Court filing
RESPONSE in Opposition as to Carl Delano Torjagbo filed by USA re 31 MOTION for… — USA v. Torjagbo (Dkt. 34)
Record facts
| Court | U.S. District Court for the Northern District of Georgia |
|---|---|
| Filed | 2022-09-02 |
U.S. District Court for the Northern District of Georgia · No. 1:22-cr-00171-MLB-RDC · Doc. 34 · 2022-09-02 · Docket on CourtListener
Summary
The government's response in opposition to the defendant's motion to reconsider an order of detention, filed September 2, 2022 as Document 34 in United States v. Carl Delano Torjagbo, a/k/a Karl Lucius Delano, No. 1:22-cr-00171-MLB-RDC, in the U.S. District Court for the Northern District of Georgia. It urges the court not to release the defendant on bond and asks that the motion at Doc. 31 be denied. It recounts that a grand jury indicted the defendant on May 10, 2022 on Count 1 for bank fraud under 18 U.S.C. § 1344, Counts 2 through 4 for concealment money laundering under 18 U.S.C. § 1956(a)(1)(B)(i) and Counts 5 through 7 under 18 U.S.C. § 1957. The government states that a loan application for $9,554,425.00 was submitted to a lender on February 16, 2021 and funded on March 29, 2021. It argues under 18 U.S.C. § 3142(f) that the court's May 12, 2022 detention findings should stand.
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION UNITED STATES OF AMERICA V. CARL DELANO TORJAGBO, a/k/a KARL LUCIUS DELANO CRIMINAL INDICTMENT 1:22-cr-171-MLB-RDC Government’s Response in Opposition to Defendant’s Motion to Reconsider Order of Detention The United States of America respectfully files this response in opposition to Defendant’s Motion to Reconsider Order of Detention (Doc. 31) and respectfully urges the Court not to release this Defendant on bond. Statement of Facts Defendant Carl Delano Torjagbo, a/k/a Karl Lucius Delano, was indicted by a federal grand jury on May 10, 2022. (Doc. 1). The Indictment charges him with the following offenses: Count 1: bank fraud, in violation of 18 U.S.C. § 1344; Counts 2 through 4: concealment money laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i); and Counts 5 through 7: transactional money laundering, in violation of 18 U.S.C. § 1957. (Id.). Case 1:22-cr-00171-MLB-RDC Document 34 Filed 09/02/22 Page 1 of 23 Page 2 of 23 1. Bank Fraud JPMorgan Chase Bank, National Association (“Chase Bank”) is a federally insured financial institution. And Chase Bank participated as a lender in the Paycheck Protection Program (“PPP”), which was designed to help small businesses survive the COVID-19 pandemic by providing them with funds to cover certain payroll costs, including benefits, interest on mortgages, rent, and utilities. To be eligible for a PPP loan, a business had to have been “in operation on February 15, 2020.” Kremkov Industries LLC is a Georgia company organized by Defendant Torjagbo on January 4, 2021, approximately 10 months after the PPP-eligibility date had expired. Kremkov Industries was not eligible for a PPP loan because it was not “in operation on February 15, 2020.” Defendant Torjagbo pretended that Kremkov Industries was in the gold-mining business. But Kremkov Industries never conducted any business related to gold mining or anything else. And it never paid wages to employees because it had no employees. Nevertheless, on February 16, 2021, Defendant Torjagbo signed a PPP loan application on behalf of Kremkov Industries and submitted it to Chase Bank, requesting a PPP loan of $9,554,425.00. Case 1:22-cr-00171-MLB-RDC Document 34 Filed 09/02/22 Page 2 of 23 Page 3 of 23 Defendant Torjagbo swore that the information he provided on Kremkov’s PPP loan application and in all supporting documents and forms was “true and accurate in all material respects.” It was not. On the contrary, Defendant Torjagbo falsely stated that Kremkov Industries was “in operation on February 15, 2020.” Defendant Torjagbo falsely stated that a PPP loan was necessary to support the “ongoing operations” of Kremkov Industries. Defendant Torjagbo falsely stated that Kremkov Industries had an average monthly payroll of $3,821,770.00. Defendant Torjagbo falsely stated that Kremkov Industries had 493 employees. Defendant Torjagbo submitted fraudulent documents to Chase Bank, including false tax returns (IRS Forms 940, 941, and 1040) and fake reports that listed the names and make-believe payroll information of 493 people who allegedly worked for Kremkov Industries. On March 29, 2021, as a result of Defendant Torjagbo’s materially false and fraudulent representations, Chase Bank transferred $9,554,425.00 in PPP loan proceeds to Defendant Torjagbo’s custody and control. This is the largest fraudulent PPP loan discovered to date in the Northern District of Georgia. And it is unlikely that a larger fraud will be discovered because the maximum PPP loan that any business could receive was $10 million. Case 1:22-cr-00171-MLB-RDC Document 34 Filed 09/02/22 Page 3 of 23 Page 4 of 23 2. Money Laundering The fraudulent PPP loan proceeds were initially deposited into Chase Bank account #8755, titled in the name of Kremkov Industries. Immediately before that deposit, the balance in the account was only $105.00. On Kremkov’s PPP loan application, Defendant Torjagbo certified that “[a]ll loan proceeds [would] be used only for business-related purposes as specified in the loan application and consistent with the Paycheck Protection Program Rules.” And Defendant Torjagbo acknowledged that he could be prosecuted if the PPP loan proceeds were “knowingly used for unauthorized purposes.” Nevertheless, Defendant Torjagbo used the PPP loan proceeds for unauthorized purposes and took steps to conceal and disguise the nature, location, source, ownership, and control of the proceeds, and to convert the proceeds to his own use. For example, (A) On April 8, 2021, Defendant Torjagbo transferred $3 million of the PPP loan proceeds by check from Chase Bank account #8755 to PNC Bank (“PNC”) account #9499. Both accounts were titled in the name of Kremkov Industries. On that check, Defendant Torjagbo wrote a note stating that the payment was for “payroll.” But that was false and designed to mislead. Kremkov Industries had no payroll because it had no employees. Case 1:22-cr-00171-MLB-RDC Document 34 Filed 09/02/22 Page 4 of 23 Page 5 of 23 (B) On July 29, 2021—exactly four months after he fraudulently obtained a PPP loan in the name of Kremkov Industries— Defendant Torjagbo filed a petition in the Superior Court of Cobb County, Georgia to change his name to Karl Lucius Delano. (C) On August 17, 2021, Defendant Torjagbo created a Wyoming company called FlyingJack freight& Logistics LLC (“FlyingJack”). (D) On August 26, 2021, Defendant Torjagbo opened Bank of America (BOA) account #1199 in the name of FlyingJack. (E) Defendant Torjagbo deposited the PPP loan proceeds into six different bank accounts at three different banks, including the following: (1) Chase Bank account #8755, titled in the name of Kremkov Industries; (2) PNC account #9499, titled in the name of Kremkov Industries; (3) PNC account #9814, titled in the name of Carl Torjagbo; (4) PNC account #9822, titled in the name of Carl Torjagbo; (5) PNC account #9849, titled in the name of Carl Torjagbo; and (6) Bank of America account #1199, titled in the name of FlyingJack. Case 1:22-cr-00171-MLB-RDC Document 34 Filed 09/02/22 Page 5 of 23 Page 6 of 23 (F) After the date on which Torjagbo obtained the PPP loan proceeds, there were no significant deposits into any of these six accounts from any legitimate source. (G) Defendant Torjagbo moved and hid the PPP loan proceeds by using online transfers between accounts, wire transfers, regular checks, cashier’s checks, debit cards, credit cards, and cash withdrawals. (H) Defendant Torjagbo used PPP loan proceeds to pay startup expenses incurred by FlyingJack and to purchase 11 tractor- trailers in the name of FlyingJack, at a total cost of more than $800,000.00. (I) In addition, for his personal pleasure and enjoyment, Defendant Torjagbo used PPP loan proceeds to pay for the following: Date Description Amount 05-28-21 House located at 5114 Greythorne Lane, Marietta, GA, titled in name of Carl Torjagbo $1,660,861.01 06-11-21 Plastic surgery (“surfer abs”) $15,030.38 08-06-21 2021 Land Rover Velar, titled in name of Carl Torjagbo $87,020.00 10-27-21 Undeveloped land known as Tract 4, Fiber Drive, Cartersville, GA, titled in name of Karl Lucius Delano $91,076.66 01-24-22 2022 BMW M850XL, titled in name of Carl Torjagbo $115,250.79 03-07-22 Undeveloped land known as 101 Holt Drive, Acworth, GA, titled in name of FlyingJack $150,005.13 04-21-22 Down payment on a yacht $51,000.00 04-22-22 2014 Lamborghini Aventador, titled in name of Karl Lucius Delano $332,999.80 Case 1:22-cr-00171-MLB-RDC Document 34 Filed 09/02/22 Page 6 of 23 Page 7 of 23 3. Aggravated Identity Theft and Wire Fraud The government plans to supersede the Indictment soon to add new charges against Defendant Torjagbo, including aggravated identity theft and wire fraud. To convict a defendant of aggravated identity theft, the government must prove that the defendant, during and in relation to a felony offense such as bank fraud, knowingly used, without lawful authority, a means of identification of another person. 18 U.S.C. § 1028A (a)(1). A “means of identification” includes a person’s name. Id. § 1028(d)(7). The government must also prove that the defendant knew the means of identification belonged to a real person. United States v. Doe, 661 F.3d 550, 560-61 (11th Cir. 2011). A conviction for aggravated identity theft carries a mandatory minimum prison sentence of 2 years, which must be served consecutively to any sentence imposed for the underlying bank fraud and any other convictions in the case. 18 U.S.C. § 1028A(a); USSG § 2B1.6. In this case, the aggravated identity theft charge arises from the fraudulent documents that Defendant Torjagbo submitted to Chase Bank to obtain a PPP loan. Those documents included the names of 493 people who allegedly worked for Kremkov Industries. The FBI has determined through witness interviews that Case 1:22-cr-00171-MLB-RDC Document 34 Filed 09/02/22 Page 7 of 23 Page 8 of 23 Defendant Torjagbo knew that one or more of those 493 people was a real person. The proposed wire fraud charges stem from not just one but two fraudulent tax returns (Forms 1040) for tax year 2020 that Defendant Torjagbo electronically filed with the IRS on February 13, 2021—three days before he submitted his fraudulent PPP loan application to Chase Bank. One return used Defendant Torjagbo’s SSN, and the other used his ITIN. Both tax returns reported large fictitious Form W-2 wages, withholdings, and losses from Kremkov Industries, generating over $6.3 million in total tax refunds. IRS records do not contain any evidence that the alleged wages or withholdings were ever paid. And IRS records show that Kremkov Industries never filed any W-2s or business or employment tax returns for tax year 2020 or for any other tax year. On April 23, 2021, based on the fraudulent Form 1040 that Defendant Torjagbo filed using his SSN, the IRS issued a refund check payable to Carl Torjagbo for $3,366,240.76. But the IRS placed an identity theft hold on the Form 1040 that Defendant Torjagbo filed using his ITIN, and the IRS did not issue the refund of $3,015,573.00 that Defendant Torjagbo requested in that return. Case 1:22-cr-00171-MLB-RDC Document 34 Filed 09/02/22 Page 8 of 23 Page 9 of 23 4. At the detention hearing on May 12, 2022, the Court found that Torjagbo should be detained pending trial because he is both a risk of flight and a danger to the community. At the detention hearing, the Court stated as follows: [W]e have a case in which the defendant’s alleged to have defrauded the U.S. government out of $9.5 million. Actually, seeking 13 million,1 even though 9.5 is in the indictment, that is a substantial sum of money. Even if the bank clawed back 6 million of it, we still have in excess of 6 million still outstanding. The Court notes a couple of things. . . . [H]e does not have substantial ties to the charging district. He’s lived at this address for a year. . . . [Defense] counsel is arguing . . . that he’s been in the U.S. for 20 something years. The Court notes its concern about his use of an alias or changing his identity . . . after the alleged criminal conduct at issue. The Court notes the defendant has ties to a foreign country and that his family resides in Ghana where he was born. The Court also notes with regard to the alternative name or the new identity, the alias, he’s alleged to have committed fraud in both names. The Court finds there’s no verifiable, what appears to be, legitimate work history. 1 When the PPP loan and both tax returns are factored in, the total amount of money that Defendant Torjagbo tried to steal from the American taxpayers in February 2021 was more than $15.8 million. Case 1:22-cr-00171-MLB-RDC Document 34 Filed 09/02/22 Page 9 of 23 Page 10 of 23 The Court also notes the defendant, who was a trained pilot, is unable to find his passport and could not recall where his passport would be. I’m mostly concerned he’s a licensed pilot, there’s a substantial sum of money that is still outstanding. . . . There may be cash that’s waiting there and you are a pilot and you can rent something to flee the country to a nearby island. This was a lot of money barely a year ago. We’re not talking about conduct in 2018 or 2017 or 2019. We’re talking about substantial sums of money that you had last year. You were in the military, I noticed you didn’t mention that to Pretrial Service or your pilot experience. . . . [T]his was the largest sum of PPP money fraud that I have seen. But what stands out to me most is the concern about the pilot. . . . It was an extensive number of transactions between accounts transferring here and there, the tax $3 million refund from a business that allegedly did not exist or income you did not make. So the Court finds that, for these and other reasons, . . . you are a risk of flight and . . . the Court is concerned about the security of the community with regard to this—it was meant for small businesses, legitimate businesses, not for you to form a business after the fact after you have bought luxury items for yourself, personal items for yourself. So I don’t think I can fashion conditions that will ensure your appearance in Court or that you’re going to continue to engage in some type of similar economic fraud so the Court is going to detain you until these charges are resolved. . . . With regard to [defense counsel’s statement that Defendant Torjagbo had reported to Immigration that his passport had been lost or perhaps stolen by his ex-girlfriend], he was able to manufacture substantial documents to engage in the alleged conduct so he would probably . . . be able to obtain a passport, even if he couldn’t find his legitimate one, and because there’s a substantial amount of money missing, that money could be used to hire a pilot to fly you somewhere close to here. In any event, . . . it does not change the Court’s opinion. (Transcript of Detention Hearing (“Tr.”), attached as Exhibit 1, at 34-37). Case 1:22-cr-00171-MLB-RDC Document 34 Filed 09/02/22 Page 10 of 23 Page 11 of 23 Argument and Citation of Authority The “normal release and detention rules” set forth in 18 U.S.C. § 3142(f) apply here, “as well as the rules regarding reconsideration of detention decisions.” United States v. Perez, No. 1:05-CR-324-CAP-JFK-17, 2006 WL 8440221, at *2 (N.D. Ga. Nov. 29, 2006). To detain a defendant pending trial, the government must prove by a preponderance of the evidence that the defendant poses a flight risk if released and prove by clear and convincing evidence that the defendant’s release poses a danger to the community. United States v. Medina, 775 F.2d 1398, 1402 (11th Cir. 1985). A finding of either danger to the community or risk of flight will be sufficient to detain the defendant pending trial. United States v. King, 849 F.2d 485, 488 (11th Cir. 1988). In considering whether a defendant poses a danger to the safety of the community, the court should consider both the “danger of harm involving physical violence” and the danger of “non- physical harms.” Id. at 487 n.2. “There can be no question that an economic danger, like that posed by a serial defrauder, falls under the broad umbrella of ‘dangerousness’ as that term is used throughout the Bail Reform Act.” United States v. Giordano, 370 F. Supp. 2d 1256, 1270 (S.D. Fla. 2005). Case 1:22-cr-00171-MLB-RDC Document 34 Filed 09/02/22 Page 11 of 23 Page 12 of 23 1. This Court should deny Defendant Torjagbo’s Motion to Reconsider because he fails to meet either part of the two-part test set forth in 18 U.S.C. § 3142(f)(2). A detention hearing may be reopened at any time before trial if the Court finds that “information exists that was not known to the [defendant] at the time of the hearing and [the information] has a material bearing on the issue whether there are conditions of release that will reasonably assure the appearance of [the defendant] as required and the safety of any other person and the community.” 18 U.S.C. § 3142(f)(2). Defendant Torjagbo fails to satisfy either part—let alone both parts—of this two-part test. The evidence on which Defendant Torjagbo relies is neither new nor material, so his detention hearing should not be reopened. See United States v. Hare, 873 F.2d 796, 799 (5th Cir. 1989) (holding that a detention hearing should not be reopened unless the movant presents “new evidence . . . that has a material bearing on the issue [of risk of flight or dangerousness]”) (quoting 18 U.S.C. § 3142(f)(2) (brackets in original)); see also United States v. Saintvil, No. 1:12-CR-285-03-WSD-AJB, 2013 WL 6196523, at *2 (N.D. Ga. Nov. 27, 2013) (denying defendant’s motion to reopen detention hearing because defendant “simply has not offered any further evidence showing that he is not a flight or safety risk [and he] only reiterates the Case 1:22-cr-00171-MLB-RDC Document 34 Filed 09/02/22 Page 12 of 23 Page 13 of 23 arguments he presented at his detention hearing”); United States v. Edwards, No. 1:05-CR-097-WSD-JFK, 2007 WL 9724771, at *1 (N.D. Ga. May 9, 2007) (“On a motion for reconsideration of detention, . . . the Court places the burden on the defendant to demonstrate that the initial detention decision was based on erroneous considerations, incomplete or incorrect information, or a material change in circumstances.”); United States v. Aguiar, No. 2:05-CR-021-01-WCO, 2006 WL 8441014, at *2 (N.D. Ga. Oct. 2, 2006) (holding that the magistrate judge correctly ruled that the defendant could not reopen his detention hearing because the facts were “not unknown” to him at the time of the detention hearing) (A) The information that Defendant Torjagbo presents is not new. Defendant Torjagbo states in his motion that he has assembled “additional” information to present to the Court to support his release on bond. (Doc. 31 ¶ 3). As shown below, however, all of the arguments that Defendant Torjagbo makes in his Motion to Reconsider were previously raised at the detention hearing and expressly rejected by the Court: Case 1:22-cr-00171-MLB-RDC Document 34 Filed 09/02/22 Page 13 of 23 Page 14 of 23 Torjagbo’s arguments at the detention hearing Torjagbo’s arguments in his Motion to Reconsider Torjagbo is “a citizen of the United States. . . . He’s been living in the United States primarily for the past 25 years. He came to the United States at age 17 to go to school.” (Tr. at 27). Torjagbo “is a naturalized United States citizen, who . . . has lived in the United States for all of his adult life.” (Doc. 31 ¶ 4). Torjagbo has lived in the Atlanta area, off and on, for “a total of about 7 years.” (Id. at 28). Torjagbo “has resided in the Atlanta area for a substantial period of time.” (Id.). Torjagbo “has no prior felony convictions at all.” (Id. at 24). Torjagbo “does not have a prior felony with the exception of a 2008 conviction for repeat traffic/driving violations.” (Id.). This “is not a case that involves violence.” (Id. at 24). “The offenses alleged [in the Indictment] stem from financial transactions that are non-violent.” (Id. ¶ 6). In August 2021, Torjagbo “report[ed] to immigration that he lost his passport. . . . So he doesn’t have his passport. . . . He believe[s] that [it was stolen by] an ex-girlfriend. . . . [H]e is a commercial pilot, but . . . . he doesn’t have access to any sort of commercial plane.” (Id. at 37). Torjagbo is willing to “surrender his passport and pilot license.” (Id. ¶ 5). Defense counsel told the Court at the detention hearing that Defendant Torjagbo reported his passport lost or stolen in August 2021. (Tr. at 37). Thus, Defendant Torjagbo’s offer to surrender his passport now is a meaningless gesture, since he cannot surrender what he does not have. It is noteworthy that he does not allege in his Motion that he has found his passport. And it seems Case 1:22-cr-00171-MLB-RDC Document 34 Filed 09/02/22 Page 14 of 23 Page 15 of 23 unlikely that he could have found it since he has been detained ever since the hearing on May 12, 2022. Moreover, as the Court expressly recognized at the hearing, since Defendant Torjagbo “was able to manufacture substantial documents” to engage in the fraudulent conduct alleged in the Indictment, he would probably be able to “obtain a [fraudulent] passport, even if he couldn’t find his legitimate one.” (Id. at 38). Defendant Torjagbo’s offer to surrender his pilot’s license should not give the Court much comfort either. Defendant Torjagbo is both a licensed airline transport pilot (i.e., a commercial pilot) and a flight instructor. Thus, he is presumably capable of flying a wide variety of aircraft. And his skill as a pilot will remain with him even if his license does not. So even if this Court were to Order him to surrender his pilot’s license, that would not prevent him from fleeing. And because a large part of the fraud money is still unaccounted for, Defendant Torjagbo presumably has the money to rent an airplane and leave the country by either flying the plane himself or by hiring someone else to fly it for him. The Court cited that as one of the major reasons supporting its decision to deny bond. (Id.). When Defendant Torjagbo flew for FlyDubai Airlines and SkyWest Airlines, he traveled all over the world. Since he was born in Ghana and Case 1:22-cr-00171-MLB-RDC Document 34 Filed 09/02/22 Page 15 of 23 Page 16 of 23 still has family there, it does not take much imagination to envision him leaving the Northern District of Georgia permanently if given an opportunity to do so. At the detention hearing, the government represented that Defendant Torjagbo used approximately $1.7 million in stolen taxpayer money to buy a new house at 5114 Greythorne Lane, Marietta, Georgia. All indications are that he lived there alone. In the Pretrial Services report, Defendant Torjagbo said, “This is where I live and I want to go back there and keep living there if the Court lets me out on bond.” (Tr. at 13-14). But Defendant Torjagbo alleges in his Motion that he “has a local support group of friends and family, including a relative” with whom he can live if he is released on bond. ( Doc. 31 ¶ 4). He does not identify any of those people by name or state the address of the person with whom he intends to live if released. In sum, Defendant Torjagbo’s Motion merely repackages the same arguments that he made and lost at his detention hearing. Having offered no new information, he is not entitled to reopen his detention hearing, and his Motion to Reconsider should be denied. See 18 U.S.C. § 3142(f)(2); Edwards, 2007 WL 9724771, at *1; Saintvil, 2013 WL 6196523, at *2. Case 1:22-cr-00171-MLB-RDC Document 34 Filed 09/02/22 Page 16 of 23 Page 17 of 23 (B) The information that Defendant Torjagbo presents is not material. New information is not deemed “material” unless it increases “the likelihood that the defendant will appear at trial and [shows] that the defendant is less likely to pose a danger to the community.” United States v. Watson, 475 F. App’x 598, 600 (6th Cir. 2012); see also United States v. Leake, No. 19-CR-194 (KBJ), 2020 WL 1905150, at *1 (D.D.C. Apr. 17, 2020) (holding that, to be considered “material,” the new information must pertain to one of the four factors set forth in 18 U.S.C. § 3142(g): (1) the nature and circumstances of the offense charged; (2) the weight of the evidence against the defendant; (3) the history and characteristics of the defendant; and (4) the nature and seriousness of the danger to any person or the community that would be posed by the defendant’s release); United States v. Jerdine, No. 1:08 CR 00481, 2009 WL 4906564, at *3 (N.D. Ohio Dec. 18, 2009) (“New and material information for Section 3142(f)(2)(B) purposes consists of . . . truly changed circumstances, something unexpected, or a significant event.”), aff’d, 511 F. App’x 391 (6th Cir. 2013). Defendant Torjagbo’s Motion offers no information that has a material bearing on the issue of whether there are conditions of release that will reasonably assure his appearance as required and the safety of the community. See 18 U.S.C. § 3142(f)(2). Case 1:22-cr-00171-MLB-RDC Document 34 Filed 09/02/22 Page 17 of 23 Page 18 of 23 2. This Court should not exercise its inherent authority to reconsider its previous ruling. As originally passed, the Bail Reform Act of 1984 did not include a “reopening” provision; the First Circuit concluded that the omission must have been inadvertent and held that “the magistrate and district court nonetheless possess inherent power to reconsider previous detention orders.” United States v. Angiulo 755 F.2d 969, 972 (1st Cir. 1985). The following year, Congress added the reopening provision codified at 18 U.S.C. § 3142(f)(2). See Criminal Law and Procedure Technical Amendments Act of 1986, Pub. L. No. 99–646, 100 Stat. 3592 (1986). A Senate Judiciary Committee report explained that the addition of this reopening provision sought to “clarify that a court has the authority to reopen a detention hearing to consider further relevant information not known to the movant at the time of the original hearing.” S. Rep. No. 99-278, at 2 (1986) (emphasis added). Thus, 18 U.S.C. § 3142(f)(2) codifies “a court’s inherent reconsideration authority tempered by the understanding that, to promote finality, preserve judicial resources, and discourage piecemeal presentations, a court should not reconsider a decision based on information that could have been presented the first time around.” United States v. Pon, No. 3:14-CR-75-J-39-PDB, 2014 WL 3340584, at *9 (M.D. Fla. May 29, 2014); see also Christianson v. Colt Indus. Case 1:22-cr-00171-MLB-RDC Document 34 Filed 09/02/22 Page 18 of 23 Page 19 of 23 Operating Corp., 486 U.S. 800, 817 (1988) (stating that, “as a rule courts should be loathe to [revisit their prior rulings] in the absence of extraordinary circumstances such as where the initial decision was clearly erroneous and would work a manifest injustice”) (citation and quotation marks omitted). “[E]ven if an inherent reconsideration authority remains after the addition of the reopening provision to the Bail Reform Act,” Pon, 2014 WL 3340584, at *10, Defendant Torjagbo’s Motion should be denied. A court has inherent authority to “reconsider, rescind, or modify an interlocutory order” only in the “absence of prohibition by statute or rule.” Flintlock Const. Servs., LLC v. Well-Come Holdings, LLC, 710 F.3d 1221, 1225 (11th Cir. 2013); see also United States v. Jetton, No. 1:05- CR-316-8-BBM, 2008 WL 11384040, at *2 (N.D. Ga. Oct. 9, 2008) (holding that the court may not exercise its inherent authority to decide a motion for reconsideration “in the face of an express prohibition of reconsideration of a particular issue”) (citation omitted). Here, the reopening provision in 18 U.S.C. § 3142(f)(2) controls. See Pon, 2014 WL 3340584, at *10. Hence, if this Court were to reconsider Defendant Torjagbo’s Detention Order based on its inherent authority—without requiring Defendant Torjagbo to meet both prongs of the test set forth in § 3142(f)(2)—it “would negate that provision.” Id. Case 1:22-cr-00171-MLB-RDC Document 34 Filed 09/02/22 Page 19 of 23 Page 20 of 23 Also, allowing Defendant Torjagbo to bypass the requirements of § 3142(f)(2) would undermine the Bail Reform Act, which provides that a defendant unhappy with his detention order may appeal the magistrate judge’s ruling to the district court and appeal the district court’s ruling to the court of appeals. Id. (citing 18 U.S.C. § 3145(b) & (c)). (C) Motions for reconsideration are not authorized by statute or by rule in criminal cases. “[N]o statute or Federal Rule of Criminal Procedure authorizes the filing of a motion for reconsideration in a criminal case.” United States v. Vives, 546 F. App’x 902, 905 (11th Cir. 2013). Thus, when courts in this district have entertained motions for reconsideration in criminal cases, they have generally employed the standards used in civil cases. United States v. Kight, No. 1:16-CR-99- WSD, 2018 WL 10700899, at *2 n.3 (N.D. Ga. Mar. 22, 2018). But “[m]otions for reconsideration, assuming they are even appropriate in criminal cases, should be reserved for certain limited situations, namely the discovery of new evidence, an intervening development or change in the law, or the need to correct clear error or prevent a manifest injustice.” Id. at *2 (quotation omitted). Case 1:22-cr-00171-MLB-RDC Document 34 Filed 09/02/22 Page 20 of 23 Page 21 of 23 “A motion for reconsideration is not an opportunity for the moving party and their counsel to instruct the court on how the court ‘could have done it better’ the first time.” Pres. Endangered Areas of Cobb’s History, Inc. v. U.S. Army Corps of Engineers, 916 F. Supp. 1557, 1560 (N.D. Ga. 1995) (O’Kelley, J.), aff’d, 87 F.3d 1242 (11th Cir. 1996). And “motions for reconsideration may not be used to present the court with arguments already heard and dismissed,” id., or to “repackage familiar arguments to test whether the Court will change its mind,” Brogdon ex rel. Cline v. Nat’l Healthcare Corp., 103 F. Supp. 2d 1322, 1338 (N.D. Ga. 2000) (Murphy, J.). “If a party presents a motion for reconsideration under any of these circumstances, the motion must be denied.” Lewis v. Nationstar Mortg., LLC, No. 1:18-CV-4455-MHC-AJB, 2019 WL 5460662, at *1 (N.D. Ga. Aug. 2, 2019) (Cohen, J.) (citation omitted). Because Defendant Torjagbo presents nothing but arguments already heard and rejected by the Court at the detention hearing, his Motion to Reconsider must be denied. See id. Conclusion For all of the foregoing reasons, Defendant Torjagbo’s Motion to Reconsider Order of Detention (Doc. 31) should be denied. Case 1:22-cr-00171-MLB-RDC Document 34 Filed 09/02/22 Page 21 of 23 Page 22 of 23 Respectfully submitted, Ryan K. Buchanan United States Attorney /s/ John Russell Phillips Assistant United States Attorney Georgia Bar No. 576335 600 U.S. Courthouse 75 Ted Turner Drive, SW Atlanta, GA 30303 (404) 581-6000 Case 1:22-cr-00171-MLB-RDC Document 34 Filed 09/02/22 Page 22 of 23 Page 23 of 23 Certificate of Service I hereby certify that, on September 2, 2022, I electronically filed the foregoing document with the Clerk of Court using the CM/ECF system. /s/ John Russell Phillips Assistant United States Attorney Georgia Bar No. 576335 600 U.S. Courthouse 75 Ted Turner Drive, SW Atlanta, GA 30303 (404) 581-6000 Case 1:22-cr-00171-MLB-RDC Document 34 Filed 09/02/22 Page 23 of 23
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