RESPONSE in Opposition as to Carl Delano Torjagbo filed by USA re 81 MOTION to Strike… — USA v. Torjagbo (Dkt. 83)

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U.S. District Court for the Northern District of Georgia · No. 1:22-cr-00171-MLB-RDC · Doc. 83 · 2024-03-26 · Docket on CourtListener

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The United States' response in opposition to the defendant's Motion to Strike Surplusage (Doc. 81) in United States v. Carl Delano Torjagbo, Criminal Action Number 1:22-CR-171-MLB-RDC, in the U.S. District Court for the Northern District of Georgia, filed March 26, 2024 as Document 83. The motion it opposes seeks to strike the phrase "a/k/a Karl Lucius Delano" from the Indictment. The response sets out the government's account of the charges, which include bank fraud under 18 U.S.C. § 1344 and money laundering counts tied to a PPP loan of $9,554,425.00 from Chase Bank, and describes a name-change petition granted on September 17, 2021. It argues under Fed. R. Crim. P. 7(d) and United States v. Awan that the alias is relevant and not inflammatory or prejudicial, and asks the Court to deny the motion. The 15-page filing is signed by an Assistant United States Attorney.

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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 ACTION NUMBER 
1:22-CR-171-MLB-RDC 
RESPONSE IN OPPOSITION TO 
DEFENDANT’S MOTION TO STRIKE SURPLUSAGE 
The United States of America files this response in opposition to 
Defendant’s Motion to Strike Surplusage (Doc. 81). 
Defendant Carl Delano Torjagbo, a/k/a Karl Lucius Delano, seeks 
to strike from the Indictment the phrase “a/k/a Karl Lucius Delano.” (Id. 
¶ 6). He fails to meet his burden of showing that this phrase is both (a) not 
relevant to the charges in the indictment and (b) inflammatory and 
prejudicial. Therefore, the Court should deny his motion. 
 
 
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Facts 
The Indictment charges Defendant Torjagbo with one count of bank 
fraud, in violation of 18 U.S.C. § 1344; three counts of concealment money 
laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i); and three counts of 
transactional money laundering, in violation of 18 U.S.C. § 1957. (Doc. 1). 
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 entity that was created 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.” 
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Defendant Torjagbo falsely represented that Kremkov Industries 
was in the gold-mining business. 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.  
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. 
 
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 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. 
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 that 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.” Defendant Torjagbo acknowledged 
that he could be prosecuted if the PPP loan proceeds were “knowingly 
used for unauthorized purposes.” 
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Defendant Torjagbo used the PPP loan proceeds for unauthorized 
purposes. He also engaged in financial transactions designed to conceal 
and disguise the nature, location, source, ownership, and control of the 
proceeds. 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.” 
That note was false and intentionally misleading. 
Kremkov Industries had no payroll because it had no 
employees. 
(B) 
On August 17, 2021, Defendant Torjagbo created a 
Wyoming entity called FlyingJack freight& Logistics 
LLC (“FlyingJack”). 
(C) 
On August 26, 2021, Defendant Torjagbo opened Bank 
of America (BOA) account #1199 in the name of 
FlyingJack. 
(D) 
Defendant Torjagbo deposited the PPP loan proceeds 
into six different bank accounts at three different banks: 
(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; 
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(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. 
(E) 
After the date on which Defendant Torjagbo obtained 
the PPP loan proceeds, there were no significant 
deposits into any of these six accounts from any 
legitimate source. 
(F) 
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. 
(G) 
Defendant Torjagbo used more than $800,000.00 of the 
PPP loan proceeds to purchase 11 tractor-trailers for 
FlyingJack and to pay other startup expenses incurred 
by FlyingJack. 
 
 
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(H) 
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”) for Carl 
Torjagbo 
$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; proceeds 
transferred from BOA account #1199 in 
the name of FlyingJack 
$51,000.00 
04-22-22 
2014 Lamborghini Aventador, titled in 
name of Karl Lucius Delano 
$332,999.80 
 
 
 
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3. 
Aggravated Identity Theft and Wire Fraud 
The government plans to supersede the Indictment to add new 
charges against Defendant Torjagbo, including aggravated identity theft 
and wire fraud. 
The aggravated identity theft charges arise from the fraudulent 
documents that Defendant Torjagbo submitted to Chase Bank to obtain the 
$9.5 million PPP loan. 
The wire fraud charges stem from not just one but two fraudulent 
tax returns (Forms 1040) for tax year 2020, which 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 (a sham company), 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. 
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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. The IRS flagged Defendant 
Torjagbo’s other return, which was tied to his ITIN, and did not issue the 
requested refund of $3,015,573.00. 
4. 
Defendant’s name change 
On July 29, 2021—approximately four months after he fraudulently 
obtained a $9.5 million PPP loan and filed two fraudulent tax returns, 
requesting refunds of $3,366,240.76 (which the IRS paid) and $3,015,573.00 
(which the IRS flagged as fraud and did not pay)—Defendant Torjagbo 
filed a petition in the Superior Court of Cobb County, Georgia to change 
his name to Karl Lucius Delano. (Doc. 1 ¶ 23; Gov’t Ex. 1). In his name-
change petition, Defendant Torjagbo stated that he wanted to change his 
name because “Torjagbo is very difficult to pronounce and when (he) was 
in primary school, the other kids made fun of it.” (Gov’t Ex. 1 ¶ 4). His 
petition was granted on September 17, 2021. (Gov’t Ex. 2). After changing 
his name, Defendant Torjagbo continued using his old name whenever it 
suited his criminal purposes. (See supra chart p. 7; Doc. 1 ¶¶ 17-31). 
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Argument 
“Upon the defendant’s motion, the court may strike surplusage from 
the indictment.” Fed. R. Crim. P. 7(d). “Surplusage is defined as 
‘immaterial or irrelevant allegations in an indictment . . . which may . . . be 
prejudicial.’” United States v. Hernandez, No. 1:02-CR-730-BBM-AJB, 2006 
WL 8453535, at *5 (N.D. Ga. May 9, 2006) (quoting FED. R. CRIM. P. 7(d), 
Advisory Committee’s Note).  
The Eleventh Circuit has held that “(a) motion to strike surplusage 
from an indictment should not be granted ‘unless it is clear that the 
allegations are not relevant to the charge and are inflammatory and 
prejudicial. . . . (T)his is a most ‘exacting standard.’” United States v. Awan, 
966 F.2d 1415, 1426 (11th Cir. 1992) (quoting United States v. Huppert, 917 
F.2d 507, 511 (11th Cir. 1990)). 
Moreover, “if evidence of the allegation is admissible and relevant to 
the charge, then regardless of how prejudicial the language is, it may not 
be stricken.” United States v. Scarpa, 913 F.2d 993, 1013 (2d Cir. 1990) 
(internal quotations omitted); see also United States v. Hill, 799 F. Supp. 86, 
88-89 (D. Kan. 1992) (“If the language is information which the 
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government hopes to properly prove at trial, it cannot be considered 
surplusage no matter how prejudicial it may be.”) (internal quotations 
omitted). Even where terms on their face appear prejudicial, courts have 
refused to strike them where they are relevant to the charges. See, e.g., 
United States v. Al-Arian, 308 F. Supp. 2d 1322, 1356-57 (M.D. Fla. 2004) 
(refusing to strike the words “terrorists,” “terrorism,” and “terrorist 
activity,” as well as language indicating animus towards the United States, 
despite the obvious prejudice, where those allegations were potentially 
relevant to the charges); United States v. Dellacroce, 625 F. Supp. 1387, 1392 
(E.D.N.Y. 1986) (refusing to strike from indictment terms such as 
“Gambino Crime Family,” “boss,” “capos,” and “Old Man,” because 
government represented that allegations were relevant). Similarly, even 
when an allegation may not be strictly relevant to the charges—serving 
only as background or color in an indictment—it should not be stricken 
unless it is also “inflammatory and prejudicial.” Awan, 966 F.2d at 1426 
(internal quotations omitted). 
 
 
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“Rule 7(d) is strictly construed against striking surplusage.” United 
States v. McCray, No. 1:15-CR-212-WSD-AJB, 2017 WL 11716129, at *1-2 
(N.D. Ga. June 15, 2017). Thus, “(m)otions to strike surplusage are rarely 
granted.” United States v. Hedgepeth, 434 F.3d 609, 611 (3d Cir. 2006). 
“In particular, defendants are usually unsuccessful in their attempts 
to have aliases expunged from an indictment.” United States v. Ailsworth, 
No. 94-40017-01-SAC, 1994 WL 539347, at *14 (D. Kan. Aug. 24, 1994) 
(citations omitted). An alias is “(a)n assumed or additional name that a 
person has used or is known by.” United States v. Cofield, No. 3:06-CR-208-
MEF, 2007 WL 2670288, at *4 (M.D. Ala. Feb. 23, 2007) (quoting Black’s 
Law Dictionary 79 (8th ed. 2004)), report and recommendation adopted as 
modified, 2007 WL 2670278 (M.D. Ala. Sept. 7, 2007). “If the Government 
intends to introduce evidence of an alias and the use of that alias is 
necessary to identify the defendant in connection with the acts charged in 
the indictment, the inclusion of the alias in the indictment is both relevant 
and permissible, and a pretrial motion to strike should not be granted.” 
United States v. Harriston, 329 F.3d 779, 792 (11th Cir. 2003) (citation 
omitted). 
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Here, Defendant Torjagbo seeks to strike from the Indictment the 
phrase “a/k/a Karl Lucius Delano.” (Doc. 81 ¶ 6). He does not cite any 
case where the defendant’s former legal name was stricken from the 
indictment as surplusage because it was found to be either (a) irrelevant to 
the charge or (b) inflammatory and prejudicial, let alone both (a) and (b) as 
required to prevail on a motion to strike surplusage in the Eleventh 
Circuit. See Awan, 966 F.2d at 1426. 
Defendant Torjagbo’s name change is unquestionably relevant to the 
charges in the Indictment:  the government avers in the Indictment that 
Defendant Torjagbo changed his name in order to conceal, disguise, and 
dispose of the fraud proceeds. (See Doc. 1 ¶¶ 17-31; see also O.C.G.A. § 19-
12-4 (“Nothing contained in this chapter shall authorize any person to 
change his name with a view to deprive another fraudulently of any right 
under the law.”)). 
Second, the phrase “a/k/a Karl Lucius Delano” is not inflammatory 
and prejudicial. “’Inflammatory’ is defined as ‘tending to cause strong 
feelings of anger, indignation, or other type of upset; (or) tending to stir 
the passions.’” United States v. Skilling, 554 F.3d 529, 559 (5th Cir. 2009) 
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(quoting BLACK’S LAW DICTIONARY 794 (8th ed. 2004)), vacated in part 
on other grounds, 561 U.S. 358 (2010). Defendant Torjagbo voluntarily chose 
to change his name to Karl Lucius Delano. (See Gov’t Ex. 1). There is 
nothing inflammatory or unfairly prejudicial about that. 
And unlike other possible aliases “whose very mention could 
engender adverse sentiment, the name [Karl Lucius Delano] conveys 
nothing that is inherently prejudicial.” See United States v. Wright, No. 00-
4024-01/25-SAC, 2001 WL 523394, at *10 (D. Kan. Apr. 26, 2001) (denying 
defendant’s motion to strike surplusage because the alias “Pony” was not 
inherently prejudicial); see also United States v. Aldissi, No. 8:14-CR-217-T-
33EAJ, 2014 WL 5285984, at *2 (M.D. Fla. Oct. 15, 2014) (holding that “the 
use of Defendant Aldissi’s prior legal name (was) not inflammatory or 
prejudicial with regard to the charges outlined in the indictment”), aff’d, 
758 F. App’x 694 (11th Cir. 2018). 
 
 
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Conclusion 
Defendant Torjagbo has not met his burden of showing that the 
phrase “a/k/a Karl Lucius Delano” is “not relevant to the charge and [is] 
inflammatory and prejudicial.” Awan, 966 F.2d at 1426. Therefore, his 
Motion to Strike Surplusage (Doc. 81) should be denied. 
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 
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