RESPONSE in Opposition as to Carl Delano Torjagbo filed by USA re 80 MOTION for Production… — USA v. Torjagbo (Dkt. 84)

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U.S. District Court for the Northern District of Georgia · No. 1:22-cr-00171-MLB-RDC · Doc. 84 · 2024-03-27 · Docket on CourtListener

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A response in opposition filed by the United States on March 27, 2024 as Doc. 84 in United States v. Carl Delano Torjagbo, No. 1:22-cr-00171-MLB-RDC, in the U.S. District Court for the Northern District of Georgia. It opposes the defendant's Motion for an Order Enforcing Brady v. Maryland and the Due Process Protections Act (Doc. 80), filed February 12, 2024. The government argues first that defense counsel did not request the materials in writing or file the written certification required by the Pretrial Scheduling Order (Doc. 13). It argues alternatively that the requests exceed Rule 16, Brady and Giglio and function as interrogatories, and that request number 5 calls for a legal conclusion about the prosecution team. The 9-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 
FOR AN ORDER ENFORCING BRADY v. MARYLAND 
AND THE DUE PROCESS PROTECTIONS ACT 
The United States of America files this response in opposition to 
Defendant’s Motion for an Order Enforcing Brady v. Maryland and the Due 
Process Protections Act (Doc. 80). 
Introduction 
Defendant Torjagbo’s motion should be denied because it violates 
the Pretrial Scheduling Order (Doc. 13), which states that a discovery 
motion should be filed only if counsel for the government has failed to 
comply with written requests for information. See id. Thus, Defendant 
Torjagbo was required to request discovery materials in writing from the 
government prior to filing his present motion for discovery. See id. He 
failed to do so. Accordingly, Defendant Torjagbo’s motion should be 
denied under the terms of the Pretrial Scheduling Order. 
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Facts 
A Pretrial Scheduling Order was issued in this case on May 16, 2022. 
(Id.). It states in relevant part as follows: 
III. 
Filing Pretrial Motions 
The local rules require any party seeking relief through a 
motion to confer with opposing counsel in an attempt to 
resolve disputed matters prior to the filing of motions related 
thereto. LCrR 12.1.D, NDGa. Moreover, Rule 16 directs that 
the government must produce discoverable material upon 
only a “request” of the defendant. See FED. R. CRIM. P. 16. 
Therefore, counsel are DIRECTED to NOT file any motion for 
materials or information or other relief that: (1) the opposing 
party has agreed to provide, or (2) the party is entitled to 
inspect and copy under applicable criminal rules and case 
law, UNLESS the attorney certifies to the court in writing 
that: (1) the materials have been requested from the opposing 
party or the motion for other relief has been discussed with 
the counsel for the opposing party, and (2) the opposing 
counsel declines to provide the materials/information/relief 
requested. 
(Id. at 4-5). 
On February 12, 2024, Defendant Torjagbo filed a Motion for an 
Order Enforcing Brady v. Maryland and the Due Process Protections Act 
(Doc. 80). 
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Before filing his motion, counsel for Defendant Torjagbo did not ask  
counsel for the government to provide the documents and information 
that he seeks in his current motion, nor does defense counsel allege in his 
motion that he did so. (See Doc. 80). Furthermore, defense counsel did not 
provide a written certification to the Court, as required by the Pretrial 
Scheduling Order. (See Doc. 13 at 4-5). 
Argument 
1. 
Defendant Torjagbo’s motion should be denied because it violates 
the Pretrial Scheduling Order. 
District courts have “wide discretion in ruling upon discovery 
motions.” Harris v. Chapman, 97 F.3d 499, 506 (11th Cir. 1996). “Consistent 
with that discretion, the [Northern District of Georgia] has a standard 
Pretrial Scheduling Order . . . to govern the discovery process in criminal 
cases.” United States v. Omar, No. 1:12-CR-00264-SCJ, 2012 WL 6934627, at 
*4 (N.D. Ga. Dec. 7, 2012), report and recommendation adopted sub nom. United 
States v. Barrie, 2013 WL 315203 (N.D. Ga. Jan. 25, 2013). 
Where, as here, the defendant files a discovery motion that violates 
the Pretrial Scheduling Order, the motion should be denied. United States 
v. Omar, No. 1:12-CR-00264-SCJ-RGV, 2012 WL 6934627, at *5 (N.D. Ga. 
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Dec. 7, 2012) (denying defendant’s motion for additional discovery 
because, under the terms of the Pretrial Scheduling Order, defendant was 
“required to request discovery materials in writing from the government 
prior to filing his present motion for discovery, and he has failed to 
indicate whether he has done so”) (internal citation omitted), report and 
recommendation adopted sub nom. United States v. Barrie, No. 1:12-CR-0264-
SCJ, 2013 WL 315203 (N.D. Ga. Jan. 25, 2013); see also United States v. 
Jenkins, No. 1:08-CR-0209-CC-CCH, 2008 WL 11383980, at *1-2 (N.D. Ga. 
July 18, 2008) (denying defendant’s pretrial motion because “counsel for 
Defendant has failed to comply with the terms of the Pretrial Conference 
Order by failing to certify in writing that the materials have been 
requested from counsel for the government and that counsel for the 
government has declined to provide the information and relief 
requested”). Accordingly, Defendant Torjagbo’s motion should be denied 
because it violates the Pretrial Scheduling Order. 
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2. 
Alternatively, Defendant Torjagbo’s motion should be denied on 
the merits. 
If this Court decides to consider Defendant Torjagbo’s motion on the 
merits, it should find that Defendant Torjagbo is not entitled to the relief 
that he seeks. 
Defendant Torjagbo’s motion seeks to impose on the government 
various obligations that exceed the requirements of Rule 16, Brady, and 
Giglio. For example, Defendant Torjagbo asks the Court to impose “a 
disclosure deadline of 30 days.” (Doc. 80 ¶ 6). He cites no authority, and 
the United States knows of none, requiring the government to do more 
than what is required by Rule 16, Brady, and Giglio. 
Nor does Defendant Torjagbo cite any authority requiring the 
government to produce Rule 16, Brady, or Giglio materials earlier than 
required by law. “Under the Pretrial Scheduling Order, the government is 
required to provide [Defendant Torjagbo] Giglio information ‘sufficiently 
in advance of trial to allow [him] to use it effectively,’ but no later than 
production of Jencks Act material.” Omar, 2012 WL 6934627, at *6 (quoting 
Pretrial Scheduling Order). And with respect to Jencks Act material, the 
Eleventh Circuit has stated as follows:  “Our precedent on this issue could 
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not be more clear. The government is not required to disclose any 
statement in its possession until after the witness has testified on direct.” 
United States v. Calderon, 127 F.3d 1314, 1335 (11th Cir. 1997). 
Nevertheless, consistent with the government’s “liberal discovery 
policy,” Omar, 2012 WL 6934627, at *6, n.7, the United States has already 
provided Defendant Torjagbo with virtually every document in its file, 
including not only Rule 16 discovery but early Jencks Act material as well. 
The government is not aware of any Brady or Giglio material. If the 
government becomes aware of any Brady or Giglio material, it will produce 
it in a timely manner. 
Moreover, Defendant Torjagbo’s requests should be denied because 
they are just interrogatories clothed as a discovery motion. If this were a 
civil case, Defendant Torjagbo would be entitled to serve the opposing 
party with interrogatories. See FED. R. CIV. P. 33. But this is a criminal case. 
A defendant has no right to serve the government with interrogatories in a 
criminal case. United States v. Linen Supply Inst. of Greater New York, 18 
F.R.D. 452, 453 (S.D.N.Y. 1955) (“The Federal Rules of Criminal Procedure 
make no provision for answers to interrogatories.”); see also United States v. 
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Kenny, 462 F.2d 1205, 1212 (3d Cir. 1972) (holding that the government was 
not required to answer “a set of detailed interrogatories in the guise of a 
bill of particulars”). 
Defendant Torjagbo’s request number 5 is improper for two other 
reasons. First, it asks the Court to require the government to “identify the 
agents and agencies [that it] considers to be a part of its ‘prosecution 
team.’” (Doc. 80 ¶ 5). The question of whether someone is a member of the 
prosecution team is a legal question, which must be determined by the 
Court on a case-by-case basis using principles of agency law. United States 
v. Bourassa, No. 4:18-CR-3-MLB-WEJ, 2020 WL 8484885, at *6 (N.D. Ga. 
Sept. 4, 2020) (citing Avila v. Quarterman, 560 F.3d 299, 307-08 (5th Cir. 
2009)), report and recommendation adopted, 2020 WL 7778038 (N.D. Ga. Dec. 
31, 2020); see also United States v. Vest, No. 06-CR-30011-DRH, 2006 WL 
2135760, at *3 (S.D. Ill. July 28, 2006) (denying defendant’s motion for bill 
of particulars because it required the Government “to make legal 
conclusions”). Therefore, whether the government considers someone to 
be part of the prosecution team is irrelevant. It is the Court’s opinion that 
counts. Second, Request number 5 is improper because it is the functional 
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equivalent of a request for admissions and calls for a legal conclusion. 
Even if it were proper for a defendant to serve the government with a 
request for admissions in a criminal case, it would be improper for a 
defendant to ask the government to admit a legal conclusion, such as 
whether someone is part of the prosecution team. See United States v. 
Annamalai, No. 20-10543, 2022 WL 16959207, at *4 (11th Cir. Nov. 16, 2022), 
cert. denied, 143 S. Ct. 1069 (2023) (holding that “a party cannot use Rule 36 
to request admissions to legal conclusions”). 
 
 
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Conclusion 
For the reasons set forth above, Defendant Torjagbo is not entitled to 
the relief that he seeks in his Motion for an Order Enforcing Brady v. 
Maryland and the Due Process Protections Act (Doc. 80). Therefore, the 
motion 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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