the means by which the object or
purpose was to be accomplished. In order to establish proof that a conspiracy existed, the evidence
must show beyond a reasonable doubt that the members in some way or manner, or through some

contrivance, expressly or impliedly came to a mutual understanding to try to accomplish a common

and unlawful plan.
Case 2:24-cr-00192 Document 317 Filed 07/13/25 Page 15 of 32 PagelD #: 1762

DEFENDANT’S PROPOSED JURY INSTRUCTION NO. 14

CONSPIRACY — EVIDENCE

The evidence in the case need not establish that all the means or methods set forth in the
Indictment were agreed upon to carry out the alleged conspiracy; nor that all the means or methods,
which were agreed upon, were actually used or put into operation; nor that all of the persons
charged to have been members of the alleged conspiracy were members. Rather the evidence in
the case must establish beyond a reasonable doubt that the alleged conspiracy was knowingly
formed; and that one or more of the means or methods described in the Indictment were agreed
upon to be used, in an effort to effect or accomplish some object or purpose of the conspiracy, as
charged in the Indictment; and that two or more persons were knowingly members of the

conspiracy.
Case 2:24-cr-00192 Document317 Filed 07/13/25 Page 16 of 32 PagelD #: 1763

DEFENDANT’S PROPOSED JURY INSTRUCTION NO. 15

MEMBERSHIP IN CONSPIRACY
If you conclude from the evidence beyond a reasonable doubt that a conspiracy as charged
did exist, then you must next determine whether the defendant was a member of that conspiracy;
that is, whether he participated in the conspiracy with knowledge of its unlawful purposes and in
furtherance of its unlawful objectives. In determining whether a defendant was a member of the
conspiracy, the jury must consider only his acts and statements. A defendant cannot be bound by
the acts or declaration of other participants until it is established that a conspiracy existed, and that

he was one of its members.
Case 2:24-cr-00192 Document317 Filed 07/13/25 Page17 of 32 PagelD #: 1764

DEFENDANT’S PROPOSED JURY INSTRUCTION NO. 16
INTENT TO DEFRAUD
To act “with intent to defraud” means to act willfully with intent to deceive or cheat,
ordinarily for the purpose of causing financial loss to another or bringing about a financial gain to

one’s self.
Case 2:24-cr-00192 Document 317 Filed 07/13/25 Page 18 of 32 PagelD #: 1765

DEFENDANT’S PROPOSED JURY INSTRUCTION NO. 17
PROOF OF INTENT

Intent ordinarily may not be proved directly, because there is no way of fathoming or
scrutinizing the operations of the human mind. You may infer the defendant’s intent from the
surrounding circumstances. Intent may be and usually is proved by circumstantial evidence if it is
proved at all. You may consider any statements made and any acts done or omitted by the
defendant, and all other facts and circumstances in evidence that indicate his state of mind.

You may consider it reasonable to draw an inference and thus find that a person intends
the natural and probable consequences of acts knowingly done. As I have said, it is entirely up to

you to decide what facts to find from the evidence.
Case 2:24-cr-00192 Document 317 Filed 07/13/25 Page 19 of 32 PagelD #: 1766

DEFENDANT’S PROPOSED JURY INSTRUCTION NO. 18

KNOWINGLY
An act is done “knowingly” if it is done voluntarily and intentionally, and not because of

ignorance, mistake, or accident.

The term “knowingly,” as used in these instructions to describe the alleged state of mind
of the defendant, means that he was conscious and aware of his actions. You may consider
evidence of the defendant’s words, acts or omissions, along with all of the other evidence, in

deciding whether the defendant acted knowingly.
Case 2:24-cr-00192 Document317 Filed 07/13/25 Page 20 of 32 PagelD #: 1767

DEFENDANT’S PROPOSED JURY INSTRUCTION NO. 19

INTERSTATE COMMERCE -— DEFINED
“Interstate Commerce” means commerce or travel between one state, territory or
possession of the United States and another state, territory or possession of the United States,
including the District of Columbia. Commerce includes travel, trade, transportation and
communication.
If you decide that there was any effect at all on interstate commerce, then that is enough to

satisfy this element. All that is necessary is that the natural and probable consequence of the acts

the defendant took would be to affect interstate commerce.
Case 2:24-cr-00192 Document317 Filed 07/13/25 Page 21 of 32 PagelD #: 1768

DEFENDANT’S PROPOSED JURY INSTRUCTION NO. 20
DUTY TO DELIBERATE

In a moment, the bailiff will escort you to the jury room and provide you each with a copy
of the Indictment and instructions that I have just read. Any exhibits admitted into evidence will
also be placed in the jury room for your review.

When you go to the jury room, you should first select a foreperson, who will help to guide
your deliberations and will speak for you here in the courtroom. The second thing you should do
is review the instructions. Not only will your deliberations be more productive if you understand
the legal principles upon which your verdict must be based, but for your verdict to be valid, you
must follow the instructions throughout your deliberations. Remember, you are the judges of the
facts, but you are bound by your oath to follow the law stated in the instructions.

To reach a verdict, whether it is guilty or not guilty, all of you must agree. Your verdict
must be unanimous on each count of the Indictment. Your deliberations will be secret. You will
never have to explain your verdict to anyone.

You must consult with one another and deliberate in an effort to reach an agreement if you
can do so. Each of you must decide the case for yourself, but only after an impartial consideration
of the evidence with your fellow jurors. During your deliberations, do not hesitate to reexamine
your own opinions and change your mind if convinced you were wrong. But do not give up your
honest beliefs solely because of the opinion of your fellow jurors, or for the mere purpose of
returning a verdict.

Remember at all times, you are the judges — judges of the facts. You must decide whether

the government has proved the defendant guilty beyond a reasonable doubt.
Case 2:24-cr-00192 Document317 Filed 07/13/25 Page 22 of 32 PagelD #: 1769

A form of verdict as been prepared for your convenience. The foreperson will write the
unanimous answer of the jury in the space provided for each count of the Indictment, either guilty
or not guilty. At the conclusion of your deliberations, the foreperson should sign and date the

Verdict Form.
Case 2:24-cr-00192 Document 317 Filed 07/13/25 Page 23 of 32 PagelD #: 1770

DEFENDANT’S PROPOSED JURY INSTRUCTION NO. 21

PRESUMPTION OF INNOCENCE SUFFICIENT TO ACQUIT
The presumption of innocence alone is sufficient to acquit the defendant, unless
you are satisfied beyond a reasonable doubt of the defendant’s guilt after careful and

impartial consideration of all evidence in the case. The defendant is never convicted on

mere suspicion or conjecture.

1 L. Sand, et al., Modern Federal Jury Instructions 6-4 (1997).
Case 2:24-cr-00192 Document317 Filed 07/13/25 Page 24 of 32 PagelD #: 1771

DEFENDANT’S PROPOSED JURY INSTRUCTION NO. 22

SPECULATION NOT ALLOWED
Any personal opinion which you may have as to the facts not established by the
evidence cannot be properly considered by you as a basis for your verdict. As jurors,
sworn to try this case and to render a true verdict on the law and the evidence, you may
act only upon evidence which has been introduced before you during the course of the
trial, You cannot speculate or guess as to what may have happened in the absence of
evidence or testimony on a given point and you should carefully consider the testimony

of each and every witness and not disregard or overlook any testimony or evidence.
Case 2:24-cr-00192 Document 317 Filed 07/13/25 Page 25 of 32 PagelD #: 1772

DEFENDANT’S PROPOSED JURY INSTRUCTION NO. 23

DEFINITIONS OF WEIGHT AND CREDIBILITY OF WITNESS

You are the sole judges of the credibility of the witnesses and the weight of the
evidence. “The credibility of the witnesses” means the believability or the lack of
believability of the witness. “The weight of the evidence” means the extent to which you
are or you are not convinced by the evidence.

In determining the credit and weight you will give to the testimony of any witness
who has testified before you, you may consider, if found by you from the evidence the
good memory or lack of memory of the witness, the self-interest or lack of self-interest of
the witness in the outcome of the trial, the relationship of any witness to any of the parties
or any other witness, the demeanor and manner of testifying of the witness, the
opportunity and means or lack of opportunity and mean of having knowledge of the
matters of which the witness testifies, the reasonableness or unreasonableness of the
testimony of the witness, the apparent fairness or lack of fairness of the witness, the
intelligence or lack of intelligence of the witness, the bias, prejudice, hostility, friendliness
of the witness for or against either party to the proceedings, contradictory statements of

any witness, contradictory acts of any witness, the intoxication, mental condition or drug

influences of any witness at the time of the events of which the witness testified.
Case 2:24-cr-00192 Document317 Filed 07/13/25 Page 26 of 32 PagelD #: 1773

DEFENDANT’S PROPOSED JURY INSTRUCTION NO, 24

CONFLICT OF EVIDENCE
The Court instructs the jury that if you find there is a conflict in the evidence in
this case on any fact or circumstances tending to establish the guilt or innocence of the
defendant, a part of which is in favor of the theory of the State and a part is in favor of
the theory of the defendant, and the jury should entertain a reasonable doubt as to which

is true, then it is the duty of the jury in arriving at their verdict to adopt the evidence,

theory and conclusion most favorable to the accused.
Case 2:24-cr-00192 Document317 Filed 07/13/25 Page 27 of 32 PagelD #: 1774

DEFENDANT’S PROPOSED JURY INSTRUCTION NO. 25
DEFENDANT’S TESTIMONY
The defendant has no duty to take the stand as a witness in his own behalf. The
fact that the defendant did not testify as a witness in his own behalf cannot be taken or
considered by the jury as evidence or even a circumstance showing or tending to show
in the slightest degree the guilt of the accused and you should draw no inference
therefrom as to his guilt or innocence. You should entirely disregard it and not discuss

it.
Case 2:24-cr-00192 Document317 Filed 07/13/25 Page 28 of 32 PagelD #: 1775

DEFENDANT’S PROPOSED JURY INSTRUCTION NO.: 26
VENUE

The government must prove by a preponderance of the evidence that the offense(s)
charged occurred in the district where this trial is being held - the Southern District of
West Virginia. This is called establishing “venue.”

Criminal Defendants have a constitutional right to be tried in the State and district
where the alleged crime was committed.’ When, as here, a defendant is charged in multiple
criminal counts, venue must lie as to each count.? The venue inquiry may yield more than
one appropriate venue, including a venue in which the defendant has never set foot.’

In this case, venue is determined based on the nature of the alleged crime and the
location of the act or acts constituting it with a focus on the essential conduct elements of
the charged offense(s).4 Venue for a continuing offense, can be established by a
preponderance of the evidence, showing where the essential conduct elements of the
offense began, continued, or was completed.°

The essential conduct element of bank fraud is the execution of the scheme to
defraud.® Preparatory acts, such as devising a scheme, are not part of the venue
determination of a continuing offense.’ Likewise, acts in furtherance of the execution of the

scheme are not part of the venue determination.®

‘ United States v. Powers, 40 F.4th 129, 134 (4th Cir. 2022).

2 United States v. Engle, 676 F.3d 405, 413 (4th Cir. 2012).

3 United States v. Ebersole, 411 F.3d 517, 524 (4th Cir. 2005).

5 United States v, Stewart, 256 F.3d 231, 243 (4th Cir. 2001).

® United States v. Colton, 231 F.3d 890, 908-09 (4th Cir. 2000).

’ United States v. Sterling, 860 F.3d 233, 244-45 n.3 (4th Cir. 2017); United States v. Jefferson, 674 F.3d 332, 366
(4th Cir. 2012).

8 Id. at 367.
Case 2:24-cr-00192 Document317 Filed 07/13/25 Page 29 of 32 PagelD #: 1776

Therefore, as to Bank Fraud, in order to find proper venue, you must find that the
Government has proven the Defendant executed the bank fraud scheme to defraud a
financial institution in the Southern District of West Virginia by a preponderance of the
evidence. It is not enough that the effects of the offense were felt here or that the proceeds
were eventually spent or possessed here unless those facts reflect part of the execution of
the scheme itself.

If you find that the government has not proven venue by a preponderance of the
evidence, then you must acquit the defendant of bank fraud.

For the crime of money laundering, the law defines the “essential conduct element”
of the offense as the financial transaction involving the proceeds of unlawful activity.’
Therefore, to prove venue for money laundering, the government must prove by a
preponderance of the evidence that the financial transaction itself occurred in the Southern
District of West Virginia. As stated above, it is not enough for the government to show that
the unlawful activity that generated the funds occurred in this district; the funds were
obtained, possessed, or transported through this district; or the defendant was located in
this district at some point.’° Unless the government proves that the actual financial
transaction constituting the money laundering offense took place, at least in part, in the
Southern District of West Virginia, then venue has not been established.

If you find that the government has not proven venue by a preponderance of the

evidence, then you must acquit the defendant of money laundering.

®° US. v. Cabrales, 524 U.S. 1, 7 (1998).
10 United States v. Cowden, 405 F.3d 240 (4th Cir. 2005),
Case 2:24-cr-00192 Document 317 Filed 07/13/25 Page 30 of 32 PagelD #: 1777

; RY INST 27

FINANCIAL INSTITUTION - MORTGAGE LENDING

As part of the offense of bank fraud, the government must prove beyond a
reasonable doubt that the alleged scheme to defraud involved a “financial institution.”

The term “financial institution” includes not only traditional banks and credit
unions, but also certain other types of businesses that are treated as financial institutions
under federal law.

For this case, the government alleges that the target of the fraudulent scheme,
Benworth Capital, was a mortgage lending business. Under federal law, a “mortgage lending
business” is defined as:

“An organization which finances or refinances any debt secured by an
interest in real estate, including private mortgage companies and any
subsidiaries of such organizations, and whose activities affect interstate or
foreign commerce”

or,

“any person or entity that makes in whole or in part a federally related
mortgage loan”.

For purposes of the latter, a “federally related mortgage loan” includes any loan
(other than temporary financing such as a construction loan) which:

‘Is secured by a first or subordinate lien on residential property
(including individual units of condominiums and cooperatives) designed
principally for the occupancy of from one to four families, including any such
secured loan, the proceeds of which are used to prepay or pay off an existing
loan secured by the same property; and

“Is made in whole or in part by any lender the deposits or accounts of which
are insured by any agency of the federal government, or is made in whole or
in part by any lender which is regulated by any agency of the Federal
Government; or
Case 2:24-cr-00192 Document317 Filed 07/13/25 Page 31 of 32 PagelD #: 1778

Is made in whole or in part, or insured, guaranteed, supplemented, or
assisted in any way, by the Secretary or any other officer or agency of the
Federal Government or under or in connection with a housing or urban
development program administered by the Secretary or a housing or related
program administered by any other such officer or agency; or

Is intended to be sold by the originating lender to the Federal National

Mortgage Association, the Government National Mortgage Association, the

Federal Home Loan Mortgage Corporation, or a financial institution from

which it is to be purchased by the Federal Home Loan Mortgage Corporation;

or

Is made in whole or in party by any “creditor”, as defined in section 1602(f) of

title 15, who makes or invests in residential real estate loans aggregating

more than $1,000,000 per year, except that for the purpose of this chapter,

the term creditor” does not include any agency or instrumentality of any

State.

To find that the alleged victim was a “financial institution” as defined by law, you
must find that the government has proven, beyond a reasonable doubt, that the business
was a mortgage lending business, as defined above.

If you do not find that the government has proven that the alleged victim was a

“financial institution" as defined by law, you must acquit the Defendant of bank fraud.

18 U.S.C. §20(10).
Case 2:24-cr-00192 Document 317 Filed 07/13/25 Page 32 of 32 PagelD #: 1779

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 13'* day of July, 2025, a copy of the foregoing
“Defendant Sutton’s Amended Proposed Jury Instructions” was served on the United States
by ECF, to Jonathan Storage, 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
2702 Main Street
Hurricane, WV 25526
(304) 557-1601
CDR@CROBLAW.COM


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cc84297b3f18c36f2510143fa0e071da1f77ceba5bb558a4c745e31c24dc4ea8

Our copy

gov.uscourts.wvsd.240497.317.0.pdf

Original

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