RESPONSE IN OPPOSITION by United States of America as to Kisha… — United States of America v. Sutton et al (Dkt. 419)

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U.S. District Court for the Southern District of West Virginia · No. 2:24-cr-00192 · Doc. 419 · 2025-12-01 · Docket on CourtListener

Summary

The government's response in opposition to Kisha Sutton's motion for release pending appeal (ECF No. 417) in United States v. Sutton, No. 2:24-cr-00192, U.S. District Court for the Southern District of West Virginia, filed December 1, 2025 as Document 419. The filing states that a jury found the defendant guilty of aiding and abetting bank fraud and money laundering on July 15, 2025, that the Presentence Investigation Report calculates a Guidelines range of 30-37 months, and that sentencing is set for December 11, 2025. It argues the motion is premature because no sentence has been imposed. It also argues under 18 U.S.C. § 3143(b) that her venue challenge and her argument on knowledge of a financial institution raise no substantial question, citing Shaw v. United States. The 11-page response is signed by an Assistant United States Attorney.

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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 
 
 
GOVERNMENT’S RESPONSE IN OPPOSITION TO THE DEFENDANT’S MOTION 
FOR RELEASE PENDING APPEAL 
 
Comes now the United States of America, by Jonathan T. 
Storage, Assistant United States Attorney for the Southern 
District of West Virginia, and respectfully submits its response 
in opposition to the defendant’s motion for release pending appeal 
(ECF No. 417). For the reasons stated herein, the government 
requests that the Court deny the motion.  
I. 
BACKGROUND 
On July 15, 2025, a federal jury found the defendant guilty 
of aiding and abetting bank fraud and aiding and abetting money 
laundering. ECF No. 327. The convictions stemmed from the 
defendant’s lead role in a COVID-19 relief program scheme where 
the defendant applied for fraudulent Paycheck Protection Program 
loans on behalf of others in exchange for kickback payments. The 
defendant’s scheme resulted in the convictions of numerous co-
defendants.  
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According to the final Presentence Investigation Report, the 
defendant’s Sentencing Guidelines range is 30-37 months of 
incarceration. She is scheduled to be sentenced on December 11, 
2025. 
With her motion, the defendant seeks reprieve from a 
punishment not yet imposed.  
II. 
LEGAL STANDARD 
“Defendants ordinarily begin serving their sentences as soon 
as they are handed down by a district court, regardless of any 
appeal.” United States v. Jordan, 952 F.3d 160, 172 (4th Cir. 
2020).  
“[T]he judicial officer shall order that a person who has 
been found guilty of an offense and sentenced to a term of 
imprisonment, and who has filed an appeal or a petition for a writ 
of certiorari, be detained, unless the judicial officer finds [that 
certain conditions exist.]” 18 U.S.C. § 3143(b). 
“The authority of a district court to release a defendant 
following his conviction and prior to imposition or execution of 
sentence is governed by 18 U.S.C.A. § 3143.” United States v. 
Goossens, 84 F.3d 697, 702 (4th Cir. 1996). “Generally speaking, 
an individual must be detained following conviction unless a 
‘judicial officer finds by clear and convincing evidence that the 
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person is not likely to flee or pose a danger to the safety of any 
other person or the community if released.’” Id. at 702. 
Moreover, the Court must determine that the appeal is not for 
the purpose of delay and raises a substantial question of law or 
fact likely to result in reversal, an order for a new trial, a 
sentence that does not include a term of imprisonment, or a reduced 
sentence to a term of imprisonment less than the total of the time 
already served plus the expected duration of the appeal process. 
18 U.S.C. § 3143(b)(B). 
In applying § 3143(b), “the court must make two inquiries 
after finding that the appeal is not taken for the purpose of 
delay. First, whether the question presented on appeal is a 
‘substantial’ one. Second, if decided in favor of the accused, 
whether the substantial question is important enough to warrant 
reversal or a new trial on all counts for which the district court 
imprisoned the defendant.” United States v. Steinhorn, 927 F.2d 
195, 196 (4th Cir. 1991). 
The 
Fourth 
Circuit 
has 
adopted 
“the 
definition 
of 
‘substantial question’ first proposed by the Eleventh Circuit in 
United States v. Giancola, 754 F.2d 898 (11th Cir. 1985). That 
court defined a ‘substantial question’ as: a ‘close’ question or 
one that very well could be decided the other way. Further, there 
are no blanket categories for what questions do or do not 
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constitute ‘substantial’ ones. Whether a question is ‘substantial’ 
must be determined on a case-by-case basis.” Id. at 196. 
“As the statute makes clear, under § 3143(b)(1)(A), defendant 
bears the burden of establishing, by clear and convincing evidence, 
that she is not likely to flee and does not pose a safety danger 
if released. Because the statute is in the conjunctive, however, 
the defendant must also satisfy the criteria set forth in § 
3143(b)(1)(B).” United States v. McComber, No. CR ELH-21-036, 2024 
WL 4664630, at *4 (D. Md. Nov. 4, 2024). 
III. 
DISCUSSION  
The Court should deny the defendant’s motion because (A) the 
motion is premature and (B) the defendant has not clearly and 
convincingly established that a substantial question of law or 
fact is at issue that will change the outcome of the case. 
A. The motion should be denied as premature. 
Because the defendant has not been sentenced, there is no 
present basis for her motion. The motion is premature and should 
be denied. 
B. The defendant has failed to meet her burden under 18 
U.S.C. § 3143(b). 
At the outset, the government does not challenge the 
defendant’s arguments that she is not a risk of flight and is not 
a danger to herself or others. Additionally, the government does 
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not contend that the defendant’s appeal is intended to delay. The 
government’s position is that the defendant has failed to show, 
clearly and convincingly, that there is a substantial question of 
law or fact and that will alter the outcome of the case. 
i. The defendant’s venue challenge does not raise a 
substantial question of law or fact. 
The defendant was charged and convicted of aiding and abetting 
bank fraud and money laundering. From the start of this case, the 
defendant has argued that, because all of her offense conduct 
occurred in New Jersey, venue is appropriate only in New Jersey, 
regardless of what she did to contribute to the offense or what 
her co-defendant, residing in West Virginia, did to commit the 
offense.1 But her arguments are incompatible with the law. 
As an “aider and abettor” of bank fraud and money laundering, 
the defendant is answerable for her crimes in the Southern District 
of West Virginia. “Whoever commits an offense against the United 
States or aids, abets, counsels, commands, induces or procures its 
commission, is punishable as a principal.” 18 U.S.C. § 2. To 
convict a defendant of being an aider and abettor, the government 
must show that the defendant’s conduct amounted to counseling, 
assisting, or facilitating the commission of a federal crime. See 
United States v. Honeycutt, 311 F.2d 660, 662 (4th Cir. 1962). “An 
 
1 Following the return of the Second Superseding Indictment, the defendant’s 
co-defendant in this case is Shamiese Wright. ECF No. 245. 
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aider and abettor may be prosecuted in the district in which the 
principal acted in furtherance of the substantive crime.” United 
States v. Kibler, 667 F.2d 452, 455 (4th Cir. 1982); see also 
United States v. Kilpatrick, 458 F.2d 864, 868 (7th Cir. 1972) 
(recognizing that 18 U.S.C. § 2 “has been construed to permit the 
prosecution of an aider and abettor not only in the district in 
which he committed the accessorial acts but also in the district 
where the substantive crime was committed.”).  
The evidence produced at trail established beyond a 
reasonable doubt that the defendant schemed with others in West 
Virginia to carry out the fraud and money laundering. Accordingly, 
the defendant was properly prosecuted in this district pursuant to 
the charge of “aiding and abetting” the underlying criminal 
conduct.2  
ii. The defendant’s challenge regarding the bank fraud 
knowledge element does not raise a substantial 
question of law or fact. 
In her motion, in one sentence only, the defendant states, 
“Additionally, the Government failed to meet its burden of proof 
as to proving Ms. Sutton knew she was defrauding a ‘financial 
institution’ as defined by law.” ECF No. 417 at 2. The defendant 
misstates the law. 
 
2 The government has submitted briefing in this case arguing that the defendant 
was also subject to prosecution in this district in her own right as a principal, 
whether she stepped foot in West Virginia or not. See, e.g., ECF No. 284. 
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The government does not have to show that the defendant knew 
the intricate legal nuances of what entities are “financial 
institutions” under the law.  
As the Court observed during the trial, whether an entity is 
a “financial institution” is context specific, and the term can 
have different meanings for different criminal conduct. See 18 
U.S.C. § 20 (defining “financial institution” for general purposes 
under Title 18); compare with 18 U.S.C. § 1956(c)(6) (referencing 
a modified definition of “financial institution” in Title 31 for 
the purposes of money laundering). 
In the context of this case, the financial institution was a 
mortgage lending business. The defendant argues that because she 
did not know that the entity met the legal definition of a 
financial institution under the law, she cannot be held liable. 
But let’s take, for example, a more common bank fraud case – one 
where the financial institution is FDIC insured. Under the 
defendant’s theory, no defendant could be convicted of bank fraud 
unless they knew – and the government cold prove it - that the 
bank was FDIC insured. But the United States Supreme Court has 
ruled that knowledge of the law’s “niceties” is not required to 
sustain a bank fraud conviction. 
In Shaw v. United States, the United States Supreme Court 
considered the knowledge element for a bank fraud charge under 18 
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U.S.C. § 1344(1). “Shaw obtained the identifying numbers of a Bank 
of America account belonging to a bank customer, Stanley Hsu. Shaw 
used those numbers (and other related information) to transfer 
funds from Hsu’s account to other accounts at other institutions 
from which Shaw could obtain (and eventually did obtain) Hsu’s 
funds. Shaw was convicted of violating the first clause of the 
statute, namely, the prohibition against ‘defraud[ing] a financial 
institution.’ The Ninth Circuit affirmed his conviction.” Shaw v. 
United States, 580 U.S. 63, 65 (2016).  
The crux of Shaw’s appellate argument was that his scheme was 
“designed” to obtain only “a bank customer’s property,” not “a 
bank’s own property.” Id. at 66. The Supreme Court stated, “The 
basic flaw in this argument lies in the fact that the bank, too, 
had property rights in Hsu’s bank account. When a customer deposits 
funds, the bank ordinarily becomes the owner of the funds and 
consequently has the right to use the funds as a source of loans 
that help the bank earn profits.” Id. at 66. The Supreme Court 
determined that banks are akin to a baliee of depositors’ money. 
Id. at 66. “Hence, for purposes of the bank fraud statute, a scheme 
fraudulently to obtain funds from a bank depositor’s account 
normally is also a scheme fraudulently to obtain property from a 
‘financial institution.’” Id. at 67. 
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Similar to the defendant’s argument in this case, Shaw argued 
that he did not know that the bank had a property interest in Hsu’s 
bank account and, thus, he could not have “intended to cheat the 
bank of its property.” Id. at 68. The Supreme Court was 
unconvinced: “These facts are sufficient to show that Shaw knew he 
was entering into a scheme to defraud the bank even if he was not 
aware of the niceties of bank-related property law. To require 
more, i.e., to require actual knowledge of those bank-related 
property-law niceties, would free (or convict) equally culpable 
defendants 
depending 
upon 
their 
property-law 
expertise—an 
arbitrary result. We have found no case from this Court requiring 
legal knowledge of the kind Shaw suggests he lacked.” Id. at 68 
(emphasis added). 
Thus, the law does not require the government to prove that 
the defendant knew the ins-and-outs of what establishes a financial 
institution for the purposes of the bank fraud statute; instead, 
the law requires a showing that the defendant knowingly engaged in 
a scheme to defraud and that a financial institution was defrauded 
because of the scheme. The government has sufficiently shown this, 
and the defendant has not raised any substantial question of law 
or fact on the issue. 
 
 
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IV. 
CONCLUSION 
The Court should deny as premature the defendant’s motion 
(ECF No. 417). Alternatively, the Court should rule that the 
defendant has failed to meet her high burden (the clear and 
convincing standard) to deviate from the law’s default position of 
requiring a defendant to begin her term of imprisonment (if 
imposed), notwithstanding a pending appeal. Accordingly, the 
motion should also be denied on substantive grounds.  
 
                              Respectfully submitted, 
                                                        
                              MOORE CAPITO 
                              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 
RESPONSE IN OPPOSITION TO THE DEFENDANT’S MOTION FOR RELEASE 
PENDING APPEAL” has been electronically filed and service has been 
made on opposing counsel by virtue of electronic mail this the 1st 
day of December, 2025, to: 
 
Connor D. Robertson, Esq. 
2702 Main Street 
Hurricane, WV 25526 
Email: cdr@croblaw.com 
 
 
 
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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